Exhibit 10.1
AMENDMENT NO. 7
TO
THIRD AMENDED AND RESTATED ACCOUNTS RECEIVABLE
MANAGEMENT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 7 (this "Amendment") is entered into as of October
17, 2001, by and among TMP Worldwide Inc., a Delaware corporation ("Borrower"),
GMAC COMMERCIAL CREDIT LLC ("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.
By letter dated October 17, 2001, Agent and Borrower have consented to
the purchase by Fifth Third Bank of National Bank of Canada's commitment
percentage of the Loans owing to National Bank of Canada under the Loan
Agreement pursuant to a Commitment Transfer Supplement dated as of the date
hereof. Accordingly, Agent, Lenders and Borrower have agreed to amend the Loan
Agreement 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) is hereby amended by inserting the following
defined term in its appropriate alphabetical order:
"Amendment No. 7" shall mean Amendment No. 7 to this
Agreement dated as of October 17, 2001.
(b) EXHIBIT 1.3 to the Loan Agreement is hereby amended in its
entirety as set forth in EXHIBIT 1.3 of this Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
when all of the following conditions shall have been satisfied: (a) Agent shall
have received four (4) copies of this Amendment executed by Borrower and
Required Lenders and consented to by Guarantors; (b) Agent shall have received a
Commitment Transfer Supplement (i) substantially in the form of EXHIBIT 15
attached to the Loan Agreement and (ii) executed by all parties thereto; (c)
Agent shall have received an administration fee from Borrower in the amount of
$3500.00; (d) no Incipient Event of Default or Event of Default shall have
occurred and be continuing and (e) 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.
4. 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 Event of 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.
5. 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.
6. 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.
7. 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.
8. 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.
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/ XXXXX XXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxx
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
EXHIBIT 1.3
COMMITMENTS
A. TOTAL COMMITMENTS:
-----------------
Total Total Commitment
Commitment Percentage
---------- ----------------
GMAC Companies $125,000,000 67.5676%
(GMAC Commercial Credit LLC,
GMAC Commercial Credit Limited, and
GMAC Commercial Credit Corporation)
Deutsche Financial Services $ 25,000,000 13.5135%
Corporation
Fleet Bank, N.A. $ 15,000,000 8.1081%
Fifth Third Bank $ 20,000,000 10.8108%
B. U.S. COMMITMENTS*:
-----------------
U.S.
Commitment
----------
GMAC Commercial Credit LLC $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 $ 20,000,000
C. U.K. COMMITMENTS:
----------------
GMAC Commercial Credit Limited $ 50,000,000 100%
(or Sterling Equivalent)
D. CANADIAN COMMITMENTS:
--------------------
GMAC Commercial Credit Corporation $ 10,000,000 100%
(or Canadian Equivalent)
*The U.S. Commitment Percentage of any Lender other than GMAC 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 GMAC at any time shall be determined
according to the following formula:
GMAC US Commitment Percentage = 100% - the sum of the U.S. Commitment
Percentages for all Lenders other than GMAC
