AMENDMENT NO. 2
TO
THIRD AMENDED AND RESTATED ACCOUNTS RECEIVABLE
MANAGEMENT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 ("Amendment") is entered into as of June 22, 1999,
by and among TMP Worldwide Inc., a Delaware corporation ("Borrower"), BNY
Financial Corporation ("BNY"), each of the financial institutions party thereto
(BNY and each of such other financial institutions, collectively, the "Lenders")
and BNY as agent for the Lenders (BNY in such capacity, the "Agent").
BACKGROUND
Pursuant to a Third Amended and Restated Accounts Receivable Management
and Security Agreement dated as of November 5, 1998 (as the same has been or
will be further amended, supplemented or otherwise modified from time to time,
the "Loan Agreement") by and among Borrower, Agent and Lenders, Agent and
Lenders agreed to provide Borrower with certain financial accommodations.
By letter dated June 10, 1999, Borrower gave notice to Agent of its
desire to amend the Loan Agreement to increase the Maximum Loan Amount by
$10,000,000 to $185,000,000 in accordance with Section 2.6 of the Loan Agreement
and Agent and the other Lenders are willing to do so on the terms and conditions
hereafter set forth herein.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrower by Agent
and Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, the Loan Agreement is hereby
amended as follows:
(a) Section 1(A) of the Loan Agreement is hereby amended as
follows:
(i) The following defined term is hereby amended in its
entirety to provide as follows:
"Maximum Loan Amount" means at any time $185,000,000
less the outstanding balance of U.K. Subsidiary Obligations
and Canadian Subsidiary Obligations. The Maximum Loan Amount
shall be subject to adjustment from time to time as set forth
in Section 2.6.
(b) Section 3(c)(i) is hereby amended by deleting "$175,000,000"
wherever it appears in such Section and inserting "$185,000,000" in its place
and stead
(c) Schedule 1.3 to the Loan Agreement is hereby amended in its
entirety as set forth in Schedule 1.3 of this Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
as of June __, 1999, provided that (i) Agent shall have received four (4) copies
of this Amendment executed by Borrower and Required Lenders and consented to by
Guarantors; (ii) no Incipient Event of Default or Event of Default shall have
occurred and be continuing, (iii) BNY, for its own account and not for the
benefit of the other Lenders, shall have received a Line Increase Fee equal to
$25,000 and (iv) Agent shall have received such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by Agent or its
counsel, each of which shall be in form and substance satisfactory to Agent and
its counsel.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower hereby
represents, warrants and covenants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are enforceable
against Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Incipient Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset with respect
to the Loan Agreement or the Obligations.
4. EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of Section 2 hereof, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or any
Lender, nor constitute
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a waiver of any provision of the Loan Agreement, or any other documents,
instruments or agreements executed and/or delivered under or in connection
therewith.
5. GOVERNING LAW. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York.
6. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed
by the parties hereto in one or more counterparts, each of which shall be deemed
an original and all of which taken together shall constitute one and the same
agreement. Any signature received by facsimile transmission shall be deemed an
original signature hereto.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
TMP WORLDWIDE INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------
Title: Vice Chairman & Secretary
------------------------
BNY FINANCIAL CORPORATION,
as Agent and as Lender
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
-------------------------
Title: Senior Vice President
------------------------
DEUTSCHE FINANCIAL SERVICES
CORPORATION, as Lender
By: /s/ Xxxxxx X. Xxxxxxx, IX
------------------------------
Name: Xxxxxx X. Xxxxxxx, IX
-------------------------
Title: Vice President
------------------------
FLEET BANK, N.A.
as Lender
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
-------------------------
Title: Vice President
------------------------
FIFTH THIRD BANK
as Lender
By:
------------------------------
Name:
-------------------------
Title:
------------------------
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XXXXXXXX XXXX XX XXXXXX
as Lender
By:
------------------------------
Name:
-------------------------
Title:
------------------------
BNY FINANCIAL LIMITED
By:
------------------------------
Name:
-------------------------
Title:
------------------------
XXX XXXXXXXXX XXXXXXXXXXX - XXXXXX
By:
------------------------------
Name:
-------------------------
Title:
------------------------
CONSENTED AND AGREED TO BY EACH OF THE GUARANTORS:
TMP HOLDINGS INTERNATIONAL, INC.
TASA INCORPORATED
XXXXXX XXXXXX INC.
ONLINE CAREER CENTER MANAGEMENT, INC.
M.S.I. MARKET SUPPORT INTERNATIONAL
GENERAL DIRECTORY ADVERTISING SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
The Secretary of each of the
foregoing corporations
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EXHIBIT 1.3
COMMITMENTS
A. TOTAL COMMITMENTS:
Total Total Commitment
Commitment Percentage
---------- ----------
BNY Companies $125,000,000 67.5676%
(BNY Financial Corporation,
BNY Financial Corporation - Canada
and BNY Financial Limited)
Deutsche Financial Services $ 25,000,000 13.5135%
Corporation
Fleet Bank, N.A. $ 15,000,000 8.1081%
Fifth Third Bank $ 10,000,000 5.4054%
National Bank of Canada $ 10,000,000 5.4054%
B. U.S. COMMITMENTS*:
U.S.
Commitment
----------
BNY Financial Corporation $125,000,000 minus the Dollar Equivalent
of the outstanding balance of U.K.
Subsidiary Loans and Canadian Subsidiary
Loans
Deutsche Financial Services
Corporation $ 25,000,000
Corporation
Fleet Bank, N.A. $ 15,000,000
Fifth Third Bank $ 10,000,000
National Bank of Canada $ 10,000,000
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C. U.K. COMMITMENTS:
BNY Financial Limited $ 50,000,000 100%
(or Sterling Equivalent)
D. XXXXXXXX XXXXXXXXXXX:
XXX Xxxxxxxxx Xxxxxxxxxxx - Xxxxxx $ 10,000,000 100%
(or Canadian Equivalent)
*The U.S. Commitment Percentage of any Lender other than BNY at any time shall
be determined according to the following formula:
US Commitment Percentage = TCP X TO
USLO
Where:
TCP = Total Commitment Percentage of such Lender
TO = Total Loans plus Foreign Subsidiary Loans outstanding for all Lenders
and Foreign Subsidiary Lenders
USLO = U.S. Loans outstanding for all Lenders
*The U.S. Commitment Percentage of BNY at any time shall be determined according
to the following formula:
BNY US Commitment Percentage = 100% - the sum of the U.S. Commitment Percentages
for all Lenders other than BNY
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