EXHIBIT 10.28
SECOND AMENDMENT TO
RESTATED REVOLVING CREDIT AGREEMENT
This Second Amendment to Restated Revolving Credit Agreement, dated as of
June 14, 2000 ("Amendment") is entered into by and between IMRGLOBAL CORP., a
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Florida corporation ("Borrower"), and FIRST UNION NATIONAL BANK, a national
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banking association ("Bank").
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RECITALS
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A. Borrower and Bank are parties to that certain Restated Revolving Credit
Agreement dated as of January 19, 2000, which restates that certain Revolving
Credit Agreement dated as of December 28, 1999, as amended by that certain First
Amendment to Restated Revolving Credit Agreement dated as of March 17, 2000 (as
amended, supplemented or otherwise modified the "Credit Agreement").
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Capitalized terms used herein but not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement.
B. Borrower has requested that Bank make additional loans to Borrower in an
amount up to $15,000,000.00, and Bank has agreed to make the Additional Loan to
Borrower in accordance with the term of this Amendment.
AGREEMENT
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In consideration of the foregoing and the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged. the parties, intending to be bound
hereby, agree as follows:
1. Modification of Credit Agreement. The Credit Agreement is amended as
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follows:
a. the definition of the term "Maximum Loan Amount" is amended to mean
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$45,000,000.00 provided that the Maximum Loan Amount shall mean $30,000,000.00
at all times after the earlier of (i) September 11, 2000, or (ii) the date
Borrower has transferred any interest in, or granted any lien on, the
headquarters building of Borrower located at 100 S. Missouri Avenue, Clearwater,
Florida 33756.
b. Section 2.1 of the Credit Agreement is amended in its entirely to
provide as follows:
2.1 Revolving Loan. Bank agrees, on the terms and conditions set forth
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in this Agreement, to make Advances and to issue letters of credit to
Borrower from time to time during the Revolving Credit Period in amounts
such that the aggregate principal amount of Advances and the face amount
of any letters of credit at any one time outstanding will not exceed the
Maximum Loan Amount (the "Loan"); provided, however, notwithstanding
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anything to the contrary in this Agreement or any other
Loan Document. Bank shall have no obligation to make Advances under
the Additional Note at any time after September 11, 2000. Within the
foregoing limit, Borrower may borrow, prepay and reborrow Advances
at any time during the Revolving Credit Period.
c. Section 2.2 of the Credit Agreement is amended in its entirely to
provide as follows:
2.2 Revolving Note. The Loan shall be evidenced by the Revolving
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Promissory Note in the principal amount of $30,000,000.00 dated
December 28, 1999 ("Original Note") and the Revolving Promissory Note
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in the principal amount of $15,000,000.00 dated June __, 2000
("Additional Note"), each made by Borrower payable to the Bank, and
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the Loan shall be payable in accordance with the terms of the Note
and this Agreement.
d. Section 2.5(a) of the Credit Agreement is amended in its entirety
to provide as follows:
(a) The Additional Note shall mature, and the principal amount
thereof and all interest, fees, expenses and other amounts payable
in connection therewith under the Loan Documents shall be due and
payable on September 11, 2000; and the entire balance of the Loan,
including without limitation the loans evidenced by the Original
Note, shall mature, and the entire principal amount of the Loan and
all interest, fees, expenses and other amounts payable in connection
therewith shall be due and payable on the Termination Date;
e. Section 2.7 of the Credit Agreement is amended in its entirely to
provide as follows:
2.7 Calculation of Interest; Interest Rate. All interest under the
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Note or hereunder shall be calculated on the basis of the Actual/360
Computation, as defined in the Note.
(a) Original Note. Interest shall accrue on the unpaid principal
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balance of each Advance under the Original Note from the date such
Advance is made available to Borrower at a rate equal to the LIBOR
Market Index Rate, as defined in the Original Note, plus the
Applicable Margin, as such rates may change from day to day,
provided, however, that after the occurrence of a Default, and
otherwise as provided in the Original Note, at Bank's option, the
unpaid principal balance hereunder shall bear interest at the Default
Rate. As used herein, the term "Applicable Margin" shall mean the
following rate, as determined on the day three Business Days after
each Compliance Date:
i. if the Funded Debt to EBITDA Ratio for the most recent
fiscal quarter of Borrower, as shown in the quarterly
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financial report delivered by Borrower to Bank pursuant to
Section 5.5 (a) and (c) herein, is less than 0.75:1, the
Applicable Margin shall be 0.60%;
ii. if the Funded Debt to EBITDA Ratio for the most recent
fiscal quarter of Borrower, as shown in the quarterly financial
report delivered by Borrower to Bank pursuant to Section 5.5 (a)
and (c) herein, is greater than or equal to 0.75:l and less than
1.00:1, the Applicable Margin shall be 0.85%;
iii. if the Funded Debt to EBITDA Ratio for the most
recent fiscal quarter of Borrower, as shown in the quarterly
financial report delivered by Borrower to Bank pursuant to
Section 5.5 (a) and (c) herein, is greater than or equal to
1.00:l and less than 1.25:1, the Applicable Margin shall be
1.25%; and
iv. if the Funded Debt to EBITDA Ratio for the most recent
fiscal quarter of Borrower, as shown in the quarterly financial
report delivered by Borrower to Bank pursuant to Section 5.5 (a)
and (c) herein, is greater than or equal to 1.25:1, or if
Borrower has not, on or before the Compliance Date, delivered a
quarterly financial report to Bank as required by such Section,
the Applicable Margin shall be 1.75%.
At all times prior to the first determination of the
Applicable Margin, as provided above, the Applicable Margin shall
be 0.60%.
(b) Additional Note. With respect to the Additional Note,
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Interest shall accrue on the unpaid principal balance of each Advance
from the date such Advance is made available to Borrower at a rate
equal to the LIBOR-Based Rate as defined in, and as adjusted from
time to time pursuant to, the Additional Note, provided, however,
that after the occurrence of a Default, and otherwise as provided in
the Additional note, at Bank's option, the unpaid principal balance
hereunder shall bear interest at the Default Rate.
(c) Application of Advances. Bank shall have the right, in its
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sole discretion, to determine whether any Advance is made from
the Original Note or the Additional Note.
f. Section 2.9(a) of the Credit Agreement is amended in its entirely
to provide as follows:
(a) Borrower shall pay to Bank a non-refundable facility fee in
the amount of $45,000.00, equal to .15% of the principal amount of
the Original Note, payable on the December 28, 1999, and Borrower
shall pay to Bank a non-refundable facility fee in the amount of
$30,000.00, equal
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to .20% of the principal amount of the Additional Note, payable on
June 14, 2000;
g. the definition of the term "Note" is amended to mean the Original
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Note, the Additional Note and any other promissory note now or hereafter
evidencing any Indebtedness, and all modifications, extensions and renewals
thereof;
h. the definition of the term "Guarantor" is amended to include, in
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addition to the other Guarantors named on Schedule A, IMRGlobal, LLC, a Florida
limited liability company ("IMRGlobal LLC"), and Schedule A is amended to
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include IMRGlobal LLC in addition to the other Guarantors named therein;
i. the Loan Documents will evidence and secure the Additional Note to
the same extent and with the same priority as they evidence and secure the
Original Note, and the definition of the term "Loan Documents" is amended to
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include, in addition to the other documents and agreements described in the
Credit Agreement, the Swap Agreements.
2. Additional Loans. Lender shall make loans to Borrower, in addition to
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the loans described in the Credit Agreement (prior to this amendment thereof),
in a principal amount up to %15,000,000.00 at any time outstanding, to be
evidenced by a Revolving Promissory Note in the same amount dated on or about
the date hereof ("Additional Loans"), provided that, notwithstanding anything to
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the contrary in the Loan Documents, the Additional Loans will be payable in full
upon, and Lender shall have no further obligation to advance any part of the
Additional Loans after the earlier of (i) September 11,2000, or (ii) the date
Borrower has transferred any interest in, or granted any lien on, the
headquarters building of Borrower located at 100 S. Missouri Avenue,
Clearwater, Florida 33756.
3. Tax Indemnity. Borrower and Lender have concluded that Florida
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document excise taxes are not due in connection with this Amendment or any of
the other Loan Documents because the Loan Documents have been executed by
Borrower and the other signatories, and delivered to Lender, outside the State
of Florida. Nevertheless, Borrower shall pay to Lender in full, on demand, the
amount of all document excise taxes, including interest and penalties, that
either Lender or the Florida Department of Revenue later deem to be due and
applicable with respect to the Note or any of the other Loan Documents, or any
other agreement between or among Borrower the Subsidiaries and Lender. In
addition, Borrower shall reimburse Lender for any document excise taxes,
including penalties and interest, paid by Lender and all costs and attorney's
fees that Lender incurs in defending against an imposition of such taxes on the
Note, this Amendment, the other Loan Documents and any other agreement between
or among Borrower, the Subsidiaries and Lender.
4. Representations and Warranties. Borrower represents and warrants to
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Bank that:
a. all of Borrower's representations and warranties to Bank in the
Loan Documents are true and correct on this date, as if made on this date,
except to the extent any of them expressly relate to an earlier date;
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b. since the date of the most recent financial statements delivered to
Bank, there has not been any material adverse change in the financial conditions
of Borrower or any Guarantor;
c. Borrower has the full corporate power and authority to enter into
and perform its obligations hereunder and each transaction contemplated hereby;
and
d. the execution and delivery by Borrower of this Amendment and each
other document contemplated hereby and its performance of its obligations
hereunder and thereunder have been duly authorized by all necessary corporate
proceedings on the part of Borrower.
5. Counterparts. The parties may execute this Amendment and any other
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agreement executed pursuant to it in counterparts. Each executed counterpart
will be deemed to be an original, and all of them, together, will constitute the
same agreement. This Amendment will become effective as of its stated date of
execution, when each party has signed a counterpart and all the executed
counterparts have been delivered to Bank.
6. WAIVER OF CLAIMS. BORROWER HEREBY KNOWINGLY, VOLUNTARILY, IRREVOCABLY,
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AND INTENTIONALLY WAIVES AND RELEASES BANK (AND ITS OFFICERS, DIRECTORS,
SHAREHOLDERS, REPRESENTATIVES, AND AGENTS) FROM (a) ALL CLAIMS, DEMANDS, SUITS,
AND CAUSES OF ACTION, WHETHER AT LAW OR IN EQUITY, THAT BORROWER EVER HAD, HAS
NOW, OR MIGHT HAVE IN THE FUTURE, BY REASON OF ANY MATTER, CAUSE; OR THING
WHATSOEVER ARISING BEFORE THE DATE AND TIME OF EXECUTION OF THIS AMENDMENT, WITH
RESPECT TO: (i) ANY BREACH BY BANK (OR AN OFFICER, DIRECTOR, SHAREHOLDER,
REPRESENTATIVE, OR AGENT OF BANK) OF ITS OBLIGATIONS OR PROMISES UNDER THE LOAN
DOCUMENTS OR OTHERWISE; AND (ii) ANY ACTION OR INACTION BY BANK (OR AN OFFICER,
DIRECTOR, SHAREHOLDER, REPRESENTATIVE, OR AGENT OF BANK) THAT IS ALLEGED TO HAVE
HAD AN INJURIOUS EFFECT ON THE BUSINESS, OPERATION OR MANAGEMENT OF BORROWER AND
(b) ANY DEFENSE, COUNTERCLAIM, SETOFF, RIGHT OF RECOUPMENT OR ABATEMENT, OR
OTHER CLAIM AGAINST BANK (OR AN OFFICER, DIRECTOR, SHAREHOLDER, REPRESENTATIVE,
OR AGENT OF BANK) RELATING TO ANY MATTER, CAUSE, OR THlNG WHATSOEVER ARISING
BEFORE THE DATE AND TIME OF EXECUTION OF THIS AMENDMENT.
7. Ratification of Loan Documents. The parties acknowledge that (except as
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expressly amended in this Amendment) the Loan Documents are unaffected,
unchanged, and unimpaired and all such documents and agreements remain
enforceable in accordance with their. respective terms. Further, the parties
ratify and confirm all their obligations under the Loan Documents, except as
modified in this Amendment. Neither this Amendment nor any earlier waiver or
amendment of any of the Loan Documents will constitute a novation or have the
effect of discharging any liability or obligation evidenced or secured by the
Loan Documents.
8. Transaction Expenses: Taxes. Borrower shall pay all costs and expenses
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of Bank (including filing fees, recording fees, document excise and intangible
tax, and attorney's fees and expenses) in connection with this Amendment and any
related documents.
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9. Miscellaneous. This Amendment contains the final, complete, and
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exclusive expression of the understanding of Borrower and Bank with respect to
the obligations created under it and supersedes any prior or contemporaneous
agreement, understanding, or representation, oral or written, by either of them.
Except as expressly provided herein, this Amendment does not constitute a waiver
of any rights of Bank or obligations of Borrower under the Loan Documents, and
or a waiver herein will constitute a continuing waiver or a waiver of any other
or future rights or obligations. A waiver or modification of any provision of
this Amendment is valid only if the waiver or modification is in writing and
signed by each party. The titles and headings preceding the text of the sections
of this Amendment have been inserted solely for convenience of reference and do
not affect this Amendment's meaning or effect. This Amendment is binding on each
heir, assignee, and personal representative of the Borrower, and inures to the
benefit of each assignee and successor of Bank. This Amendment is not assignable
by Borrower, and any attempted assignment by Borrower will not be valid or
effective against Bank. Bank may assign this Amendment, and its assignee will
succeed to all the rights of Bank under it. Words of the neuter gender in this
Amendment are to be construed to include words of the masculine and feminine
genders. This Amendment is a Florida contract, and the parties intend that it is
to be construed according to the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
FIRST UNION NATIONAL BANK, a national
banking association
By: /s/ Robert D. Bridges
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Name: Robert D. Bridges
Title: Senior Vice President
IMRGLOBAL CORP., a Florida corporation
By: /s/ Robert M. Molsick
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Robert Molsick
Chief Financial Officer
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