Exhibit 10.1
AMENDMENT NO. 3
TO
THIRD AMENDED AND RESTATED ACCOUNTS RECEIVABLE
MANAGEMENT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 ("Amendment") is entered into as of March 31,
2000, by and among TMP Worldwide Inc., a Delaware corporation ("Borrower"), GMAC
COMMERCIAL CREDIT LLC successor to BNY Financial Corporation ("GMACCC"), each of
the financial institutions party thereto (GMACCC and each of such other
financial institutions, collectively, the "Lenders") and GMACCC as agent for the
Lenders (GMACCC 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.
Borrower has advised Lenders and Agent of its desire to amend Section 9
of the Loan Agreement in part to permit under certain conditions, the delivery
of the Borrowing Base Certificate on a monthly basis and Agent and 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. The following references in the Loan Agreement are hereby changed as
follows:
(a) "BNY Financial Corporation ("BNY")" to "GMAC Commercial
Credit LLC ("GMACCC") (b) "BNY Financial Limited" ("BNY UK")
to "GMAC Commercial Credit Limited" ("GMACCCL") (c) "BNY
Financial Corporation-Canada ("BNY Canada") to GMAC Commercial
Credit Corporation ("GMACCC-Canada").
3. AMENDMENT TO LOAN AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended by deleting in their entirety the last three sentences of Section 9 and
inserting the following:
Borrower shall provide Agent (i) on a monthly (within ten (10)
Business Days after the end of each month), or more frequent
basis, as requested by Agent, a summary report with respect to
the Collateral, including but not limited to Borrower's
current Inventory and Unbilled Receivables, (ii) on a monthly
(within ten (10) Business Days after the end of each month),
or more frequent basis, as requested by Agent, accounts
payable reports, and (iii) on a monthly (within ten (10)
Business Days after the end of each month), or more frequent
basis, as requested by Agent, an aged trial balance of
Borrower's existing accounts payable to the media. Borrower
shall also (a) provide Agent within ten Business Days at the
end of each month, as and for the immediately preceding month,
a Borrowing Base Certificate with respect to Unbilled
Receivables, Unbilled Receivables subject to Cycle Billing,
Close Date Receivables, Media Billing Receivables and
Recruitment Media Billing Receivables and Canadian
Receivables, and certified as true and correct by Borrower's
President or Chief Financial Officer and accompanied by such
supporting detail and documentation as shall be requested by
Agent in its reasonable discretion, (b) deliver to Agent (at a
location in the United Kingdom to be identified in the
applicable U.K. Credit Agreement) within ten Business Days at
the end of each month, as and for the immediately preceding
month, a Borrowing Base Certificate with respect to U.K.
Receivables updated to reflect the most recent sales and
collections of Borrower and U.K. Subsidiaries with respect to
U.K. Receivables and (c) deliver to Agent on a monthly basis
(within ten (10) Business Days after the end of each month) an
aging report for 100% of all Receivables and 85% of Unbilled
Receivables. Notwithstanding the foregoing, Borrower shall
provide at Agent's request a Borrowing Base Certificate on a
daily basis as and for the prior day, with respect to the
Receivables described in clauses (a) and (b) of the
immediately preceding sentence, (1) at any time subsequent to
the occurrence of one or more of the following events:
(a) an Event of Default has occurred and is
continuing; or
(b) The outstanding principal balance of Loans under
the Loan Agreement is $100,000,000 or more; or
(c) The outstanding principal balance of U.K.
Subsidiaries Loans is $25,000,000 or more; or
(d) The outstanding principal balance of Canadian
Loans is $10,000,000 or more; or
(2) as required by Agent in the exercise of its sole
discretion.
Borrower shall provide Agent, as Agent may reasonably request,
such other schedules, documents and/or information regarding the Collateral as
Agent may require.
4. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
as of the first day of the month immediately following the month in which all of
the following conditions shall have been satisfied: (i) Agent shall have
received four (4) copies of this Amendment
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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 and (iii) 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.
5. 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.
6. EFFECT ON THE LOAN AGREEMENT.
(e) 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.
(f) 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.
(g) 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 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.
7. 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.
8. 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.
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9. 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 AND SECRETARY
--------------------------------
GMAC COMMERCIAL CREDIT LLC
as Agent and as Lender
By: /s/ XXXXXX GREIC
---------------------------------------
Name: XXXXXX GREIC
----------------------------------
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: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: XXXXXXX X. XXXXXXX
----------------------------------
Title: ASSISTANT VICE PRESIDENT
---------------------------------
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NATIONAL BANK OF CANADA
as Lender
By: /s/ XXXXX XXXXXX
------------------------------------
Name: XXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
GMAC COMMERCIAL CREDIT LIMITED
By: /s/ XXXXXX GREIC
------------------------------------
Name: XXXXXX GREIC
-------------------------------
Title: SENIOR VICE PRESIDENT
------------------------------
GMAC COMMERCIAL CREDIT CORPORATION
By: /s/ XXXXXX GREIC
------------------------------------
Name: XXXXXX GREIC
-------------------------------
Title: SENIOR VICE PRESIDENT
------------------------------
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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