AMENDMENT NO. 9 TO CREDIT AGREEMENT AND WAIVERS
AMENDMENT and WAIVERS dated as of October 1, 1999 among PERINI
CORPORATION (the "Borrower"), the banks listed on the signature pages hereof
(collectively, the "Banks"), and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks and the Agent are parties to an Amended
and Restated Credit Agreement dated as of January 17, 1997 (as heretofore
amended, the "Credit Agreement");
WHEREAS, the Borrower has failed to reimburse Xxxxxx Trust and Savings
Bank ("Xxxxxx Bank") for the amount of a drawing under a letter of credit issued
by Xxxxxx Bank, as described in the Forbearance Agreement dated as of September
23, 1999 among Xxxxxx Bank, the Borrower and Perini Building Corporation (the
"Forbearance Agreement");
WHEREAS, the Borrower's failure to reimburse Xxxxxx Bank when due for
the amount of such drawing (the "Xxxxxx Default") constitutes an Event of
Default under the Credit Agreement;
WHEREAS, the parties have agreed to amend certain provisions of the
Credit Agreement as provided herein, and at the request of the Borrower the
Banks have agreed to grant the waiver provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the Credit Agreement shall have the
meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall from and after the date hereof refer to
the Credit Agreement as amended hereby.
Exhibit 10.26
Section 2. Amendment to Definitions. Section 1.01 of the Credit
Agreement is amended by inserting the following new definition, in appropriate
alphabetical order:
"Capital Restructuring" means the restructuring of the
Borrower's payment and other obligations under this Agreement and
appropriate modifications to the other Financing Documents, such that
the Borrower will reasonably be expected to satisfy all of its payment
obligations thereunder and no Default will reasonably be foreseeable at
the time of such restructuring, which restructuring shall be pursuant to
terms and conditions acceptable to each Bank and to each of the other
parties thereto.
Section 3. Amendment to Maximum Amount of Performance Letters of Credit.
Section 2.16(a) of the Credit Agreement is amended by amending and restating
clause (ii) in the proviso therein in its entirety to read as follows:
"the aggregate amount of the Letter of Credit Liabilities for
all Performance Letters of Credit shall not exceed $3,000,000."
Section 4. Amendment to Events of Default. Section 6.01 of the Credit
Agreement is amended by (i) deleting the word "or" at the end of subsection (n)
thereof, (ii) adding the word "or" at the end of subsection (o) thereof and
(iii) inserting the following new subsection (p):
"(p) the $3,000,000 Letter of Credit issued in favor of
Perini/Xxxxx shall not have expired or been terminated on or before
January 21, 2000 or the Capital Restructuring shall not have become
effective on or before January 21, 2000;".
Section 5. Waiver With Respect to the Xxxxxx Default. Solely for the
period from September 23, 1999 through and including the "Xxxxxx Waiver
Termination Date" (as defined below), the Banks hereby waive the Default
existing under the Credit Agreement due solely to the Xxxxxx Default.
As used herein, "Xxxxxx Waiver Termination Date" means the earlier of
November 30, 1999 and the first date, if any, when any of the following events
shall occur:
(a) A "Standstill Termination" (as defined in the Forbearance
Agreement) shall occur;
(b) Xxxxxx Bank shall exercise any rights or remedies available to
it in connection with the Xxxxxx Default; or
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EXHIBIT 10.26
(c) October 30, if the Banks shall not have received from the
Borrower a copy of a commitment letter to the Borrower from
Amresco Capital L.P., or such other lender as shall be
reasonably acceptable to the Banks, describing terms and
conditions reasonably acceptable to the Banks for a refinancing
of the Borrower's obligations to Xxxxxx Bank under the
reimbursement agreement referenced in the Forbearance Agreement.
Section 6. Waivers With Respect to Xxxxxx. Solely for the period from
September 30, 1999 through and including the "Xxxxxx Waivers Termination Date"
(as defined below), each Bank waives the Defaults (including notice thereof)
arising under the Credit Agreement solely as a result of the fact that:
(i) the Xxxxxx Restructuring shall not have become effective on or
before April 30, 1999;
(ii) the Borrower's shall have failed to comply with its obligations
under Section 5.02 of the Credit Agreement, but solely to the
extent such obligations would require the Borrower to cause
Perini Land and Development and Xxxxxx Center Associates to pay
and discharge, at or before maturity, all of their respective
material obligations and liabilities relating to the Xxxxxx
Center project;
(iii) Xxxxxx Center Associates shall have failed to make any payment
in respect of Debt relating to the Xxxxxx Center project; or
(iv) any event or condition shall occur which results in the
acceleration of the maturity of any Debt of Xxxxxx Center
Associates relating to the Xxxxxx Center project or enables (or,
with the giving of notice or lapse of time or both, would
enable) the holder of such Debt or any Person acting on such
holder's behalf to accelerate the maturity thereof.
As used herein, "Xxxxxx Waivers Termination Date" means the earlier of
October 30, 1999 and the first date, if any, when any of the following events
shall occur:
(i) The Borrower or Perini Land and Development shall become a named
defendant in any proceeding relating to the Xxxxxx Center
project, other than (A) the proceeding commenced by Pacific
Gateway Properties, Inc., Case No. 301993, (B) the proceeding
commenced by Pacific Gateway Properties, Inc., Case No. 985464
or (C) the proceeding commenced by Xxxxx X. Xxxxxx, Receiver for
Chrysler XxxXxxxx Corporation in Case Xx. 000000, Xxxx Xx.
000000 (collectively, the "PGP Lawsuits");
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EXHIBIT 10.26
(ii) Any development occurs in the PGP Lawsuits that is adverse to
the Borrower or Perini Land and Development;
(iii) An Event of Default described in Section 6.01(i) shall occur
with respect to Xxxxxx Center Associates, other than an Event of
Default arising solely from Xxxxxx Center Associates' failure
generally to pay its debts as they become due; or
(iv) An involuntary case or other proceeding shall be commenced
against Xxxxxx Center Associates seeking liquidation,
reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
material part of its property;
provided that neither the appointment of receivers nor the naming of Perini Land
and Development as a party pursuant to (a) the August 3, 1999 Order Appointing
Receiver; Preliminary Injunction of the Superior Court of the State of
California for the County of San Francisco in Citicorp Real Estate, Inc. x.
Xxxxxx Center Associates, Case No. 304816, and (b) the August 3, 1999 Order
Appointing Receiver; Preliminary Injunction of the Superior Court of the State
of California for the County of San Francisco in Citicorp Real Estate, Inc. v.
Chrysler XxxXxxxx Corporation, Case No. 304815, shall constitute a Xxxxxx
Waivers Termination Date.
Section 7. Waiver of Condition to Borrowings. Solely for Borrowings on
any date from the date hereof through and including the Xxxxxx Waivers
Termination Date, the Banks hereby waive the condition to Borrowing contained in
Section 3.02(d) of the Credit Agreement, but only to the extent such condition
cannot be satisfied due solely to the inability of the Borrower to make the
representation and warranty contained in Section 4.04(c) of the Credit Agreement
as a result of the write-down of its investment in the Xxxxxx Center project.
The Banks acknowledge that a Borrowing on any day from the date hereof through
and including the Xxxxxx Waivers Termination Date shall not be deemed to be a
representation and warranty by the Borrower on such date as to the condition
specified in Section 3.02(d) to the extent that such condition is waived
hereunder.
Section 8. Representations and Warranties Correct; No Default. The
Borrower represents and warrants that on and as of the date hereof, after giving
effect to this Amendment and Waivers, (a) the representations and warranties of
each Obligor contained in each Financing Document, as amended, to which it is a
party are true, other than the representation and warranty contained in Section
4.04(c) of the Credit Agreement to the extent that the Borrower cannot make such
representation and warranty due solely to the status of the Xxxxxx Center
project and (b) no Default under the Credit Agreement exists.
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EXHIBIT 10.26
Section 9. Effect of Amendments and Waiver. Except as expressly set
forth herein, this Amendment and Section 9. Effect of Amendments and Waiver.
Except as expressly set forth herein, this Amendment and Waivers shall not
constitute an amendment or waiver of any term or condition of the Credit
Agreement or any other Financing Document, and all such terms and conditions
shall remain in full force and effect and are hereby ratified and confirmed in
all respects.
Section 10. Governing Law. This Amendment and Waivers shall be governed
by and construed in accordance with the laws of the State of New York.
Section 11. Counterparts. This Amendment and Waivers may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Section 12. Consent by Subsidiary Guarantors. By signing this Amendment
and Waivers below, each Subsidiary Guarantor affirms its obligations under the
Subsidiary Guarantee Agreement and acknowledges that this Amendment and Waivers
shall not alter, release, discharge or otherwise affect any of such obligations,
all of which shall remain in full force and effect and are hereby ratified and
confirmed in all respects.
Section 13. Effectiveness. This Amendment and Waivers shall become
effective as of the date hereof when the Agent shall have received duly executed
counterparts hereof signed by the Borrower, the Required Banks and each
Subsidiary Guarantor (or, in the case of any party as to which an executed
counterpart shall not have been received, the Agent shall have received
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party).
Section 14. Termination.
(a) The waiver granted pursuant to Section 4 shall terminate and be
of no further force and effect on the Xxxxxx Waiver Termination
Date. The Banks shall retain, and upon such termination shall be
entitled to exercise, any and all remedies with respect to any
and all Defaults that are waived pursuant thereto.
(b) The waivers granted pursuant to Sections 6 and 7 shall terminate
and be of no further force and effect on the Xxxxxx Waivers
Termination Date. The Banks shall retain, and upon such
termination shall be entitled to exercise, any and all remedies
with respect to any and all Defaults that are waived pursuant
thereto.
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EXHIBIT 10.26
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waivers to be duly executed by their respective authorized officers as of the
date first above written.
