LOAN AGREEMENT
LOAN AGREEMENT, dated as of March 31, 2003, between XXXXXX HIGHLAND GROUP,
INC., a Delaware corporation having its principal office at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Borrower"), and TMP WORLDWIDE INC., a Delaware
corporation having its principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Lender").
R E C I T A L S:
The Borrower desires the Lender, and the Lender is willing, subject to and
upon the terms and conditions set forth in this Agreement and in the "Financing
Agreements" (as hereinafter defined), to make cash advances to the Borrower from
the date hereof through the Maturity Date ( as hereinafter defined) in the
aggregate principal sum not in excess of $15,000,000 at any one time
outstanding, which advances shall be due and payable in full on the Maturity
Date.
NOW, THEREFORE, IT IS AGREED:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings, unless the context otherwise requires:
"Affiliate" shall mean, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with, such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with") when used with respect to any
specified Person, shall mean the power to direct or cause the direction of the
actions, management or policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise and whether
or not such power is actually exercised.
"Agreement" shall mean this Loan Agreement, as amended, modified or
supplemented from time to time in accordance with its terms.
"Availability" shall mean $15,000,000.
"Business Day" shall mean any day other than (i) a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized or
required to close under the laws of the State of New York, and (ii) when used
with respect to any LIBOR Loan, such definition shall also exclude any day on
which commercial banks in London are not open for dealing in Dollar deposits in
the London Interbank Market.
"Default Rate" shall mean the Prime Rate plus 4.0%.
"Dollars" and the symbol "$" shall mean lawful currency of the United
States of America.
"Financing Agreements" shall mean the following agreements and instruments
(as such agreements and instruments may be hereafter amended, modified or
supplemented in accordance with their respective terms): (i) the Note and (ii)
any other supplementary agreements or instruments now or hereafter delivered to
the Lender by the Borrower in connection with the Loans, including without
limitation, the Security Agreement.
"GAAP" shall mean U.S. generally accepted accounting principles applied on
a consistent basis.
"Loans" shall have the meaning set forth in Section 2.1 hereof.
"Maturity Date" shall mean the date that is the earlier of (i) six months
from the date hereof or (ii) 90 days from the date on which the Borrower or any
combination of the Borrower's Subsidiaries closes on a credit agreement or
credit agreements with a third party or third parties which provides for a total
borrowing capacity with such third party or third parties of $15,000,000 or
more, provided, however, that such date shall be accelerated to the date within
such 90 day period that the borrowing capacity under such agreement or
agreements is actually available.
"Note" shall have the meaning set forth in Section 2.1 hereof.
"Obligations" shall mean all obligations, liabilities and indebtedness of
the Borrower to the Lender under this Agreement and the Financing Agreements,
whether now existing or hereafter created, direct or indirect, due or not,
including, without limitation, all obligations, liabilities and indebtedness of
the Borrower with respect to the Loans and all fees, costs, expenses and
indemnity obligations hereunder or thereunder.
"Person" shall mean an individual, partnership, joint venture, firm,
corporation, trust, or other business or legal entity.
"Prime Rate" shall mean the rate of interest announced from time to time by
Citibank, NA in New York City as its prime rate of interest.
"Security Agreement" shall mean that certain security agreement, dated as
of the date hereof, by and among the Borrower, its Subsidiaries and the Lender.
"Subsidiary" shall mean a corporation, partnership or other entity of which
shares of stock or other ownership interests having ordinary voting power (other
than stock or such other ownership interests having such power only by reason of
the happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly, through one or more intermediaries, or both, by the Borrower.
SECTION 2. FINANCING.
2.1 Loans.
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2.1.1 Subject to the terms and conditions set forth in this
Agreement, at the Borrower's request the Lender shall make cash advances
(each a " Loan" and collectively the "Loans") to the Borrower at any time
and from time to time from the date hereof to, but not including, the
Maturity Date. Following the Maturity Date, the Borrower shall have no
right to request any Loans.
2.1.2 The Borrower may repay any Loans on any Business Day provided
each repayment shall be in the minimum principal sum of $250,000 or in
integral multiples of $250,000 in excess thereof. The Borrower shall be
entitled to borrow or re-borrow Loans on any Business Day provided that
each of the Loans shall be in the minimum principal sum of $250,000 or in
integral multiplies of $250,000 in excess thereof.
2.1.3 Concurrently with the execution and delivery of this Agreement,
the Borrower shall evidence its obligation to pay the principal of and
interest on the Loans by executing and delivering to the Lender a
promissory note in the principal sum of $15,000,000 in the form annexed
hereto as Exhibit A (the "Note").
2.1.4 The Borrower shall give the Lender notice of each proposed
borrowing of Loans, not later than 11:00 a.m., New York City time, on the
Business Day of such proposed borrowing. The notice of borrowing shall be
given by telephone to Xxx Xxxxxxx at (000) 000-0000 and in writing whereby
each such borrowing notice shall specify (i) the date of such borrowing
(which shall be a Business Day), (ii) the amount thereof (which shall be in
accordance with the provisions of this Agreement), and (iii) shall
otherwise be in the form of Exhibit B hereto (the "Borrowing Notice"). Each
Borrowing Notice shall be effective upon receipt and shall irrevocably
commit the Borrower to borrow in accordance with the terms of this
Agreement. The Borrower shall give the Lender notice of each repayment not
later than 11:00 a.m., New York City time, on the Business Day of such
proposed repayment by telephone to Xxx Xxxxxxx at (000) 000-0000 and by
email to xxx.xxxxxxx@xxx.xxx and xxxx.xxxxxxx@xxx.xxx specifying the
repayment amount thereof (which shall be in accordance with the provisions
of this Agreement). All repayments shall be made in immediately available
Dollars transferred for good value on the notified repayment date to the
following Lender bank account or to such other account as the Lender may
specify from time to time in writing: Fifth Third Bank, 00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, XX 00000, ABA Number: 000000000, Account Name: TMP
Worldwide Inc., Account Number: 00000000.
2.1.5 In no event shall the aggregate principal balance of the Loans
at any time outstanding exceed Availability. If, at any time, the aggregate
principal balance of the Loans then outstanding shall exceed Availability,
the Borrower shall immediately make a prepayment on the Loans in an amount
equal to such excess.
2.2 Term Out of Principal. The principal sum of the Loans outstanding on
the Maturity Date shall be paid in one installment on the Maturity Date.
2.3 Interest Rate and Other Charges.
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2.3.1 Prime Rate. Except as otherwise expressly provided in this
Section 2.3, the Borrower shall pay interest to the Lender on the
outstanding and unpaid principal amount of the Loans at a rate per annum
equal to the Prime Rate.
2.3.2 Calculation of Interest; Payment. Interest on the Loans shall
be calculated on the basis of the actual number of days elapsed in a
360-day year. Interest shall be due and payable monthly in arrears on the
15th day of each month, however, if the 15th day of the month is not a
Business Day interest shall be due on the immediately following Business
Day. By way of example interest for the period May 1, 2003 through and
including May 31, 2003 shall be payable on June 16, 2003. Interest payments
shall be made in immediately available Dollars transferred to the following
Lender bank account or to such other account as the Lender may specify from
time to time in writing: Fifth Third Bank, 00 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000, ABA Number: 000000000, Account Name: TMP Worldwide
Inc., Account Number: 00000000.
2.3.3 Overdue Payments. If any payment of principal (whether due at
maturity, upon acceleration or otherwise), interest or other fees or
charges payable by the Borrower hereunder or under any of the Financing
Agreements shall not be paid when due, the Borrower shall pay interest on
the overdue payment for the period for which overdue, on demand, at the
Default Rate, but in no event in excess of the maximum rate permitted by
applicable law.
SECTION 3. CONDITIONS PRECEDENT.
3.1 Conditions to Making the Initial Loan. The obligation of the Lender to
make the initial Loan is subject to the conditions precedent that:
3.1.1 Financing Agreements. The Borrower shall have executed and
delivered to the Lender this Agreement and the other the Financing
Agreements to be executed by it, and all other agreements, instruments and
documents required or contemplated by this Agreement and the Financing
Agreements.
3.1.2 Evidence of Borrower Corporate Actions. The Lender shall have
received copies of all corporate action taken by the Borrower to authorize
the execution, delivery and performance of this Agreement and the Financing
Agreements to be executed by it. All of the foregoing documents shall be
certified by the Borrower's Secretary in a Secretary's Certificate dated as
of even date herewith.
3.1.3 Cash on Hand. The Borrower and its Subsidiaries shall, on a
consolidated basis, as shown on a consolidated balance sheet prepared by
Borrower and certified by the Borrower's Chief Financial Officer (or
functional equivalent) to be in accordance with GAAP as of a date within
five days of the date that the Borrower has requested a Loan have cash and
cash equivalents of no more than $10 million.
3.2 Additional Preconditions. As of the date of the making of any of the
Loans to the Borrower, as a condition to the making of any such Loans:
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3.2.1 Representations and Warranties. All representations and
warranties contained in this Agreement or otherwise made to the Borrower
pursuant to this Agreement or any of the Financing Agreements shall be
true, complete and correct in all material respects.
3.2.2 Event of Default. There shall exist no Event of Default (or any
event which with the giving of notice or the passage of time, or both,
would constitute an Event of Default).
3.2.3 Cash on Hand. The Borrower and its Subsidiaries shall, on a
consolidated basis, as shown on a consolidated balance sheet prepared by
Borrower and certified by the Borrower's Chief Financial Officer (or
functional equivalent) to be in accordance with GAAP as of the month end
immediately prior to the month in which the Borrower has requested a Loan
have cash and cash equivalents of no more than $10 million.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender to enter into this Agreement and to make the
Loans hereunder, the Borrower represents and warrants to the Lender as follows:
4.1 Organization.
The Borrower and each Subsidiary is a duly organized and validly
existing corporation in good standing under the laws of its jurisdiction of
incorporation with perpetual corporate existence and has all requisite
right, power and authority and all necessary licenses and permits to own
and operate its assets and properties and to carry on its business as now
conducted and as presently proposed to be conducted. The Borrower and each
Subsidiary has qualified and is in good standing as a foreign corporation
in each state or other jurisdiction where the nature of its business or the
ownership or use of its property requires such qualification, except such
jurisdictions, if any, in which the failure to be so qualified will not
have a material and adverse effect on either the conduct of its business or
the ownership of its properties.
4.2 Authorization.
The Borrower has all requisite legal right, power and authority to
execute, deliver and perform the terms and provisions of this Agreement,
the Financing Agreements executed by it and all other instruments and
documents delivered by it pursuant hereto and thereto. The Borrower has
taken or caused to be taken all necessary action to authorize the
execution, delivery and performance of this Agreement, the Financing
Agreements executed by it and any other related agreements, instruments or
documents delivered or to be delivered by the Borrower pursuant hereto and
thereto. This Agreement, the Financing Agreements executed by the Borrower
and all related agreements, instruments or documents delivered or to be
delivered pursuant hereto or thereto constitute and will constitute legal,
valid and binding obligations of the Borrower, enforceable in accordance
with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally, and to the exercise of judicial discretion
in accordance with general principles of equity.
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4.3 No Conflicts. Neither the execution and delivery of this Agreement,
the Financing Agreements, or any of the instruments and documents delivered or
to be delivered pursuant hereto or thereto, by the Borrower, nor the
consummation of the transactions herein or therein contemplated, nor compliance
with the provisions hereof or thereof, will violate any law, statute or
regulation, or any order, writ or decree of any court or governmental
instrumentality, or will conflict with, or result in the breach of, or
constitute a default in any respect under, any indenture, mortgage, deed of
trust, agreement or other instrument to which the Borrower is a party, or by
which any of its properties may be bound or affected, or will result in the
creation or imposition of any lien, charge or encumbrance upon any of its
properties (except as contemplated hereunder or under the Financing Agreements)
or will violate any provision of the Certificate of Incorporation or By-Laws of
the Borrower, each as amended to date.
SECTION 5. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that, until all of the Obligations are
paid and satisfied in full, it shall comply, or cause compliance with, the
following covenants:
5.1 Notification to Lender. The Borrower shall promptly notify the Lender
of (i) any Event of Default hereunder, (ii) any event, condition or act which
with the giving of notice or the passage of time, or both, would constitute an
Event of Default hereunder, (iii) any material litigation or proceedings that
are instituted or threatened (to the knowledge of the Borrower) against the
Borrower or any Subsidiary or any of their respective assets, and (iv) each and
every default by the Borrower or any Subsidiary under any obligation for
borrowed money which would permit the holder of such obligation to accelerate
its maturity, including the names and addresses of the holders of such
obligation and the amount thereof, in each case describing the nature thereof
and the action the Borrower proposes to take with respect thereto.
5.2 Further Assurances. The Borrower shall duly execute and deliver, or
will cause to be duly executed and delivered, such further instruments and
documents, and will do or use its best efforts to cause to be done such further
acts as may be necessary or proper in the Lender's opinion to effectuate the
provisions or purposes of this Agreement and the Financing Agreements.
SECTION 6. EVENTS OF DEFAULT/REMEDIES.
6.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default":
6.1.1 The Borrower shall fail to pay the principal of, or interest
on, the Note, or any other fee or charge payable under this Agreement or
under any Financing Agreement, as and when due and payable.
6.1.2 If a default shall be made by the Borrower in the performance
or observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement (other than as described in Section
6.1.1 above) or any other agreement between the Lender and the Borrower; or
if this Agreement or any Financing Agreements shall terminate, be
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terminable or be terminated or become void or unenforceable for any reason
whatsoever without the prior written consent of the Lender.
6.2 Remedies.
(a) Upon the occurrence of any one or more of such Events of Default,
the Lender may, at its option, without presentment for payment, demand,
notice of dishonor or notice of protest or any other notice, all of which
are hereby expressly waived by the Borrower, declare the Loans to be due
and payable together with interest at the Default Rate. The Lender shall
have all of the rights and remedies set forth in this Agreement and the
Financing Agreements, and in any instrument or document referred to herein
or therein, and under any other applicable law relating to this Agreement
or the Financing Agreements. At any time during the existence of an Event
of Default, Lender will also have the immediate right to enforce and
realize upon a collateral security granted under any Financing Agreements
in any manner or order that Lender deems expedient without regard to any
equitable principles of marshalling or otherwise. Notwithstanding the
foregoing, the Borrower shall have a fifteen (15) day period, commencing
with notice to the Lender as specified in Section 5.1, to cure the Event of
Default .
(b) Other Remedies. In addition to the rights and remedies expressly
granted in the Financing Agreements, Lender also will have all other legal
and equitable rights and remedies granted by or available under all
applicable law, and all rights and remedies will be cumulative in nature.
SECTION 7. MISCELLANEOUS.
7.1 Survival of Agreement. All agreements, representations and warranties
contained herein or made in writing by the parties hereto in connection with the
transactions contemplated hereby shall survive the execution and delivery of
this Agreement, the Financing Agreements and the consummation of the
transactions contemplated herein or therein regardless of any investigation made
by or on behalf of the Lender.
7.2 No Waiver; Cumulative Remedies. No failure to exercise, and no delay
in exercising on the part of the Lender, any right, power or privilege under
this Agreement or under any of the Financing Agreements or other documents
referred to herein or therein shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or
thereunder preclude any other or further exercise thereof or the exercise of any
other right, power and privilege. The rights and remedies of the Lender
hereunder and under the Financing Agreements and under any other present and
future agreements between the Lender and the Borrower are cumulative and not
exclusive of any rights or remedies provided by law, or under any of said
Financing Agreements or agreements and all such rights and remedies may be
exercised successively or concurrently.
7.3 Notices and Deliveries.
7.3.1 Manner of Delivery. Except as otherwise expressly provided in
this Agreement, all notices, communications and materials to be given or
delivered pursuant to this Agreement or any of the Financing Agreements
shall be given or delivered in writing (which shall include telex and
telecopy transmissions).
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7.3.2 Addresses. All notices, communications and materials to be
given or delivered pursuant to this Agreement or any of the Financing
Agreements shall be given or delivered at the following respective
addresses and telex, telecopier and telephone numbers and to the attention
of the following individuals or departments:
(i) if to the Borrower, to it at:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
(ii) if to the Lender, to it at:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Attention: Xxxxx Xxxxxxxxxx, General Counsel
or at such other address or telecopier number or to the attention of such
other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice to the other
specifically captioned "Notice of Change of Address".
7.3.3 Effectiveness. Each notice and communication and any material
to be given or delivered pursuant to this Agreement or any of the Financing
Agreements shall be deemed so given or delivered (i) if sent by a
nationally recognized overnight courier service, on the next Business Day
after such notice, communication or material, addressed as above provided,
is delivered to such courier service, (ii) if sent by any other means of
physical delivery, when such notice, communication or material is delivered
to the appropriate address as above provided, and (iii) if sent by
telecopier, when such notice, communication or material is transmitted to
the appropriate telecopier number as above provided and is received at such
number, provided however, that in each of the foregoing cases notices of
change of address or telecopier number shall not be deemed given until
received.
7.4 Amendments and Waivers. Neither this Agreement, nor any of the
Financing Agreements or any other instrument or document referred to herein or
therein may be changed, waived, discharged or terminated orally, except by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
7.5 Applicable Law. This Agreement and the Financing Agreements and any
other document referred to herein or therein and the obligations of the parties
hereunder or thereunder are being executed and delivered in New York, New York
and shall be construed and interpreted in accordance with the laws of the State
of New York applied to agreements entered into and performed therein.
7.6 Successors. This Agreement, the Financing Agreements and any other
document referred to herein or therein shall be binding upon and inure to the
benefit of and be enforceable by the parties and their respective heirs,
successors and assigns, except that the Borrower may
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not assign its rights under this Agreement, the Financing Agreements and any
other document referred to herein or therein without the prior written consent
of the Lender.
7.7 Partial Invalidity. If any provision of this Agreement or the
Financing Agreements is held to be invalid or unenforceable, such invalidity or
unenforceability shall not invalidate this Agreement or the Financing Agreements
as a whole but this Agreement or the particular Financing Agreement, as the case
may be, shall be construed as though it did not contain the particular provision
or provisions held to be invalid or unenforceable and the rights and obligations
of the parties shall be construed and enforced only to such extent as shall be
permitted by law.
7.8 Headings and Word Meanings. The headings used herein are for
convenience only and do not constitute matters to be considered in interpreting
this Agreement. The words "herein," "hereinabove," "hereof," and "hereunder,"
when used anywhere in this Agreement, refer to this Agreement as a whole and not
merely to a subdivision in which such words appear, unless the context otherwise
requires. The singular shall include the plural, the masculine gender shall
include the feminine and neuter and the disjunctive shall include the
conjunctive, and vice versa, unless the context otherwise requires.
7.9 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN
ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT
OF THIS AGREEMENT, THE FINANCING AGREEMENTS OR ANY AGREEMENT, INSTRUMENT OR
DOCUMENT DELIVERED PURSUANT HERETO OR THERETO, OR THE VALIDITY, PROTECTION,
INTERPRETATION, ADMINISTRATION, COLLECTION OR ENFORCEMENT HEREOF OR THEREOF, OR
ANY OTHER CLAIM OR DISPUTE HEREUNDER OR THEREUNDER.
7.10 JURISDICTION; SERVICE OF PROCESS. THE BORROWER HEREBY IRREVOCABLY
CONSENTS TO THE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK FOR
THE COUNTY OF NEW YORK, AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE FINANCING AGREEMENTS OR ANY AGREEMENT,
DOCUMENT OR INSTRUMENT DELIVERED PURSUANT HERETO OR THERETO.
7.11 Indemnity. The Borrower hereby agrees to defend, indemnify, and hold
the Lender harmless from and against any and all claims, damages,
investigations, judgments, penalties, costs and expenses (including attorney
fees and court costs now or hereafter arising from the aforesaid enforcement of
this clause) arising directly or indirectly from the Borrower, its Subsidiaries,
their respective predecessors in interest, or third parties with whom either has
a contractual relationship use of the proceeds of the Loans, or arising directly
or indirectly from the violation of any environmental protection, health, or
safety law, whether such claims are asserted by any governmental agency or any
other Person. This indemnity shall survive termination of this Agreement.
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7.12 Marshalling; Recourse to Security; Payments Set Aside. The Lender
shall not be under any obligation to marshal any assets in favor of the Borrower
or any other party or against or in payment of any or all of the Obligations of
the Borrower to the Lender hereunder or under the Financing Agreements or
otherwise. Recourse to security shall not be required at any time. To the extent
that the Borrower makes a payment or payments to the Lender, or the Lender
exercises its rights of set-off, and such payment or payments or the proceeds of
such set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all liens,
rights and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred.
7.13 Set-off. In addition to any rights and remedies of the Lender now or
hereafter provided by law, the Lender shall have the right, without prior notice
to the Borrower, any such notice being expressly waived by the Borrower to the
extent permitted by applicable law, on the occurrence and during the
continuation of any Event of Default to set off and apply against any
Obligation, whether matured or immature, of the Borrower any amount owing from
the Lender to the Borrower, at or at any time after the happening of any such
Event of Default, and such right of set-off may be exercised by the Lender
against the Borrower or against any trustee in bankruptcy, debtor-in-possession,
assignee for the benefit or creditors, receiver, or execution, judgment or
attachment creditor of any of them, notwithstanding the fact that such right of
set-off shall not have been exercised by the Lender before the making, filing or
issuance, or service on the Lender, of, or of notice of, any such event or
proceeding.
7.14 Counterparts; Facsimile Signature. This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract, and shall become effective
when copies hereof which, when taken together, bear the signatures of each of
the parties hereto shall be delivered to the Lender. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed signature page hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
TMP WORLDWIDE INC.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Chairman and CEO
XXXXXX HIGHLAND GROUP, INC.
By: /s/ Xxx X. Xxxxx
----------------------------
Name: Xxx X. Xxxxx
Title: Chairman, President and CEO
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EXHIBIT A
SECURED PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, XXXXXX HIGHLAND GROUP, INC., a
Delaware corporation (the "Borrower"), PROMISES TO PAY to the order of TMP
WORLDWIDE INC., a Delaware corporation (the "Lender") at its office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as may be designated by
the holder hereof in writing, the principal sum of FIFTEEN MILLION
($15,000,000.00) DOLLARS or, if less, the aggregate unpaid principal sum of all
Loans made by the Lender to the Borrower from time to time pursuant to a loan
agreement, dated the date hereof, between the Borrower and the Lender (the "Loan
Agreement"), in one installment on the earlier of (i) six months from the date
hereof or (ii) 90 days from the date on which the Borrower or any combination of
the Borrower's Subsidiaries closes on a credit agreement or credit agreements
with a third party or third parties which provides for a total borrowing
capacity with such third party or third parties of $15,000,000 or more,
provided, however, that such date shall be accelerated to the date within such
90 day period that the borrowing capacity under such agreement or agreements is
actually available.
Interest on the Loans shall be payable at the times provided in the Loan.
All capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Loan Agreement, dated March 31, 2003,
by and between the Borrower and the Lender (the "Loan Agreement"). This Note is
the Note referred to in, and is entitled to the benefits of, the Loan Agreement
and is secured by a security interest in the collateral described in the
Security Agreement delivered in connection with the Loan Agreement. Further,
this Note and the holder hereof are entitled to all of the benefits and security
provided by or referred to in the Security Agreement. The Loan Agreement, among
other things, contains provisions for acceleration of the maturity of this Note
upon the happening of certain stated events that are specified in the Loan
Agreement.
The Borrower hereby waives presentment, demand for payment, notice of
protest and all other demands in connection with the delivery, acceptance,
performance, default or enforcement of this Note.
This Note shall be governed by the laws of the State of New York without
giving effect to its choice of law provisions. No amendment, modification or
waiver of any provision of this Note nor consent to any departure by the
Borrower therefrom shall be effective unless the same shall be in writing and
signed by the Lender and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
XXXXXX HIGHLAND GROUP, INC.
By: _______________________________
Name: Xxx X. Xxxxx
Title: Chairman, President and Chief
Executive Officer
Dated: March ___, 0000
Xxx Xxxx, Xxx Xxxx
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EXHIBIT B
NOTICE OF BORROWING
________________, 2003
TMP WORLDWIDE INC.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000/8501
1. (a) XXXXXX HIGHLAND GROUP, INC. (the "Company") pursuant to the Loan
Agreement dated as of March [__], 2003, hereby requests TMP Worldwide Inc.
("TMP") to make a Loan on the following terms:
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Principal Amount of Loan:
$
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Date of Loan:
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(b) The Company requests TMP to applyep th roceeds of the Loan as
follows:
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Transfer to financial
Institution and account shown below:
Financial Institution:
Account No.:
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Total (same as principal
Amount of the Loan): $
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Total Loans Outstanding (after making of
the above requested loan): $
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2. Capitalized terms used in this Notice shall have the meanings set
forth in the Loan Agreement.
3. The Company hereby represents, warrants and covenants to the Lender
that all conditions precedent to the making of a Loan under the Loan Agreement
have been satisfied.
XXXXXX HIGHLAND GROUP, INC.
By: __________________________
Name:
Title:
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