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TALX - Collateral Assignment Of Membership Interest
Ex 10.4
COLLATERAL ASSIGNMENT OF MEMBERSHIP INTEREST
THIS COLLATERAL ASSIGNMENT OF MEMBERSHIP INTEREST (the "Agreement") is made as of the 31st day of March, 2004, by and between TALX CORPORATION, a Missouri corporation (the " Assignor"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as Administrative Agent (" Agent").
WITNESSETH:
WHEREAS, Assignor 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 Assignor, 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 Assignor, Agent and Southwest (the "First Amendment"), as further amended by that Second Amendment to Loan Agreement dated January 27, 2003 among Assignor, Agent, and Southwest (the "Second Amendment"), as further amended by that Third Amendment to Loan Agreement dated June 30, 2003 among Assignor, Agent and Southwest (the "Third Amendment").
WHEREAS , in order to refinance the indebtedness outstanding under the Initial Loan Agreement, Assignor, Agent, Southwest and the Lender named therein (hereto collectively the "Lenders") are entering into that certain 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 Assignor thereunder (each a "Loan" and collectively "Loans") are evidenced by certain Revolving Notes and Term Notes dated 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"). The term "Loan Documents" and all other capitalized terms used herein and not defined herein have the meanings given to them in the Loan Agreement;
WHEREAS , Assignor and Lenders acknowledge that portions of the Loans are being used to finance the purchase of certain assets by TALX Employer Services, LLC, a Missouri limited liability company ("TES");
WHEREAS , Assignor has agreed to grant to Agent a security interest in and to collaterally assign to Agent, all of its right, title and ownership interest in TES;
WHEREAS , Lenders refuse to make the Loans unless Assignor executes this Agreement.
NOW, THEREFORE , to induce the Agent to make the Loans to the Assignor and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor hereby jointly and severally agree as follows:
1. Grant of Security Interest; Collateral Assignment. To secure the complete and timely satisfaction of all liabilities, indebtedness and obligations of Assignor to Lenders under the Notes, the Loan Agreement, this Agreement, and any other Loan Documents (collectively, the " Obligations"), Assignor hereby, jointly and severally, grants to Agent a continuing security interest in all of Assignor's present and future right, title and ownership interest in and to TES and all present and future rights to receive payments and other distributions from TES, whether they are paid in cash, or in kind or mixed or howsoever evidenced and all other interests arising under or with respect to TES (the " LLC Interest"). Until the occurrence of an Event of Default, Assignor, or any one of them, shall have the right to collect any amount or thing assigned pursuant to this Agreement payable to Assignor, or any one of them, by TES. Upon the occurrence of an Event of Default and expiration of the applicable cure period, however, Assignor authorizes Agent, at its option, to collect any amount or thing assigned by this Agreement and upon notification to TES, all such payments shall be made directly to Agent. Assignor authorizes Agent to endorse and receipt for any such payments and to apply same to the Obligations.
2. Further Assurances. Assignor agrees that, until all of the Obligations shall have been satisfied in full and the Notes have been satisfied in accordance with their terms, they will not enter into any agreement which is inconsistent with Assignor's obligations under this Agreement, without Agent's prior written consent. Assignor further agrees that at any time and from time to time, at the expense of Assignor, Assignor will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Agent may reasonably request, in order to perfect and protect the security interest and collateral assignment granted or purported to be granted hereby or to enable Agent to exercise its rights and remedies hereunder.
3. Event of Default. The term "Event of Default" has the meaning set forth in the Loan Agreement and the occurrence and continuance of any event or the existence of any condition which is specified as an Event of Default under the Loan Agreement shall constitute an Event of Default hereunder.
4. Representations, Warranties and Covenants of Assignor. Assignor represents, covenants and warrants to Agent that:
(a) Assignor has furnished Agent with true and correct copies of the articles of organization and operating agreement of TES together with all amendments thereto;
(b) This Agreement and the assignment of the LLC Interest given herein does not violate the terms of TES's articles of organization and operating agreement or any Material Agreement to which TES or Assignor is a party and have been authorized by the members of TES;
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(c) Unless an Event of Default shall have occurred, Assignor shall be entitled to exercise (but only in a manner consistent with the terms hereof) the voting, consent and other rights and remedies of Assignor with respect to TES, provided, however, that no action shall be taken or failed to be taken by Assignor which could reasonably be expected to (i) directly or indirectly authorize or permit the dissolution, liquidation or sale of TES or the sale, lease, assignment, transfer or other disposition of any of the assets of TES; (ii) have the result of materially and adversely affecting any of the rights of Agent under this Agreement or the Loan Documents; (iii) violate the terms of this Agreement or the Loan Documents; (iv) have the effect of impairing the validity or priority of the security interests created hereunder in favor of Agent in any manner whatsoever; or (v) cause an Event of Default. Notwithstanding anything herein to the contrary, in no event shall Agent have any of the obligations or liabilities of Assignor with respect to TES by virtue of this Agreement or the exercise of its rights hereunder, and Assignor hereby covenants and agrees to hold harmless Agent from and against any and all liability, loss or damage which Agent may suffer by reason of its security interest in the LLC Interest, except to the extent cause by Agent's gross negligence or willful misconduct. If Agent becomes a substituted member of TES in place of Assignor, Agent shall not be liable for any of the obligations or liabilities of Assignor with respect to TES unless expressly agreed to in writing by Agent;
(d) Assignor has not previously and will not further assign, transfer or encumber the interests hereby assigned to Agent and any such purported assignment shall be void and of no effect;
(e) Upon the occurrence of an Event of Default, Assignor authorizes Agent, at its option, to collect any amount or thing assigned by this Agreement and upon notification to TES, all such payments shall be made directly to Agent. Assignor authorizes Agent to endorse and receipt for any such payments and to apply same to the Obligations and, in furtherance thereof, Assignor appoints and designates Agent as Assignor's irrevocable attorney-in-fact to endorse and receipt for checks and to collect any and all amounts and things assigned hereby; (f) Assignor has the unqualified right to enter into this Agreement and perform its terms;
(g) Assignor is the sole member in good standing of TES;
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