Exhibit 4.1(c)
VOLT SECURITY AGREEMENT
VOLT SECURITY AGREEMENT dated as of April 12, 2002 (this "AGREEMENT") by
and between VOLT INFORMATION SCIENCES, INC., a New York corporation, (the
"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 Grantor is a party (as "Domestic Borrower") 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 Grantor, Gatton Volt Consulting
Group Limited, the "Guarantors" named therein, the Administrative Agent, and the
Lenders;
WHEREAS, the Grantor 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, the Grantor is required to
grant, and the 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 the Grantor.
NOW, THEREFORE, the 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 the Grantor, hereby agrees with the Collateral Agent, for
the benefit of the Secured Creditors, as follows:
1. Grant of Security Interest. The Grantor, to secure its 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 the 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 being herein referred to as the
"COLLATERAL"):
The promissory note dated April 12, 2002 made by Volt Funding Corp., a
Delaware corporation ("VOLT FUNDING"), payable to the Grantor, issued pursuant
to that certain Receivables Sale and Contribution Agreement dated as of April
12, 2002 between the Grantor, as seller, and Volt Funding, as buyer (the "BUYER
NOTE"), whether constituting an account, an instrument, a payment intangible or
another general intangible.
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 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 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 the 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,
or any of the other Credit Documents to which the Grantor is a party or by which
it is bound (all such obligations and liabilities of the Grantor described above
in this paragraph 2 being herein collectively referred to as the "OBLIGATIONS").
3. Grantor Remains Liable. Anything herein to the contrary notwithstanding,
(a) the 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 the 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 the Grantor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
4. Further Assurances. (a) The Grantor hereby agrees that from time to
time, at the expense of the Grantor, the 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, the Grantor will ▇▇▇▇ the Buyer Note with a legend,
in form and substance satisfactory to the Collateral Agent, indicating that the
Collateral is subject to the security interest granted hereby.
(b) The Grantor hereby authorizes the Collateral Agent to file one or
more financing or continuation statements, and amendments thereto (including,
without limitation, any
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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 the Grantor, where permitted by law. The
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. The 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) The 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. The Grantor will permit the Collateral Agent, by any of its
officers, employees and/or designated agents, at any time or times during the
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 the Grantor's sole expense.
5. Representations and Warranties: General. In addition to the
representations and warranties made in the Credit Agreement the Grantor hereby
represents and warrants, as follows:
(a) The 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 the 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 the Grantor is as set forth on the signature
page to this Agreement, unless otherwise noted on said Schedule A.
(b) The Grantor has good, indefeasible and merchantable title to the
Collateral. The 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
located in or arising from the United States or any state or territory thereof,
securing the payment of the Obligations of the 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.
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(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, the 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 the 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 the Grantor or other agreement among the
shareholders of the 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 the 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 the Grantor.
6. Intentionally Omitted.
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 the
Grantor is a party, the 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 the Grantor, it shall not
(i) change the state in which the Grantor is incorporated or organized, or (ii)
change the 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. The 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) The 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) The Grantor shall execute such other documents as may be reasonably
requested by the Collateral Agent in order to effectuate the security interests
granted herein.
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9. Covenants Regarding Collateral. The Grantor shall comply with the
following covenants regarding Collateral:
(a) The 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), the Grantor shall
continue to collect, at its own expense, all amounts due or to become due to the
Grantor under the Buyer Note. In connection with such collections, the Grantor
may take (and, at the Collateral Agent's direction, shall take) such action as
the Grantor or the Collateral Agent may deem necessary or advisable to enforce
collection of the Buyer Note; 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 the Grantor's rights against
Volt Funding or any other obligors relating to the Collateral including, but not
limited to, the right to notify Volt Funding and any other obligors under any
Collateral of the security interest in the Collateral granted to the Collateral
Agent and to direct Volt Funding and/or such other obligors to make payment of
all amounts due or to become due to the Grantor thereunder directly to the
Collateral Agent. In such event, upon notice to the Grantor, and at the sole
expense of the 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 the Grantor might have done. After
receipt by the Grantor of the notice from the Collateral Agent referred to in
the preceding sentence: (i) all amounts and proceeds (including instruments)
received by the 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
the Grantor and shall be forthwith paid over to the Collateral Agent in the same
form as so received (with any necessary endorsement); and (ii) the 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. The Grantor may not, 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
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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, the Grantor hereby irrevocably
appoints the Collateral Agent (and any officer or agent of the Collateral Agent
with full power of substitution and revocation) as the Grantor's
attorney-in-fact (coupled with an interest), with full authority in the place
and stead of the Grantor and in the name of the 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, ▇▇▇ 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 the Grantor fails to
perform any agreement contained herein, the Collateral Agent may, after five
day's notice to the 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 the 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 the 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 the 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
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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, 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 the
Grantor, or otherwise, enforce the Grantor's rights against Volt Funding or
other obligor, and may demand, ▇▇▇ 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, the 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 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 the Grantor for any
use and occupancy of such premises.
(iii) Require the Grantor to, and the 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. The Grantor hereby agrees that, to the extent notice of sale shall
be required by law, at least seven (7) Business Days' notice to the 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,
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and such sale may, without further notice, be made at the time and place to
which it was so adjourned. The 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
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. The 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. The Grantor hereby waives, to the extent permitted by applicable
law, all rights of the 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 the Grantor 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 Grantor
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
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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) The 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 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 the 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 the 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 the
Grantor shall not 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 the 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, 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, or any of the other Credit
Documents.
(b) The 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 the Grantor to perform or observe any
of the provisions hereof; provided, however that the Grantor shall not have any
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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 the Grantor
hereunder, shall be absolute and unconditional, irrespective of:
(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, the Grantor in respect of the Obligations or
otherwise with respect to this Agreement.
20. Survival of Representations and Warranties. The Grantor hereby
covenants, warrants and represents to the Collateral Agent and each Secured
Creditor that all representations and warranties of the Grantor contained in
this Agreement, any Designated Swap Agreement and/or in any other Credit
Document are true and correct at the time of the 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 the 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 the 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 the Grantor
specifying such suspension or waiver.
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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. The 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 the 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, the
Grantor by the Collateral Agent relating to this Agreement and each notice to,
and each demand upon, the Collateral Agent by the Grantor relating to this
Agreement and any notice to the Collateral Agent of the bankruptcy, insolvency
or consummation of any other similar proceeding of the 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 the Grantor 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 the 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. The 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 the Grantor shall revert
to the Grantor. Upon any such termination, the Collateral Agent will, at the
Grantor's expense, execute and deliver to the Grantor such documents as the
Grantor 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 GRANTOR 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.
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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 the Grantor 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 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, on the other, the provisions of the Credit Agreement shall
govern to the extent of such conflict.
31. Limitation of Liability. No claim may be made by the 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 the Grantor
hereby waives, releases and agrees not to ▇▇▇ 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 INFORMATION SCIENCES, INC.
a New York corporation
By:
-------------------------------
Name:
Title:
AGREED
------
JPMORGAN CHASE BANK,
as Collateral Agent
By:
-------------------------------
Name:
Title:
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