EXHIBIT 10.6
COLLATERAL ASSIGNMENT OF ASSET PURCHASE AGREEMENT
THIS COLLATERAL ASSIGNMENT OF ASSET PURCHASE AGREEMENT ("Assignment")
dated this 27th day of March, 2002, is executed and delivered by TALX
CORPORATION, a Missouri corporation ("Talx") and XXXXXX ACQUISITION SUB, INC., a
Missouri corporation ("Xxxxxx") (collectively Talx and Xxxxxx are referred to
herein as "Assignor") in favor of LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, as Administrative Assignee ("Assignee") pursuant to the
Loan Agreement (hereinafter defined).
W I T N E S S E T H
WHEREAS, Assignor has obtained, or is about to obtain, an Aggregate
Commitment pursuant to that certain Loan Agreement (as may be amended, restated
or modified from time to time, the "Loan Agreement") of even date herewith by
and among Assignor, Assignee, individually and as Administrative Assignee and
Southwest Bank of St. Louis (collectively Assignee, individually, and Southwest
Bank of St. Louis are referred to herein as "Lenders") pursuant to which Lenders
have agreed, subject to certain terms and conditions, to make certain Loans and
other financial accommodations available to Assignor. All capitalized terms used
herein but not otherwise defined herein shall have the meaning set forth in the
Loan Agreement;
WHEREAS, Assignor entered into that certain Asset Purchase Agreement
("APA") dated March 27, 2002 with Gates, XxXxxxxx & Company, an Ohio corporation
("Seller"), a copy of which is attached hereto as Exhibit A and incorporated
herein by reference, pursuant to which Assignor purchased certain assets of
Seller for the provision of workers' and unemployment compensation and cost
control services and other related services (such assets are commonly known as
the Unemployment Compensation Business Services Group ("UCBSG"));
WHEREAS, Assignor, and Seller by its signature hereto, acknowledges
that certain portions of the purchase money used in acquiring UCBSG are derived
from the proceeds of the Loans and that such portions have been delivered to the
Assignor for such purpose; and
WHEREAS, as a condition precedent to Lenders executing the Loan
Agreement, Assignor is required to assign to Assignee as collateral security for
Assignor's obligations under the Loan Agreement its rights and interest in the
APA.
NOW, THEREFORE, in consideration of the execution and delivery by the
Lenders of the Loan Agreement and the delivery of certain portions of the Loans
to Assignor for Assignors use in acquiring UCBSG, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Assignor, the Assignor hereby agrees with the Assignee as
follows:
1. GRANT. As security for payment and satisfaction of all Assignor's
Obligations (as such term may be defined in either (i) the Security Agreement of
even date herewith executed by Talx in favor of Assignee or (ii) the Security
Agreement of even date herewith executed by
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Xxxxxx in favor of Assignee) to Lenders, Assignor hereby assigns, transfers and
delivers to Assignee for the ratable benefit of the Lenders and its or their
successors and assigns, and grants to Assignee a security interest in and to,
all of Assignor's present and hereafter acquired rights, titles, and interests
in, to and evidenced by the APA.
2. LIMITATION OF OBLIGATION OF ASSIGNEE. This Assignment shall not be
deemed or construed to obligate Assignee to take any action or to incur expenses
or perform or discharge any obligation, duty or liability. Neither this
Assignment nor any action by Assignee shall constitute an assumption by Assignee
of any obligations under or with respect to the APA, and Assignor shall continue
to be liable for all obligations of Assignor under or with respect to the APA,
Assignor hereby agreeing to perform all of such obligations, except to the
extent such obligations have been fulfilled by Assignee's exercise and
performance of its rights hereunder. Assignor agrees to indemnify, defend, and
hold Assignee harmless from and against any and all losses, costs, liabilities,
damages or expenses (including, but not limited to, reasonable attorneys' fees
and court costs) arising out of or resulting from any failure of Assignor to
perform its obligations under or with respect to the APA. Assignee's acceptance
of this Assignment shall not constitute approval of the APA by Assignee.
Assignee shall have no liability or obligation whatsoever under or in connection
with the APA.
3. DEFAULT. Except as otherwise provided herein, unless an Event of
Default as described in the Loan Agreement occurs and is continuing, Assignor
shall be entitled to all of its rights under or by virtue of the APA. After the
occurrence and during the continuance of any such Event of Default, Assignee
shall have the full, unrestricted right and power to enforce or otherwise take
advantage of this Assignment and all of the rights and benefits granted to it
hereunder and any applicable law (including but not limited to the Uniform
Commercial Code). Assignor hereby irrevocably constitutes and appoints Assignee
as its attorney-in-fact, coupled with an interest, to, upon occurrence of such
an Event of Default, demand, receive and enforce Assignor's rights with respect
to the APA.
4. ASSIGNOR'S REPRESENTATIONS AND WARRANTIES. Assignor represents and
warrants to Assignee that (a) Assignor has received consideration sufficient to
induce Assignor to execute and deliver this Assignment and to perform all its
obligations under this Assignment; (b) Assignor has full authority to execute,
deliver and perform its obligations under this Assignment; (c) upon the delivery
to Assignee of this Assignment and filing of a UCC financing statement in the
appropriate filing office, Assignee will have a first perfected security
interest in the APA, and no person or entity, other than Assignor, Assignee and
Seller will have any interest in or to the APA or UCBSG; (d) the APA is
enforceable in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, receivership or other laws which application thereof
restrict the rights and remedies of creditors and by general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, and the possible unavailability of specific
performance, injunctive relief and other equitable remedies, regardless of
whether enforceability is considered in a proceeding in equity or at law; (e) to
Assignor's best knowledge, Seller has no defenses, at law or in equity,
counterclaims, or offsets
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to its obligations under the APA; and (f) the APA (including the schedules
thereto and agreements expressly named therein) represents, evidences and is the
entire agreement between Assignor and Seller pertaining to the purchase of UCBSG
and supersedes any prior agreements or understanding thereof and there are no
undisclosed agreements, understandings, concessions or litigation of any nature
affecting or concerning the APA.
5. PROTECTION OF INTERESTS. Assignor shall timely perform all its
obligations under the APA and immediately shall notify Assignee of any Event of
Default (with respect to this reference only, as this term is defined in the
APA) or breach by Assignor or Seller under the APA.
6. SELLER'S DEFAULT. If an Event of Default (with respect to this
reference only, as this term is defined in the APA) by Seller occurs and is
continuing under terms of the APA at any time, then Assignee, at its sole
option, may, at Assignor's sole expense, on Assignee's own behalf or otherwise,
enforce the APA and exercise any or all other remedies available to Assignor
under the APA, without joining Assignor as a party.
7. RELEASE. In the event all of the Obligations have been fully and
indefeasibly paid, all of the Commitments have been canceled or terminated, all
Letters of Credit have expired, and the Assignee has no other commitment to
extend credit or make advances to or for the account of Assignor, Assignee shall
reassign the APA to Assignor within a commercially reasonable time.
8. NOTICE. Any notice or notification required to be given to Assignor
or Assignee hereunder shall be given at the address and pursuant to the terms
stated in the Loan Agreement.
9. HEADINGS. The headings of this Assignment are inserted for
convenience of reference only and shall not be applied in construing the
provisions of this Assignment.
10. BINDING EFFECT. This Assignment binds and inures to the benefit of
the respective successors and assigns of Assignor and Assignee.
11. CUMULATIVE REMEDIES. Each and every right, remedy and power granted
to Assignee by this Assignment shall be cumulative and in addition to any other
right, remedy and power given by the applicable law. The failure of Assignee to
avail itself of any of its rights and remedies shall not be construed or
determined to be a waiver thereof.
12. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
13. SEVERABILITY. Any provision, sentence, clause or paragraph of this
Assignment which is prohibited or unenforceable under the laws of the State of
Illinois shall be ineffective to the extent of such prohibition or
unenforceability without invalidating or limiting the effect of the remaining
provisions, sentences, clauses and paragraphs of this Assignment.
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14. GOVERNING LAW. This Assignment 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 principle.
15. CHOICE OF FORUM. SUBJECT ONLY TO THE EXCEPTION IN THE NEXT
SENTENCE, ASSIGNOR AND ASSIGNEE 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 ASSIGNEE AND ASSIGNOR OR THE
CONDUCT OF ANY OF THEM IN CONNECTION WITH THIS ASSIGNMENT OR OTHERWISE SHALL BE
HEARD ONLY IN THE COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING: (1)
ASSIGNEE SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST ASSIGNOR
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) ASSIGNOR AND ASSIGNEE 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.
16. WAIVER OF JURY TRIAL. ASSIGNOR AND ASSIGNEE HEREBY WAIVE ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING
UNDER THIS ASSIGNMENT OR ANY OTHER LOAN DOCUMENT, OR (2) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE ASSIGNOR AND ASSIGNEE OR
EITHER OF THEM IN RESPECT OF THIS ASSIGNMENT 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.
ASSIGNOR AND ASSIGNEE 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 ASSIGNMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE ASSIGNOR OR ASSIGNEE TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
17. SERVICE OF PROCESS. ASSIGNOR 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 ASSIGNOR AT ITS
ADDRESS SET FORTH ON THE SIGNATURE PAGE OF THE LOAN AGREEMENT, AND
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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 ASSIGNEE'S OPTION, BY
SERVICE UPON CT CORPORATION, WHICH ASSIGNOR IRREVOCABLY APPOINTS AS ASSIGNOR'S
ASSIGNEE FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS WITHIN THE STATE OF
ILLINOIS. ASSIGNEE SHALL PROMPTLY FORWARD BY REGISTERED MAIL ANY PROCESS SO
SERVED UPON SAID ASSIGNEE TO ASSIGNOR AT ITS ADDRESS ON THE SIGNATURE PAGE OF
THE LOAN AGREEMENT. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ASSIGNEE
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(Signature page to follow)
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IN WITNESS WHEREOF, Assignor has duly executed this Assignment as of
the day and year first written above.
ASSIGNOR
TALX CORPORATION
a Missouri corporation
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
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Title: President
---------------------------------
XXXXXX ACQUISITION SUB, INC.
a Missouri corporation
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: President
---------------------------------
ACKNOWLEDGED AND CONSENT TO BY:
SELLER
GATES, XXXXXXXX & COMPANY,
an Ohio corporation
By: /s/ XXXXX XXXXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxxxx
--------------------------------
Title: President and COO
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EXHIBIT A
Copy of Asset Purchase Agreement
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