VOLT INFORMATION SCIENCES, INC.
-----------------------------
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
-----------------------------
DATED AS OF AUGUST 28, 2001
$50,000,000 7.92% SENIOR NOTES DUE AUGUST 28, 2004
EXHIBIT 4.1
VOLT INFORMATION SCIENCES, INC.
$50,000,000 7.92% SENIOR NOTES DUE AUGUST 28, 2004
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
As of August 28, 2001
To each of the Persons listed on Annex 1
attached hereto (the "Noteholders")
Ladies and Gentlemen:
VOLT INFORMATION SCIENCES, INC., a New York corporation (together with its
successors and assigns, the "Company"), agrees with each of the Noteholders as
follows:
1. ISSUANCE OF NOTES.
The Company has entered into those certain Note Purchase Agreements, each
dated as of August 28, 1996 (as in effect immediately prior to giving effect to
the amendments provided for by this Amendment No. 1 to Note Purchase Agreement
(this "Amendment No. 1"), collectively, the "Existing Note Purchase Agreement"
and, as amended pursuant to this Amendment No. 1, collectively, the "Amended
Note Purchase Agreement") whereby $50,000,000 aggregate principal amount of the
Company's 7.92% Senior Notes due August 28, 2004 (the "Notes") were issued. The
Noteholders are the holders of the principal amount of the Notes next to such
Noteholder's name on Annex 1. The Noteholders hold 100% of the Notes now
outstanding.
2. DEFINED TERMS.
Capitalized and non-capitalized terms used herein and not otherwise
defined herein, but otherwise defined in the Existing Note Purchase Agreement,
shall have the meanings ascribed to them in the Existing Note Purchase
Agreement.
3. REQUEST FOR CONSENT TO AMENDMENT.
The Company requests that the Noteholders consent to the amendments to the
Existing Note Purchase Agreement provided for by this Amendment No. 1 (the
"Amendments").
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to enter into this Amendment No. 1 and to
consent and agree to the Amendments, the Company represents and warrants as of
the date hereof as follows:
4.1. Organization and Existence.
The Company is a corporation duly organized and existing in good standing
under the laws of the State of New York and has the requisite corporate power
and authority to execute and deliver this Amendment No. 1 and to perform its
obligations under the Amended Note Purchase Agreement.
4.2. Actions Pending.
There are no actions, suits, investigations or proceedings pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries, or any properties or rights of the Company or any of its
Subsidiaries, by or before any court, arbitrator or administrative or
governmental body that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. As used in this Amendment No. 1, the
term "Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under the Amended Note Purchase Agreement and the
Notes or (c) the validity or enforceability of the Amended Note Purchase
Agreement or the Notes.
4.3. Amendments Authorized; Obligations Enforceable.
(a) Agreement is Legal and Authorized. The execution and delivery by
the Company of this Amendment No. 1, and compliance by the Company with
all of the provisions of the Amended Note Purchase Agreement, are within
the corporate powers of the Company.
(b) Company Obligations are Enforceable. The Company has duly
authorized this Amendment No. 1 by all necessary action on its part. This
Amendment No. 1 has been executed and delivered by one or more duly
authorized officers of the Company, and each of this Amendment No. 1 and
the Amended Note Purchase Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms,
except that the enforceability thereof may be:
(i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting
the enforceability of creditors' rights generally; and
(ii) subject to the availability of equitable remedies.
4.4. No Conflicts.
Neither the execution nor delivery of this Amendment No. 1, nor
fulfillment of nor compliance with the terms and provisions of the Amended Note
Purchase Agreement and the other documents, instruments, agreements or
amendments executed in connection therewith (as the same may be in effect from
time to time, collectively, the "Financing Documents") will conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute a
default
under, or result in any violation of, or result in the creation of any Lien upon
any of the properties of the Company or any of its Subsidiaries pursuant to, the
charter or bylaws of the Company or any of its Subsidiaries, any award of any
arbitrator or any agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or regulation to which
the Company or any of its Subsidiaries is subject.
4.5. Governmental Consent.
Neither the execution and delivery of this Amendment No. 1, nor the
performance by the Company of its obligations under the Amended Note Purchase
Agreement or the Financing Documents, is such as to require any authorization,
consent, approval, exemption or other action by or notice to or filing with any
court or administrative or governmental body (other than routine filings with
the Securities and Exchange Commission and/or state Blue Sky authorities) on the
part of the Company.
4.6. Full Disclosure.
This Amendment No. 1 and the documents, certificates or other writings
delivered to the Noteholders by or on behalf of the Company in connection with
the proposal and negotiation of the Amendments, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. There is no fact known to the Company
that could reasonably be expected to have a Material Adverse Effect that has not
been set forth herein or in the other documents, certificates and other writings
delivered to the Noteholders by or on behalf of the Company specifically for use
in connection with the transactions contemplated by this Amendment No. 1 and the
Amended Note Purchase Agreement.
4.7. No Defaults.
No event has occurred and no condition exists that, upon the execution and
delivery of this Amendment No. 1 and the effectiveness of the Amendments would
constitute a Default or an Event of Default (other than Defaults or Events of
Default that will be expressly and specifically waived after giving effect to
the Amendments).
5. AMENDMENT TO EXISTING NOTE PURCHASE AGREEMENT.
5.1. Amendments to Existing Note Purchase Agreement.
Subject to paragraph 5.2:
(a) Section 10.3 (Fixed Charges Coverage Ratio) of the Existing Note
Purchase Agreement is hereby amended and restated in its entirety to read
as follows:
"The Company will not permit, as of the last day of any fiscal
quarter of the Company, the ratio of (a) Consolidated Income
Available for Fixed Charges for the period of four consecutive
fiscal quarters of the Company ending on such date, to (b) Fixed
Charges
for such period of four consecutive fiscal quarters, to be less than
the ratio applicable for such quarter as set forth in the chart
below:
-------------------------------------------------------------------
Fiscal Quarter Ending (on or about) Ratio
-------------------------------------------------------------------
May 6, 2001 (and each fiscal quarter prior 2.25 : 1.0
thereto)
-------------------------------------------------------------------
August 5, 2001, 1.75 : 1.0
November 4, 2001,
February 3, 2002,
-------------------------------------------------------------------
May 5, 2002 1.95 : 1.0
August 4, 2002
-------------------------------------------------------------------
November 3, 2002 (and each fiscal quarter 2.25 : 1.0"
ending thereafter)
-------------------------------------------------------------------
(b) Section 10.5 (Subsidiary Debt) of the Existing Note Purchase
Agreement is hereby amended as follows:
(i) the heading is hereby amended and restated in its entirety
to read as follows:
"10.5 Subsidiary Funded Debt."
(ii) subsection (a)(v) is hereby amended and restated in its
entirety to read as follows:
"(v) (A) any Guaranty, in the form attached as Exhibit A
to Amendment No. 1 (the "Subsidiary Guaranty to Noteholders"),
of a Subsidiary in respect of the Notes; or (B) any Guaranty
of a Subsidiary in respect of Funded Debt of the Company or
any other Subsidiary under any credit facility established by
one or more lenders so long as (I) such Funded Debt is
otherwise permitted under this Agreement, (II) any such
Guaranty is subject to a Sharing Agreement, and (III) such
Subsidiary shall have complied with Section 10.10; and"
(iii) a new subsection (a)(vi) is hereby added to read as
follows:
"(vi) Funded Debt of a Subsidiary in addition to that
otherwise permitted by the foregoing provisions of this
Section 10.5, provided that on the date the Subsidiary incurs
or otherwise becomes liable with respect to any such
additional Funded Debt and immediately after giving effect
thereto and the concurrent retirement of any other Funded
Debt,
(A) no Default or Event of Default exists, and
(B) the sum, without duplication, of all Funded
Debt incurred pursuant to this subsection (a)(vi) plus
all the then outstanding Debt of the Company and its
Subsidiaries secured by Liens permitted solely under
paragraph (xi) of Section 10.6(a),
does not exceed 20% of Consolidated Net Worth as of the
end of the then most recent fiscal quarter of the
Company."
(iv) all references to Section 10.5(a)(v) in the
Existing Note Purchase Agreement, including, without
limitation, in Section 10.6(a)(xi), are hereby hereafter
deemed to mean and refer to Section 10.5(a)(vi) of the Amended
Note Purchase Agreement.
(v) subsection (b) is hereby amended and restated in its
entirety to read as follows:
"(b) [Intentionally Omitted Pursuant to Amendment
No. 1]".
(c) Section 10.6(a)(x) of the Existing Note Purchase Agreement is
hereby deleted in its entirety, and is replaced with the following:
"(x) [Intentionally Omitted Pursuant to Amendment No. 1]".
(d) Section 10.9 (Sales of Receivables; Limited Recourse) of the
Existing Note Purchase Agreement is hereby amended as follows:
(i) the heading is hereby amended and restated in its entirety
to read as follows:
"10.9 [Intentionally Omitted.]"
(ii) the text of Section 10.9 is hereby deleted in its
entirety, and is replaced with the following:
"[Intentionally Omitted Pursuant to Amendment No. 1]".
(e) a new Section 10.10 is hereby added to the Existing Note
Purchase Agreement to read as follows:
"10.10 Additional Subsidiary Guarantors and Documentation.
(a) The Company will take such action, and will cause each of
its Subsidiaries to take such action, from time to time, as shall be
necessary to ensure that any Subsidiary of the Company which, after
the Closing Date (as defined in Amendment No. 1), shall issue a
Guaranty in respect of any Funded Debt in reliance on Section
10.5(a)(v)(B), shall also issue, simultaneously with the delivery of
any such Guaranty issued pursuant to such Section 10.5(a)(v)(B), a
Subsidiary Guaranty to Noteholders, at least pari passu in ranking,
in favor of each holder of a Note.
(b) Prior to September 28, 2001, the Company shall cause a
Sharing Agreement to be executed and delivered by each of the
Lenders with respect to
the Guaranties which may be delivered in connection with the Bank
Credit Agreement. The Company acknowledges that the failure to
comply with this subsection (b) is an immediate Event of Default
pursuant to Section 11(c) hereof and shall entitle the holders of
the Notes to exercise any and all remedies available to them,
including, without limitation, the right to demand the payment of
interest at the Default Rate."
(f) Section 11(c) of the Existing Note Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"(c) the Company defaults in the performance of or compliance
with any term contained in Section 7.1(d) or any of Sections 10.2
through 10.10, inclusive; or"
(g) Schedule B to the Existing Note Purchase Agreement is amended to
add the following definitions in their appropriate alphabetical order:
"Amendment No. 1 -- means Amendment No. 1 to Note Purchase
Agreement, which amendment is dated as of August 28, 2001."
"Bank Credit Agreement - means that certain Credit Agreement
dated on or about September 5, 2001, among the Company, certain
Subsidiaries of the Company, The Chase Manhattan Bank, Fleet
National Bank, Bank of America, N.A., Mellon Bank, N.A., Xxxxx Fargo
Bank, N.A. and Xxxxx TSB Bank Plc and/or such other Lenders who
shall be or become a party thereto."
"Lenders" - has the meaning ascribed to such term in the Bank
Credit Agreement.
"Sharing Agreement - means an agreement between the holders of
Notes and holders of Debt incurred under any credit facility
established by one or more lenders, providing for the sharing of
payments received in connection with any Guaranty of a Subsidiary,
in form and substance reasonably acceptable to the Required
Holders."
(h) Schedule B to the Existing Note Purchase Agreement is further
amended by amending exception (b) to the definition of "Asset Disposition"
to read in its entirety as follows:
"(b) any Transfer of accounts receivable from the Company to
Volt Funding, provided that Volt Funding is a Wholly-Owned
Subsidiary, or to any other Subsidiary so long as, at the time of
such Transfer, such Subsidiary has delivered a Subsidiary Guaranty
to Noteholders,"
(i) Schedule B to the Existing Note Purchase Agreement is further
amended by amending the proviso to the definition of "Funded Debt" to read
in its entirety as follows:
"provided that Funded Debt shall, as at any date of
determination, include Current Maturities of Funded Debt."
(j) Schedule B to the Existing Note Purchase Agreement is further
amended by amending exception (a) to the definition of "Securitization
Attributable Debt" to read in its entirety as follows:
"(a) [Intentionally Omitted Pursuant to Amendment No. 1]".
5.2. Effectiveness of Amendments.
The Amendments contemplated by paragraph 5.1 shall become effective as of
August 28, 2001 (the "Effective Date") only upon the date (which date shall be
the "Closing Date") as the Company and the Required Holders shall have indicated
their written consent to the Amendments by executing and delivering to each
other counterparts of this Amendment No. 1. The Amendments thereupon shall be
binding upon all Noteholders in accordance with Section 17 of the Existing Note
Purchase Agreement. The willingness of the Required Holders to execute and
deliver this Amendment No. 1 is conditioned upon:
(a) the Company and the Required Holders shall have executed and
delivered a counterpart of this Amendment No. 1;
(b) the representations and warranties set forth in paragraph 4
shall be true and correct;
(c) the Company shall have authorized, by all necessary corporate
action, the execution and delivery of this Amendment No. 1 and the
performance of all obligations of, and the satisfaction of all closing
conditions set forth in, this paragraph 5.2 by, and the consummation of
all transactions contemplated by this Amendment No. 1 by, the Company;
(d) if any Guaranty by any Subsidiary of any Funded Debt shall be
effected prior to or contemporaneously with the Closing Date, the Company
shall have delivered a Subsidiary Guaranty to Noteholders, fully executed
by such Subsidiary;
(e) the Company shall have paid (i) the fees and expenses of the
Noteholders' special counsel as provided in paragraph 6 and (ii) an
amendment fee in an aggregate amount equal to ten (10) basis points of the
outstanding principal amount of the Notes, which amendment fee shall be
paid pro-rata to each of the Noteholders at and in the amounts specified
on Annex 2 attached hereto; and
(f) all proceedings taken in connection with this Amendment No. 1
and all documents and papers relating thereto shall be satisfactory to
each of the Noteholders, and each of the Noteholders and their special
counsel shall have received copies of such documents and papers as the
Noteholders or their special counsel may reasonably request in connection
herewith.
6. EXPENSES.
Whether or not the Amendments become effective, the Company will on the
Closing Date (or if an invoice is delivered subsequent to the Closing Date or if
the Amendments do not become effective, promptly and in any event within 10 days
of receiving any statement or invoice therefor) pay all reasonable fees,
expenses and out-of-pocket costs relating to this Amendment No. 1, including,
but not limited to, (a) the cost of reproducing this Amendment No. 1 and the
other documents delivered in connection herewith and (b) the reasonable fees and
disbursements of the Noteholders' special counsel (namely, Xxxxxxx Xxxx LLP)
incurred in connection with the preparation, negotiation and delivery of this
Amendment No. 1 and the transactions contemplated hereby. Nothing in this
paragraph 6 shall limit the Company's obligations under Section 15.1 of the
Amended Note Purchase Agreement.
7. MISCELLANEOUS.
7.1. Part of Note Purchase Agreement, Future References, etc.
This Amendment No. 1 shall be construed in connection with and as a part
of the Existing Note Purchase Agreement and, except as expressly amended by this
Amendment No. 1, all terms, conditions and covenants contained in the Existing
Note Purchase Agreement are hereby ratified and shall be and remain in full
force and effect. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment No. 1 may refer to the Existing Note Purchase Agreement without making
specific reference to this Amendment No. 1, but nevertheless all such references
shall include this Amendment No. 1 unless the context otherwise requires.
7.2. Counterparts; Effectiveness.
This Amendment No. 1 may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one
instrument. Delivery of an executed signature page by facsimile transmission
shall be effective as delivery of a manually signed counterpart of this
Amendment No. 1.
7.3. Successors and Assigns.
All covenants and other agreements in this Amendment No. 1 contained by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not.
7.4. Governing Law.
THIS AMENDMENT NO. 1 SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK, EXCLUDING CHOICE-OF-LAW
PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE
LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
[Remainder of page intentionally left blank; next page is signature page.]
If you are in agreement with the foregoing, please so indicate by signing
where indicated below on the accompanying counterpart of this Amendment No. 1
and return it to the Company, whereupon the foregoing shall become binding
between us (and, to the extent provided in Section 17 of the Existing Note
Purchase Agreement, each other Noteholder).
Very truly yours,
VOLT INFORMATION SCIENCES, INC.
By:_____________________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
The foregoing Agreement is
hereby accepted as of the
date first above written.
NATIONWIDE INSURANCE ENTERPRISE COMPANY
By:_____________________________
Name:
Title:
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
NORTHERN LIFE INSURANCE COMPANY
By: ING Investment Management LLC, as Agent
By:_____________________________
Name:
Title:
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
(f/k/a Reliastar Bankers Security Life Insurance Company)
By: ING Investment Management LLC, as Agent
By:_____________________________
Name:
Title:
THE CANADA LIFE ASSURANCE COMPANY,
as beneficial owner
By:_____________________________
Name:
Title:
CANADA LIFE INSURANCE COMPANY OF AMERICA,
as beneficial owner
By:_____________________________
Name:
Title:
ROYBEC & CO.
By:_____________________________
Name:
Title:
SAFECO LIFE INSURANCE COMPANY
By:_____________________________
Name:
Title:
MODERN WOODMEN OF AMERICA
By:_____________________________
Name:
Title:
ANNEX 1 TO AMENDMENT NO. 1
List of Noteholders
Name and Address of Noteholder Outstanding Principal Amount
of Notes*
Great-West Life & Annuity Insurance Company $6,400,000
0000 Xxxx Xxxxxxx Xxxx
0xx Xxxxx, Xxxxx 0
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: U.S. Private Placements
Northern Life Insurance Company $1,600,000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Private Placements
ReliaStar Life Insurance Company $3,200,000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Private Placements
ReliaStar Life Insurance Company of New York $1,600,000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Private Placements
The Canada Life Assurance Company $4,000,000
000 Xxxxxxxxxx Xxxxxx, XX-00
Xxxxxxx, Xxxxxxx, XX X0X 0X0
Attn: Xxxx Xxxxxxx - U.S. Private Placements
Canada Life Insurance Company of America $2,400,000
000 Xxxxxxxxxx Xxxxxx, XX-00
Xxxxxxx, Xxxxxxx, XX X0X 0X0
Attn: Xxxx Xxxxxxx - U.S. Private Placements
Modern Woodmen of America $2,400,000
0000 0xx Xxxxxx
Xxxx Xxxxxx, XX 00000
Attn: Investment Department
Nationwide Life Insurance Company $11,200,000
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxx Xxxxxx
Roybec & Co. (c/o Royal Trust Company) $4,000,000
X.X. Xxx 0000
Xxxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxx XxXxxxxxxxx
SAFECO Life Insurance Company $3,200,000
c/o SAFECO Asset Management
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx Xxxxx
*Calculated prior to giving effect to the principal payment due and payable
August 28, 2001.
ANNEX 2 TO AMENDMENT NO.1
Wiring Instructions of Noteholder Amendment Fee Payable
Great-West Life & Annuity Insurance Company $6,400
The Bank of New York
ABA #000-000-000
BKofNYC/CTR/BBK=IOC565
Institutional Custody Dept.-GWL #640935
PPN# 928703 A* 8
Description of Security:
7.92% Senior Notes Due 2004
Northern Life Insurance Company $3,200
[Use instructions on file for interest payments]
PPN# 928703 A* 8
Description of Security:
7.92% Senior Notes Due 2004
Reliastar Life Insurance Company $1,600
[Use instructions on file for interest payments]
PPN# 928703 A* 8
Description of Security:
7.92% Senior Notes Due 2004
Reliastar Life Insurance Company of New York $1,600
[Use instructions on file for interest payments]
PPN# 928703 A* 8
Description of Security:
7.92% Senior Notes Due 2004
The Canada Life Assurance Company $4,000
CHASE MANHATTAN BANK
ABA 000-000-000
A/c #000-0-000000
Trust Account No. G52708
Reference: CUSIP 928703 A*8, Volt Information
Sciences, Inc., 7.92% Senior
Notes due 28Aug04, Amendment Fee
Canada Life Insurance Company of America $2,400
CHASE MANHATTAN BANK
ABA 000-000-000
A/c #000-0-000000
Trust Account No. G52709
Reference: CUSIP 928703 A*8, Volt Information
Sciences, Inc., 7.92% Senior
Notes due 28Aug04, Amendment Fee
Modern Woodmen of America $2,400
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
ABA 000-000-000
Account Name: Modern Woodmen of America
Account Xx. 00000
XXX# 000000 A* 8
Description of Security: 7.92% Senior Notes Due 2004
Nationwide Life Insurance Company $11,200
The Bank of New York
ABA #000-000-000
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: X&X Xxxxxxxxxx
XXX# 000000 A* 8
Description of Security:
7.92% Senior Notes Due 2004
Roybec & Co. (c/o Royal Trust Company) $4,000
[Use instructions on file for interest payments]
PPN# 928703 A* 8
Description of Security: 7.92% Senior Notes Due 2004
SAFECO Life Insurance Company $3,200
The Bank of New York
ABA #: 000000000
BBK=IOC 363
ACCT Name: Life Retirement Svcs. Ltd. Mat.
PPN# 928703 A* 8
Description of Security: 7.92% Senior Notes Due 2004
