EXHIBIT 6.1
SERVICES AGREEMENT
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This Services Agreement is entered into this 13th day of December 1996, by
and between Xxxxxxx X. Xxxx & Associates, L.P., a California limited partnership
("RCBA") and The Union Labor Life Insurance Company Separate Account P ("Account
P"). All capitalized terms not defined herein shall have the meaning attributed
to them in the Stock Purchase and Sale Agreement dated July 24, 1996, as amended
("Stock Purchase Agreement").
WHEREAS, RCBA is a party to the Stock Purchase Agreement by and among
Perini Corporation ("Seller"), and PB Capital Partners, L.P., ("Purchaser"),
pursuant to which Purchaser agreed to purchase 150,150 shares of newly issued
Series B Cumulative Convertible Preferred Stock, par value $1.00 per share (the
"Series B Preferred Stock"), of Seller for $30,030,000 (the Series B Preferred
Stock as well as the common stock into which it is convertible shall
collectively be referred to as the "Shares");
WHEREAS, in order to directly hold the legal and beneficial interest in the
Series B Preferred Stock, Account P has entered into that certain Stock
Assignment and Assumption Agreement ("Assignment Agreement") with Purchaser,
whereby on the terms and conditions set forth in the Assignment Agreement
Account P has accepted the assignment and assumed the delegation of Purchaser's
rights and obligations relating to the purchase up to 37,500 shares of Series B
Preferred Stock for a price of up to $7.5 million from the Seller;
WHEREAS, Account P agrees that a reasonable fee for the services rendered
should be based, at least in part, on the performance of the Series B Preferred
Stock, but the ultimate worth of the Series B Preferred Stock purchased by
Account P cannot be reasonably determined at this time; and
WHEREAS, the parties hereby agree to defer payment of RCBA's compensation
for identifying and structuring Account P's investment until such time as the
ultimate worth can be determined;
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, each of the parties agrees as follows:
1. Services. RCBA has negotiated the terms of the Stock Purchase
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Agreement and the structure of the Series B Preferred Stock (a portion of which
Account P desires to acquire). RCBA in the future shall provide Account P with
quarterly reports on the performance of the Series B Preferred Stock. RCBA
shall have no discretion over the acquisition or disposition of Account P's
shares of the Series B Preferred Stock.
2. Fee for Reporting Services. For providing quarterly reports on the
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performance of
the Series B Preferred Stock, Account P shall pay RCBA a fee of 0.875% per annum
of the amount invested. Account P shall have the right to terminate the
reporting services at any time and to cease paying for those services.
3. Fee for Finding and Structuring. Upon the disposition of all the
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Shares, Account P shall pay RCBA a fee for finding and structuring the
investment equal to:
(a) five percent (5%) of the Realized Profits. "Realized Profits"
shall mean the number, not less than zero, equal to (i) the gross
proceeds of any and all dispositions of the Shares by Account P,
minus (ii) the sum of (x) the amount of capital invested
(including transaction fees and expenses incurred by Account P to
the extent not reimbursed by Seller), plus (y) an amount equal to
the reporting fees paid pursuant to paragraph 2, above, plus (z)
in the case of this section 3(a) only, an amount of profit
necessary to attain an internal rate of return on invested capital
equal to nine percent (9%) per annum;
(b) an additional five percent (5%) of Realized Profits if the Shares
generate an internal rate of return in excess of fifteen percent
(15%) per annum;
(c) an additional five percent (5%) of Realized Profits if the Shares
generate an internal rate of return in excess of twenty-two and
one-half percent (22.5%) per annum; and
(d) an additional five percent (5%) of Realized Profits if the Shares
generate an internal rate of return in excess of thirty percent
(30%) per annum.
For purposes of sections (a) through (d) of this paragraph 3, the internal rate
of return shall be calculated: (x) after deducting (i) the amount of reporting
fees paid pursuant to paragraph 2, above, plus (ii) transaction fees and
expenses incurred by Account P to the extent not reimbursed by Seller or
capitalized, but (y) without first deducting the finding and structuring fees to
be paid pursuant to sections (a) through (d) of this paragraph 3. If Account P
has not disposed of all its Shares on or before the date which is the fifth
anniversary of the date on which Account P purchased the Series B Preferred
Stock, the finding and structuring fee provided for in this paragraph 3 shall be
calculated by (i) treating the shares of Series B Preferred Stock that have not
been converted into common stock of Seller as having been converted into common
stock of Seller and (ii) that all Shares not previously disposed of as having
been disposed of on such fifth anniversary date for a price equal to the average
of the closing price of such common stock for the preceding thirty (30) trading
days.
4. Transaction Fees. Any and all fees earned by RCBA or any of its
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officers, directors and Affiliates which are paid by the Seller relating to the
Series B Preferred Stock, including but not limited to, origination fees,
investment banking fees, management fees, and
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exit fees shall be paid to Account P on a pro rata basis, unless the parties
hereto otherwise agree. For purposes of this provision, "pro rata" shall mean
the fraction the numerator of which is the number of Shares owned by Account P
(assuming that all such Shares have been converted into common stock of Seller)
and the denominator of which is the total number of Shares owned by PB Capital
and Account P (assuming that all such Shares have been converted into common
stock of Seller).
5. Expenses. Account P shall be reimbursed by PB for up to $45,000 of
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its expenses in connection with its purchase of the Series B Preferred Stock.
Such amounts reimbursed by PB shall be treated as expenses of PB for purposes of
the following sentence. Account P shall bear its proportionate share of
transaction and due diligence expenses, including legal fees, incurred by RCBA
or PB, to the extent not otherwise reimbursed by Seller.
6. Further Representations and Warranties of Account P. In addition to
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the obligations undertaken herein, Account P hereby represents and warrants to,
and agrees with, RCBA (which representations and warranties shall be true and
complete on he date hereof and on the Closing Date, as defined in the Stock
Purchase Agreement) as follows:
(a) Account P has the full power and authority to execute and deliver
this Services Agreement. Account P has taken all action required
by law, its charter, its by-laws or otherwise required to be taken
by it to authorize the execution and delivery of this Services
Agreement and the consummation of the transactions contemplated to
be performed by it under the Services Agreement.
(b) The execution and delivery of the Services Agreement will not (i)
conflict with, or result in a breach of, any provision of Account
P's charter or by-laws or any other governing document or (ii) to
the knowledge of Account P, violate any judgment, order, writ,
injunction, or decree applicable to Account P. No consent,
authorization or approval of, or declaration, filing or
registration with, or exemption by, any governmental or regulatory
authority is required in connection with the execution and
delivery of, and the performance by Account P of its obligations
under this Services Agreement.
(c) There is no claim, suit, action, proceeding or investigation
(whether in law or equity, before or by any government entity or
before any arbitrator) pending or, to the knowledge of Account P,
threatened against or affecting Account P, the outcome of which
would in any manner impair the ability of Account P to perform its
obligations under the Services Agreement.
7. Representations and Warranties of RCBA. In addition to RCBA's
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obligations as provided herein, RCBA hereby represents and warrants, and agrees
with Account P (which
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representations and warranties shall be true and complete on he date hereof and
on the Closing Date, as defined in the Stock Purchase Agreement) as follows:
(a) RCBA is a limited partnership duly formed, validly existing and in
good standing under the California Revised Limited Partnership Act
(the "Partnership Act") and has the partnership power and
authority to execute and deliver this Services Agreement and own
its properties and carry on its business as described its
partnership agreement.
(b) There is no litigation, investigation or other proceeding pending
against RCBA which, if adversely determined, would materially
adversely affect the business or financial condition of RCBA or
its ability to perform its obligations under the Services
Agreement.
(c) The execution and delivery of the Services Agreement by RCBA does
not result in the violation of or constitute a default under or
breach of any contract, indenture, agreement, instrument or
mortgage applicable to RCBA.
8. Modification. This Services Agreement shall not be modified,
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discharged or terminated except by an instrument in writing signed by the party
against whom any waiver, change, discharge or termination is sought.
9. Notices. All notices or other communications given or make hereunder
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shall be validly given or made if in writing and delivered by facsimile
transmission or in person at, or mailed by overnight courier to, the following
addresses (and shall be deemed effective at the time or receipt thereof).
If to Separate Account P:
The Union Labor Life Insurance Company
Separate Account P
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: 000-000-0000
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx Xxxxxx
00xx Xxxxx
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Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: 000-000-0000
If to RCBA:
Xxxxxxx X. Xxxx & Associates, LP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxx
Facsimile: 415-434-3130
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx and Xxxx X. Xxxxxx
Facsimile: 000-000-0000
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above.
10. Binding Effect. Upon execution by both of the parties hereto, this
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Services Agreement shall be binding upon and inure to the benefit of the parties
and their heirs, executors, administrators, successors and legal
representatives, except that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or hereafter
in effect relating to creditors' rights and general principles of equity and
except to the extent that rights to indemnity and contribution may be limited by
federal or state securities laws or policies underlying such laws.
11. Entire Agreement. This Services Agreement contains the entire
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agreement of the parties, and there are no representations, covenants or other
agreements except as stated or referred to herein.
12. Assignability. This Services Agreement is not transferable or
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assignable by either party hereto, except that the fees payable to RCBA under
this Services Agreement may be assigned by RCBA.
13. Applicable Law. This Services Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of the conflicts of laws thereof.
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14. Counterparts. This Services Agreement may be executed through the use
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of separate signature pages or in any number of counterparts, and each of such
counterparts shall, for all purposes, constitute one agreement binding on all
the parties, notwithstanding that all parties are not signatories to the same
counterpart.
15. Termination. This Service Agreement may be terminated on thirty (30)
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days' written notice by either Party with or without cause. Notwithstanding any
such termination, the obligations to make the payments called for by paragraphs
3, 4, and 5 shall survive any termination until fully paid.
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IN WITNESS WHEREOF, the parties hereto have entered into this Services
Agreement as of the date first written above.
THE UNION LABOR LIFE INSURANCE
COMPANY, SEPARATE ACCOUNT P
By: _____________________
Xxxxxxx X. Xxxxx
Senior Vice President
XXXXXXX X. XXXX & ASSOCIATES, L.P.
By: Xxxxxxx X. Xxxx & Associates, Inc.
By: ________________________________
Xxxx Xxxxxxxxxx, Chief Financial
Officer and Managing Director
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