EXHIBIT 10.6.3
COLLATERAL ASSIGNMENT
THIS COLLATERAL ASSIGNMENT (the "Agreement") is made and entered into as of
the 22 day of December, 1996, by and between XXXXXXXXXXX X. XXXX ("Assignor"),
and TSW INTERNATIONAL, INC., a Georgia corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Loan Agreement of even date herewith by
and between Assignee and Assignor (the "Loan Agreement"), Assignee has loaned
Assignor One Hundred Thousand and No/100 English Pounds (L100,000.00), as
evidenced by that certain Promissory Note of even date herewith made by
Assignor payable to the order of Assignee in the principal amount of One
Hundred Thousand and No/100 English Pounds (L100,000.00) (the "Note");
WHEREAS, as collateral and security for the Assignor's obligations and
indebtedness to Assignee under the Loan Agreement and the Note (collectively,
the "Obligations"), Assignor desires to assign his rights (the "Option
Shares") to purchase (i) eighty-eight thousand eight hundred and eighty-eight
(88,888) shares of Assignee's One Cent ($.01) par value common stock ("Common
Stock") under that certain Stock Option Agreement dated as of August 17,
1994, by and between Assignor and Assignee; (ii) eighty-one thousand four
hundred and twelve (81,412) shares of Common Stock under that certain Stock
Option Agreement, dated as of August 17, 1994, by and between Assignor and
Assignee; (iii) sixty thousand six hundred and thirty-four (60,634) shares of
Common Stock under that certain Stock Option Agreement, dated as of May 4,
1995, by and between Assignor and Assignee; (iv) twenty-one thousand eight
hundred and seventy-five (21,875) shares of Common Stock under that certain
Stock Option Agreement, dated as of November 4, 1996, by and between Assignor
and Assignee; and (v) seventy-six thousand (76,000) shares of Common Stock
under that certain Stock Option Agreement, dated as of December 11, 1996, by
and between Assignor and Assignee (collectively, the "Option Agreements"),
and Assignee has agreed to accept Assignor's assignment of the Option Shares;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises, covenants and agreements contained herein, and good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. OBLIGATIONS SECURED AND ASSIGNMENT. Subject to the terms and
conditions contained in this Agreement, Assignor hereby assigns a first
priority security interest in and to the Option Shares under the Option
Agreements as collateral and security for the due and punctual payment of the
Obligations.
2. REPRESENTATION AND WARRANTY OF ASSIGNOR. Assignor hereby represents
and warrants to Assignee that, as of the date hereof and at all times until
the Obligations are paid in full, except as set forth herein or as approved
by Assignee, Assignor will not exercise any rights, powers or privileges with
respect to the Option Shares under the Option Agreements.
3. FURTHER ASSURANCE. Assignor shall, from time to time hereafter,
execute and deliver such additional instruments, certificates and documents,
and take all such actions, as Assignee shall reasonably request for the
purpose of implementing or effectuating the provisions of this Agreement.
4. EVENTS OF DEFAULT.
(a) The occurrence of any one or more of the following shall
constitute an "Event of Default" hereunder:
(i) a breach by Assignor of any provision of this Agreement;
(ii) the entry of a decree or order for relief by a court having
jurisdiction over Assignor in an involuntary case under federal
bankruptcy law, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar
law, and the continuance of any such decree or order unstayed and in
effect for a period of sixty (60) consecutive days;
(iii) the commencement by Assignor of a voluntary case under
the federal bankruptcy laws, as now constituted or hereafter amended,
or any other applicable federal or state bankruptcy, insolvency or
other similar law;
(iv) Assignor becomes insolvent or admits in writing his
inability to pay his debts as they mature; or
(v) an "Event of Default" under the Loan Agreement.
(b) Upon the occurrence of an Event of Default, and subject to the
terms and conditions set forth in Section 4.2 of the Loan Agreement, in
addition to those rights and remedies available at law, in equity, granted
herein or in any other agreement now or hereafter in effect between Assignor
and Assignee, Assignee's rights and remedies with respect to the Option
Shares shall, in all respects, events and contingencies, be those of a
secured party under the Uniform Commercial Code and under any other
applicable law, as the same may from time to time be in effect.
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(c) Assignee and Assignor hereby agree that, unless and until an
Event of Default shall occur, Assignee shall not exercise or seek to exercise
any of the rights, powers or privileges with respect to the Option Shares
under the Option Agreements.
(d) Assignor agrees that any notice from Assignee of any sale,
disposition or other intended action hereunder or in connection herewith,
whether required by the Uniform Commercial Code or otherwise, shall
constitute reasonable notice to Assignor if such notice is personally
delivered or mailed by regular or certified mail, postage prepaid, at least
ten (10) days prior to such action, to Assignor's principal residence or to
any address which Assignor has specified in writing to Assignee as the
address to which notices hereunder shall be given to Assignor.
(e) Assignor agrees to pay all reasonable costs and expenses
(including, without limitation, all court costs and reasonable attorney's
fees) incurred by Assignee in exercising any of its rights or remedies under
this Agreement following the occurrence of an Event of Default hereunder.
5. TERM. This Agreement shall remain in full force and effect until
the Obligations are satisfied. At that time, both this Agreement and all
rights herein assigned shall terminate, and all rights, powers and
privileges with respect to the Option Shares under the Option Agreements
shall revert to Assignor.
6. MISCELLANEOUS. This Agreement shall not be modified or amended
except through a writing signed by Assignor and Assignee. This Agreement
shall in all respects be governed by and construed in accordance with the
laws of the State of Georgia. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. This Agreement
represents the full and complete understanding of the parties hereto relating
to the assignment of the rights, powers and privileges associated with the
Option Shares under the Option Agreements. All of the terms, covenants and
conditions contained herein shall be binding upon and shall inure to the
benefit of each of the parties hereto and their permitted heirs, successors
and assignees.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their
duly authorized representatives to execute, this Agreement under seal as of
the day and year first above written.
"Assignor"
XXXXXXXXXXX X. XXXX
/s/ Xxxxxxxxxxx X. Xxxx (SEAL)
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"Assignee"
TSW INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxx
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Its: CFO
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[CORPORATE SEAL]
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