<PAGE>
EXHIBIT 10.46
================================================================================
TALX CORPORATION
$75,000,000 6.89% Senior Guaranteed Notes due May 25, 2014
-----------------------
NOTE PURCHASE AGREEMENT
-----------------------
Dated as of May 25, 2006
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TABLE OF CONTENTS
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SECTION
HEADING
PAGE
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SECTION 1.
AUTHORIZATION OF
NOTES....................................................
1
SECTION 2.
SALE AND PURCHASE OF
NOTES................................................ 1
SECTION 3.
CLOSING...................................................................
2
SECTION 4.
CONDITIONS TO
CLOSING.....................................................
2
Section 4.1. Representations and
Warranties............................................ 2
Section 4.2. Performance; No
Default...................................................
2
Section 4.3.
Compliance
Certificates...................................................
2
Section 4.4. Opinions of
Counsel.......................................................
3
Section 4.5. Purchase Permitted by
Applicable Law, Etc................................. 3
Section 4.6. Sale of Other
Notes.......................................................
3
Section 4.7. Payment of Special
Counsel Fees...........................................
3
Section 4.8. Private Placement
Number..................................................
3
Section 4.9. Changes in Limited
Liability Company or Corporate Structure...............
3
Section 4.10.
Funding
Instructions......................................................
4
Section 4.11.
Proceedings and
Documents.................................................
4
Section 4.12.
Bank Credit
Agreement.....................................................
4
Section 4.13.
Subsidiary Guarantee
Agreement............................................ 4
Section 4.14.
Intercreditor
Agreement...................................................
4
SECTION 5.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY............................. 4
Section 5.1. Organization; Power
and Authority......................................... 4
Section 5.2. Authorization,
Etc........................................................
4
Section 5.3.
Disclosure................................................................
5
Section 5.4. Organization and
Ownership of Shares of Subsidiaries......................
5
Section 5.5. Financial Statements;
Material Liabilities................................ 6
Section 5.6. Compliance with Laws,
Other Instruments, Etc.............................. 6
Section 5.7. Governmental
Authorizations, Etc..........................................
6
Section 5.8. Litigation; Observance
of Agreements, Statutes and Orders................. 6
Section 5.9.
Taxes.....................................................................
7
Section 5.10.
Title to Property;
Leases.................................................
7
Section 5.11.
Licenses, Permits,
Etc....................................................
7
Section 5.12.
Compliance with
ERISA.....................................................
8
Section 5.13.
Private Offering by the
Company........................................... 8
Section 5.14.
Use of Proceeds; Margin
Regulations....................................... 9
Section 5.15.
Existing Indebtedness; Future
Lien........................................ 9
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Section 5.16.
Foreign Assets Control Regulations,
Etc................................... 10
Section 5.17.
Status under Certain
Statutes............................................. 10
Section 5.18.
Environmental
Matters.....................................................
10
Section 5.19.
Pari Passu
Ranking........................................................
11
SECTION 6.
REPRESENTATIONS OF THE
PURCHASER.......................................... 11
Section
6.1.
Purchase for
Investment...................................................
11
Section 6.2. Source of
Funds...........................................................
11
SECTION 7.
INFORMATION AS TO
COMPANY.................................................
13
Section 7.1. Financial and Business
Information........................................ 13
Section 7.2. Officer's
Certificate.....................................................
16
Section 7.3.
Visitation................................................................
16
Section 7.4. Limitation on
Disclosure Obligation.......................................
17
SECTION 8.
PAYMENT AND PREPAYMENT OF THE
NOTES....................................... 17
Section 8.1. Required
Prepayments......................................................
17
Section 8.2. Optional Prepayments
with Make-Whole Amount............................... 17
Section 8.3. Prepayment of Notes
Upon Change of Control................................ 18
Section 8.4. Allocation of Partial
Prepayments......................................... 19
Section 8.5. Maturity; Surrender,
Etc.................................................. 19
Section 8.6. Purchase of
Notes.........................................................
19
Section 8.7. Make-Whole
Amount.........................................................
19
Section 8.8. Prepayment in
Connection with Sales of Assets.............................
20
SECTION 9.
AFFIRMATIVE
COVENANTS.....................................................
21
Section 9.1.
Compliance
with Law.......................................................
21
Section 9.2.
Insurance.................................................................
21
Section 9.3. Maintenance of
Properties.................................................
21
Section 9.4. Payment of Taxes and
Claims............................................... 22
Section 9.5. Limited Liability
Company and Corporate Existence, Etc....................
22
Section 9.6. Books and
Records.........................................................
22
Section 9.7. Additional Subsidiary
Guarantors.......................................... 22
Section 9.8. Release of Subsidiary
Guarantors.......................................... 23
Section 9.9. Pari Passu
Ranking........................................................
23
Section 9.10.
Additional
Interest.......................................................
23
SECTION 10.
NEGATIVE
COVENANTS........................................................
24
Section 10.1.
Transactions with
Affiliates..............................................
24
Section 10.2.
Consolidated Net
Worth....................................................
24
Section 10.3.
Consolidated Debt
Coverage................................................
24
Section 10.4.
Fixed Charge
Coverage.....................................................
24
Section 10.5.
Priority
Debt.............................................................
24
Section 10.6.
Liens.....................................................................
25
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Section 10.7.
Merger, Consolidation,
Etc................................................ 27
Section 10.8.
Sale of
Assets............................................................
28
Section 10.9.
Subsidiary
Indebtedness...................................................
29
Section 10.10. Nature
of Business........................................................
29
Section 10.11.
Terrorism Sanctions
Regulations........................................... 30
SECTION 11.
EVENTS OF
DEFAULT.........................................................
30
SECTION 12.
REMEDIES ON DEFAULT,
ETC.................................................. 32
Section 12.1.
Acceleration..............................................................
32
Section 12.2.
Other
Remedies............................................................
33
Section 12.3.
Rescission................................................................
33
Section 12.4. No
Waivers or Election of Remedies, Expenses,
Etc......................... 33
SECTION 13.
REGISTRATION; EXCHANGE; SUBSTITUTION OF
NOTES............................. 33
Section 13.1.
Registration of
Notes.....................................................
33
Section 13.2.
Transfer and Exchange of
Notes............................................ 34
Section 13.3.
Replacement of
Notes......................................................
34
SECTION 14.
PAYMENTS ON
NOTES.........................................................
35
Section 14.1.
Place of
Payment..........................................................
35
Section 14.2.
Home Office
Payment.......................................................
35
SECTION 15.
EXPENSES,
ETC.............................................................
35
Section 15.1.
Transaction
Expenses......................................................
35
Section 15.2.
Survival..................................................................
36
SECTION 16.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.............. 36
SECTION 17.
AMENDMENT AND
WAIVER......................................................
36
Section 17.1.
Requirements..............................................................
36
Section 17.2.
Solicitation of Holders of
Notes.......................................... 37
Section 17.3.
Binding Effect,
etc.......................................................
37
Section 17.4.
Notes Held by Company,
Etc................................................ 37
SECTION 18.
NOTICES...................................................................
38
SECTION 19.
REPRODUCTION OF
DOCUMENTS.................................................
38
SECTION 20.
CONFIDENTIAL
INFORMATION..................................................
38
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SECTION 21.
SUBSTITUTION OF
PURCHASER.................................................
40
SECTION 22.
MISCELLANEOUS.............................................................
40
Section 22.1.
Successors and
Assigns....................................................
40
Section 22.2.
Payments Due on Non-Business
Days......................................... 40
Section 22.3.
Accounting
Terms..........................................................
40
Section 22.4.
Severability..............................................................
41
Section 22.5.
Construction,
Etc.........................................................
41
Section 22.6.
Counterparts..............................................................
41
Section 22.7.
Governing
Law.............................................................
41
Section 22.8.
Jurisdiction and Process; Waiver of Jury
Trial............................ 41
Signature.........................................................................................
43
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SCHEDULE A
--
INFORMATION RELATING TO PURCHASERS
SCHEDULE B
-- DEFINED
TERMS
SCHEDULE 4.9 --
Changes in
Corporate Structure
SCHEDULE 5.3 --
Disclosure
Materials
SCHEDULE 5.4 --
Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5.5 --
Financial
Statements
SCHEDULE 5.15 -- Existing
Indebtedness
EXHIBIT 1
-- Form of
6.89% Senior Guaranteed Note due May 25, 2014
EXHIBIT 4.4(a) -- Form of Opinion of
Special Counsel for the Obligors
EXHIBIT 4.4(b) -- Form of Opinion of
Special Counsel for the Purchasers
EXHIBIT 4.13 --
Form of
Subsidiary Guarantee Agreement
EXHIBIT 4.14 --
Form of
Intercreditor Agreement
</TABLE>
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<PAGE>
TALX CORPORATION
11432 LACKLAND ROAD
ST. LOUIS, MO 63146
$75,000,000 6.89% Senior Guaranteed Notes due May 25, 2014
As of May 25, 2006
TO EACH OF THE PURCHASERS LISTED IN
SCHEDULE A
HERETO:
Ladies and Gentlemen:
TALX
Corporation, a Missouri corporation (the "Company") agrees with
each
of the purchasers whose names appear at the end hereof (each, a
"Purchaser" and,
collectively, the "Purchasers") as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The
Company will authorize the issue and sale of $75,000,000
aggregate
principal amount of its 6.89% Senior Guaranteed Notes due May 25,
2014 (the
"Notes," such term to include any such notes issued in substitution
therefor
pursuant to Section 13). The Notes shall be substantially in the
form set out in
Exhibit 1. Certain capitalized and other terms used in this
Agreement are
defined in Schedule B; and references to a "Schedule" or an
"Exhibit" are,
unless otherwise specified, to a Schedule or an Exhibit attached to
this
Agreement.
SECTION 2. SALE AND PURCHASE OF NOTES.
Subject to
the terms and conditions of this Agreement, the Company will
issue and sell to each Purchaser and each Purchaser will purchase
from the
Company, at the Closing provided for in Section 3, Notes in the
principal amount
specified opposite such Purchaser's name in Schedule A at the
purchase price of
100% of the principal amount thereof. The Purchasers' obligations
hereunder are
several and not joint obligations and no Purchaser shall have any
liability to
any Person for the performance or non-performance of any obligation
by any other
Purchaser hereunder.
Payment of
the principal of or Make-Whole Amount if any and interest on
the Notes and the other amounts owing hereunder and under the other
Financing
Agreements shall be unconditionally guaranteed, jointly and
severally, by the
Subsidiary Guarantors pursuant to the Subsidiary Guarantee
Agreement.
<PAGE>
TALX Corporation
Note Purchase Agreement
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by each
Purchaser
shall occur at the offices of Chapman and Cutler LLP, 111 West
Monroe Street,
Chicago, Illinois 60603, at 10:00 a.m., Chicago time, at a closing
(the
"Closing") on May 25, 2006 or on such other Business Day thereafter
as may be
agreed upon by the Company and the Purchasers. At the Closing the
Company will
deliver to each Purchaser the Notes to be purchased by such
Purchaser in the
form of a single Note (or such greater number of Notes in
denominations of at
least $100,000 as such Purchaser may request) dated the date of the
Closing and
registered in such Purchaser's name (or in the name of its
nominee), against
delivery by such Purchaser to the Company or its order of
immediately available
funds in the amount of the purchase price therefor by wire transfer
of
immediately available funds for the account of the Company to
account number
5800404260 at LaSalle Bank National Association, ABA number
071000505. If at the
Closing the Company shall fail to tender such Notes to any
Purchaser as provided
above in this Section 3, or any of the conditions specified in
Section 4 shall
not have been fulfilled to such Purchaser's satisfaction, such
Purchaser shall,
at its election, be relieved of all further obligations under this
Agreement,
without thereby waiving any rights such Purchaser may have by
reason of such
failure or such nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for the Notes to
be
sold to such Purchaser at the Closing is subject to the fulfillment
to such
Purchaser's satisfaction, prior to or at the Closing, of the
following
conditions:
Section
4.1. Representations and Warranties. The representations and
warranties of the Obligors in the Financing Agreements to which
they are a party
shall be correct when made and at the time of the Closing.
Section
4.2. Performance; No Default. The Obligors shall have performed
and complied with all agreements and conditions contained in this
Agreement and
the other Financing Agreements to which they are a party required
to be
performed or complied with by each of them prior to or at the
Closing and after
giving effect to the issue and sale of the Notes (and the
application of the
proceeds thereof as contemplated by Section 5.14) no Default or
Event of Default
shall have occurred and be continuing. Neither any Obligor nor any
Subsidiary
shall have entered into any transaction since the date of the
Memorandum that
would have been prohibited by Section 10 had such Section applied
since such
date.
Section
4.3. Compliance Certificates.
(a) Officer's Certificate. Each Obligor shall have delivered to
such
Purchaser an Officer's Certificate, dated the date of the Closing,
certifying
that the conditions specified in Sections 4.1, 4.2 and 4.9 have
been fulfilled.
(b) Secretary's Certificate. Each Obligor shall have delivered
to
such Purchaser a certificate of its Secretary or Assistant
Secretary, dated the
date of Closing, certifying as to the
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TALX Corporation
Note Purchase Agreement
resolutions attached thereto and other limited liability company or
corporate
proceedings relating to the authorization, execution and delivery
of the
Financing Agreements to which it is a party.
Section
4.4. Opinions of Counsel. Such Purchaser shall have received
opinions in form and substance satisfactory to such Purchaser,
dated the date of
the Closing (a) from Bryan Cave LLP, special counsel for the
Obligors, covering
the matters set forth in Exhibit 4.4(a) and covering such other
matters incident
to the transactions contemplated hereby as such Purchaser or its
counsel may
reasonably request (and the Obligors hereby instruct such counsel
to deliver
such opinion to the Purchasers) and (b) from Chapman and Cutler
LLP, the
Purchasers' special counsel in connection with such transactions,
substantially
in the form set forth in Exhibit 4.4(b) and covering such other
matters incident
to such transactions as such Purchaser may reasonably request.
Section
4.5. Purchase Permitted by Applicable Law, Etc. On the date of
the
Closing the Purchaser's purchase of Notes shall (a) be permitted by
the laws and
regulations of each jurisdiction to which such Purchaser is
subject, without
recourse to provisions (such as section 1405(a)(8) of the New York
Insurance
Law) permitting limited investments by insurance companies without
restriction
as to the character of the particular investment, (b) not violate
any applicable
law or regulation (including, without limitation, Regulation T, U
or X of the
Board of Governors of the Federal Reserve System) and (c) not
subject such
Purchaser to any tax, penalty or liability under or pursuant to any
applicable
law or regulation, which law or regulation was not in effect on the
date hereof.
If requested by such Purchaser, such Purchaser shall have received
an Officer's
Certificate certifying as to such matters of fact as such Purchaser
may
reasonably specify to enable such Purchaser to determine whether
such purchase
is so permitted.
Section
4.6. Sale of Other Notes. Contemporaneously with the Closing,
the
Company shall sell to each other Purchaser, and each other
Purchaser shall
purchase, the Notes to be purchased by it at the Closing as
specified in
Schedule A.
Section
4.7. Payment of Special Counsel Fees. Without limiting the
provisions of Section 15.1, the Company shall have paid on or
before the Closing
the reasonable fees, charges and disbursements of the Purchasers'
special
counsel referred to in Section 4.4 to the extent reflected in a
statement of
such counsel rendered to the Company at least one Business Day
prior to the
Closing.
Section
4.8. Private Placement Number. A Private Placement Number
issued
by Standard & Poor's CUSIP Service Bureau (in cooperation with
the Securities
Valuation Office of the National Association of Insurance
Commissioners) shall
have been obtained for the Notes.
Section
4.9. Changes in Limited Liability Company or Corporate
Structure.
Except as specified in Schedule 4.9, no Obligor shall have changed
its
jurisdiction of incorporation or organization, as applicable, or
been a party to
any merger or consolidation or succeeded to all or any substantial
part of the
liabilities of any other entity, at any time following the date of
the most
recent financial statements referred to in Schedule 5.5.
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TALX Corporation
Note Purchase Agreement
Section
4.10. Funding Instructions. At least three Business Days prior
to
the date of such Closing, each Purchaser shall have received
written
instructions signed by a Responsible Officer on letterhead of the
Company
confirming the information specified in Section 3 including (i) the
name and
address of the transferee bank, (ii) such transferee bank's ABA
number and (iii)
the account name and number into which the purchase price for the
Notes is to be
deposited.
Section
4.11. Proceedings and Documents. All limited liability company
or
corporate and other proceedings in connection with the transactions
contemplated
by the Financing Agreements and all documents and instruments
incident to such
transactions shall be reasonably satisfactory to such Purchaser and
its special
counsel, and such Purchaser and its special counsel shall have
received all such
counterpart originals or certified or other copies of such
documents as such
Purchaser or such special counsel may reasonably request.
Section
4.12. Bank Credit Agreement. The Company shall have delivered
evidence reasonably satisfactory to each of the Purchasers that all
security
interests in the property of the Obligors securing the Bank Credit
Agreement
shall have been released and, after giving effect to the
application of the
proceeds of the Notes, the availability under the Bank Credit
Agreement shall
have been reduced to $150,000,000 or less.
Section
4.13. Subsidiary Guarantee Agreement. Each Subsidiary Guarantor
shall have executed and delivered (and each Purchaser shall have
received an
original copy thereof) a Subsidiary Guarantee Agreement, and the
Subsidiary
Guarantee Agreement shall be in full force and effect.
Section
4.14. Intercreditor Agreement. The Intercreditor Agreement
shall
have been executed and delivered by each of the parties
thereto.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
Section
5.1. Organization; Power and Authority. The Company is a
corporation duly organized, validly existing and in good standing
under the laws
of its jurisdiction of incorporation, and is duly qualified as a
foreign
corporation and is in good standing in each jurisdiction in which
such
qualification is required by law, other than those jurisdictions as
to which the
failure to be so qualified or in good standing could not,
individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. The Company
has the corporate power and authority to own or hold under lease
the properties
it purports to own or hold under lease, to transact the business it
transacts
and proposes to transact, to execute and deliver the Financing
Agreements to
which it is a party, and to perform the provisions thereof.
Section
5.2. Authorization, Etc. The Financing Agreements to which the
Company is a party have been duly authorized by all necessary
corporate action
on the part of the Company, and this Agreement, and upon execution
and delivery
thereof each Note and other Financing Agreement to which the
Company is a party,
will constitute, a legal, valid and binding obligation of the
Company,
enforceable against the Company in accordance with its terms,
except as such
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TALX Corporation
Note
Purchase Agreement
enforceability may be limited by (i) applicable bankruptcy,
insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of
creditors' rights generally and (ii) general principles of equity
(regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
Section
5.3. Disclosure. The Company, through its agent, LaSalle Debt
Capital Markets has delivered to each Purchaser a copy of a Private
Placement
Memorandum, dated April, 2006 (including the documents incorporated
by reference
therein, the "Memorandum"), relating to the transactions
contemplated hereby.
The Memorandum fairly describes, in all material respects, the
general nature of
the business and principal properties of the Company and its
Subsidiaries.
Except as disclosed in Schedule 5.3, this Agreement, the
Memorandum, the
documents, certificates or other writings identified in Schedule
5.3 by or on
behalf of the Company in connection with the transactions
contemplated hereby
and the financial statements listed in Schedule 5.5, in each case,
delivered to
the Purchasers prior to May 8, 2006 (this Agreement, the Memorandum
and such
documents, certificates or other writings and such financial
statements being
referred to, collectively, as the "Disclosure Documents"), 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. Except as
disclosed in Schedule
5.3 and the Disclosure Documents, since March 31, 2005, there has
been no change
in the financial condition, operations, business, properties or
prospects of the
Company or any Subsidiary except changes that individually or in
the aggregate
could not reasonably be expected to have a Material Adverse Effect.
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
Disclosure
Documents.
Section
5.4. Organization and Ownership of Shares of Subsidiaries. (a)
Schedule 5.4 contains (except as noted therein) a complete and
correct list of
the Company's Subsidiaries, showing, as to each Subsidiary, the
correct name
thereof, the jurisdiction of its organization, and the percentage
of shares of
each class of its capital stock or similar equity interests
outstanding owned by
the Company and each other Subsidiary and whether such Subsidiary
will on the
date of the Closing be a Subsidiary Guarantor.
(b) All of the outstanding shares of capital stock or similar
equity
interests of each Subsidiary shown in Schedule 5.4 as being owned
by the Company
and its Subsidiaries have been validly issued, are fully paid and
nonassessable
and are owned by the Company or another Subsidiary free and clear
of any Lien
(except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a limited
liability company, corporation or other legal entity duly
organized, validly
existing and in good standing under the laws of its jurisdiction
of
organization, and is duly qualified as a foreign limited liability
company,
corporation or other legal entity and is in good standing in each
jurisdiction
in which such qualification is required by law, other than those
jurisdictions
as to which the failure to be so qualified or in good standing
could not,
individually or in the aggregate, reasonably be expected to have a
Material
Adverse Effect. Each such Subsidiary has the limited liability
company,
corporate or other power and authority to own or hold under lease
the properties
it
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<PAGE>
TALX Corporation
Note Purchase Agreement
purports to own or hold under lease and to transact the business it
transacts
and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any
legal,
regulatory, contractual or other restriction (other than the
Financing
Agreements and customary limitations imposed by corporate law or
similar
statutes) restricting the ability of such Subsidiary to pay
dividends out of
profits or make any other similar distributions of profits to the
Company or any
of its Subsidiaries that owns outstanding shares of capital stock
or similar
equity interests of such Subsidiary.
Section
5.5. Financial Statements; Material Liabilities. The Company
has
delivered to each Purchaser copies of the consolidated financial
statements of
the Company and its Subsidiaries listed on Schedule 5.5. All of
said financial
statements (including in each case the related schedules and notes)
fairly
present in all material respects the consolidated financial
position of the
Company and its Subsidiaries, as of the respective dates specified
in such
Schedule and the consolidated results of their operations and cash
flows for the
respective periods so specified and have been prepared in
accordance with GAAP
consistently applied throughout the periods involved except as set
forth in the
notes thereto (subject, in the case of any interim financial
statements, to
normal year-end adjustments and the absence of footnotes). The
Company and its
Subsidiaries do not have any Material liabilities that are not
disclosed on such
financial statements or otherwise disclosed in the Disclosure
Documents.
Section
5.6. Compliance with Laws, Other Instruments, Etc. The
execution,
delivery and performance by the Company of the Financing Agreements
to which it
is a party will not (i) contravene, result in any breach of, or
constitute a
default under, or result in the creation of any Lien in respect of
any property
of the Company or any Subsidiary under, any indenture, mortgage,
deed of trust,
loan, purchase or credit agreement, Material lease, limited
liability company or
corporate charter or operating agreement or by-laws, or any other
Material
agreement or instrument to which the Company or any Subsidiary is
bound or by
which the Company or any Subsidiary or any of their respective
properties may be
bound or affected, (ii) conflict with or result in a breach of any
of the terms,
conditions or provisions of any order, judgment, decree, or ruling
of any court,
arbitrator or Governmental Authority applicable to the Company or
any Subsidiary
or (iii) violate any provision of any statute or other rule or
regulation of any
Governmental Authority applicable to the Company or any
Subsidiary.
Section
5.7. Governmental Authorizations, Etc. No consent, approval or
authorization of, or registration, filing or declaration with, any
Governmental
Authority is required in connection with the execution, delivery or
performance
by the Company of the Financing Agreements to which it is a party
(other than
the filing of a form 8-K with the SEC disclosing the Company's
entry into this
Agreement).
Section
5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) There are no actions, suits, investigations or proceedings
pending or, to
the knowledge of the Company, threatened against or affecting the
Company or any
Subsidiary or any property of the Company or any Subsidiary in any
court or
before any arbitrator of any kind or before or by any
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TALX Corporation
Note Purchase Agreement
Governmental Authority that, individually or in the aggregate,
could reasonably
be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any
term of any agreement or instrument to which it is a party or by
which it is
bound, or any order, judgment, decree or ruling of any court,
arbitrator or
Governmental Authority or is in violation of any applicable law,
ordinance, rule
or regulation (including without limitation Environmental Laws or
the USA
Patriot Act) of any Governmental Authority, which default or
violation,
individually or in the aggregate, could reasonably be expected to
have a
Material Adverse Effect.
Section
5.9. Taxes. The Company and its Subsidiaries have filed all tax
returns that are required to have been filed in any jurisdiction,
and have paid
all taxes shown to be due and payable on such returns and all other
taxes and
assessments levied upon them or their properties, assets, income or
franchises,
to the extent such taxes and assessments have become due and
payable and before
they have become delinquent, except for any taxes and assessments
(i) the amount
of which is not individually or in the aggregate Material or (ii)
the amount,
applicability or validity of which is currently being contested in
good faith by
appropriate proceedings and with respect to which the Company or
any of its
Subsidiaries, as the case may be, has established adequate reserves
in
accordance with GAAP. The Company does not know of any basis for
any other tax
or assessment that could reasonably be expected to have a Material
Adverse
Effect. The charges, accruals and reserves on the books of the
Company and its
Subsidiaries in respect of Federal, state or other taxes for all
fiscal periods
are adequate in all Material respects. The Federal income tax
liabilities of the
Company and its Subsidiaries have been finally determined (whether
by reason of
completed audits or the statute of limitations having run) for all
fiscal years
up to and including the fiscal year ended March 31, 2001.
Section
5.10. Title to Property; Leases. The Company and its
Subsidiaries
have good and sufficient title to their respective properties that
individually
or in the aggregate are Material, including all such properties
reflected in the
most recent audited balance sheet referred to in Section 5.5 or
purported to
have been acquired by the Company or any Subsidiary after said date
(except as
sold or otherwise disposed of in the ordinary course of business),
in each case
free and clear of Liens prohibited by the Financing Agreements. All
Material
leases are valid and subsisting and are in full force and effect in
all material
respects.
Section
5.11. Licenses, Permits, Etc. (a) Except as set forth in
Schedule
5.11, the Company and its Subsidiaries own or possess all licenses,
permits,
franchises, authorizations, patents, copyrights, proprietary
software, service
marks, trademarks and trade names, or rights thereto, that
individually or in
the aggregate are Material, without known conflict with the rights
of others.
(b) To the best knowledge of the Company, no product of the
Company
or any of its Subsidiaries infringes in any material respect any
license,
permit, franchise, authorization, patent, copyright, proprietary
software,
service mark, trademark, trade name or other right owned by any
other Person.
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TALX Corporation
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(c) To the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Subsidiaries
with respect to any patent, copyright, proprietary software,
service mark,
trademark, trade name or other right owned or used by the Company
or any of its
Subsidiaries.
Section
5.12. Compliance with ERISA. (a) The Company and each ERISA
Affiliate have operated and administered each Plan in compliance
with all
applicable laws except for such instances of noncompliance as have
not resulted
in and could not reasonably be expected to result in a Material
Adverse Effect.
Neither the Company nor any ERISA Affiliate has incurred any
liability pursuant
to Title I or IV of ERISA or the penalty or excise tax provisions
of the Code
relating to employee benefit plans (as defined in section 3 of
ERISA), and no
event, transaction or condition has occurred or exists that could
reasonably be
expected to result in the incurrence of any such liability by the
Company or any
ERISA Affiliate, or in the imposition of any Lien on any of the
rights,
properties or assets of the Company or any ERISA Affiliate, in
either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax
provisions
or to section 401(a)(29) or 412 of the Code or section 4068 of
ERISA, other than
such liabilities or Liens as would not be individually or in the
aggregate
Material.
(b) The present value of the aggregate benefit liabilities
under
each of the Plans (other than Multiemployer Plans), determined as
of the end of
such Plan's most recently ended plan year on the basis of the
actuarial
assumptions specified for funding purposes in such Plan's most
recent actuarial
valuation report, did not exceed the aggregate current value of the
assets of
such Plan allocable to such benefit liabilities by more than
$1,000,000 in the
case of any single Plan and by more than $1,000,000 in the
aggregate for all
Plans. The term "benefit liabilities" has the meaning specified in
section 4001
of ERISA and the terms "current value" and "present value" have the
meaning
specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject to contingent
withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of
Multiemployer
Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as
of
the last day of the Company's most recently ended fiscal year in
accordance with
Financial Accounting Standards Board Statement No. 106, without
regard to
liabilities attributable to continuation coverage mandated by
section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the
issuance
and sale of the Notes hereunder will not involve any transaction
that is subject
to the prohibitions of section 406 of ERISA or in connection with
which a tax
could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.
The
representation by the Company to each Purchaser in the first
sentence of this
Section 5.12(e) is made in reliance upon and subject to the
accuracy of such
Purchaser's representation in Section 6.2 as to the sources of the
funds used to
pay the purchase price of the Notes to be purchased by such
Purchaser.
Section
5.13. Private Offering by the Company. Neither the Company nor
anyone acting on its behalf has offered the Notes or the Subsidiary
Guarantee
Agreement or any similar
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TALX Corporation
Note Purchase Agreement
securities for sale to, or solicited any offer to buy any of the
same from, or
otherwise approached or negotiated in respect thereof with, any
person other
than the Purchasers and not more than twenty-six (26) other
Institutional
Investors, each of which has been offered the Notes and the
Subsidiary Guarantee
Agreement at a private sale for investment. Neither the Company nor
anyone
acting on its behalf has taken, or will take, any action that would
subject the
issuance or sale of the Notes and the Subsidiary Guarantee
Agreement to the
registration requirements of Section 5 of the Securities Act or to
the
registration requirements of any securities or blue sky laws of any
applicable
jurisdiction.
Section
5.14. Use of Proceeds; Margin Regulations. The Company will
apply
the proceeds of the sale of the Notes to repay amounts outstanding
under the
Bank Credit Agreement and for other general corporate purposes of
the Company
and its Subsidiaries. No part of the proceeds from the sale of the
Notes
hereunder will be used, directly or indirectly, for the purpose of
buying or
carrying any margin stock in violation of Regulation U of the Board
of Governors
of the Federal Reserve System (12 CFR 221), or for the purpose of
buying or
carrying or trading in any securities under such circumstances as
to involve the
Company in a violation of Regulation X of said Board (12 CFR 224)
or to involve
any broker or dealer in a violation of Regulation T of said Board
(12 CFR 220).
Margin stock does not constitute more than 1.0% of the value of the
consolidated
assets of the Company and its Subsidiaries and the Company does not
have any
present intention that margin stock will constitute more than 5.0%
of the value
of such assets. As used in this Section, the terms "margin stock"
and "purpose
of buying or carrying" shall have the meanings assigned to them in
said
Regulation U.
Section
5.15. Existing Indebtedness; Future Liens. (a) Schedule 5.15
sets
forth a complete and correct list of all outstanding Indebtedness
of the Company
and its Subsidiaries as of the date of Closing (including a
description of the
obligors and obligees, principal amount outstanding and collateral
therefor, if
any, and Guaranty thereof, if any), since which date there has been
no Material
change in the amounts, interest rates, sinking funds, installment
payments or
maturities of the Indebtedness of the Company or its Subsidiaries.
Neither the
Company nor any Subsidiary is in default and no waiver of default
is currently
in effect, in the payment of any principal or interest on any
Indebtedness of
the Company or such Subsidiary and no event or condition exists
with respect to
any Indebtedness of the Company or any Subsidiary that would permit
(or that
with notice or the lapse of time, or both, would permit) one or
more Persons to
cause such Indebtedness to become due and payable before its stated
maturity or
before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor
any
Subsidiary has agreed or consented to cause or permit in the future
(upon the
happening of a contingency or otherwise) any of its property,
whether now owned
or hereafter acquired, to be subject to a Lien not permitted by
Section 10.6.
(c) Neither the Company nor any Subsidiary is a party to, or
otherwise subject to any provision contained in, any instrument
evidencing
Indebtedness of the Company or such Subsidiary, any agreement
relating thereto
or any other agreement (including, but not limited to, its charter
or other
organizational document) which limits the amount of, or otherwise
imposes
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TALX Corporation
Note Purchase Agreement
restrictions on the incurring of, Indebtedness of the Company,
except as
specifically indicated in Schedule 5.15.
Section
5.16. Foreign Assets Control Regulations, Etc. (a) Neither the
sale of the Notes by the Company hereunder nor the guaranty of the
obligations
of the Company thereunder by the Subsidiary Guarantors under the
Subsidiary
Guarantee Agreement nor their use of the proceeds thereof will
violate the
Trading with the Enemy Act, as amended, or any of the foreign
assets control
regulations of the United States Treasury Department (31 CFR,
Subtitle B,
Chapter V, as amended) or any enabling legislation or executive
order relating
thereto.
(b) Neither the Company nor any Subsidiary (i) is a Person
described
or designated in the Specially Designated Nationals and Blocked
Persons List of
the Office of Foreign Assets Control or in Section 1 of the
Anti-Terrorism Order
or (ii) engages in any dealings or transactions with any such
Person. The
Company and its Subsidiaries are in compliance, in all material
respects, with
the USA Patriot Act.
(c) No part of the proceeds from the sale of the Notes
hereunder
will be used, directly or indirectly, for any payments to any
governmental
official or employee, political party, official of a political
party, candidate
for political office, or anyone else acting in an official
capacity, in order to
obtain, retain or direct business or obtain any improper advantage,
in violation
of the United States Foreign Corrupt Practices Act of 1977, as
amended, assuming
in all cases that such Act applies to the Company.
Section
5.17. Status under Certain Statutes. Neither the Company nor
any
Subsidiary is subject to regulation under the Investment Company
Act of 1940, as
amended, the Public Utility Holding Company Act of 2005, as
amended, the ICC
Termination Act of 1995, as amended, or the Federal Power Act, as
amended.
Section
5.18. Environmental Matters. (a) Neither the Company nor any
Subsidiary has knowledge of any claim or has received any notice of
any claim,
and no proceeding has been instituted raising any claim against the
Company or
any of its Subsidiaries or any of their respective real properties
now or
formerly owned, leased or operated by any of them or other assets,
alleging any
damage to the environment or violation of any Environmental Laws,
except, in
each case, such as could not reasonably be expected to result in a
Material
Adverse Effect.
(b) Neither the Company nor any Subsidiary has knowledge of any
facts which would give rise to any claim, public or private, of
violation of
Environmental Laws or damage to the environment emanating from,
occurring on or
in any way related to real properties now or formerly owned, leased
or operated
by any of them or to other assets or their use, except, in each
case, such as
could not reasonably be expected to result in a Material Adverse
Effect.
(c) Neither the Company nor any Subsidiary has stored any
Hazardous
Materials on real properties now or formerly owned, leased or
operated by any of
them and has not disposed of any Hazardous Materials in a manner
contrary to any
Environmental Laws in each case in any manner that could reasonably
be expected
to result in a Material Adverse Effect; and
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TALX Corporation
Note Purchase Agreement
(d) All buildings on all real properties now owned, leased or
operated by the Company or any Subsidiary are in compliance with
applicable
Environmental Laws, except where failure to comply could not
reasonably be
expected to result in a Material Adverse Effect.
Section
5.19. Pari Passu Ranking. The Company's obligations under the
Financing Agreements will, upon issuance of the Notes, rank at
least pari passu,
without preference or priority, with all of its other outstanding
unsecured
Senior Indebtedness (including, without limitation, the Bank Credit
Agreement).
Each Subsidiary Guarantor's obligations under the Subsidiary
Guaranty Agreement
will, upon issuance of the Notes and the Subsidiary Guarantee
Agreement, rank at
least pari passu, without preference or priority, with all of its
other
outstanding unsecured Senior Indebtedness (including, without
limitation, any
obligation under or relating to the Bank Credit Agreement). Each
Person (other
than the Company) which is a borrower, guarantor or other obligor
under or
pursuant to the Bank Credit Agreement is a Subsidiary Guarantor
under this
Agreement.
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
Section
6.1. Purchase for Investment. Each Purchaser severally
represents
that it is purchasing the Notes for its own account or for one or
more separate
accounts maintained by such Purchaser or for the account of one or
more pension
or trust funds and not with a view to the distribution thereof,
provided that
the disposition of such Purchaser's or their property shall at all
times be
within such Purchaser's or their control. Each Purchaser
understands that the
Notes and the Subsidiary Guarantee Agreement have not been
registered under the
Securities Act and may be resold only if registered pursuant to the
provisions
of the Securities Act or if an exemption from registration is
available, except
under circumstances where neither such registration nor such an
exemption is
required by law, and that the Obligors are not required to register
the Notes or
the Subsidiary Guarantee Agreement. Each Purchaser severally
represents that it
(i) is a "qualified institutional buyer" within the meaning of Rule
144A under
the Securities Act and (ii) has had the opportunity to ask
questions of the
Obligors and has received answers regarding the Company and its
Subsidiaries and
the transactions contemplated hereby.
Section
6.2. Source of Funds. Each Purchaser severally represents that
at
least one of the following statements is an accurate representation
as to each
source of funds (a "Source") to be used by such Purchaser to pay
the purchase
price of the Notes to be purchased by such Purchaser hereunder:
(a) the Source is an "insurance company general account" (as
the
term is
defined in the United States Department of Labor's Prohibited
Transaction Exemption ("PTE") 95-60) in respect of which the
reserves and
liabilities (as defined by the annual statement for life
insurance
companies
approved by the National Association of Insurance Commissioners
(the "NAIC
Annual Statement")) for the general account contract(s) held by
or on
behalf of any employee benefit plan together with the amount of
the
reserves
and liabilities for the general account contract(s) held by or
on
behalf of
any other employee benefit plans maintained by the same
employer
(or
affiliate thereof as defined in PTE 95-60) or by the same
employee
organization in the general account do not exceed 10% of the
total
reserves
and liabilities of the general account (exclusive of
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TALX Corporation
Note Purchase Agreement
separate
account liabilities) plus surplus as set forth in the NAIC
Annual
Statement
filed with such Purchaser's state of domicile; or
(b) the Source is a separate account that is maintained solely
in
connection
with such Purchaser's fixed contractual obligations under which
the
amounts payable, or credited, to any employee benefit plan (or
its
related
trust) that has any interest in such separate account (or to
any
participant or beneficiary of such plan (including any annuitant))
are not
affected
in any manner by the investment performance of the separate
account;
or
(c) the Source is either (i) an insurance company pooled
separate
account,
within the meaning of PTE 90-1 or (ii) a bank collective
investment
fund, within the meaning of the PTE 91-38 and, except as
disclosed
by such Purchaser to the Company in writing pursuant to this
clause
(c), no employee benefit plan or group of plans maintained by
the
same
employer or employee organization beneficially owns more than 10%
of
all assets
allocated to such pooled separate account or collective
investment
fund; or
(d) the Source constitutes assets of an "investment fund"
(within
the
meaning of Part V of PTE 84-14 (the "QPAM Exemption")) managed by
a
"qualified
professional asset manager" or "QPAM" (within the meaning of
Part V of
the QPAM Exemption), no employee benefit plan's assets that are
included
in such investment fund, when combined with the assets of all
other
employee benefit plans established or maintained by the same
employer
or by an affiliate (within the meaning of Section V(c)(1) of
the
QPAM
Exemption) of such employer or by the same employee organization
and
managed by
such QPAM, exceed 20% of the total client assets managed by
such QPAM,
the conditions of Part I(c) and (g) of the QPAM Exemption are
satisfied,
neither the QPAM nor a person controlling or controlled by the
QPAM
(applying the definition of "control" in Section V(e) of the
QPAM
Exemption)
owns a 5% or more interest in the Company and (i) the identity
of such
QPAM and (ii) the names of all employee benefit plans whose
assets
are
included in such investment fund have been disclosed to the Company
in
writing
pursuant to this clause (d); or
(e) the Source constitutes assets of a "plan(s)" (within the
meaning
of Section
IV of PTE 96-23 (the "INHAM Exemption")) managed by an
"in-house
asset manager" or "INHAM" (within the meaning of Part IV of the
INHAM
exemption), the conditions of Part I(a), (g) and (h) of the
INHAM
Exemption
are satisfied, neither the INHAM nor a person controlling or
controlled
by the INHAM (applying the definition of "control" in Section
IV(d) of
the INHAM Exemption) owns a 5% or more interest in the Company
and (i)
the identity of such INHAM and (ii) the name(s) of the employee
benefit
plan(s) whose assets constitute the Source have been disclosed
to
the
Company in writing pursuant to this clause (e); or
(f) the Source is a governmental plan; or
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TALX Corporation
Note Purchase Agreement
(g) the Source is one or more employee benefit plans, or a
separate
account or
trust fund comprised of one or more employee benefit plans,
each of
which has been identified to the Company in writing pursuant to
this
clause (g); or
(h) the Source does not include assets of any employee benefit
plan,
other than
a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan,"
"governmental
plan," and "separate account" shall have the respective meanings
assigned to
such terms in section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
Section
7.1. Financial and Business Information. The Company shall
deliver
to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days (or such shorter
period
as is 15
days greater than the period applicable to the filing of the
Company's
Quarterly Report on Form 10-Q (the "Form 10-Q") with the SEC
regardless
of whether the Company is subject to the filing requirements
thereof)
after the end of each quarterly fiscal period in each fiscal
year
of the
Company (other than the last quarterly fiscal period of each
such
fiscal
year), duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such quarter and (in the case of the second
and
third quarters) for the portion of the fiscal year ending with
such
quarter,
setting
forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in
reasonable
detail,
prepared in accordance with GAAP applicable to quarterly
financial
statements
generally, and certified by a Senior Financial Officer as
fairly presenting, in
all material respects, the financial position of the
companies
being reported on and their results of operations and cash
flows,
subject to changes resulting from year-end adjustments;
provided
that
delivery within the time period specified above of copies of
the
Company's
Form 10 Q prepared in compliance with the requirements therefor
and filed
with the SEC shall be deemed to satisfy the requirements of
this
Section
7.1(a), and provided, further, that the Company shall be deemed
to
have made
such delivery of such Form 10-Q if it shall have timely made
such Form
10-Q available on "EDGAR" and on its home page on the worldwide
web (at
the date of this Agreement located at: http//www.talx.com) and
shall have
given or caused to be given each Purchaser notice of such
availability on EDGAR and on its home page in connection with
each
delivery
(such availability and notice thereof being referred to as
"Electronic Delivery"), in which event, the Company shall
separately
deliver,
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TALX Corporation
Note Purchase Agreement
concurrently with such Electronic Delivery, the certificate of the
Senior
Financial
Officer.
(b) Annual Statements -- within 105 days (or such shorter period
as
is 15 days
greater than the period applicable to the filing of the
Company's
Annual Report on Form 10-K (the "Form 10-K") with the SEC
regardless
of whether the Company is subject to the filing requirements
thereof)
after the end of each fiscal year of the Company, duplicate
copies
of
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries for such year,
setting forth in each
case in comparative form the figures for the
previous
fiscal year, all in reasonable detail, prepared in accordance
with GAAP,
and accompanied by an opinion thereon of independent public
accountants of recognized national standing, which opinion shall
state
that such
financial statements present fairly, in all material respects,
the
financial position of the companies being reported upon and
their
results of
operations and cash flows and have been prepared in conformity
with GAAP,
and that the examination of such accountants in connection with
such
financial statements has been made in accordance with generally
accepted
auditing standards, and that such audit provides a reasonable
basis for
such opinion in the circumstances; provided that the delivery
within the
time period specified above of the Company's Form 10 K for such
fiscal
year (together with the Company's annual report to shareholders,
if
any,
prepared pursuant to Rule 14a-3 under the Exchange Act) prepared
in
accordance
with the requirements thereof and filed with the SEC shall be
deemed to
satisfy the requirements of this Section 7.1(b) and provided,
further,
that the Company shall be deemed to have made delivery of such
Form 10-K
if it shall have timely made Electronic Delivery thereof;
(c) SEC and Other Reports -- promptly upon their becoming
available,
one copy
of (i) each financial statement, report, notice or proxy
statement
sent by the Company or any Subsidiary to its principal lending
banks as a
whole (excluding information sent to such banks in the ordinary
course of
administration of a bank facility, such as information relating
to pricing and
borrowing availability) or to its public securities holders
generally,
and (ii) each regular or periodic report, each registration
statement
that shall have become effective other than registration
statements
on Form S-8 (without exhibits except as expressly requested by
such
holder), and each prospectus (other than one relating solely to
employee
benefit plans) and all amendments thereto filed by the Company
or
any
Subsidiary with the SEC and of all press releases and other
statements
made
available generally by the Company or any Subsidiary to the
public
concerning
developments that are Material, provided, that the Company
shall be
deemed to have made such delivery (including with respect to
any
exhibits
thereto) if it shall have timely made Electronic Delivery
thereof;
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(d) Notice of Default or Event of Default -- promptly, and in
any
event
within five days after a Responsible Officer becoming aware of
the
existence
of any Default or Event of Default or that any Person has given
any notice
or taken any action with respect to a claimed default hereunder
or that
any Person has given any notice or taken any action with
respect
to a
claimed default of the type referred to in Section 11(f), a
written
notice
specifying the nature and period of existence thereof and what
action the
Company is taking or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five
days
after a
Responsible Officer becoming aware of any of the following, a
written notice
setting forth the nature thereof and the action, if any,
that the
Company or an ERISA Affiliate proposes to take with respect
thereto:
(i) with respect to any Plan, any reportable event, as defined
in section
4043(c) of ERISA and the regulations thereunder, for
which notice thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings
under
section 4042 of ERISA for the termination of, or the appointment
of
a trustee to administer, any Plan, or the receipt by the Company
or
any ERISA Affiliate of a notice from a Multi-employer Plan that
such
action has been taken by the PBGC with respect to such
Multi-employer Plan; or
(iii) any event, transaction or condition that could result in
the incurrence of any liability by the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit
plans, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate
pursuant
to Title I or IV of ERISA or such penalty or excise tax
provisions,
if such liability or Lien, taken together with any other such
liabilities or Liens then existing, could reasonably be expected
to
have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in any
event
within 30 days of receipt thereof, copies of any written notice
to
the
Company or any Subsidiary from any Federal or state
Governmental
Authority
relating to (i) non-compliance or alleged non-compliance with
any order,
ruling, statute or other law or regulation or (ii) any order,
ruling,
statute or other law or regulation outside of the ordinary
course
of
business that, in either case, could reasonably be expected to have
a
Material
Adverse Effect; and
(g) Requested Information -- with reasonable promptness, such
other
data and
information relating to the business, operations, affairs,
financial
condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of any
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Note Purchase Agreement
Obligor to perform its obligations under the Financing Agreements
to
which it is a party as from time to time may be reasonably
requested
by any such holder of Notes.
Section
7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or
Section 7.1(b)
shall be accompanied by a certificate of a Senior Financial Officer
setting
forth (which, in the case of Electronic Delivery of any such
financial
statements, shall be by separate substantially concurrent delivery
of such
certificate to each holder of Notes):
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company
was
in compliance with the requirements of Section 10.2 through
Section
10.9, inclusive, during the quarterly or annual period covered
by
the statements then being furnished (including with respect to
each
such Section, where applicable, the calculations of the maximum
or
minimum amount, ratio or percentage, as the case may be,
permissible
under the terms of such Sections, and the calculation of the
amount,
ratio or percentage then in existence); and
(b) Event of Default -- a statement that such Senior Financial
Officer has reviewed (or caused a Responsible Officer to review)
the
relevant terms hereof and has made, or caused to be made, under
his
or her supervision, a review of the transactions and conditions
of
the Company and its Subsidiaries from the beginning of the
quarterly
or annual period covered by the statements then being furnished
to
the date of the certificate and that such review shall not have
disclosed the existence during such period of any condition or
event
that constitutes a Default or an Event of Default or, if any
such
condition or event existed or exists (including, without
limitation,
any such event or condition resulting from the failure of the
Company or any Subsidiary to comply with any Environmental
Law),
specifying the nature and period of existence thereof and what
action the Company shall have taken or proposes to take with
respect
thereto.
Section
7.3. Visitation. The Company shall permit the representatives
of
each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior
notice to the Company, to visit the principal executive office
of
the Company, to discuss the affairs, finances and accounts of
the
Company and its Subsidiaries with the Company's officers, and
(with
the consent of the Company, which consent will not be
unreasonably
withheld) its independent public accountants, and (with the
consent
of the Company, which consent will not be unreasonably withheld)
to
visit the other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may be
reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists,
at the expense of the Company to visit and inspect any of the
offices or properties of the Company or any Subsidiary, to
examine
all their respective books of account, records, reports and
other
papers, to make copies and extracts therefrom, and to discuss
their
respective affairs,
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TALX Corporation
Note Purchase Agreement
finances and accounts with their respective officers and
independent
public accountants (and by this provision the Company
authorizes
said accountants to discuss the affairs, finances and accounts
of
the Company and its Subsidiaries), all at such times and as often
as
may be requested.
Section
7.4. Limitation on Disclosure Obligation. The Company shall not
be
required to disclose the following information pursuant to Section
7.1(c),
7.1(g) or 7.3:
(a) information that the Company determines after consultation
with counsel qualified to advise on such matters that,
notwithstanding the confidentiality requirements of Section 20,
it
would be prohibited from disclosing by applicable law or
regulations
without making public disclosure thereof; or
(b) information that, notwithstanding the confidentiality
requirements of Section 20, the Company is prohibited from
disclosing by the terms of an obligation of confidentiality
contained in any agreement with any non-Affiliate binding upon
the
Company and not entered into in contemplation of this clause
(b),
provided that the Company shall use commercially reasonable
efforts
to obtain consent from the party in whose favor the obligation
of
confidentiality was made to permit the disclosure of the
relevant
information and provided further that the Company has received
a
written opinion of counsel confirming that disclosure of such
information without consent from such other contractual party
would
constitute a breach of such agreement.
Promptly after a request therefor from any holder of Notes that is
an
Institutional Investor, the Company will provide such holder with a
written
opinion of counsel (which may be addressed to the Company) relied
upon as to any
requested information that the Company is prohibited from
disclosing to such
holder under circumstances described in this Section 7.4.
SECTION 8. PAYMENT AND PREPAYMENT OF THE NOTES.
Section
8.1. Required Prepayments. On May 25, 2010 and on each May 25
thereafter to and including May 25, 2013 the Company will prepay
$15,000,000
principal amount (or such lesser principal amount as shall then be
outstanding)
of the Notes at par and without payment of the Make-Whole Amount or
any premium,
provided that upon any partial prepayment of the Notes pursuant to
Section 8.2,
8.3 or 8.8, the principal amount of each required prepayment of the
Notes
becoming due under this Section 8.1 on and after the date of such
prepayment
shall be reduced in the same proportion as the aggregate unpaid
principal amount
of the Notes is reduced as a result of such prepayment. The entire
remaining
unpaid principal amount of the outstanding Notes will be due and
payable on May
25, 2014.
Section
8.2. Optional Prepayments with Make-Whole Amount. The Company
may,
at its option, upon notice as provided below, prepay at any time
all, or from
time to time any part of, the Notes, in an amount not less than 5%
of the
aggregate principal amount of the Notes then outstanding in the
case of a
partial prepayment, at 100% of the principal amount so prepaid,
together with
interest accrued on the principal amount so prepaid to the date of
such
prepayment and the Make-Whole Amount determined for the prepayment
date with
respect to such principal
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TALX Corporation
Note Purchase Agreement
amount. The Company will give each holder of Notes written notice
of each
optional prepayment under this Section 8.2 not less than 30 days
and not more
than 60 days prior to the date fixed for such prepayment. Each such
notice shall
specify such date (which shall be a Business Day), the aggregate
principal
amount of the Notes to be prepaid on such date, the principal
amount of each
Note held by such holder to be prepaid (determined in accordance
with Section
8.4), and the interest to be paid on the prepayment date with
respect to such
principal amount being prepaid, and shall be accompanied by a
certificate of a
Senior Financial Officer as to the estimated Make-Whole Amount due
in connection
with such prepayment (calculated as if the date of such notice were
the date of
the prepayment), setting forth the details of such computation. Two
Business
Days prior to such prepayment, the Company shall deliver to each
holder of Notes
a certificate of a Senior Financial Officer specifying the
calculation of such
Make-Whole Amount as of the specified prepayment date.
Section
8.3. Prepayment of Notes Upon Change of Control.
(a) Condition to Company Action. Within fifteen (15) Business
Days
of a Responsible Officer obtaining knowledge of the occurrence of a
Change of
Control, the Company shall have given to each holder of Notes
written notice
containing and constituting an offer to prepay Notes as described
in
subparagraph (b) of this Section 8.3, accompanied by the
certificate described
in subparagraph (e) of this Section 8.3.
(b) Offer to Prepay Notes. The offer to prepay Notes contemplated
by
subparagraph (a) of this Section 8.3 shall be an offer to prepay,
in accordance
with and subject to this Section 8.3, all, but not less than all,
the Notes held
by each holder (in this case only, "holder" in respect of any Note
registered in
the name of a nominee for a disclosed beneficial owner shall mean
such
beneficial owner) on the date specified in such offer (the
"Proposed Prepayment
Date") that is not less than 30 days and not more than 60 days
after the date of
such offer (if the Proposed Prepayment Date shall not be specified
in such
offer, the Proposed Prepayment Date shall be the first Business Day
which is at
least 45 days after the date of such offer).
(c) Acceptance; Rejection. A holder of Notes may accept the offer
to
prepay made pursuant to this Section 8.3 by causing a notice of
such acceptance
to be delivered to the Company at least 15 days prior to the
Proposed Prepayment
Date. A failure by a holder of Notes to respond to an offer to
prepay made
pursuant to this Section 8.3, or to accept an offer as to all of
the Notes held
by such holder, within such time period shall be deemed to
constitute a
rejection of such offer by such holder.
(d) Prepayment. Prepayment of the Notes to be prepaid pursuant
to
this Section 8.3 shall be at 100% of the principal amount of such
Notes,
together with interest on such Notes accrued to the date of
prepayment, and
shall not require the payment of any Make-Whole Amount. The
prepayment shall be
made on the Proposed Prepayment Date.
(e) Officer's Certificate. Each offer to prepay the Notes
pursuant
to this Section 8.3 shall be accompanied by a certificate, executed
by a Senior
Financial Officer of the Company and dated the date of such offer,
specifying:
(i) the Proposed Prepayment Date; (ii) that such offer is made
pursuant to this
Section 8.3; (iii) the principal amount of each Note offered to
be
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TALX Corporation
Note Purchase Agreement
prepaid; (iv) the interest that would be due on each Note offered
to be prepaid,
accrued to the Proposed Prepayment Date; (v) that the conditions of
this Section
8.3 have been fulfilled; and (vi) in reasonable detail, the nature
and date of
the Change of Control.
Section
8.4. Allocation of Partial Prepayments. In the case of each
partial prepayment of the Notes pursuant to Section 8.2, the
principal amount of
the Notes to be prepaid shall be allocated among all of the Notes
at the time
outstanding in proportion, as nearly as practicable, to the
respective unpaid
principal amounts thereof not theretofore called for
prepayment.
Section
8.5. Maturity; Surrender, Etc. In the case of each prepayment
of
Notes pursuant to this Section 8, the principal amount of each Note
to be
prepaid shall mature and become due and payable on the date fixed
for such
prepayment (which shall be a Business Day), together with interest
on such
principal amount accrued to such date and the applicable Make-Whole
Amount, if
any. From and after such date, unless the Company shall fail to pay
such
principal amount when so due and payable, together with the
interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal
amount shall
cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the
Company and cancelled and shall not be reissued, and no Note shall
be issued in
lieu of any prepaid principal amount of any Note.
Section
8.6. Purchase of Notes. The Company will not and will not
permit
any Affiliate to purchase, redeem, prepay or otherwise acquire,
directly or
indirectly, any of the outstanding Notes except upon the payment or
prepayment
of the Notes in accordance with the terms of this Agreement and the
Notes. The
Company will promptly cancel all Notes acquired by it or any
Affiliate pursuant
to any payment or prepayment of Notes pursuant to any provision of
this
Agreement and no Notes may be issued in substitution or exchange
for any such
Notes.
Section
8.7. Make-Whole Amount.
"Make-Whole Amount" means, with respect to any Note, an amount
equal
to the excess, if any, of the Discounted Value of the Remaining
Scheduled
Payments with respect to the Called Principal of such Note over the
amount of
such Called Principal, provided that the Make-Whole Amount may in
no event be
less than zero. For the purposes of determining the Make-Whole
Amount, the
following terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal
of
such Note that is to be prepaid pursuant to Section 8.2 or has
become or is
declared to be immediately due and payable pursuant to Section
12.1, as the
context requires.
"Discounted Value" means, with respect to the Called Principal
of
any Note, the amount obtained by discounting all Remaining
Scheduled Payments
with respect to such Called Principal from their respective
scheduled due dates
to the Settlement Date with respect to such Called Principal, in
accordance with
accepted financial practice and at a discount factor (applied on
the same
periodic basis as that on which interest on the Notes is payable)
equal to the
Reinvestment Yield with respect to such Called Principal.
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TALX Corporation
Note Purchase Agreement
"Reinvestment Yield" means, with respect to the Called Principal
of
any Note, .50% over the yield to maturity implied by (i) the yields
reported as
of 10:00 a.m. (New York City time) on the second Business Day
preceding the
Settlement Date with respect to such Called Principal, on the
display designated
as "Page PX1" (or such other display as may replace Page PX1 on
Bloomberg
Financial Markets ("Bloomberg")) or, if Page PX1 (or its successor
screen on
Bloomberg) is unavailable, the Telerate Access Service screen which
corresponds
most closely to Page PX1 for the most recently issued actively
traded on the run
U.S. Treasury securities having a maturity equal to the Remaining
Average Life
of such Called Principal as of such Settlement Date, or (ii) if
such yields are
not reported as of such time or the yields reported as of such time
are not
ascertainable (including by way of interpolation), the Treasury
Constant
Maturity Series Yields reported, for the latest day for which such
yields have
been so reported as of the second Business Day preceding the
Settlement Date
with respect to such Called Principal, in Federal Reserve
Statistical Release
H.15 (or any comparable successor publication) for U.S. Treasury
securities
having a constant maturity equal to the Remaining Average Life of
such Called
Principal as of such Settlement Date. In the case of each
determination under
clause (i) or clause (ii), as the case may be, of the preceding
paragraph, such
implied yield will be determined, if necessary, by (a) converting
U.S. Treasury
bill quotations to bond equivalent yields in accordance with
accepted financial
practice and (b) interpolating linearly between (1) the applicable
U.S. Treasury
security with the maturity closest to and greater than such
Remaining Average
Life and (2) the applicable U.S. Treasury security with the
maturity closest to
and less than such Remaining Average Life. The Reinvestment Yield
shall be
rounded to the number of decimal places as appears in the interest
rate of the
applicable Note.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest
one-twelfth year)
obtained by dividing (i) such Called Principal into (ii) the sum of
the products
obtained by multiplying (a) the principal component of each
Remaining Scheduled
Payment with respect to such Called Principal by (b) the number of
years
(calculated to the nearest one-twelfth year) that will elapse
between the
Settlement Date with respect to such Called Principal and the
scheduled due date
of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the
Called
Principal of any Note, all payments of such Called Principal and
interest
thereon including, without limitation, pursuant to Section 9.10,
that would be
due after the Settlement Date with respect to such Called Principal
if no
payment of such Called Principal were made prior to its scheduled
due date,
provided that if such Settlement Date is not a date on which
interest payments
are due to be made under the terms of the Notes, then the amount of
the next
succeeding scheduled interest payment will be reduced by the amount
of interest
accrued to such Settlement Date and required to be paid on such
Settlement Date
pursuant to Section 8.2 or Section 12.1.
"Settlement Date" means, with respect to the Called Principal of
any
Note, the date on which such Called Principal is to be prepaid
pursuant to
Section 8.2 or has become or is declared to be immediately due and
payable
pursuant to Section 12.1, as the context requires.
Section
8.8. Prepayment in Connection with Sales of Assets. If the
Company
chooses to make an offer to prepay the Notes pursuant to Section
10.8, the
Company will give written notice
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TALX Corporation
Note Purchase Agreement
thereof to the holders of all outstanding Notes, which notice shall
(i) refer
specifically to this Section 8.8 and describe in reasonable detail
the
Disposition giving rise to such offer to prepay the Notes, (ii)
specify the
principal amount of each Note being offered to be prepaid, without
any
requirement to pay any Make-Whole Amount, which amount shall be
allocated among
all of the Notes at the time outstanding in proportion, as nearly
as
practicable, to the respective unpaid principal amounts not
theretofore called
for prepayment, (iii) specify a date not less than 30 days and not
more than 60
days after the date of such notice (the "Disposition Prepayment
Date") and
specify the Disposition Response Date (as defined below), and (iv)
offer to
prepay on the Disposition Prepayment Date the amount specified in
(ii) above
with respect to each Note together with interest accrued thereon to
the
Disposition Prepayment Date. Each holder of a Note shall notify the
Company of
such holder's acceptance or rejection of such offer by giving
written notice of
such acceptance or rejection to the Company (provided, however,
that any holder
who fails to so notify the Company shall be deemed to have rejected
such offer)
on a date at least 10 days prior to the Disposition Prepayment Date
(such date
10 days prior to the Disposition Prepayment Date being the
"Disposition Response
Date"), provided, that if any holder of Notes declines such offer,
the proceeds
that would have been paid to such holder shall be offered pro rata
to the other
holders of the Notes that have accepted the offer. The Company
shall prepay on
the Disposition Prepayment Date the amount specified in (ii) above
with respect
to each Note held by the holders who have accepted such offer in
accordance with
this Section 8.8.
SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
Section
9.1. Compliance with Law. Without limiting Section 10.9, the
Company will, and will cause each of its Subsidiaries to, comply
with all laws,
ordinances or governmental rules or regulations to which each of
them is
subject, including, without limitation, ERISA, the USA Patriot Act
and
Environmental Laws, and will obtain and maintain in effect all
licenses,
certificates, permits, franchises and other governmental
authorizations
necessary to the ownership of their respective properties or to the
conduct of
their respective businesses, in each case to the extent necessary
to ensure that
non-compliance with such laws, ordinances or governmental rules or
regulations
or failures to obtain or maintain in effect such licenses,
certificates,
permits, franchises and other governmental authorizations could
not,
individually or in the aggregate, reasonably be expected to have a
Material
Adverse Effect.
Section
9.2. Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain, with financially sound and reputable
insurers,
insurance with respect to their respective properties and
businesses against
such casualties and contingencies, of such types, on such terms and
in such
amounts (including deductibles, co-insurance and self-insurance, if
adequate
reserves are maintained with respect thereto) as is customary in
the case of
entities of established reputations engaged in the same or a
similar business
and similarly situated.
Section
9.3. Maintenance of Properties. The Company will, and will
cause
each of its Subsidiaries to, maintain and keep, or cause to be
maintained and
kept, their respective properties in good repair, working order and
condition
(other than ordinary wear and tear), so
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TALX Corporation
Note Purchase Agreement
that the business carried on in connection therewith may be
properly conducted
at all times, provided that this Section shall not prevent the
Company or any
Subsidiary from discontinuing the operation and the maintenance of
any of its
properties if the Company or such Subsidiary has concluded that
such
discontinuance is desirable in the conduct of its business and the
Company has
concluded that such discontinuance could not, individually or in
the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section
9.4. Payment of Taxes and Claims. The Company will, and will
cause
each of its Subsidiaries to, file all tax returns required to be
filed in any
jurisdiction and to pay and discharge all taxes shown to be due and
payable on
such returns and all other taxes, assessments, governmental
charges, or levies
imposed on them or any of their properties, assets, income or
franchises, to the
extent such taxes, assessments, charges and levies have become due
and payable
and before they have become delinquent and all claims for which
sums have become
due and payable that have or might become a Lien on properties or
assets of the
Company or any Subsidiary, provided that neither the Company nor
any Subsidiary
need file any such return or pay any such tax, assessment, charge,
levy or claim
if (i) the amount, applicability or validity thereof is contested
by the Company
or such Subsidiary on a timely basis in good faith and in
appropriate
proceedings, and the Company or a Subsidiary has established
adequate reserves
therefor in accordance with GAAP on the books of the Company or
such Subsidiary
or (ii) the non-filing of all such returns or the nonpayment of all
such taxes,
assessments, charges, levies and claims in the aggregate could not
reasonably be
expected to have a Material Adverse Effect.
Section
9.5. Limited Liability Company and Corporate Existence, Etc.
Subject to Sections 10.7 and 10.8, the Company will at all times
preserve and
keep in full force and effect its corporate existence. Subject to
Sections 10.7
and 10.8, the Company will at all times preserve and keep in full
force and
effect the limited liability company, corporate or other applicable
existence of
each of its Subsidiaries (unless merged or consolidated into or
with, or
substantially all of its assets are transferred to, the Company or
a Wholly
Owned Subsidiary) and all rights and franchises of the Company and
its
Wholly-Owned Subsidiaries unless, in the good faith judgment of the
Company, the
termination of or failure to preserve and keep in full force and
effect such
limited liability company, corporate or other applicable existence,
right or
franchise could not, individually or in the aggregate, be
reasonably expected to
have a Material Adverse Effect.
Section
9.6. Books and Records. The Company will, and will cause each
of
its Subsidiaries to, maintain proper books of record and account in
conformity
with GAAP and all applicable requirements of any Governmental
Authority having
legal or regulatory jurisdiction over the Company or such
Subsidiary, as the
case may be.
Section
9.7. Additional Subsidiary Guarantors. The Company hereby
covenants and agrees that, if any Subsidiary which is not a
Subsidiary Guarantor
(i) guarantees the Company's obligations under the Bank Credit
Agreement, (ii)
directly or indirectly becomes an obligor under the Bank Credit
Agreement or
(iii) directly or indirectly guarantees any Indebtedness or other
obligations of
the Company, it will cause such Subsidiary to, concurrently
therewith, (a) enter
into a joinder agreement substantially in the form of Annex I to
the Subsidiary
Guarantee Agreement or otherwise deliver another Subsidiary
Guarantee Agreement
reasonably
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TALX Corporation
Note Purchase Agreement
acceptable to the Required Holders, in each case, for the benefit
of the holders
of the Notes, (b) deliver a favorable legal opinion of nationally
recognized
independent counsel, or other independent counsel reasonably
satisfactory to the
Required Holders, as to the good standing, due authorization,
execution,
delivery, validity and enforceability thereof, and that the
Subsidiary Guarantee
Agreement does not violate or conflict with any law, agreement or
governing
document relating to such Subsidiary and such other opinions as are
reasonably
requested by the Required Holders and their counsel and (c) deliver
appropriate
limited liability company or corporate resolutions and other
limited liability
company or corporate documentation in form and substance reasonably
satisfactory
to the Required Holders and their counsel.
Section
9.8. Release of Subsidiary Guarantors. If any Subsidiary is
released as a borrower, guarantor or other obligor under the Bank
Credit
Agreement (and is not then designated as a borrower, guarantor or
other obligor
under any other credit facility of the Company or any Subsidiary),
such
Subsidiary shall be deemed released as a Subsidiary Guarantor
concurrently with
the Company providing you with an Officer's Certificate. Such
Officer's
Certificate shall be accompanied by evidence of such release under
the Credit
Agreement and shall certify that (i) at the time of such release
and immediately
after giving effect thereto, no Default or Event of Default existed
or shall
exist hereunder (ii) such Subsidiary then being released is not
then a borrower
or obligor under any other credit facility, and (iii) other than
the payment of
reasonable legal fees, no consideration was granted to any agent or
lender under
the Bank Credit Agreement, directly or indirectly in connection
with such
release including, but not limited to, any payment of any fees, any
increase in
pricing, any additional Guaranty, any participation in other
transactions or any
other credit enhancement or other benefit.
Section
9.9. Pari Passu Ranking. The Company's obligations under the
Financing Agreements will, at all times, rank at least pari passu,
without
preference or priority, with all of its other outstanding unsecured
Senior
Indebtedness (including, without limitation, the Bank Credit
Agreement). Each
Subsidiary Guarantor's obligations under the Subsidiary Guaranty
Agreement will,
at all times, rank at least pari passu, without preference or
priority, with all
of its other outstanding unsecured Senior Indebtedness (including,
without
limitation, any obligation under or relating to the Bank Credit
Agreement).
Section
9.10. Additional Interest. If the Company fails to make an
Equity
Issuance resulting in the Company receiving new net cash proceeds
in an amount
not less than $75,000,000 on or before September 30, 2006, then in
addition to
all other interest accruing on the Notes (including, without
limitation, the
Default Rate), additional interest in the amount of 0.45% per annum
shall accrue
on the Notes commencing on September 30, 2006 and continuing
through maturity
and payment in full of the Notes (and the Company will pay such
additional
interest concurrently with all other interest becoming due and
payable on the
Notes), provided that if the Company makes an Equity Issuance
resulting in the
Company receiving new net cash proceeds in an amount not less than
$75,000,000
at any time after September 30, 2006 but prior to September 30,
2007, then on
and after the first day of the next fiscal quarter beginning after
the date of
such Equity Issuance, such additional interest shall cease to
accrue and shall
no longer be payable on the Notes.
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TALX Corporation
Note Purchase Agreement
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
Section
10.1. Transactions with Affiliates. The Company will not, and
will
not permit any Subsidiary to, enter into directly or indirectly any
transaction
or group of related transactions (including without limitation the
purchase,
lease, sale or exchange of properties of any kind or the rendering
of any
service) with any Affiliate (other than the Company or another
Subsidiary),
except in the ordinary course and pursuant to the reasonable
requirements of the
Company's or such Subsidiary's business and upon fair and
reasonable terms no
less favorable to the Company or such Subsidiary than would be
obtainable in a
comparable arm's-length transaction with a Person not an
Affiliate.
Section
10.2. Consolidated Net Worth. The Company will not, as of the
end
of any fiscal quarter, permit Consolidated Net Worth to be less
than the sum of
(a) $150,000,000, plus (b) an aggregate amount equal to 25% of
Consolidated Net
Income (but, in each case, only if a positive number) for each
completed fiscal
quarter beginning with the fiscal quarter ending June 30, 2006 plus
(c) an
aggregate amount equal to 50% of the net proceeds of all Equity
Issuances after
the date of Closing.
Section
10.3. Consolidated Debt Coverage. The Company will not, as of
the
end of each fiscal quarter, permit the ratio of Consolidated Debt
outstanding on
such date to Consolidated Operating Cash Flow for the immediately
preceding four
quarter period, taken as a single accounting period ending on the
date of
calculation, to exceed (i) 3.00 to 1.00 as of the end of any fiscal
quarter
prior to December 31, 2006 and (ii) 2.75 to 1.00 at the end of any
fiscal
quarter thereafter. If, during the period for which Consolidated
Operating Cash
Flow is being calculated, the Company or a Subsidiary has (i)
acquired one or
more Persons (or the assets thereof) or (ii) disposed of one or
more
Subsidiaries (or substantially all of the assets thereof),
Consolidated
Operating Cash Flow shall be calculated on a pro forma basis as if
all of such
acquisitions and all such dispositions had occurred on the first
day of such
period.
Section
10.4. Fixed Charge Coverage. The Company will not permit, as at
the end of each fiscal quarter, the ratio of Consolidated Income
Available for
Fixed Charges to Consolidated Fixed Charges, in each case for the
immediately
preceding four quarter period, taken as a single accounting period
ending on the
date of calculation, to be less than 1.75 to 1.00. If, during the
period for
which the ratio of Consolidated Income Available for Fixed Charges
to
Consolidated Fix Charges is being calculated, the Company or a
Subsidiary has
(i) acquired one or more Persons (or the assets thereof) or (ii)
disposed of one
or more Subsidiaries (or substantially all of the assets thereof),
Consolidated
Income Available for Fixed Charges and Consolidated Fixed Charges
shall be
calculated on a pro forma basis as if all of such acquisitions and
all such
dispositions had occurred on the first day of such period.
Section
10.5. Priority Debt. The Company will not, at any time, permit
Priority Debt to exceed 15% of Consolidated Net Worth determined as
of the end
of the most recently ended fiscal quarter.
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TALX Corporation
Note Purchase Agreement
Section
10.6. Liens. The Company will not, and will not permit any of
its
Subsidiaries to, directly or indirectly create, incur, assume or
permit to exist
(upon the happening of a contingency or otherwise) any Lien on or
with respect
to any property or asset (including, without limitation, any
document or
instrument in respect of goods or accounts receivable) of the
Company or any
such Subsidiary, whether now owned or held or hereafter acquired,
or any income
or profits therefrom or assign or otherwise convey any right to
receive income
or profits (unless it makes, or causes to be made, effective
provision whereby
the Notes will be equally and ratably secured with any and all
other obligations
thereby secured, such security to be pursuant to an agreement
reasonably
satisfactory to the Required Holders and, in any such case, the
Notes shall have
the benefit, to the fullest extent that, and with such priority as,
the holders
of the Notes may be entitled under applicable law, of an equitable
Lien on such
property), except:
(a) Liens for taxes, assessments or other governmental charges
or levies which are not yet due and payable or the payment of which
is
not at the time required by Section 9.4;
(b) Liens existing on the date of this Agreement and securing
the Indebtedness of the Company and its Subsidiaries referred to
in
Schedule 5.15;
(c) (i) Liens incidental to the conduct of business or the
ownership of properties and assets (including landlords',
lessors',
carriers', operators', warehousemen's, mechanics', materialmen's
and
other similar Liens) and Liens (other than any Lien imposed by
ERISA)
incurred or deposits made in the ordinary course of business (i)
in
connection with workers' compensation, unemployment insurance and
other
types of social security or retirement benefits, or (ii) to secure
(or
to obtain letters of credit that secure) the performance of
tenders,
statutory obligations, surety bonds, appeal bonds, bids, leases
(other
than Capital Leases), performance bonds, purchase, construction
or
sales contracts and other similar obligations, in each case not
incurred or made in connection with the borrowing of money, the
obtaining of advances or credit or the payment of the deferred
purchase
price of property and (ii) Liens of commercial depositary
institutions
constituting a right of setoff against amounts on deposit with any
such
institution, provided, that such deposit account is not a
dedicated
cash collateral account and is not subject to restrictions
against
access by the Company or its Subsidiaries;
(d) any attachment or judgment Lien, unless the judgment it
secures shall not, within 60 days after the entry thereof, have
been
discharged or execution thereof stayed pending appeal, or shall
not
have been discharged within 60 days after the expiration of any
such
stay;
(e) leases or subleases granted to others, easements,
rights-of-way, minor survey exceptions, restrictions and other
similar
charges or encumbrances, in each case incidental to, and not
interfering with, the ordinary conduct of the business of the
Company
or any of its Subsidiaries, provided that such Liens do not, in
the
aggregate, materially detract from the value of such property or
which
relate only to assets that in the aggregate are not Material;
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TALX Corporation
Note Purchase Agreement
(f) any Lien (i) created contemporaneously with its
acquisition or within 365 days of the acquisition or construction
or
development thereof to secure all or any part of the purchase
price, or
to secure Indebtedness incurred or assumed to pay all or any part
of
the purchase price or cost of construction, of property (or any
improvement thereon) acquired or constructed by the Company or
a
Subsidiary after the date of the Closing or (ii) any Lien existing
on
property of a Person immediately prior to its being consolidated
or
amalgamated with or merged into the Company or any Subsidiary or
its
becoming a Subsidiary, or any Lien existing on any property
acquired by
the Company or any Subsidiary at the time such property is so
acquired
(whether or not the Indebtedness secured thereby shall have
been
assumed), provided that
(A) any such Lien shall extend solely to the item or
items of such property (or improvement thereon) so acquired or
constructed and, if required by the terms of the instrument
originally creating such Lien, other property (or improvement
thereon) which is an improvement to or is acquired for
specific use in connection with such acquired or constructed
property (or improvement thereon) or which is real property
being improved by such acquired or constructed property (or
improvement thereon), and
(B) the principal amount of the Indebtedness secured
by any such Lien shall at no time exceed an amount equal to
the lesser of (1) the cost to the Company or such Subsidiary
of the property (or improvement thereon) so acquired or
constructed and (2) the fair market value (as determined in
good faith by one or more of the officers of the Company to
whom authority to enter into such transaction has been
delegated by the board of directors of the Company) of such
property (or improvement thereon) at the time of such
acquisition or construction;
(g) any Lien renewing, extending or refunding any Lien
permitted by paragraphs (b) or (f) of this Section 10.6, provided
that
(i) the principal amount of Indebtedness secured by such Lien
immediately prior to such extension, renewal or refunding is
not
increased or the maturity thereof reduced, (ii) such Lien is
not
extended to any other property, and (iii) immediately after
such
extension, renewal or refunding no Default or Event of Default
would
exist;
(h) Liens securing obligations of a Subsidiary to the Company
or to another Subsidiary; and
(i) if and so long as no Default or Event of Default exists
hereunder, including, without limitation, under Section 10.5, Liens
on
assets securing Indebtedness of the Company or any Subsidiary
in
addition to those described in clauses (a) through (h) above.
For the purposes of this Section 10.6, any Person becoming a
Subsidiary
after the date of this Agreement shall be deemed to have incurred
all of its
then outstanding Liens at the time it becomes a Subsidiary, and any
Person
extending, renewing or refunding any Indebtedness
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TALX Corporation
Note Purchase Agreement
secured by any Lien shall be deemed to have incurred such Lien at
the time of
such extension, renewal or refunding.
Section
10.7. Merger, Consolidation, Etc. The Company will not, and
will
not permit any Subsidiary to, consolidate with or merge with any
other Person or
convey, transfer or lease all or substantially all of its assets in
a single
transaction or series of transactions to any Person (except that
any Subsidiary
may (A) merge with or into, or convey, transfer or lease all or
substantially
all of its assets to, the Company or a Wholly-Owned Subsidiary if
(1) in any
such merger or consolidation involving the Company, the Company is
the survivor
and (2) immediately after giving effect to any such merger,
consolidation or
conveyance, transfer or lease, no Default or Event of Default would
exist,
including, without limitation, pursuant to Sections 10.3 and 10.4,
treating such
transaction, for determining compliance with Sections 10.3 and
10.4, as having
been consummated as of the last day of the immediately preceding
fiscal quarter
or (B) convey, transfer or lease all of its assets in compliance
with the
provisions of Section 10.8) unless:
(a) in the case of the Company, the successor formed by such
consolidation or the survivor of such merger or the Person that
acquires by conveyance, transfer or lease all or substantially all
of
the assets of the Company as an entirety, as the case may be, shall
be
a solvent corporation or limited liability company organized
and
existing under the laws of the United States or any State
thereof
(including the District of Columbia), and, if the Company is not
such
surviving corporation or limited liability company, (i) such
corporation or limited liability company shall have executed
and
delivered to each holder of any Notes its assumption of the due
and
punctual performance and observance of each covenant and condition
of
the Financing Agreements to which the Company is a party, (ii)
such
corporation or limited liability company shall have caused to
be
delivered to each holder of any Notes an opinion of nationally
recognized independent counsel, or other independent counsel
reasonably
satisfactory to the Required Holders, to the effect that all
agreements
or instruments effecting such assumption are enforceable in
accordance
with their terms and comply with the terms hereof, and (iii) each
other
Obligor shall have executed and delivered an acknowledgement that
the
Financing Agreements to which they are a party continue in full
force
and effect; and
(b) immediately before and immediately after giving effect to
such transaction, no Default or Event of Default shall have
occurred
and be continuing and the Company would have been in compliance
with
Sections 10.3 and 10.4 as of the end of the most recent fiscal
quarter
treating such transaction as having been consummated as of the last
day
of the immediately preceding fiscal quarter.
No such conveyance, transfer or lease of all or substantially all
of the assets
of the Company or such Subsidiary shall have the effect of
releasing the Company
or such Subsidiary or any successor limited liability company or
corporation
that shall theretofore have become such in the manner prescribed in
this Section
10.7 from its liability under the Financing Agreements to which it
is a party.
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TALX Corporation
Note Purchase Agreement
Section
10.8. Sale of Assets. Except as permitted by Section 10.7, the
Company will not, and will not permit any Subsidiary to, sell,
lease, transfer
or otherwise dispose of, including by way of merger (collectively,
a
"Disposition"), any assets, including capital stock of
Subsidiaries, in one or a
series of transactions, to any Person, other than:
(a) Dispositions in the ordinary course of business;
(b) Dispositions by a Subsidiary to the Company or a Wholly
Owned
Subsidiary; or
(c) Dispositions not otherwise permitted by clause (a) or (b)
of
this Section 10.8, provided that (i) the aggregate net book value
of
all assets so disposed of in any twelve-month period pursuant to
this
Section 10.8(c) does not exceed 10% of Consolidated Total Assets as
of
the last day of the most recently ended fiscal quarter, (ii)
the
aggregate net book value of all assets so disposed of on or after
the
date of Closing would not exceed 25% of Consolidated Total Assets
as of
the last day of the most recently ended fiscal quarter and (iii)
after
giving effect to such transaction, no Default or Event of Default
shall
exist.
Notwithstanding the foregoing, the Company may, or may permit a
Subsidiary to,
make a Disposition and the assets subject to such Disposition shall
not be
subject to or included in the foregoing limitation and computation
contained in
clause (c) of the preceding sentence:
(A) to the extent the net proceeds from such Disposition are
reinvested in productive assets to be used in the existing business
of
the Company or a Subsidiary within 365 days of such Disposition;
or
(B) if such assets are leased back by the Company or any
Subsidiary, as lessee, within 365 days of the original acquisition
or
construction thereof by the Company or such Subsidiary; or
(C) to the extent the net proceeds from such Disposition are
applied to the payment or prepayment of the Notes or any other
outstanding Indebtedness of the Company or any Subsidiary ranking
pari
passu with or senior to the Notes (other than Indebtedness in
respect
of any revolving credit or similar credit facility providing
the
Company or any Subsidiary with the right to obtain loans or
other
extensions of credit from time to time, except to the extent that
in
connection with such payment of Indebtedness the available credit
under
such credit facility is permanently reduced by an amount not less
than
the amount of such proceeds applied to the payment of
Indebtedness),
provided that in connection with any such Disposition and payment
of
Indebtedness, the Company shall have offered to prepay at least
the
Ratable Portion in respect of each outstanding Note in accordance
with
Section 8.8 and shall have prepaid each holder of each such Note
that
shall have accepted such offer of prepayment in accordance with
said
Section 8.8 in a principal amount which at least equals the
Ratable
Portion for such Note. The Notes and such other outstanding
Indebtedness shall be herein referred to as "Senior Disposition
Indebtedness."
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TALX Corporation
Note Purchase Agreement
For purposes of foregoing clause (C), in the event that the Company
shall choose
to offer to prepay the Notes, such offer shall be made in
accordance with
Section 8.8 hereof.
Section
10.9. Subsidiary Indebtedness. In addition to and not in
limitation of any other applicable restrictions herein, including
Sections 10.3
and 10.5, the Company will not, at any time, permit any Subsidiary
to, directly
or indirectly, create, incur, assume, guarantee, have outstanding,
or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness
other than:
(a) Indebtedness of a Subsidiary outstanding on the date of
Closing and identified on Schedule 5.15 provided that such
Indebtedness
shall not be extended, renewed, refinanced or refunded except
as
otherwise provided herein;
(b) Indebtedness of a Subsidiary owed to the Company or a
Wholly-Owned Subsidiary;
(c) Indebtedness of a Subsidiary outstanding at the time such
Subsidiary becomes a Subsidiary, provided that (i) such
Indebtedness
shall not have been incurred in contemplation of such
Subsidiary
becoming a Subsidiary and (ii) immediately after such
Subsidiary
becomes a Subsidiary, no Default or Event of Default shall exist,
and
provided, further, that such Indebtedness shall not be
extended,
renewed, refinanced or refunded except as otherwise provided
herein;
(d) Indebtedness under the Bank Credit Agreement of any
Subsidiary Guarantor which as of the date of any determination
thereof
is party to a Subsidiary Guarantee Agreement so long as the
Intercreditor Agreement continues to be in full force and effect
and
such Subsidiary is a party to the Intercreditor Agreement or
has
executed a joinder agreement pursuant to which such Subsidiary
agrees
to be bound by the provisions of such Intercreditor Agreement;
and
(e) Indebtedness of a Subsidiary in addition to that otherwise
permitted by the foregoing provisions, provided that on the date
such
Subsidiary incurs or otherwise becomes liable with respect to any
such
Indebtedness, and immediately after giving effect to the
incurrence
thereof, no Default or Event of Default exists hereunder
including,
without limitation, under Section 10.5.
For the purpose of this Section 10.9, any Person becoming a
Subsidiary after the
date of the Closing shall be deemed, at the time it becomes such a
Subsidiary,
to have incurred all of its then outstanding Indebtedness.
Section
10.10. Nature of Business. Except for acquisitions in the
business
services industry, the Company will not and will not permit any
Subsidiary to
engage in any business if, as a result, the general nature of the
business in
which the Company and its Subsidiaries, taken as a whole, would
then be engaged
would be substantially changed from the general nature of the
business in which
the Company and its Subsidiaries, taken as a whole, are engaged on
the date of
this Agreement as described in the Memorandum.
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Note Purchase Agreement
Section
10.11. Terrorism Sanctions Regulations. The Company will not
and
will not permit any Subsidiary to (a) become a Person described or
designated in
the Specially Designated Nationals and Blocked Persons List of the
Office of
Foreign Assets Control or in Section 1 of the Anti-Terrorism Order
or (b) engage
in any dealings or transactions with any such Person.
SECTION 11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following
conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due
and
payable, whether at maturity or at a date fixed for prepayment or
by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due
and
payable; or
(c) the Company defaults in the performance of or compliance
with
any term contained in Section 7.1(d) or Sections 10.2 through 10.9;
or
(d) (i) the Company defaults in the performance of or
compliance
with any
term contained herein (other than those referred to in
Sections 11(a), (b) and (c)), or (ii) any Obligor defaults in
the
performance of or compliance with any term contained in the
Financing
Agreements (other than this Agreement), and in each case, such
default
is not remedied within 30 days after the earlier of (i) a
Responsible
Officer obtaining actual knowledge of such default and (ii) any
Obligor
receiving written notice of such default from any holder of a Note
(any
such written notice to be identified as a "notice of default" and
to
refer specifically to this Section 11(d)); or
(e) any representation or warranty made in writing by or on
behalf of any Obligor or by any officer of any Obligor in any
Financing
Agreement or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false or
incorrect
in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as
principal
or as guarantor or other surety) in the payment of any principal of
or
premium or make-whole amount or interest on any Indebtedness that
is
outstanding in an aggregate principal amount of at least
$10,000,000
beyond any period of grace provided with respect thereto, or (ii)
the
Company or any Subsidiary is in default in the performance of
or
compliance with any term of any evidence of any Indebtedness in
an
aggregate outstanding principal amount of at least $10,000,000 or
of
any mortgage, indenture or other agreement relating thereto or
any
other condition exists, and as a consequence of such default or
condition such Indebtedness has become, or has been declared (or
one or
more persons are entitled to declare such Indebtedness to be), due
and
payable before its stated maturity or before its regularly
scheduled
dates of payment, or (iii) as a consequence of the occurrence
or
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TALX Corporation
Note Purchase Agreement
continuation of any event or condition (other than the passage of
time
or the right of the holder of Indebtedness to convert such
Indebtedness
into equity interests), (x) the Company or any Subsidiary has
become
obligated to purchase or repay Indebtedness before its regular
maturity
or before its regularly scheduled dates of payment in an
aggregate
outstanding principal amount of at least $10,000,000 or (y) one or
more
Persons have the right to require the Company or any Subsidiary so
to
purchase or repay such Indebtedness; or
(g) the Company or any Subsidiary (i) is generally not paying,
or
admits in writing its inability to pay, its debts as they become
due,
(ii) files, or consents by answer or otherwise to the filing
against it
of, a petition for relief or reorganization or arrangement or any
other
petition in bankruptcy, for liquidation or to take advantage of
any
bankruptcy, insolvency, reorganization, moratorium or other similar
law
of any jurisdiction, (iii) makes an assignment for the benefit of
its
creditors, (iv) consents to the appointment of a custodian,
receiver,
trustee or other officer with similar powers with respect to it or
with
respect to any substantial part of its property, (v) is adjudicated
as
insolvent or to be liquidated, or (vi) takes limited liability
company
or corporate action for the purpose of any of the foregoing; or
(h) a
court or Governmental Authority of competent jurisdiction
enters an order appointing, without consent by the Company or any
of
its Subsidiaries, a custodian, receiver, trustee or other officer
with
similar powers with respect to it or with respect to any
substantial
part of its property, or constituting an order for relief or
approving
a petition for relief or reorganization or any other petition
in
bankruptcy or for liquidation or to take advantage of any
bankruptcy or
insolvency law of any jurisdiction, or ordering the
dissolution,
winding-up or liquidation of the Company or any of its
Subsidiaries, or
any such petition shall be filed against the Company or any of
its
Subsidiaries and such petition shall not be dismissed within 60
days;
or
(i) a final judgment or judgments for the payment of money
aggregating in excess of an amount equal to 5% of Consolidated
Net
Worth as of the most recently ended fiscal quarter (to the extent
not
covered by independent third-party insurance as to which the
insurer
does not dispute coverage) are rendered against one or more of
the
Company and its Subsidiaries and which judgments are not, within
60
days after entry thereof, bonded, discharged or stayed pending
appeal,
or are not discharged within 60 days after the expiration of such
stay;
or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or
a
waiver of such standards or extension of any amortization period
is
sought or granted under section 412 of the Code, (ii) a notice
of
intent to terminate any Plan shall have been or is reasonably
expected
to be filed with the PBGC or the PBGC shall have instituted
proceedings
under ERISA section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Company or
any
ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of ERISA)
under
all Plans, determined in accordance
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TALX Corporation
Note Purchase Agreement
with Title IV of ERISA, shall exceed $10,000,000, (iv) the Company
or
any ERISA Affiliate shall have incurred or is reasonably expected
to
incur any liability pursuant to Title I or IV of ERISA or the
penalty
or excise tax provisions of the Code relating to employee
benefit
plans, (v) the Company or any ERISA Affiliate withdraws from
any
Multiemployer Plan, or (vi) the Company or any Subsidiary
establishes
or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase
the
liability of the Company or any Subsidiary thereunder; and any
such
event or events described in clauses (i) through (vi) above,
either
individually or together with any other such event or events,
could
reasonably be expected to have a Material Adverse Effect; or
(k) any Subsidiary Guarantee Agreement shall at any time after
its execution and delivery for any reason cease to be in full force
and
effect (other than in accordance with Section 9.8), or shall be
declared null and void, or the enforceability thereof shall be
contested by any Obligor thereunder.
As used in Section 11(j), the terms "employee benefit plan" and
"employee
welfare benefit plan" shall have the respective meanings assigned
to such terms
in section 3 of ERISA.
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section
12.1. Acceleration. (a) If an Event of Default with respect to
any
Obligor described in Section 11(g) or (h) (other than an Event of
Default
described in clause (i) of Section 11(g) or described in clause
(vi) of Section
11(g) by virtue of the fact that such clause encompasses clause (i)
of Section
11(g)) has occurred, all the Notes then outstanding shall
automatically become
immediately due and payable.
(b) If any other Event of Default has occurred and is continuing,
any
holder or holders of more than 50% in principal amount of the Notes
at the time
outstanding may at any time at its or their option, by notice or
notices to the
Company, declare all the Notes then outstanding to be immediately
due and
payable.
(c) If any Event of Default described in Section 11(a) or (b)
has
occurred and is continuing, any holder or holders of Notes at the
time
outstanding affected by such Event of Default may at any time, at
its or their
option, by notice or notices to the Company, declare all the Notes
held by it or
them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section
12.1,
whether automatically or by declaration, such Notes will forthwith
mature and
the entire unpaid principal amount of such Notes, plus (x) all
accrued and
unpaid interest thereon (including, but not limited to, interest
accrued thereon
at the Default Rate) and (y) the Make-Whole Amount determined in
respect of such
principal amount (to the full extent permitted by applicable law),
shall all be
immediately due and payable, in each and every case without
presentment, demand,
protest or further notice, all of which are hereby waived. The
Company
acknowledges, and the parties hereto agree, that each holder of a
Note has the
right to maintain its investment in the Notes free from repayment
by the Company
(except as herein specifically provided for) and that the
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Note Purchase Agreement
provision for payment of a Make-Whole Amount by the Company in the
event that
the Notes are prepaid or are accelerated as a result of an Event of
Default, is
intended to provide compensation for the deprivation of such right
under such
circumstances.
Section
12.2. Other Remedies. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes
have become or
have been declared immediately due and payable under Section 12.1,
the holder of
any Note at the time outstanding may proceed to protect and enforce
the rights
of such holder by an action at law, suit in equity or other
appropriate
proceeding, whether for the specific performance of any agreement
contained
herein, in any Note or in any other Financing Agreement, or for an
injunction
against a violation of any of the terms hereof or thereof, or in
aid of the
exercise of any power granted hereby or thereby or by law or
otherwise.
Section
12.3. Rescission. At any time after any Notes have been
declared
due and payable pursuant to Section 12.1(b) or (c), the holders of
more than 50%
in principal amount of the Notes then outstanding, by written
notice to the
Company, may rescind and annul any such declaration and its
consequences if (a)
the Company has paid all overdue interest on the Notes, all
principal of and
Make-Whole Amount, if any, on any Notes that are due and payable
and are unpaid
other than by reason of such declaration, and all interest on such
overdue
principal and Make-Whole Amount, if any, and (to the extent
permitted by
applicable law) any overdue interest in respect of the Notes, at
the Default
Rate, (b) neither the Company nor any other Person shall have paid
any amounts
which have become due solely by reason of such declaration, (c) all
Events of
Default and Defaults, other than non-payment of amounts that have
become due
solely by reason of such declaration, have been cured or have been
waived
pursuant to Section 17, and (d) no judgment or decree has been
entered for the
payment of any monies due pursuant hereto or to the Notes. No
rescission and
annulment under this Section 12.3 will extend to or affect any
subsequent Event
of Default or Default or impair any right consequent thereon.
Section
12.4. No Waivers or Election of Remedies, Expenses, Etc. No
course
of dealing and no delay on the part of any holder of any Note in
exercising any
right, power or remedy shall operate as a waiver thereof or
otherwise prejudice
such holder's rights, powers or remedies. No right, power or remedy
conferred by
this Agreement, any Note or any other Financing Agreement upon any
holder
thereof shall be exclusive of any other right, power or remedy
referred to
herein or therein or now or hereafter available at law, in equity,
by statute or
otherwise. Without limiting the obligations of the Company under
Section 15, the
Company will pay to the holder of each Note on demand such further
amount as
shall be sufficient to cover all costs and expenses of such holder
incurred in
any enforcement or collection under this Section 12, including,
without
limitation, reasonable attorneys' fees, expenses and
disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section
13.1. Registration of Notes. The Company shall keep at its
principal executive office a register for the registration and
registration of
transfers of Notes. The name and address of each holder of one or
more Notes,
each transfer thereof and the name and address of each transferee
of one or more
Notes shall be registered in such register. Prior to due
presentment for
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TALX Corporation
Note Purchase Agreement
registration of transfer, the Person in whose name any Note shall
be registered
shall be deemed and treated as the owner and holder thereof for all
purposes
hereof, and the Company shall not be affected by any notice or
knowledge to the
contrary. The Company shall give to any holder of a Note that is
an
Institutional Investor promptly upon request therefor, a complete
and correct
copy of the names and addresses of all registered holders of
Notes.
Section
13.2. Transfer and Exchange of Notes. Upon surrender of any
Note
to the Company at the address and to the attention of the
designated officer
(all as specified in Section 18(iii)), for registration of transfer
or exchange
(and in the case of a surrender for registration of transfer
accompanied by a
written instrument of transfer duly executed by the registered
holder of such
Note or such holder's attorney duly authorized in writing and
accompanied by the
relevant name, address and other information for notices of each
transferee of
such Note or part thereof), within ten Business Days thereafter,
the Company
shall execute and deliv
