AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED ACCOUNTS RECEIVABLE
MANAGEMENT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment") is entered into as of June 7, 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.
Borrower has requested that Agent and Lenders amend 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 to
provide as follows:
"LIBO Rate" shall mean, relative to any date, the rate
of interest equal to the rate per annum listed in the Wall
Street Journal on such day as the LIBO Rte for a period equal
to one month.
(b) CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of January __, 1999, provided that Agent shall have received (i)
four (4) copies of this Amendment executed by Borrower and each Lender; and (ii)
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 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 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: Chairman and President
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BNY FINANCIAL CORPORATION,
as Agent and as Lender
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
-------------------------
Title: Senior Vice President
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DEUTSCHE FINANCIAL SERVICES
CORPORATION, as Lender
By: /s/ Xxxxxx X. Xxxxxxx, IX
------------------------------
Name: Xxxxxx X. Xxxxxxx, IX
-------------------------
Title: Vice President
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FLEET BANK, N.A.
as Lender
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
-------------------------
Title: Vice President
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FIFTH THIRD BANK
as Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------
Title: Assistant Vice President
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XXXXXXXX XXXX XX XXXXXX
as Lender
By: /s/ Xxxxx Xxxxxx; /s/ Xxxxxxx Xxxx
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Name: Xxxxx Xxxxxx; Xxxxxxx Xxxx
-------------------------
Title: Vice President; Vice President
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BNY FINANCIAL LIMITED
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
-------------------------
Title: Executive Vice President
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XXX XXXXXXXXX XXXXXXXXXXX - XXXXXX
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
-------------------------
Title: Senior Vice President
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