EX 10.3
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT ("SECOND
AMENDMENT") is entered into as of the 30th day of September 2004 by and among
LASALLE BANK NATIONAL ASSOCIATION ("LBNA"), as Administrative Agent and as a
Lender, SOUTHWEST BANK OF ST. LOUIS ("SWB"), as a Lender, NATIONAL CITY BANK OF
MICHIGAN/ILLINOIS ("NCB"), as a Lender, FIFTH THIRD BANK (SOUTHERN INDIANA)
("FTB"), as a Lender, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL SERVICES INC.
("MLBF"), as a Lender (collectively LBNA, SWB, NCB, FTB, and MLBF are referred
to herein as "Lenders") and TALX CORPORATION, a Missouri corporation
("BORROWER"); and consented to by TALX UCM SERVICES, INC., a Missouri
corporation ("TUS"), TALX EMPLOYER SERVICES, LLC, a Missouri limited liability
company ("TES"), and TALX FASTIME SERVICES, INC., a Texas Corporation, f/k/a Ti
3, Inc. ("TFTS") (collectively TUS, TES, and TFTS are referred to herein as
"GUARANTORS").
W I T N E S S E T H
WHEREAS, Lenders have extended an Aggregate Revolving Loan Commitment in
the face principal amount of $15,000,000.00 ("REVOLVING LOAN"), an Aggregate
Term Loan A Commitment in the face principal amount of $58,000,000.00 ("TERM
LOAN A"), and an Aggregate Term Loan B Commitment in the face principal amount
of $10,000,000.00 ("TERM LOAN B") (the Revolving Loan, Term Loan A, and Term
Loan B are collectively referred to herein as the "LOAN") to Borrower pursuant
to that certain Amended and Restated Loan Agreement dated as of March 31, 2004
by and among Administrative Agent, Lenders and Borrower ("AMENDED AND RESTATED
LOAN AGREEMENT") as amended by that certain First Amendment to Amended and
Restated Loan Agreement dated as of September 9, 2004 by and among
Administrative Agent, Lenders, and Borrower ("FIRST AMENDMENT");
WHEREAS, the Loan is evidenced by a series of Term Notes for Term Loan A
and Term Loan B executed by Borrower and dated March 31, 2004 (collectively the
"TERM NOTES"); and by a series of Revolving Notes executed by Borrower and dated
March 31, 2004 (collectively the "REVOLVING NOTES");
WHEREAS, the Loan is guaranteed by a Guaranty executed by Ti 3, Inc.
(n/k/a TALX FasTime Services, Inc.) and dated March 27, 2002, by a Guaranty
executed by ▇▇▇▇▇ ▇. ▇▇▇▇▇, Inc. (n/k/a TALX UCM Services, Inc.) and dated March
27, 2002, and by a Guaranty executed by TES and dated March 31, 2004
(collectively the "GUARANTEES");
WHEREAS, the Loan is secured by a Security Agreement executed by Borrower
and dated March 27, 2002, a Security Agreement executed by Ti 3, Inc. (n/k/a
TALX FasTime Services, Inc.) and dated March 27, 2002, a Security Agreement
executed by ▇▇▇▇▇ ▇. ▇▇▇▇▇, Inc. (n/k/a TALX UCM Services, Inc.) and dated March
27, 2002, and a Security Agreement executed by TES and dated March 31, 2004
(collectively the "SECURITY AGREEMENTS"); and is further secured by a Stock
Pledge of Ti 3 stock in favor of LBNA executed by Borrower and dated March 27,
2002 and a Stock Pledge of TALX UCM Services, Inc. stock in favor of LBNA
executed by Borrower and dated March 26, 2003 (collectively the "STOCK PLEDGE
AGREEMENTS");
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WHEREAS, the Amended and Restated Loan Agreement, First Amendment, Term
Notes, Revolving Notes, Guarantees, Security Agreements, Stock Pledge
Agreements, and all agreements, documents, certificates, instruments,
reimbursement agreement between Borrower, Guarantors and Lenders and other
writings executed from time to time in connection therewith or related hereto
are collectively referred to herein as the "LOAN DOCUMENTS";
WHEREAS, Borrower hereby requests Lenders' consent to extend the date upon
which the Borrower's right to request an advance under Term Loan A and/or Term
Loan B expires as more specifically set forth herein;
WHEREAS, all capitalized terms used herein, and not otherwise defined
herein, have the meaning given to them in the Amended and Restated Loan
Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. AMENDMENTS.
Upon the satisfaction of the conditions precedent set forth herein, the
Amended and Restated Loan Agreement shall be amended as follows:
a) 3.2.1.1. AGGREGATE TERM LOAN A. Section 3.2.1.1 of the Amended
and Restated Loan Agreement shall be revised and amended so that the date
"September 30, 2004" is replaced with the date "December 31, 2004."
b) 3.2.1.2. AGGREGATE TERM LOAN B. Section 3.2.1.2 of the Amended
and Restated Loan Agreement shall be revised and amended so that the date
"September 30, 2004" is replaced with the date "December 31, 2004."
c) 7.2.1 BORROWER REQUESTS. Section 7.2.1 of the Amended and
Restated Loan Agreement shall be revised and amended so that the date "September
30, 2004" is replaced with the date "December 31, 2004."
d) EXHIBIT 16.4. ADJUSTMENT TO MAXIMUM RATIO OF TOTAL INDEBTEDNESS
TO EBITDA. The first sentence of paragraph 1 and paragraph 2 of Exhibit 16.4 of
the Amended and Restated Loan Agreement shall be revised and restated so that
the date "September 30, 2004" is replaced with the date "December 31, 2004."
e) EXHIBIT 16.6. ADJUSTMENT TO MINIMUM EBITDA. The first sentence of
paragraph 1 and paragraph 2 of Exhibit 16.6 of the Amended and Restated Loan
Agreement shall be revised and restated so that the date "September 30, 2004" is
replaced with the date "December 31, 2004."
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2. CONDITIONS PRECEDENT TO THIS SECOND AMENDMENT.
As a condition precedent to Lenders' consent to amend the Amended and
Restated Loan Agreement as described herein and to the effectiveness of this
Second Amendment, the following must have been satisfied:
a) This Agreement. Borrower, TUS, TES, TFTS and Lenders shall
have executed and delivered this Second Amendment to Administrative Agent's
possession.
b) Representations and Warranties. The Representations and
Warranties, as set forth in Section 12 of the Amended and Restated Loan
Agreement, shall be true and correct as of the date of this Second Amendment.
c) Compliance with Loan Documents. The Borrower and Guarantors
shall be in full compliance with all of the terms and conditions of the Loan
Documents, and there shall be no Existing Default thereunder, and no Default or
Event of Default shall have occurred and be continuing thereunder or shall
result after giving effect to this Second Amendment.
3. MISCELLANEOUS.
a) Loan Documents Continue. Except as specifically amended by
this Second Amendment, all of the terms, provisions, conditions, agreements,
covenants, representations, warranties and powers contained in the Loan
Documents shall be and remain in full force and effect and the same are hereby
ratified and confirmed and are incorporated herein by reference. Reference to
this Second Amendment need not be made in any note, document, letter,
certificate, the Amended and Restated Loan Agreement itself, the Loan Documents,
the Security Documents, or any communication issued or made pursuant to or with
respect to the Amended and Restated Loan Agreement, the Loan Documents or the
Security Documents; any reference to the Amended and Restated Loan Agreement
being sufficient to refer to the Amended and Restated Loan Agreement as amended
hereby. In no manner shall this Second Amendment impair the Loan Documents or
Security Documents, the rights, remedies obligations, liabilities, liens or
security interests represented thereby, nor shall any such rights, remedies,
obligations, liabilities, liens or security interests be in any manner waived or
impaired, diminished or discharged hereby.
b) Counterparts. This Second Amendment may be executed by the
parties hereto on any number of separate counterparts, and all such counterparts
taken together shall constitute one and the same instrument. It shall not be
necessary in making proof of this Second Amendment to produce or account for
more than one counterpart signed by the party to be charged.
c) Consent of Guarantors. Each of the Guarantors acknowledge and
consent to the execution of this Second Amendment by the Borrower and
acknowledges that this consent is not required under the terms of the Guaranty
and that the execution hereof by the Guarantors shall not be construed to
require the Lenders to obtain their acknowledgment to any future amendment,
modification or waiver of any term of the Amended and Restated Loan Agreement
except as otherwise provided in said Guaranty. Each of the Guarantors hereby
agree that the Guaranty shall apply to all indebtedness, obligations and
liabilities of the Borrower to the
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Lenders under the Amended and Restated Loan Agreement, as amended pursuant to
this Second Amendment, and that the Guaranty shall be and remain in full force
and effect.
(Signature pages are next.)
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IN WITNESS WHEREOF, the undersigned has executed this Second Amendment as
of the date first written above.
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND A LENDER
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Print Name: ▇▇▇ ▇▇▇▇▇▇
Title: EVP
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IN WITNESS WHEREOF, the undersigned has executed this Second Amendment as
of the date first written above.
SOUTHWEST BANK OF ST. LOUIS, AS A LENDER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Title: Vice President
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IN WITNESS WHEREOF, the undersigned has executed this Second Amendment as
of the date first written above.
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS,
AS A LENDER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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IN WITNESS WHEREOF, the undersigned has executed this Second Amendment as
of the date first written above.
FIFTH THIRD BANK (SOUTHERN INDIANA), AS A LENDER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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IN WITNESS WHEREOF, the undersigned has executed this Second Amendment as
of the date first written above.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL SERVICES, INC.,
AS A LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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IN WITNESS WHEREOF, the undersigned has executed this Second Amendment as
of the date first written above.
BORROWER:
TALX CORPORATION, A MISSOURI CORPORATION,
AS BORROWER
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: CFO
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CONSENTED TO as of the date first written above.
GUARANTORS:
TALX FASTIME SERVICES, INC. A TEXAS CORPORATION
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: CFO
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TALX UCM SERVICES, INC., A MISSOURI CORPORATION
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: CFO
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TALX EMPLOYER SERVICES, LLC, A MISSOURI LIMITED
LIABILITY COMPANY
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: CFO
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