Exhibit 4.1(d)
SUBSIDIARY SECURITY AGREEMENT
SUBSIDIARY SECURITY AGREEMENT dated as of April 12, 2002 (this "Agreement")
by and among VOLT TELECOMMUNICATIONS GROUP, INC., a Delaware corporation, VOLT
DELTA RESOURCES, INC., a Nevada 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, a New York banking corporation, as
collateral agent (in such capacity, together with its successors in such
capacity, the "COLLATERAL AGENT") for the benefit of the Secured Creditors (as
defined below). 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 the date hereof (as the same may from time to time be 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. (the "DOMESTIC BORROWER"), Gatton Volt
Consulting Group Limited, the Administrative Agent, and the Lenders;
WHEREAS, the Domestic Borrower may from time to time be a party to one or
more Designated Swap Agreements (with any institution that participates, and in
each case including their respective assigns, as a counterparty to any
Designated Swap Agreement being referred to, collectively, as the "HEDGE
CREDITORS"; and with the Hedge Creditors together with the Administrative Agent,
the Issuing Bank, and the Lenders, being referred to, collectively, as the
"SECURED CREDITORS"; and with the Hedge Creditors intended to benefit hereunder
as herein provided); 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 Secured Creditors, 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 Lenders to enter into the Credit Agreement, and (ii) the Lenders
to make Loans and issue Letters of Credit in accordance with the Credit
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 Secured Creditors, 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 Secured Creditors 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 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 any or
all of the Secured Creditors 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 or all of the Secured Creditors 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 any Designated Swap Agreements), or otherwise (including, without
limitation, any interest and/or 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, any
Designated Swap 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 Secured Creditor 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.
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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 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, xxxx 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 such 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 any 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 Credit Agreement and the Guaranty of
Payment 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
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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.
(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, in whole or in part,
to any Person (other than the Domestic Borrower or one of its Subsidiaries, in
advance of a transfer to a
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Grantor for pledge hereunder), or pledged to any Person other than the
Collateral Agent, and no Person (other than such Grantor) under any Associate
Vendor Payable shall have any right to payment from the account debtor with
respect to the Account in question.
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
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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 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. Collateral 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:
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(a) to ask, demand, collect, xxx 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;
(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 Secured
Creditors) in the Collateral (granted by each Grantor) and shall not impose any
duty upon the Collateral Agent or any Secured Creditor to exercise any such
powers, or any liability upon the Collateral Agent or any Secured Creditor 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 Secured Creditors 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 Secured Creditors 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
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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, xxx for, collect or receive any money or
property at any time payable or receivable on 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
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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
Secured Creditor shall be responsible for any act or omission of any such
Receiver absent the willful misconduct of the Collateral Agent or the 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 Secured Creditor. 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 Secured Creditor, 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 Secured Creditor
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 Secured Creditors. The Secured
Creditors 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 Secured Creditor) 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 Secured Creditors, 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 of the Secured Creditors
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
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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 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 Designated Swap Agreements, 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 Designated Swap Agreements,
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 Secured Creditor 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 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:
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(a) any lack of validity or enforceability of the Credit Agreement, any
Designated Swap Agreement, the Guaranty of Payment, any other Credit Document,
or any other agreement, document or instrument relating thereto;
(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, any Designated
Swap 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 Secured
Creditor that all representations and warranties of such Grantor contained in
this Agreement, any Designated Swap 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
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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.
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 Collateral Agent, the Secured Creditors, 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
12
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 that the Credit
Agreement so requires.
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 Designated Swap Agreements, or any act,
omission or event occurring in connection herewith or therewith; and each
Grantor hereby waives, releases and agrees not to xxx 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.
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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:
DATANATIONAL OF GEORGIA, INC. DATANATIONAL, INC.,
a Georgia corporation a Delaware corporation
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
AGREED
------
JPMORGAN CHASE BANK,
as Collateral Agent
By:
-----------------------------
Name:
Title:
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