Ex 10.2
GUARANTY OF TALX EMPLOYER SERVICES, LLC
THIS GUARANTY OF TALX EMPLOYER SERVICES, LLC, a Missouri limited liability
company, (the “Guaranty”) dated this 31st day of
March, 2004
is executed and delivered by undersigned (“Guarantor”) in favor of LASALLE BANK
NATIONAL ASSOCIATION, a national banking association, as Administrative Agent
(“Agent”) pursuant to the terms of the Loan Agreement (hereinafter defined).
Furthermore, the term “Loan Documents” and all other capitalized terms used
herein but not otherwise defined herein have the meanings given them in the
Loan Agreement.
WITNESSETH:
WHEREAS, TALX Corporation, a Missouri corporation (“Borrower”) obtained
an Aggregate Commitment in the principal amount of up to Forty Million and
00/100 Dollars ($40,000,000.00) pursuant to that certain Loan Agreement dated
March 27, 2002 entered into by the Borrower, Agent, and Southwest Bank of St.
Louis (“Southwest”) (the “Initial Loan Agreement”), as amended by that First
Amendment to Loan Agreement dated July 29, 2002 among Borrower, Agent and
Southwest (the “First Amendment”), as further amended by that Second Amendment
to Loan Agreement dated January 27, 2003 among Borrower, Agent, and Southwest
(the “Second Amendment”), as further amended by that Third Amendment to Loan
Agreement dated June 30, 2003 among Borrower, Agent and Southwest (the “Third
Amendment”).
WHEREAS, in order to refinance the indebtedness outstanding under the
Initial Loan Agreement, First Amendment, Second Amendment and Third Amendment,
Borrower, Agent, Southwest and the Lenders named therein (hereto collectively
the “Lenders”) are entering into that Amended and Restated Loan Agreement of
even date herewith increasing the Aggregate Commitment to an amount up to
Eighty Three Million and 00/100 Dollars ($83,000,000.00)(the “Amended and
Restated Loan Agreement”) (collectively, the Initial Loan Agreement as so
amended by the First Amendment, Second Amendment, Third Amendment, and the
Amended and Restated Loan Agreement and as may be amended, restated, and
modified from time to time, is referred to herein as the “Loan Agreement”),
pursuant to which loans made to Borrower thereunder (each a “Loan” and
collectively “Loans”) are evidenced by certain Revolving Notes and Term Notes
dated of even date therewith in the aggregate amount of up to Eighty Three
Million and 00/100 Dollars ($83,000,000.00) and which are all due and payable
at the times and pursuant to the terms and conditions of the Loan Agreement
(collectively, the Revolving Notes and Term Notes as each may be amended,
restated or modified from time to time, are referred to herein as the “Notes”).
WHEREAS, Agent and Lenders acknowledge that portions of the Loans are
being used to finance the purchase of certain assets by Guarantor;
WHEREAS, this Guaranty is to be secured by, inter alia, a Security
Agreement of even date herewith executed by Guarantor, reference to which is
made for the rights of the Agent for the ratable benefit of the Lenders to
accelerate the maturity of the Notes or Obligations (hereinafter defined)
guaranteed hereby, and Guarantor, by execution of this Guaranty, hereby
acknowledges receipt of copies of all Loan Documents and represents it has
read and understands such Loan Documents; and
WHEREAS, Guarantor executes this Guaranty in the favor of Agent for the
ratable benefit of the Lenders in order to induce Lenders to make Loans and any
other advances, loans, extensions of credit, future advances or additional
loans, directly or indirectly, to Borrower and to grant to Borrower such
renewals, extensions, forbearances, releases of collateral or other
relinquishments of rights as Lender may deem advisable.
NOW, THEREFORE, in consideration of the execution and delivery by the
Lenders of the Loan Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the Guarantor,
the Guarantor hereby agrees with the Agent as follows:
1. ABSOLUTE GUARANTY. The Guarantor unconditionally, absolutely, and
irrevocably guarantees, for the ratable benefit of Lenders and for the ratable
benefit of each and every present and future holder or holders of the Notes
(all hereinafter called the “Lender”), the full and prompt payment to the
Lender at maturity (whether at the stated maturities thereof, or by
acceleration or otherwise) of the present or future indebtedness of the
Borrower evidenced by the Loan Agreement and the Notes, together with all other
present or future obligations and liabilities of the Borrower under and
pursuant to the Loan Documents as the same or any thereof may from time to time
be amended, restated and modified (all of which indebtedness, obligations and
liabilities being herein called the “Indebtedness Hereby Guaranteed”) and the
full and prompt performance and observance by the Borrower of all of the
warranties, covenants and agreements provided by the Loan Documents to be
performed and observed by the Borrower (herein called the “Obligations”); and
to this end the Guarantor covenants and agrees to take all such actions
necessary to enable the Borrower to observe and perform and to refrain from
taking any action which would prevent the Borrower from observing and
performing each and every Obligation.
2. CONTINUING GUARANTY. This Guaranty shall be a continuing guaranty,
shall be binding upon the Guarantor, its successors and assigns, and shall
remain in full force and effect, and shall not be discharged, impaired or
affected by (a) the existence or continuance of any obligation on the part of
the Borrower on or with respect to the Indebtedness Hereby Guaranteed, or any
Obligation under the Loan Documents; (b) the power or authority (or any lack
thereof) of the Borrower to issue the Notes or to execute, acknowledge or
deliver any other Loan Document; (c) the validity or invalidity of the Notes or
any other Loan Document; (d) any defense whatsoever that the Borrower may or
might have to the payment of the Indebtedness Hereby Guaranteed or to the
performance or observance of any of the terms, provisions, covenants and
agreements contained in the Notes or other Loan Documents; (e) any limitation
or exculpation of liability on the part of the Borrower; (f) the dissolution of
the Borrower; (g) the transfer by the Borrower of all or any part of the
property referred to in the Loan Documents to any other corporation, person or
entity; (h) any sale, pledge, surrender, indulgence, alteration, substitution,
exchange, change in, additions to, renewals of, extension, modification or
other disposition of any of the Indebtedness Hereby Guaranteed, or any of the
Obligations, all of which the Lender is hereby expressly authorized to make
from time to time without notice to the Guarantor, or to anyone; (i) the
acceptance by the Lender of any security for, or other guarantors
upon, all or any part of the Indebtedness Hereby Guaranteed or
Obligations; (j) any failure, neglect or omission on the part of the Lender to
realize or protect any of the Indebtedness Hereby Guaranteed or any collateral
or security therefor, or to exercise any lien upon or right or appropriation of
any moneys, credits or property of the Borrower toward the liquidation of the
Indebtedness Hereby Guaranteed or any application of payments or credits
thereon; (k) any right, claim or offset which Guarantor may have against the
Borrower; or (l) any defense (other than the payment of the Indebtedness Hereby
Guaranteed and performance of the Obligations, in accordance with its terms)
that the Guarantor may or might have to its respective undertakings,
liabilities and obligations hereunder, each and every such defense being hereby
waived by the Guarantor; it being understood and agreed that this Guaranty, and
the undertakings, liabilities and obligations of the Guarantor hereunder shall
not be affected, discharged, impaired or varied by any act, omission or
circumstance whatsoever (whether or not specifically enumerated above) except
the due and punctual payment of the Indebtedness Hereby Guaranteed and
performance of the Obligations, and then only to the extent thereof; or (m) any
understanding or agreement that any other person, firm or corporation was or is
to execute this Guaranty or the Notes or any of the Loan Documents.
3. NO OBLIGATION TO PROCEED AGAINST BORROWER. The Lender shall have the
exclusive right to determine how, when and what application of payments and
credits, if any, shall be made on the Indebtedness Hereby Guaranteed or the
Obligations, or any part thereof; and in order to hold the Guarantor liable
hereunder there shall be no obligation on the part of the Lender, or anyone, at
any time, to proceed against the Borrower, its properties or estates, or any
one of them, or to proceed against any other guarantors, or to resort to any
collateral, security, property, liens, or other rights or remedies whatsoever.
4. BANKRUPTCY OF GUARANTOR. The bankruptcy of Guarantor shall not
terminate this Guaranty, whether or not a claim against the estate of such
bankrupt Guarantor is made, and shall not terminate this Guaranty as to the
estate of the bankrupt Guarantor.
5. NO OBLIGATION TO PROCEED AGAINST ANY GUARANTOR. The Lender shall have
the right to enforce this Guaranty against Guarantor for and to the full amount
of the Indebtedness Hereby Guaranteed, with or without enforcing or attempting
to enforce the Loan Documents against Borrower or any other guaranty against
any other guarantor, or any security for the obligation of any of them, and
whether or not proceedings or steps are pending or have been taken or have been
concluded to enforce or otherwise realize upon the obligation or security of
the Borrower or any other guarantor, or any of them; and the payment of any
amount or amounts by Guarantor, pursuant to its obligations hereunder, shall
not in any way entitle such Guarantor, either at law, in equity, or otherwise,
to any right, title, or interest (whether by way of subrogation or otherwise)
in and to any of the Indebtedness Hereby Guaranteed, or any principal or
interest payments theretofore, then, or thereafter at any time made by the
Borrower or any other guarantor, or any of them, on the Indebtedness Hereby
Guaranteed, or made by anyone on behalf of the Borrower, or in and to any
security therefor, unless and until the full amount of the Indebtedness Hereby
Guaranteed has been fully paid.
6. TIME OF ESSENCE. Time is of the essence of this Guaranty and of the
performance of each term, covenant and provision hereof.
7. WAIVER OF NOTICE. All diligence in collection or protection, and all
presentment, demand, protest and/or notice of dishonor, protest, and of default
and of non-payment and of the creation and existence of any and all of the
Indebtedness Hereby Guaranteed or of performance or non-performance of any
Obligation, and of any security and collateral therefor, and of the acceptance
of this Guaranty, and of any and all extensions of credit and indulgence
hereunder, are expressly waived by the Guarantor.
8. TRANSFER OF DEBT BY LENDER. The Lender may, without any notice
whatsoever to anyone, sell, assign, or transfer all or any part of the
Indebtedness Hereby Guaranteed, or grant participations in the Indebtedness
Hereby Guaranteed, and in any and every such event, each and every immediate
and successive assignee, transferee, holder of or participant in all or any
part of the Indebtedness Hereby Guaranteed shall have the right to enforce this
Guaranty by suit or otherwise, for the benefit of such assignee, transferee,
holder or participant, as fully as if such assignee, transferee, holder or
participant were herein by name specifically given such rights, powers, and
benefits.
9. SUCCESSORS AND ASSIGNS. This Guaranty, and each and every part hereof,
shall be binding upon the Guarantor, successors and assigns of Guarantor, and
shall inure to the pro rata benefit of each and every future holder of the
Notes or any interest in the Indebtedness Hereby Guaranteed pursuant to the
terms of the Loan Agreement.
10. DELIVERY OF NOTE. The delivery of the Notes or any other promissory
note evidencing the Indebtedness Hereby Guaranteed for value to any person
shall, without more, constitute conclusive evidence of the acceptance hereof,
and of the reliance hereon by each and every from time to time holder of the
Note or any interest in the Indebtedness Hereby Guaranteed.
11. MASCULINE, FEMININE, PLURAL. As used herein, the masculine gender
shall include the feminine, and the singular case shall include the plural and
the plural the singular, wherever the same may be applicable.
12. BANKRUPTCY OF BORROWER. Notwithstanding any modification, discharge,
or extension of the Indebtedness Hereby Guaranteed or any amendment,
modification, stay or cure of the Lender’s rights under the Notes, or other
Loan Documents which may occur in any bankruptcy or reorganization case or
proceeding affecting the Borrower, whether permanent or temporary, and whether
or not assented to by the Lender, the Guarantor hereby agrees that it shall be
obligated hereunder to pay the Indebtedness Hereby Guaranteed and discharge the
other Obligations in accordance with the terms of the Notes, and other Loan
Documents and the terms of this Guaranty as in effect on the date hereof.
Guarantor understands and acknowledges that by virtue of this Guaranty it
has specifically assumed any and all risks of a bankruptcy or reorganization
case or proceeding affecting the Borrower; and, as an example and not by way of
limitation, a subsequent modification of the Notes in any reorganization case
concerning the Borrower shall not affect the obligation of the Guarantor to pay
the indebtedness evidenced by the Note and all other Indebtedness Hereby
Guaranteed in accordance with its original terms.
13. RETURN OF PAYMENT. Guarantor hereby agrees that if at any time all or
any part of any payment theretofore applied by Lender to any Indebtedness
Hereby Guaranteed is rescinded or returned by Lender for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy, liquidation or
reorganization of any party), the Indebtedness Hereby Guaranteed shall, for the
purposes of this Guaranty, be deemed to have continued in existence to the
extent of such payment, notwithstanding such application by Lender, and this
Guaranty shall continue to be effective or be reinstated, as the case may be,
as to the Indebtedness Hereby Guaranteed, all as though such application by
Lender had not been made.
14. COSTS AND EXPENSES. In addition to all other amounts payable by
Guarantor hereunder, Guarantor hereby agrees to pay to Lender upon demand any
and all costs and expenses, including court costs and reasonable attorney’s
fees which the Lender may incur (a) in enforcing the obligations of the
Guarantor hereunder; or (b) in preparing to collect or enforce the Indebtedness
Hereby Guaranteed and the Obligations or in collecting or enforcing the same,
in each case whether or not suit or action is filed.
15. PARTIAL INVALIDITY. If any term of this Guaranty, or the application
thereof to a person or circumstance, shall to any extent be declared invalid or
unenforceable, the remainder of this Guaranty, or the application of such term,
to persons or circumstances other than those to which it is invalid or
unenforceable shall not be affected thereby and each term of this Guaranty
shall remain valid and enforceable to the fullest extent permitted by
applicable law. Notwithstanding anything in this Guaranty to the contrary, the
right to recover against the Guarantor under this Guaranty shall not exceed $1
less than the amount which would render any of the Guarantor’s obligations
under this Guaranty void or voidable under applicable law, including fraudulent
conveyance law.
16. ASSIGNMENT OF GUARANTY. Lender may without prior notice assign this
Guaranty in whole or in part but shall notify Guarantor after such assignment.
17. SETOFF. In addition to all liens upon, and rights of setoff against
the moneys, securities, or other property of Guarantor given to Lender by law,
Lender shall have a lien upon and a right of setoff against all moneys,
securities, and other property of Guarantor now or hereafter in the possession
of or on deposit with Lender, whether held in a general or special account or
deposit, or for safekeeping or otherwise; and every such lien and right of
setoff may be exercised so long as there is any Existing Default under the Loan
Agreement without demand upon or notice to Guarantor. No lien or right of
setoff shall be deemed to have been waived by any act or conduct on the part of
Lender, or by any neglect to exercise such right of setoff or to enforce such
lien, or by any delay in so doing, and every right of setoff and lien shall
continue in full force and effect until such right of setoff or lien is
specifically waived or released by an instrument in writing executed by Lender.
18. SUBORDINATION OF DEBT OF BORROWER. Any indebtedness of Borrower now
or hereafter held by Guarantor, whether secured or unsecured, and if secured,
the security for same, is hereby subordinated to the indebtedness of Borrower
to Lender; and, so long as there is any Existing Default under the Loan
Agreement, such indebtedness of Borrower to Guarantor shall be collected,
enforced, and received by Guarantor as trustee for Lenders and be paid over to
Lenders on account of the indebtedness of Borrower to Lenders but without
reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty.
19. AUTHORIZATION OF BORROWER’S DEBT. It is not necessary for Lender to
inquire into the authority or powers of Borrower or the officers, directors,
partners, or agents acting or purporting to act on Borrower’s behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
20. GOVERNING LAW; NO THIRD PARTY RIGHTS. This Guaranty is to be governed
by and construed and interpreted in accordance with the internal Laws of the
State of Illinois applicable to contracts made and to be performed wholly
within such state, without regard to choice or conflicts of law principles.
This Guaranty is solely for the benefit of the Guarantor and Agent and the
Lenders and their respective successors and assigns pursuant to the terms of
the Loan Agreement, and no other person has any right, benefit, priority or
interest under, or because of the existence of, this Guaranty.
21. WAIVER OF DEFENSES. Guarantor does hereby expressly waive any and all
rights, remedies, benefits, or defenses which might otherwise be available to a
guarantor or surety under the laws of the State of Illinois, and any defense
based upon a claim that Lender’s demands or claims against the undersigned are
not compensable because the fair market value of the security for the
Indebtedness Hereby Guaranteed, in its state of completion as of the date of
such demands or claims, was at least equal to the Indebtedness Hereby
Guaranteed.
22. INCONSISTENCY. To the extent the provisions of this Guaranty conflict
with the provisions of the Loan Agreement, the Loan Agreement shall govern.
23. HEADINGS. The headings of this Guaranty are inserted for convenience
of reference only and shall not be applied in construing the provisions of this
Guaranty.
24. JOINT AND SEVERAL. The agreements, obligations, warranties and
representations or Guarantor hereunder are joint and several if Guarantor is
more than one person or entity, and are independent of the obligations of
Borrower.
25. CUMULATIVE REMEDIES. The rights and remedies herein provided are
cumulative and may be exercised singly or concurrently, and are not exclusive
of any rights or remedies provided by law.
26. CHOICE OF FORUM. SUBJECT ONLY TO THE EXCEPTION IN THE NEXT SENTENCE,
GUARANTOR AND AGENT HEREBY AGREE TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL
COURT OF THE NORTHERN DISTRICT OF ILLINOIS AND THE STATE COURTS OF ILLINOIS
LOCATED IN XXXX COUNTY AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND AGREES THAT ANY
DISPUTE CONCERNING THE RELATIONSHIP BETWEEN AGENT AND GUARANTOR OR THE CONDUCT
OF ANY OF THEM IN CONNECTION WITH THIS GUARANTY OR OTHERWISE SHALL BE HEARD
ONLY IN THE COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING: (1) AGENT
SHALL HAVE THE RIGHT TO BRING ANY ACTION OR
PROCEEDING AGAINST GUARANTOR OR ITS PROPERTY IN ANY COURTS OF ANY OTHER
JURISDICTION DEEMED NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE
COLLATERAL, OR OTHER SECURITY FOR THE LOAN OBLIGATIONS, AND (2) GUARANTOR AND
AGENT ACKNOWLEDGE THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE IMMEDIATELY
PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE
JURISDICTIONS.
27. WAIVER OF JURY TRIAL. GUARANTOR AND AGENT HEREBY WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR (2) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE GUARANTOR AND AGENT OR EITHER OF
THEM IN RESPECT OF THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
GUARANTOR AND AGENT AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT EITHER
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE GUARANTOR OR AGENT TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
28. SERVICE OF PROCESS. GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO GUARANTOR AT ITS
ADDRESS SET FORTH ON THE SIGNATURE PAGE HERETO, AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO
DEPOSITED IN THE U.S. MAILS; OR AT AGENT’S OPTION, BY SERVICE UPON CT
CORPORATION, WHICH GUARANTOR IRREVOCABLY APPOINTS AS GUARANTOR’S AGENT FOR THE
PURPOSE OF ACCEPTING SERVICE OF PROCESS WITHIN THE STATE OF ILLINOIS. AGENT
SHALL PROMPTLY FORWARD BY REGISTERED MAIL ANY PROCESS SO SERVED UPON SAID AGENT
TO GUARANTOR AT ITS ADDRESS ON THE SIGNATURE PAGES HERETO. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF AGENT TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW.
(signatures on following page)
