Exhibit 10.28
AMENDMENT NO. 11 TO CREDIT AGREEMENT AND WAIVER
AMENDMENT and WAIVER dated as of January 21, 2000 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, Section 6.01(p) of the Credit Agreement provides that an Event
of Default shall occur if the $3,000,000 Letter of Credit issued in favor of
Perini/Xxxxx (the "Perini/Xxxxx XX") 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;
WHEREAS, the Borrower has informed the Banks that the Peirni/Xxxxx XX
will not expire or terminate on or before January 21, 2000 and the Capital
Restructuring will not become effective on or before January 21, 2000;
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 (as
amended, 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, and the Borrower has requested an extension
of the previous waiver granted with respect to the Xxxxxx Default;
WHEREAS, the Borrower and the Banks wish to record certain
understandings in connection with the letter dated December 8, 1999 among the
Banks, the Borrower and Xxxxxx X. Tutor (the "Term Sheet Cover Letter") and the
Term Sheet attached thereto (as modified by changed pages distributed subsequent
to the initial distribution of execution pages, the "Term Sheet");
WHEREAS, the parties have agreed to amend 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.
Section 2. Amendment to Perini/Xxxxx XX and Capital Restructuring Event
of Default. Section 6.01(p) of the Credit Agreement is amended by deleting each
of the references to "January 21, 2000" therein and inserting "March 15, 2000"
in lieu thereof.
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Section 3. Waiver With Respect to the Xxxxxx Default. Solely for the
period from January 27, 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 March 15, 2000 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; or
(b) Xxxxxx Bank shall exercise any rights or remedies available to
it in connection with the Xxxxxx Default.
Section 4. Amendment and Waiver Fee. (a) In consideration for this
Amendment and Waiver, the Borrower agrees to pay to the Agent a fee for the
account of the Banks in the aggregate amount of $100,000 (to be shared in
proportion to their aggregate Commitments).
(b) In addition, if by February 20, 2000 the Borrower or any Subsidiary
have not received at least $14,000,000 of Net Proceeds from the completion of
the specified real estate sales and headquarters refinancing referred to in the
Term Sheet, the Borrower shall pay to the Agent an additional fee for the
account of the Banks in the aggregate amount of $33,333 (to be shared in
proportion to their aggregate Commitments).
Section 5. Certain Understandings in Connection with the Term Sheet. For
purposes of recording certain further understandings between the parties
concerning, and in certain respects modifying, the Term Sheet, the Banks and the
Borrower note (subject to the reservations in the Term Sheet Cover Letter) the
following:
(a) the Banks will credit the fee paid by the Borrower in accordance
with Section 4(a) of this Amendment and Waiver against the $200,000
restructuring fee contemplated by the Term Sheet to be paid at the closing of
the proposed new credit agreement between the Borrower and the Banks (the "New
Credit Agreement"); and
(b) regardless of the actual closing date of the New Credit Agreement,
(i) the maturity date for final repayment of the term loans contemplated by the
Term Sheet will be the last business day of December, 2002 (and the schedule of
required amortization will be based on this date, beginning with the last
business day of March, 2000), (ii) the termination date for the revolving
commitments under the New Credit Agreement will be January 21, 2003, (iii) the
outside date by which the revolving commitments must be reduced to no more than
$21 million will be April 20, 2000 and (iv) the determination of the Borrower's
obligation to pay the three installments of supplemental restructuring fees will
be measured by a number of days (30, 60 and 90) from January 21, 2000 (but in
the case of the first such installment, if the deadline falls before the actual
closing date, such installment will not apply, having been paid pursuant to
Section 4(b)).
Section 6. 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 Waiver, (a) the representations and warranties of
each Obligor contained in each Financing Document, as amended, to which it is a
party are true and (b) no Default under the Credit Agreement exists.
Section 7. Effect of Amendments and Waiver. Except as expressly set
forth herein, this Amendment and Waiver 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.
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Section 8. Governing Law. This Amendment and Waiver shall be governed by
and construed in accordance with the laws of the State of New York.
Section 9. Counterparts. This Amendment and Waiver 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 10. Consent by Subsidiary Guarantors. By signing this Amendment
and Waiver below, each Subsidiary Guarantor affirms its obligations under the
Subsidiary Guarantee Agreement and acknowledges that this Amendment and Waiver
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 11. Effectiveness. This Amendment and Waiver shall become
effective as of the date hereof when the Agent shall have received:
(a) duly executed counterparts hereof signed by the Borrower, each Bank
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); and
(b) the fee payable under Section 4 of this Amendment and Waiver.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed by their respective authorized officers as of the
date first above written.
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