EXHIBIT 4.1(k)
WAIVER
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WAIVER, dated as of December 18, 2007 (this "Waiver"), to the Second Amended and
Restated Credit Agreement dated as of April 11, 2005, as amended by a Consent
and First Amendment dated as of November 15, 2005 and by a Consent and Second
Amendment dated as of December 27, 2005 (as the same may now exist or may
hereafter be amended, modified, restated or replaced, 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,
N.A., 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
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WHEREAS, the Domestic Borrower has requested that the Required Lenders waive
compliance with Section 6.10(c) of the Credit Agreement for the fiscal quarter
ending October 29, 2007; and
WHEREAS, the Required Lenders are willing to grant such waiver 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. WAIVER
1.1. The Required Lenders hereby waive the application of Section
6.10(c) of the Credit Agreement for the fiscal quarter ended October 29, 2007;
provided that such waiver shall only be effective if the Adjusted Quick Ratio
as of such date was not less than 1.0 to 1.0.
II. MISCELLANEOUS
2.1. As of the effectiveness of this Waiver, the Borrowers, the
Guarantors and the 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.
2.2. Each Borrower and each Guarantor (subject, mutatis
mutandis, to Section 9.17 of the Credit Agreement) hereby represents and
warrants, as of the date hereof, that:
(a) The execution, delivery and performance of each
Borrower, each Guarantor and each Collateral Grantor Subsidiary (as applicable)
of this Waiver and any other agreement, instrument or document executed and
delivered in connection with this Waiver: (i) is within its corporate powers,
(ii) has been duly authorized by all necessary corporate 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;
(b) This Waiver (and the Credit Agreement as effected 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 Waiver, (i) there is no Default;
and (ii) all obligations of the Borrowers, the Guarantors and the Collateral
Grantor Subsidiaries under or in connection with the Credit Agreement, and the
other Credit Documents, are payable in accordance with the terms of the
Credit Agreement, and the other Credit Documents, without any defense,
setoff or counterclaim of any kind; and
(d) The representations and warranties of each Borrower, each
Guarantor and each 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 Waiver, 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.
2.3. 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 Waiver 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).
2.4. 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 Guarantors and the 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 Waiver, the Credit Agreement, and the other Credit Documents. Failure
to comply with any of the foregoing provisions of this Section 2.4 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.
2.5. Each of the parties hereto agree and acknowledge that the
Credit Agreement, and the other Credit Documents (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, shall be deemed to be
references to the Credit Agreement as effected by this Waiver, and as the
same may be further amended, supplemented or otherwise modified from time to
time.
2.6. This Waiver sets forth the entire agreement of the
parties with respect to the subject matter hereof. This Waiver is effective
only with respect to the specific covenant and for the specific date referred
to in Section 1.1 above.
2.7. Neither this Waiver 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.
2.8. This Waiver 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.
2.9. This Waiver 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 Waiver by telecopy shall be as effective as delivery
of a manually executed counterpart of this Waiver.
2.10. This Waiver shall become effective as of the date when
each of the following conditions shall have been satisfied, provided that
such conditions are satisfied on or before December 31, 2007:
(a) The Administrative Agent shall have received counterparts of
(i) this Waiver executed and delivered by the Required Lenders, each of the
Borrowers, the Guarantors and the Administrative Agent; and
(b) All legal matters incident to this Waiver, 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).
The Administrative Agent shall notify the Borrowers, the Guarantors and the
Lenders of the date when the consent embodied herein shall have become
effective, and any such notice shall be conclusive and binding. The
Administrative Agent is authorized to fill in such effective date at the outset
of this Waiver.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed by their respective authorized officers as of the day and year
first above written.
JPMORGAN CHASE BANK, N.A., as a Lender, Issuing Bank and GATTON VOLT CONSULTING GROUP LIMITED
Administrative Agent
By: /s/ Dustin Knoop By: /s/ Howard B. Weinrich
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Name: Dustin Knoop Name: Howard B. Weinrich
Title: Associate Title: Director
MELLON BANK, N.A.., as a Lender VOLT TELECOMMUNICATIONS GROUP, INC.
By: /s/ John T. Smathers By: /s/ Ludwig M. Guarino
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Name: John T. Smathers Name: Ludwig M. Guarino
Title: First Vice President Title: Senior Vice President
WELLS FARGO BANK, N.A.., as a Lender VOLT DIRECTORIES S.A., LTD.
By: /s/ Donald Schwartz By: /s/ Ludwig M. Guarino
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Name: Donald Schwartz Name: Ludwig M. Guarino
Title: Senior Vice President Title: Senior Vice President & Treasurer
LLOYD TSB BANK PLC, as a Lender DATANATIONAL OF GEORGIA, INC.
By: /s/ Carlos Lopez By: /s/ Ludwig M. Guarino
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Name: Carlos Lopez Name: Ludwig M. Guarino
Title: Associate Director Title: Senior Vice President & Treasurer
By: /s/ Deborah Carlson VMC CONSULTING CORPORATION
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Name: Deborah Carlson
Title: Director By: /s/ Ludwig M. Guarino
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Name: Ludwig M. Guarino
Title: Senior Vice President & Treasurer
BANK OF AMERICA, N.A. (successor by DATANATIONAL, INC.
merger to Fleet National Bank), as a Lender
By: /s/ Jana L. Baker By: /s/ Ludwig M. Guarino
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Name: Jana L. Baker Name: Ludwig M. Guarino
Title: Vice President Title: Senior Vice President & Treasurer
VOLT INFORMATION SCIENCES, INC.
By: /s/ Jack Egan
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Name: Jack Egan
Title: Senior Vice President & CFO