SECURITY AGREEMENT
SECURITY AGREEMENT dated as of March 5, 2002 (this "Agreement") by and
among VOLT TELECOMMUNICATIONS GROUP, INC., a Delaware corporation, VOLT DELTA
RESOURCES, INC., a Nevada corporation, VOLT DELTA RESOURCES, INC., a Delaware
corporation, DATANATIONAL, INC., a Delaware corporation, DATANATIONAL OF
GEORGIA, INC., a Georgia corporation, each Person other than the Collateral
Agent (defined below) who from time to time becomes a party hereto
(collectively, hereinafter, the "Grantors" and individually each a "Grantor"),
and JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank), a New York
banking corporation, as collateral agent for the benefit of the Lenders, the
Issuing Bank, the Administrative Agent and the Syndication Agent (in such
capacity, together with its successors in such capacity, the "Collateral
Agent"). Capitalized terms used above or below in this Agreement, and not
otherwise defined herein, are used with the meanings ascribed to them under the
Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Grantors are parties (as "Guarantors") to a Credit Agreement
dated as of September 11, 2001 (as amended by the First Amendment to Credit
Agreement and a Second Amendment dated as of the date hereof (the "Second
Amendment"), and as joined in by certain of the Grantors pursuant to the Second
Amendment, and as the same may from time to time be further amended, extended,
supplemented, restated, joined in, or otherwise modified or replaced, the
"Credit Agreement") among the Grantors, the other "Guarantors" named therein,
Volt Information Sciences, Inc., Gatton Volt Consulting Group Limited, the
Administrative Agent, the Syndication Agent and the Lenders; and
WHEREAS, pursuant to the Credit Agreement, each Grantor is required to
grant, and each Grantor has agreed to grant, assign and pledge to the Collateral
Agent, for the benefit of the Lenders, the Issuing Bank, the Administrative
Agent, the Collateral Agent and the Syndication Agent (the "Lender Group"), a
continuing first and prior security interest in and to all of the Collateral (as
defined below) to secure all of the Obligations (as defined below) of such
Grantor.
NOW, THEREFORE, each Grantor, intending to be bound hereby, in
consideration of the premises hereof, and having induced (i) the Administrative
Agent and the Required Lenders party thereto to enter into the First Amendment
to Credit Agreement, and (ii) the Lenders to continue to make Loans and issue
Letters of Credit in accordance with the Credit Agreement (among other things,
by agreeing to enter into this Agreement), and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each Grantor, hereby agrees with the Collateral Agent, for the benefit of the
Lender Group, as follows:
1. Grant of Security Interest. Each Grantor, to secure its respective
Obligations, hereby assigns, pledges and grants to the Collateral Agent for the
benefit of the Lender Group a continuing first and prior security interest in
and to all of the Grantor's rights, title and interests in and to all of the
following property, rights and interests in property of such Grantor, whether
now owned or existing or hereafter acquired or arising and regardless of where
located and all
Exhibit 4.01(c) 1
products, proceeds, supporting obligations, substitutions, accessions and
replacements thereof (all of the same, with respect to any Grantor, being herein
referred to as the "Collateral"):
With respect to any Grantor, all present and future accounts
receivable, including, without limitation, all rights of the Grantor to receive
any payment for goods sold or leased or for services rendered, whether or not
they have been earned by performance (collectively, the "Accounts"); in each
case whether constituting an "account", "payment intangible", other "general
intangible", or "instrument" under (and as defined in) the New York Uniform
Commercial Code (the "UCC"); all to the extent that the account debtor under any
Account is a Person that is or was at the time the Account was created (x)
organized or existing under the laws of the United States or any state or
territory thereof or (y) doing business in the United States or any of its
territories.
2. Security for Obligations. The foregoing grant of a security interest in
and to the Collateral secures the full and prompt payment and performance when
due of (a) all obligations and liabilities of the respective Grantor to the
Administrative Agent, the Collateral Agent, the Syndication Agent, the Issuing
Bank and/or any Lender now or hereafter existing under, arising under or related
to this Agreement, including, but not limited to, any amounts advanced or
incurred by the Collateral Agent in maintaining or preserving any Collateral or
otherwise in connection with this Agreement, and (b) all obligations and
liabilities, owing to any member of the Lender Group from or by the respective
Grantor, of any kind or nature whatsoever, present or future, however created,
incurred, acquired or owing, whether for principal, interest, fees,
indemnification, expenses (including, without limitation, any attorneys' fees
incurred in connection with administering or enforcing any of the Credit
Documents), or otherwise (including, without limitation, any interest on any of
the other foregoing items accrued after the commencement of any bankruptcy or
similar proceeding by or against any Grantor), whether or not evidenced by any
note, guaranty or other instrument; provided that the same arises under or
relates to the Credit Agreement, the Guaranty of Payment or any of the other
Credit Documents to which such Grantor is a party or by which it is bound (all
such obligations and liabilities of each Grantor described above in this
paragraph 2 being herein collectively referred to as the "Obligations").
3. Grantors Remains Liable. Anything herein to the contrary
notwithstanding, (a) each Grantor shall remain liable under any contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Collateral Agent of any
of the rights hereunder shall not release any Grantor from any of its duties or
obligations under any contracts and agreements included in the Collateral, and
(c) neither the Collateral Agent nor any Lender (nor any other member of the
Lender Group) shall have any obligation or liability under any contracts and
agreements included in the Collateral by reason of this Agreement, nor shall any
of them be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
4. Further Assurances. (a) Each Grantor hereby agrees that from time to
time, at the expense of such Grantor, such Grantor will promptly execute and
deliver all further instruments and documents, and take all further action, that
the Collateral Agent may reasonably request, in
Exhibit 4.01(c) 2
order to create, evidence, perfect or preserve any security interest granted or
purported to be granted hereby or to enable the Collateral Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, each Grantor will: (i) at the
written request of the Collateral Agent upon the occurrence and continuation of
an Event of Default, mark conspicuously each of its documents and other records
pertaining to the Collateral, with a legend, in form and substance satisfactory
to the Collateral Agent, indicating that such Collateral is subject to the
security interest granted hereby; and (ii) at the written request of the
Collateral Agent, if any Account shall be evidenced by a promissory note or
other instrument, deliver and pledge to the Collateral Agent, such note or
instrument duly endorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the Collateral
Agent.
(b) Each Grantor hereby authorizes the Collateral Agent to file one
or more financing or continuation statements, and amendments thereto (including,
without limitation, any filings with any office or agency of the United States
or any state or territory thereof or in any other appropriate jurisdiction)
relative to all or any part of the Collateral without the signature of such
Grantor, where permitted by law. Each Grantor hereby agrees that a carbon,
photographic, photostatic or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement where permitted by
law. Each Grantor hereby agrees to execute any such statement or amendment
where, in accordance with applicable law, such signature may be necessary or
appropriate in connection with any such filing.
(c) Each Grantor will furnish to the Collateral Agent (i) not later
than twelve (12) days after the end of each calendar month, a summary aging
report of all Accounts and a specific listing with respect to each Grantor's ten
(10) largest account debtors, and (ii) such other reports and schedules, as the
Collateral Agent may reasonably request, in connection with any or all of the
Collateral, all in detail, form and substance satisfactory to the Collateral
Agent. Upon the occurrence and during the continuance of an Event of Default,
the Collateral Agent shall be entitled to obtain any information, however
detailed, which it may request with regard to the Collateral, and to take any
steps necessary to monitor and verify all agings and other matters with respect
thereto. Each Grantor will permit the Collateral Agent, by any of its officers,
employees and/or designated agents, at any time or times during such Grantor's
usual business hours (upon reasonable prior notice, which will be deemed to be
one (1) Business Day if Event of Default has occurred and is continuing), to
inspect, investigate and/or conduct audits with respect to the Collateral, at
such Grantor's sole expense.
5. Representations and Warranties: General. In addition to the
representations and warranties made in the Second Amendment and the Restated
Guaranty (as defined in the Second Amendment), each Grantor hereby represents
and warrants, as follows:
(a) Such Grantor is duly incorporated or otherwise organized, and
existing, under the laws of the state set forth in Schedule A attached hereto.
The principal place of business and chief executive office of such Grantor is
located at the address identified as such on Schedule A attached hereto and all
records concerning the Collateral are located at the addresses specified in said
Schedule A. The exact legal name of each Grantor is as set forth on the
signature page to this Agreement, unless otherwise noted on said Schedule A.
Exhibit 4.01(c) 3
(b) Such Grantor has good, indefeasible and merchantable title to
the Collateral. Such Grantor owns the Collateral free and clear of any lien,
security interest, charge or encumbrance, except for the (i) security interests
in favor of the Collateral Agent created by this Agreement, and (ii) other
encumbrances permitted under the Credit Agreement. Except (i) as are being
terminated on or prior to the date hereof, and (ii) such as may have been filed
in favor of the Collateral Agent, no effective financing statement or other
instrument similar in effect covering all or any part of the Collateral is on
file in any recording or filing office in the United States.
(c) This Agreement, together with actions heretofore taken and the
proper filing of the UCC financing statements pertaining to the Collateral,
creates a valid and perfected first priority security interest in all Collateral
of such Grantor located in or arising from the United States or any state or
territory thereof, securing the payment of the Obligations of such Grantor, and
all filings and other actions necessary to create, evidence, perfect and
preserve such security interest (save for the timely filing of UCC-1 financing
statements and all continuation statements or other statements required by
applicable law) have been duly taken.
(d) Except as set forth on Schedule B attached hereto and made a
part hereof, during the five (5) years immediately preceding the date of this
Agreement, such Grantor has had no other company names or fictitious names or
been known under or used any other company or fictitious names.
(e) Neither the execution or delivery of this Agreement, nor the
consummation of the granting and perfection of the security interests
contemplated hereby, nor the compliance with or performance of the terms and
conditions of this Agreement by such Grantor is prevented by, limited by,
conflicts with or will result in the breach or violation of or a default under
the terms, conditions or provisions of (i) the by-laws or any other
organizational document with respect to such Grantor or other agreement among
the shareholders of such Grantor, (ii) any mortgage, security agreement,
indenture, evidence of indebtedness, loan or financing agreement, trust
agreement, license agreement or any other agreement or instrument to which such
Grantor is a party or by which it is bound, or (iii) any provision of law, any
order of any court or administrative agency or any rule or regulation applicable
to such Grantor.
6. Representations and Warranties: Accounts. As of the time when any
Account of any particular Grantor arises, such Grantor shall be deemed to have
represented and warranted with respect to such Account that:
(a) it will not be evidenced by a judgment and will represent a bona
fide transaction contemplated in accordance with the terms and provisions
contained in any agreements evidencing or relating to such Collateral; and
(b) it will not have been transferred or assigned to any Person
(other than the Domestic Borrower or one of its Subsidiaries, in advance of a
transfer to a Grantor for pledge hereunder), or pledged to any Person other than
the Collateral Agent.
Exhibit 4.01(c) 4
7. Intentionally omitted.
8. Covenants: General. Without limiting the agreements and covenants
contained in the Credit Agreement or in any other Credit Document to which such
Grantor is a party, each Grantor hereby covenants and agrees with the Collateral
Agent that:
(a) Unless all steps have been taken which will at all times (after
the change in question) preserve the Collateral Agent's first priority projected
security interest in all Collateral being provided by such Grantor, it shall not
(i) change the state in which such Grantor is incorporated or organized, or (ii)
change such Grantor's name (Schedule A hereto shall be deemed to have been
amended automatically upon a change effected in compliance with the foregoing
sentence.)
(b) It shall preserve and maintain the security interest created by
this Agreement and will protect and defend its title to the Collateral so that
the security interest so granted shall be and remain a continuing first and
prior perfected security interest in the Collateral. Such Grantor will not
create, assume or suffer to exist any security interest or other lien or
encumbrance in the Collateral, except for the security interest created by this
Agreement or as otherwise permitted under the Credit Agreement.
(c) Such Grantor shall maintain books and records pertaining to the
Collateral in accordance with GAAP and in such detail, form and scope as the
Collateral Agent may reasonably require.
(d) Such Grantor shall execute such other documents as may be
reasonably requested by the Collateral Agent in order to effectuate the security
interests granted herein.
9. Covenants Regarding Collateral. Each Grantor shall comply with the
following covenants regarding Collateral:
(a) Such Grantor shall keep its principal place of business and
chief executive office and the office where it keeps its records concerning the
Collateral, and the offices where it keeps all originals of all documents
evidencing or relating to any or all Collateral, at the location therefor
specified in Section 5(a) hereof or, upon the Collateral Agent's actual receipt
of at least thirty (30) days' prior written notice to the Collateral Agent, at
other locations in the United States, which notice (once received) will be
deemed to automatically update Schedule A hereto, and Section 5(a) hereof.
(b) Except as otherwise provided in this Section 9(b), such Grantor
shall continue to collect, at its own expense, all amounts due or to become due
to such Grantor under its Accounts. In connection with such collections, such
Grantor may take (and, at the Collateral Agent's direction, shall take) such
action as such Grantor or the Collateral Agent may deem necessary or advisable
to enforce collection of the Accounts; provided, however, that upon the
occurrence and at any time thereafter during the continuation of an Event of
Default, the Collateral Agent shall have the right to enforce such Grantor's
rights against any account debtors or other obligors relating to the Collateral
including, but not limited to, the right to notify the
Exhibit 4.01(c) 5
account debtors or obligors under any Collateral of the security interest in the
Collateral granted to the Collateral Agent and to direct such account debtors or
obligors to make payment of all amounts due or to become due to such Grantor
thereunder directly to the Collateral Agent. In such event, upon notice to such
Grantor, and at the sole expense of such Grantor, the Collateral Agent may
enforce collection of any such Collateral, and adjust, settle or compromise the
amount or payment thereof, in the same manner and to the same extent as such
Grantor might have done. After receipt by such Grantor of the notice from the
Collateral Agent referred to in the preceding sentence: (i) all amounts and
proceeds (including instruments) received by such Grantor in respect of any
Collateral shall be received in trust for the benefit of the Collateral Agent,
shall be segregated from other funds of such Grantor and shall be forthwith paid
over to the Collateral Agent in the same form as so received (with any necessary
endorsement); and (ii) such Grantor shall not adjust, settle or compromise the
amount or payment of any Account, or release wholly or partly any account debtor
or obligor thereof, or allow any credit or discount thereon.
10. Intentionally omitted.
11. Intentionally omitted.
12. Transfers and Other Liens. No Grantor may, unless the Collateral Agent
shall have provided its prior written consent thereto, which consent shall be
given or withheld in the Collateral Agent's sole discretion:
(a) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral, except as expressly permitted under the Credit
Agreement; or
(b) create or suffer to exist any Lien, security interest or other
charge or encumbrance upon or with respect to any of the Collateral, other than
the security interest in favor of the Collateral Agent pursuant to this
Agreement and any other encumbrance permitted under the Credit Agreement.
13. Administrative Agent Appointed Attorney-in-Fact. Upon the occurrence
and during the continuation of an Event of Default, each Grantor hereby
irrevocably appoints the Collateral Agent (and any officer or agent of the
Collateral Agent with full power of substitution and revocation) as such
Grantor's attorney-in-fact (coupled with an interest), with full authority in
the place and stead of such Grantor and in the name of such Grantor or
otherwise, from time to time in the Collateral Agent's discretion, to take any
action and to execute any instrument which the Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation:
(a) to ask, demand, collect, sue for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a) above;
Exhibit 4.01(c) 6
(c) to file any claims or take any action or institute any
proceedings which the Collateral Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of the
Collateral Agent with respect to any of the Collateral; and
(d) to discharge any lien or encumbrance on or against the
Collateral or bond the same.
14. Collateral Agent May Perform Agreements. If any Grantor fails to
perform any agreement contained herein, the Collateral Agent may, after five
day's notice to such Grantor (unless the Collateral Agent deems it necessary to
take more immediate action), itself perform, or cause performance of, such
agreements, and the reasonable out-of-pocket expenses of the Collateral Agent
incurred in connection therewith shall be payable by such Grantor under Section
18(b) hereof (including, without limitation, the reasonable fees and
disbursements of counsel); provided, however, that any such action by the
Collateral Agent shall not be deemed to be a waiver of any Event of Default or
Default, which may have resulted from such Grantor's failure to perform any such
agreement.
15. Collateral Agent's Duties. The powers conferred on the Collateral
Agent hereunder are solely to protect its interest (and the interests of the
other members of the Lender Group) in the Collateral (granted by each Grantor)
and shall not impose any duty upon the Collateral Agent or other member of the
Lender Group to exercise any such powers, or any liability upon the Collateral
Agent or any other member of the Lender Group upon the exercise of any such
powers. Except for the safe custody of any Collateral in their possession and
the accounting for moneys actually received by any of them pursuant to the
Collateral Agent's exercise of remedies hereunder, the Collateral Agent and the
other members of the Lender Group shall have no duty as to any Collateral or as
to the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. The Collateral Agent and the
other members of the Lender Group shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in their possession if
the Collateral is accorded treatment substantially equal to that which the
Collateral Agent or any other such Person respectively accords its own property.
16. Remedies Upon Default. If any Event of Default shall have occurred and
be continuing:
(a) The Collateral Agent may exercise in respect of any Collateral
(granted by any or all of the Grantors), in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party under the UCC and/or any other applicable law and/or
in equity and also may do any or all of the following, whether separately,
successively, or simultaneously, all to the extent permitted under the UCC, any
other applicable law and/or the Credit Agreement:
(i) In the name of the Collateral Agent, or in the name of any
Grantor, or otherwise, enforce each Grantor's rights against any account debtor
or other obligor, and may demand, sue for, collect or receive any money or
property at any time payable or receivable on
Exhibit 4.01(c) 7
account of or in exchange for, or make any compromise or settlement deemed
desirable with respect to, any of the Collateral, but the Collateral Agent shall
be under no obligation so to do, and the Collateral Agent, may extend the time
of payment, arrange for payment in installments, or otherwise modify the terms
of, or release, any of the Collateral without thereby incurring responsibility
to, or discharging or otherwise affecting any liability of, any Grantor.
(ii) Subject to applicable law and the terms of any lease
agreement that may apply, enter upon any premises where any Collateral may be,
and take possession thereof, and maintain such possession on the applicable
Grantor's premises, or demand and receive such possession from any Person who
has possession thereof, or remove the Collateral or any part thereof, to such
other places as the Collateral Agent may desire, without any obligation to pay
such Grantor for any use and occupancy of such premises.
(iii) Require any Grantor to, and each Grantor hereby agrees
that it will at its expense and upon request of the Collateral Agent forthwith,
assemble all or part of the Collateral as directed by the Collateral Agent and
make it available to the Collateral Agent at a place to be designated by the
Collateral Agent which is reasonably convenient to both parties.
(iv) Without notice except as specified below and with or
without taking the possession thereof, sell, assign, grant an option or options
to purchase or otherwise dispose of the Collateral or any part thereof in one or
more parcels at public or private sale, at any location chosen by the Collateral
Agent, for cash, on credit or for future delivery, and at such price or prices
and upon such other terms as the Collateral Agent may deem commercially
reasonable. Each Grantor hereby agrees that, to the extent notice of sale shall
be required by law, at least seven (7) Business Days' notice to such Grantor of
the time and place of any public sale or the time after which any private sale
is to be made shall constitute reasonable notification, but notice given in any
other reasonable manner or at any other reasonable time shall constitute
reasonable notification. The Collateral Agent shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The
Collateral Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned. Each
Grantor hereby agrees that the Collateral Agent shall have no obligation to
preserve rights in the Collateral against prior parties or to marshal any
Collateral for the benefit of any Person.
(v) Whether or not any Obligations shall have matured or shall
have been accelerated pursuant to the Credit Agreement or otherwise, the
Collateral Agent may in addition to any other rights it may have under this
Agreement or otherwise, appoint by instrument in writing a receiver or receiver
and manager (both of which are herein called a "Receiver") of all or any part of
the Collateral or may institute proceedings in any court of competent
jurisdiction for the appointment of such a Receiver. Any such Receiver is hereby
given and shall have the same powers and rights as the Collateral Agent has
under this Agreement, at law or in equity. In exercising any such powers, any
such Receiver shall act as, and for all purposes shall be deemed to be, the
agent of the applicable Grantor and neither the Collateral Agent nor any other
member of the Lender Group shall be responsible for any act or omission of any
such Receiver absent the willful misconduct of the Collateral Agent or the
Exhibit 4.01(c) 8
Receiver. The Collateral Agent may appoint one or more Receivers hereunder and
may remove any such Receiver or Receivers and appoint another or other in his or
their stead from time to time. Any Receiver so appointed may be an officer or
employee of the Collateral Agent or any Lender. Each Grantor agrees that any
Receiver appointed by the Collateral Agent need not be appointed by, nor is his
appointment required to be ratified by, nor his actions in any way supervised
by, a court.
(vi) Apply, without notice, any cash or cash items
constituting Collateral in the possession of the Collateral Agent or any other
member of the Lender Group, in a manner consistent with the Credit Agreement, to
payment of any of the Obligations. Each Grantor hereby waives, to the extent
permitted by applicable law, all rights of such Grantor to prior notice and
hearing under any applicable statute or constitution (in the case of such notice
only, to the extent that such statute or constitution gives rights as to notice
that are greater than are provided for herein or provides for any notice period
when none is otherwise provided for herein).
(b) All cash proceeds received by the Collateral Agent under
foregoing subsection (a), in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral granted by any or all of the
Grantors may, in the discretion of the Collateral Agent, be held by the
Collateral Agent as Collateral for, and/or may then or at any time thereafter be
applied (after payment of any amounts payable to the Collateral Agent or any
other member of the Lender Group pursuant to Section 18 hereof) in whole or in
part by the Collateral Agent against all or any part of the Obligations, in such
order as the Collateral Agent shall elect consistent with any requirements in
the Credit Agreement. Any surplus of such cash or cash proceeds held by the
Collateral Agent and remaining after payment in full of all the Obligations
shall be paid over to the applicable Grantor or Grantors or to whomsoever may be
lawfully entitled to receive such surplus.
17. Collateral Agent to Act on Behalf of the Lenders. The Lenders (as well
as the Issuing Bank, the Administrative Agent and the Syndication Agent) agree,
by their acceptance of the benefits hereof, that this Agreement may be enforced
on their behalf only by the actions of the Collateral Agent, acting upon the
instructions of the Required Lenders, and that none of the Lenders (nor any
other member of the Lender Group) shall have any right to seek to enforce this
Agreement or to realize upon the security granted hereby, it being understood
and agreed that such rights and remedies may be exercised by the Collateral
Agent, for the benefit of the Lender Group, upon the terms of this Agreement.
18. Indemnity and Expenses. (a) Each Grantor agrees to defend, protect,
indemnify and hold harmless the Collateral Agent, each Lender, the Issuing Bank,
the Administrative Agent and the Syndication Agent and each employee, officer,
director, agent, professional person, successor and assignee of each of them and
each of their respective Affiliates and subsidiaries (all of the foregoing
collectively referred to herein as the "Indemnitees") from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgment,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, the reasonable out-of-pocket fees and
disbursements of counsel for the Collateral Agent and the other Indemnitees,
incurred in connection with any action or proceeding between any Grantor
Exhibit 4.01(c) 9
and any Indemnitee or between any Indemnitee and any third party or otherwise,
with respect to any investigative, administrative or judicial proceeding,
whether or not such Indemnitee shall be designated a party thereto), imposed on,
incurred by, or asserted against such Indemnitee (whether direct, indirect,
economic, special, punitive, treble or consequential and whether based on any
federal, state, local or foreign laws or other statutory regulations, including,
without limitation, Environmental Laws, securities and commercial laws and
regulations, under common law or equitable principles) in any manner relating to
or arising out of this Agreement, the Collateral or any of the Obligations of
such Grantor, or any act, event or transaction related or attendant thereto or
contemplated hereby, or any action or inaction by any Indemnitee hereunder or in
connection therewith, including, in each such case, any allegation of any such
matters, whether meritorious or not (collectively, the "Indemnified Matters");
provided, however, that no Grantor shall have any obligation to any Indemnitee
hereunder with respect to Indemnified Matters resulting from the gross
negligence or willful misconduct of such Indemnitee. The covenants of each
Grantor contained in this Section 18(a) shall survive the payment in full of all
amounts due and payable under this Agreement, the Credit Agreement, the Guaranty
of Payment and the other Credit Documents, and the full satisfaction of all
other Obligations, and are in addition to, and cumulative with respect to, all
other indemnities contained in the Credit Agreement, the Guaranty of Payment or
any of the other Credit Documents.
(b) Each Grantor will, upon demand, pay to the Collateral Agent the
amount of any and all expenses, including the reasonable out-of-pocket fees and
disbursements of the Collateral Agent's and of any experts and agents
(including, without limitation, any Affiliates of the Collateral Agent), which
the Collateral Agent and each Lender may incur in good faith in connection with
(i) the administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any of
the Collateral, including, without limitation, any and all amounts paid by or on
behalf of the Collateral Agent in respect of returned and uncollected checks and
drafts pursuant to Section 9(b) hereof, (iii) all out-of-pocket costs and
expenses in connection with the audits, inspections and investigations conducted
by the Collateral Agent pursuant to Section 4(c) hereof, (iv) the exercise or
enforcement of any of the rights of the Collateral Agent hereunder, including,
without limitation, any and all audits with respect to the Collateral conducted
by or on behalf of the Collateral Agent or any Lender pursuant to Section 4(c)
hereof, or (v) the failure by such Grantor to perform or observe any of the
provisions hereof; provided, however that such Grantor shall not have any
obligation to the Collateral Agent to pay such costs or expenses if such costs
or expenses were incurred directly due to the Collateral Agent's or any such
other Person's gross negligence or willful misconduct.
19. Security Interests Absolute. All rights of the Collateral Agent and
the security interests granted hereunder, and all obligations of each Grantor
hereunder, shall be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of the Credit Agreement,
the Guaranty of Payment, any other Credit Document, or any other agreement,
document or instrument relating thereto;
Exhibit 4.01(c) 10
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations or any other amendment or waiver
of, or any consent to any departure from, the Credit Agreement, the Guaranty of
Payment or any other Credit Document;
(c) any exchange, release or non-perfection of any portion of the
Collateral or any other collateral held by the Collateral Agent or any release
or amendment or waiver of, or consent to any departure from, any guaranty for
all or any of the Obligations; and
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, such Grantor in respect of the
Obligations or otherwise with respect to this Agreement.
20. Survival of Representations and Warranties. Each Grantor hereby
covenants, warrants and represents to the Collateral Agent and each other member
of the Lender Group that all representations and warranties of such Grantor
contained in this Agreement, the Guaranty of Payment, and/or in any other Credit
Document are true and correct at the time of such Grantor's execution of this
Agreement, shall survive the execution, delivery and acceptance hereof and
thereof, as applicable, by the parties hereto and thereto, and shall continue in
effect until: (i) Obligations have been indefeasibly paid and satisfied in full
and the Commitments have been terminated, or (ii) until the earlier termination
of the security interests granted hereby.
21. Waiver by the Collateral Agent. The Collateral Agent's failure, at any
time or times, to require strict performance by any Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the Collateral
Agent thereafter to demand strict compliance and performance therewith. Any
suspension or waiver by the Collateral Agent of an Event of Default or a Default
shall not suspend, waive or affect any other Event of Default, a Default,
whether the same is prior or subsequent thereto and whether of the same or of a
different type. None of the undertakings, agreements, warranties, covenants and
representations of any Grantor contained in this Agreement and no Event of
Default or Default shall be deemed to have been suspended or waived by the
Collateral Agent, unless such suspension or waiver is by an instrument in
writing signed by an officer of the Collateral Agent and directed to one or more
of the Grantors specifying such suspension or waiver.
22. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
23. Provisions Reasonable. Each Grantor hereby expressly acknowledges and
agrees that the provisions of this Agreement and, in particular, those
respecting remedies and powers of the Collateral Agent against such Grantor, its
business and the Collateral upon the occurrence of any Event of Default, are
commercially reasonable and not manifestly unreasonable.
24. Intentionally Omitted.
Exhibit 4.01(c) 11
25. Addresses for Notices. Each notice to, and each demand upon, any
Grantor by the Collateral Agent relating to this Agreement and each notice to,
and each demand upon, the Collateral Agent by any Grantor relating to this
Agreement and any notice to the Collateral Agent of the bankruptcy, insolvency
or consummation of any other similar proceeding of any Grantor, shall
specifically refer to this Agreement, and shall be in writing (including
facsimiles) and shall be given and deemed to have been given in accordance with
Section 9.01 of the Credit Agreement.
26. Continuing Security Interest; Assignments. This Agreement shall create
a continuing security interest in the Collateral granted by each of the Grantors
and shall (i) remain in full force and effect until the Obligations are
indefeasibly paid and satisfied in full and the Commitments are terminated, (ii)
be binding upon each Grantor, its respective successors and assigns, and all
other Persons who become bound as a debtor to this Agreement and (iii) inure,
together with the rights and remedies of the Collateral Agent hereunder, to the
benefit of the members of the Lender Group and their respective successors,
transferees and assigns. Each Grantor's successors and assigns shall include,
without limitation, a receiver, trustee or debtor-in-possession thereof or
therefor. When the Obligations have been indefeasibly paid and satisfied in full
and are no longer outstanding, the security interests granted hereby shall
terminate and all rights to the Collateral granted by each of the Grantors shall
revert to the Grantors. Upon any such termination, the Collateral Agent will, at
the Grantors' expense, execute and deliver to the Grantors such documents as the
Grantors shall reasonably request to evidence such termination.
27. Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive, internal laws of the State of New York, without
regard to its principles of conflicts of law other than ss.5-1401 of the New
York General Obligations Law.
28. CONSENT TO JURISDICTION AND SERVICE OF PROCESS: WAIVER OF JURY TRIAL.
THE GRANTORS AND THE COLLATERAL AGENT AGREE THAT SECTIONS 9.09 AND 9.10 OF THE
CREDIT AGREEMENT SHALL APPLY, MUTATIS MUTANDIS, WITH RESPECT TO ANY LITIGATION
BASED ON OR ARISING UNDER THIS AGREEMENT, AND SUCH SECTIONS ARE INCORPORATED BY
REFERENCE HEREIN.
29. Modification of Agreement. This Agreement may not be modified,
amended, discharged or waived, in whole or in part, except by a writing signed
by each of the parties hereto, and any such amendment, modification, discharge
or waiver shall only be effective in the specific instance where it is made. No
statement, promise or representation as to the enforceability, validity or
intent of the Collateral Agent to enforce this Agreement or any of its terms,
has been made by the Collateral Agent or any Person acting or purporting to act
on its behalf, and each of the Grantors expressly acknowledges that it has not
relied on any such statement, promise or representation in entering into or
executing this Agreement. The Collateral Agent shall not be required to enter
into or to make or give any consent, amendment, modification, discharge or
waiver under this Agreement unless it has received the consent of the Required
Lenders, or of all the Lenders where the Collateral Agent has reasonably
determined
Exhibit 4.01(c) 12
that the matter in question would require unanimity under customary practices
for syndicated financings of this type.
30. Conflicts. Notwithstanding anything in this Agreement to the contrary,
in the event of an actual conflict between this Agreement, on the one hand, and
the Credit Agreement or the Guaranty of Payment, on the other, the provisions of
the Credit Agreement or the Guaranty of Payment shall govern to the extent of
such conflict.
31. Limitation of Liability. No claim may be made by any Grantor or any
other Person against any Indemnitee for any special, indirect, consequential,
punitive or treble damages in respect of any claim for breach of contract or any
other theory of liability arising out of or related to the transactions
contemplated by this Agreement, the Guaranty of Payment, the Credit Agreement or
any other Credit Documents, or any act, omission or event occurring in
connection herewith or therewith; and each Grantor hereby waives, releases and
agrees not to sue upon any claim for any and all special, indirect,
consequential, punitive or treble damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
32. Headings; Construction. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine, and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise: (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time joined in, amended, supplemented or otherwise modified (except
where such joinder, amendment, supplement or modification is not permitted
hereunder without the Collateral Agent's consent and such consent has not been
obtained); (b) any reference herein to any Person shall be construed to include
such Person's heirs, administrators, executors, successors and assigns; (c)
unless otherwise stated, the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof; and (d) unless otherwise stated, all
references herein to Sections, Exhibits and Schedules shall be construed to
refer to Sections of, and Exhibits and Schedules to, this Agreement.
Exhibit 4.01(c) 13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers there into duly
authorized as of the date first above written.
VOLT TELECOMMUNICATIONS GROUP, INC. VOLT DELTA RESOURCES, INC.,
a Delaware corporation a Nevada corporation
By: By:
----------------------------------- -------------------------------
Name: Name:
Title: Title:
VOLT DELTA RESOURCES, INC., DATANATIONAL, INC.,
a Delaware corporation a Delaware corporation
By: By:
----------------------------------- -------------------------------
Name: Name:
Title: Title:
DATANATIONAL OF GEORGIA, INC.,
a Georgia corporation
By:
-----------------------------------
Name:
Title:
AGREED
JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank),
as Collateral Agent
By:
-----------------------------------
Name:
Title:
Exhibit 4.01(c) 14
SCHEDULE A
ADDRESSES OF GRANTORS
CHIEF EXECUTIVE PRINCIPAL PLACE LOCATION
GRANTOR OFFICE OF BUSINESS OF RECORDS
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Volt Delta Resources, Inc., 560 Lexington Avenue 560 Lexington Avenue 560 Lexington Avenue
a Nevada corporation New York, NY 10022 14th Floor 14th Floor
New York, NY 10022 New York, NY 10022
- ------------------------------------------------------------------------------------------------------------------------------------
Volt Delta Resources, Inc., 560 Lexington Avenue 560 Lexington Avenue 560 Lexington Avenue
a Delaware corporation New York, NY 10022 14th Floor 14th Floor
New York, NY 10022 New York, NY 10022
- ------------------------------------------------------------------------------------------------------------------------------------
Data National, Inc., 560 Lexington Avenue 3800 Concorde Parkway 3800 Concorde Parkway
a Delaware corporation New York, NY 10022 Suite 500 Suite 500
Chantilly, VA 20151 Chantilly, VA 20151
- ------------------------------------------------------------------------------------------------------------------------------------
Exhibit 4.01(c) 15
CHIEF EXECUTIVE PRINCIPAL PLACE LOCATION
GRANTOR OFFICE OF BUSINESS OF RECORDS
- ------------------------------------------------------------------------------------------------------------------------------------
DataNational of Georgia, Inc., 560 Lexington Avenue 3800 Concorde Parkway 3800 Concorde Parkway
a Georgia corporation New York, NY 10022 Suite 500 Suite 500
Chantilly, VA 20151 Chantilly, VA 20151
- ------------------------------------------------------------------------------------------------------------------------------------
Volt Telecommunications Group, Inc., 560 Lexington Avenue (1) 6801 Lake Worth Road Volt Accounting Center
a Delaware corporation New York, NY 10022 Suite 314 2421 North Glassell Street
Lake Worth, FL 33467 Orange, CA 92865
(2) 415 North Smith Avenue
Corona, CA 92879
- ------------------------------------------------------------------------------------------------------------------------------------
Exhibit 4.01(c) 16
SCHEDULE B
FICTITIOUS NAMES
GRANTOR NAMES
- ------------------------------------------------------------------------------------------------------------------
Volt Delta Resources, Inc., MAINTECH
a Nevada corporation VOLT DELTA RESOURCES (NEVADA)
- ------------------------------------------------------------------------------------------------------------------
Volt Delta Resources, Inc.,
a Delaware corporation MAINTECH
- ------------------------------------------------------------------------------------------------------------------
DataNational, Inc.,
a Delaware corporation COMMUNITY PHONE BOOKS
- ------------------------------------------------------------------------------------------------------------------
DataNational of Georgia, Inc., a Georgia corporation COMMUNITY PHONE BOOKS
- ------------------------------------------------------------------------------------------------------------------
Volt Telecommunications Group, Inc.,
a Delaware corporation VOLTELCON
- ------------------------------------------------------------------------------------------------------------------
Exhibit 4.01(c) 17