Exhibit 10.1
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is entered into as of February
7, 2000 by and between Perini Corporation, a Massachusetts corporation (the
"Company"), and The Union Labor Life Insurance Company, a Maryland corporation,
on behalf of its Separate Account P ("Union Labor Life").
RECITALS
A. Pursuant to that certain Stock Purchase and Sale Agreement dated as of
July 24, 1996 by and among Xxxxxxx Xxxx & Associates, L.P., PB Capital Partners,
L.P. ("PB Capital") and the Company and that certain Assignment and Assumption
Agreement dated as of December 13, 1996 by and among PB Capital, the Company and
Union Labor Life (collectively, with all agreements entered into in connection
therewith, the "Original Purchaser Documents"), Union Labor Life acquired 34,500
shares of Series B Cumulative Convertible Preferred Stock ("Series B Preferred
Stock") of the Company (together with all shares of Series B Preferred Stock of
the Company now or hereafter issued as payment-in-kind dividends on the shares
of such stock now or hereafter held by Union Labor Life, the "Shares" ).
B. The Company has entered into that certain Securities Purchase Agreement
(the "SPA") dated as of February 5, 2000 by and among Xxxxx-Xxxxxx Corporation,
a California corporation, O&G Industries, Inc., a Connecticut corporation, and
the National Union Fire Insurance Company of Pittsburgh, PA, a Pennsylvania
corporation (collectively, the "Purchasers"), pursuant to which the Purchasers
have agreed to purchase an aggregate of 9,411,765 shares of newly issued common
stock of the Company ("Common Stock"). Capitalized terms used herein without
definition shall have the meanings ascribed thereto in the SPA.
C. In connection with the SPA, the Company and the Purchasers have
requested that Union Labor Life exchange the Shares for shares of Common Stock
of the Company.
D. Union Labor Life is willing to exchange the Shares for shares of Common
Stock on the terms and subject to the conditions and covenants set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereto agree as
follows:
1. Obligation to Exchange Securities. Upon satisfaction of the conditions
set forth in Section 7 and 8 and immediately prior to the consummation of the
transactions contemplated by the SPA, Union Labor Life will, subject to the
terms and conditions of this Agreement, exchange the Shares for shares of Common
Stock (the "Exchange Securities") as set forth herein. Subject to the terms and
conditions of this Agreement, the Shares will be exchanged into an aggregate of
(i) 1,714,407.20 newly issued shares of Common Stock plus (ii) the number of
shares of Common Stock equal to the product resulting from multiplying (x) the
number of calendar days from March 15, 2000 after which the transactions
contemplated hereby are consummated by (y) 476.22. The Exchange Securities
issuable hereunder upon exchange of the Shares shall be subject to adjustment
for any split, combination, reclassification, recapitalization or other change
in the Common Stock consummated prior to the consummation of the transactions
contemplated hereby. The Company shall issue the Exchange Securities to Union
Labor Life free of any liens, claims, charges, security interests, pledges,
voting or stockholder agreements, encumbrances or equities (other than any of
the foregoing created by Union Labor Life or arising under any federal or state
securities laws) (collectively, "Liens"). The Company acknowledges and agrees
that the Exchange Securities shall be deemed for all purposes to be "Registrable
Securities" as such term is used in that certain Registration Rights Agreement
by and among the Company, PB Capital and Union Labor Life dated as of January
17, 1997.
2. Mechanics of Exchange.
(a) Immediately following the satisfaction or waiver of the conditions set
forth in Sections 7 and 8, Union Labor Life shall surrender its certificate or
certificates for the Shares, with appropriate stock powers attached, duly
endorsed, at the office of the Company or any transfer agent for the Exchange
Securities, together with a written notice to the Company that Union Labor Life
is exchanging the Shares, represented by such certificate or certificates. Upon
such surrender, the Company shall issue and deliver to Union Labor Life, a
certificate or certificates representing the Exchange Securities to be issued,
conveyed and delivered to Union Labor Life pursuant to Section 1.
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(b) Union Labor Life shall be treated for all purposes as the record holder
of the Exchange Securities as of the close of business on the date it surrenders
its certificate or certificates for the Exchange Securities (the "Exchange
Date").
(c) If Union Labor Life holds the Shares at the close of business on a
record date which occurs after March 15, 2000 for any payment of declared
dividends on the Shares or if the Company declares a dividend in cash or in kind
other than the dividend payable on March 15, 2000 in accordance with the terms
of the Series B Preferred Stock, Union Labor Life shall be entitled to receive
the dividend payable on the Shares on the corresponding dividend payment date
notwithstanding the surrender of the Shares for Exchange Securities following
such record date and prior to the corresponding dividend payment date.
(d) If Union Labor Life holds the Shares at the close of business on a
record date for any payment of declared dividends on the Common Stock, and after
such record date but prior to the corresponding dividend payment date, Union
Labor Life surrenders the Shares for Exchange Securities, Union Labor Life shall
be entitled to receive the dividend payable on such shares on the corresponding
dividend payment date as if it had been the record holder of such shares at the
close of business on the record date.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to Union Labor Life as follows:
(a) The SPA. The Representations and Warranties made by the Company in
Section 3.01 of the SPA were true and complete as of the date thereof and are
true and complete as of the date hereof.
(b) Corporate Power. The Company has all requisite corporate power and
authority to execute and deliver this Agreement, to issue and sell the Exchange
Securities hereunder, and to carry out the provisions of this Agreement.
(c) Authorization; Binding Obligations. Except for stockholder approval of
the Purchase and the transactions contemplated by this Agreement, all corporate
action on the part of the Company necessary for the authorization of the
execution and delivery of this Agreement and the performance of all obligations
of the Company hereunder has been taken. This Agreement constitutes the valid
and binding obligations of the Company enforceable against the Company in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights; and (ii) general principles of
equity that restrict the availability of equitable remedies. The issuance and
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sale of the Exchange Securities are not and will not be subject to any
preemptive rights, rights of first refusal, rights of first offer or other
similar rights granted by the Company that have not been properly waived or
complied with. The Exchange Securities, when issued in accordance with the terms
hereof, shall be duly authorized, validly issued, fully paid and non-assessable
and free and clear of all Liens.
(d) Consents. No governmental orders, permissions, consents, approvals or
authorizations are required to be obtained by the Company and no registrations
or declarations are required to be filed by the Company in connection with the
execution and delivery of this Agreement and the offer, sale or issuance of the
Exchange Securities, except as will be duly and validly obtained or filed.
(e) Compliance with Laws and Other Instruments. Except for stockholder
approval of the Purchase and the transactions contemplated by this Agreement,
the execution, delivery and performance by the Company of this Agreement (a)
will not require from the board of directors of the Company any consent or
approval that has not been validly and lawfully obtained, (b) will not cause the
Company to violate or contravene (i) any provision of law, (ii) any rule or
regulation of any agency or government, domestic or foreign, (iii) any order,
writ, judgment, injunction, decree, determination or award, or (iv) any
provision of the Articles of Organization or By-laws of the Company, or (c) will
not result in a violation or conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under, any
indenture, credit agreement, note agreement, deed of trust, mortgage, security
agreement or other agreement, lease or instrument to which the Company is a
party or by which the Company or any of its properties or assets are bound which
would have a material adverse effect on the Company.
(f) Offering Valid. Assuming the accuracy of the representations and
warranties of Union Labor Life contained in Section 4 hereof, the offer, sale
and issuance of the Exchange Securities are and will be exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and will have been registered or qualified (or are exempt
from registration and qualification) under the registration, permit or
qualification requirements of all applicable state securities laws.
(g) Disclosure. To the Knowledge of the Company (as defined in the SPA), no
representation or warranty by the Company contained in this Agreement or the
SPA, or in any certificate to be furnished by or on behalf of the Company
pursuant hereto or thereto, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein,
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in light of the circumstances under which they were made, not misleading.
4. Representations and Warranties of Union Labor Life. Union Labor Life
hereby represents and warrants to the Company as follows:
(a) Good Standing and Qualification. Union Labor Life has all requisite
corporate power and authority to execute and deliver this Agreement and to carry
out the provisions of this Agreement.
(b) Authorization; Binding Obligations. All corporate action on the part of
Union Labor Life necessary for the authorization of the execution and delivery
of this Agreement and the performance of all obligations of Union Labor Life
hereunder has been taken. This Agreement constitutes the valid and binding
obligations of Union Labor Life enforceable against Union Labor Life in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights; and (ii) general principles of
equity that restrict the availability of equitable remedies.
(c) Ownership and Validity of the Shares. Union Labor Life owns
beneficially and of record the Shares, free of any liens, claims, charges,
security interests, pledges, encumbrances or equities (other than any of the
foregoing arising under this Agreement, the Original Purchase Documents or any
federal or state securities laws).
(d) Acquisition for Investment. Union Labor Life is acquiring the Exchange
Securities for its own account for the purpose of investment and not with a view
to or for sale in connection with any distribution thereof, and Union Labor Life
has no present intention or plan to effect any distribution of the Exchange
Securities; provided that the disposition of Union Labor Life's property shall
at all times be and remain within its control and subject to the provisions of
this Agreement. Union Labor Life is an "Accredited Investor" within the meaning
of Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act").
5. Reservation of Common Stock. To the extent that the Company has
authorized stock which is not already reserved, the Company shall at all times
reserve and keep available for issue upon the exchange of shares of Series B
Preferred Stock for Exchange Securities such number of its authorized but
unissued shares of Common Stock (or other Exchange Securities) as will be
sufficient to permit the exchange in full of the shares of Series B Preferred
Stock held by Union Labor Life.
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6. Indemnification.
(a) Company Indemnification. The Company covenants and agrees to defend,
indemnify and save and hold harmless Union Labor Life, together with its
officers, directors, partners, employees, trustees, attorneys and
representatives and each person who controls Union Labor Life within the meaning
of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
from and against any and all losses, costs, expenses, liabilities, claims or
legal damages (including, without limitation, reasonable fees and disbursements
of counsel and accountants and other costs and expenses incident to any actual
or threatened claim, suit, action or proceeding, whether incurred in connection
with a claim against the Company (other than a claim under this Section 6) or a
third party claim) (collectively, "Losses") arising out of or resulting from:
(a) any inaccuracy in or breach of any representation, warranty, covenant or
agreement made by the Company in this Agreement; (b) the failure of the Company
to perform or observe fully any covenant, agreement or provision to be performed
or observed by it pursuant to this Agreement; (c) any legal, administrative or
other proceedings brought by a third party arising out of the transactions
contemplated by this Agreement; or (d) any actual or threatened claim, suit,
action or proceeding arising out of or resulting from the conduct by the Company
of its business or operations, or the Company's occupancy or use of its
properties or assets; provided, however, that, if and to the extent that such
indemnification is unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of such indemnified
liability which shall be permissible under applicable laws; and provided further
however, that the Company shall not be liable for any Losses arising from any
statement or omission in any filings by the Company under the Securities Act or
Exchange Act in reliance upon and in conformity with written information
provided to the Company by Union Labor Life or for any Losses arising out of or
resulting from any breach of or failure to comply with this Agreement by any
Indemnified Party or any gross negligence or willful misconduct of any
Indemnified Party.
(b) Procedure. (i) Each party entitled to be indemnified pursuant to
Section 6(a) (each, an "Indemnified Party") shall promptly notify the Company in
writing (a "Claim Notice") of any matter in respect of which the Company is or
may be obligated to provide indemnification to such Indemnified Party on account
of Section 6(a). The omission of any Indemnified Party so to notify the Company
of any such matter shall not relieve the Company from any liability which the
Company may have to such Indemnified Party except to the extent the Company
shall have been materially prejudiced by the omission of such Indemnified Party
so to notify the Company.
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(ii) With respect to claims for indemnification relating to actions or
proceedings brought by any third party with respect to which an Indemnified
Party is entitled to indemnification hereunder:
(A) After the giving of the Claim Notice, if the Company shall
acknowledge in writing to each Indemnified Party that the Company shall be
obligated under the terms of its indemnity hereunder in connection with
such action or proceeding, then the Company shall be entitled, if it so
elects at its own cost, risk and expense, (i) to take control of the
defense and investigation of such action or proceeding, (ii) to employ and
engage attorneys of its own choice, subject to the reasonable approval of
the Indemnified Party, to handle and defend the same unless the named
parties to such action include both the Company or any of its officers,
directors, Subsidiaries or Affiliates, on the one hand, and the Indemnified
Party, on the other hand, and the Indemnified Party has been advised in
writing by counsel that there may be one or more legal defenses available
to such Indemnified Party that are in conflict with those available to the
Company or any such officer, director, Subsidiary or Affiliate, in which
event the Indemnified Party shall be entitled, at the Company's cost, risk
and expense, to separate counsel of its own choosing, and (iii) to
compromise or settle such claim, which compromise or settlement shall be
made only with the written consent of the Indemnified Party, which shall
not be unreasonably withheld or delayed; provided, however, if the
resolution of any such action will or is reasonably expected to have a
material adverse effect on Union Labor Life, then, notwithstanding the
foregoing, Union Labor Life shall be entitled to control such resolution,
including, without limitation, to take control of the defense and
investigation of such proceeding or action, to employ and engage attorneys
of its own choice to handle and defend the same, at the Company's cost,
risk and expense, and to compromise or settle such action.
(B) If the Company fails or is not permitted under the foregoing
paragraph to assume the defense of such action or proceeding within fifteen
(15) calendar days after receipt of the above-referenced notice, the
Indemnified Party against which such action or proceeding has been asserted
will, upon delivering notice to such effect to the Company, have the right
to undertake at the Company's risk, cost and expense, the defense,
compromise or settlement of such claim on behalf of and for the account and
risk of the Company.
(C) The Company shall be liable for any settlement of any action
effected pursuant to and in accordance with this Section 6(b) and for any
final judgment (subject to any right of appeal), and the Company agrees to
indemnify
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and hold harmless the Indemnified Party from and against any Losses by reason of
such settlement or judgment.
(c) Indemnification Non-Exclusive. The foregoing indemnification provisions
are in addition to, and not in derogation of, any statutory, equitable or
common-law or other remedy any party may have for breach of representation,
warranty, covenant or agreement.
(d) Attorneys Fees and Costs. In any claim brought by an Indemnified Party
under this Section 6 against the Company, the victorious party shall be entitled
to receive reasonable attorneys fees and costs incurred in prosecuting or
defending such claim.
(e) Survival of Representations, Warranties and Covenants. Except as
provided in clauses (i), (ii) and (iii) of this Section 6(e), the
representations, warranties and agreements included in this Agreement shall
survive for a period of 3 years: (i) the obligations set forth in Section 9 of
this Agreement shall survive for the period specified therein for the
performance of the covenants set forth therein; (ii) the representations set
forth in Sections 3.01(n) (Taxes) of the SPA, 3.01(o) (Employee Benefit Plans
and Related Matters; ERISA) of the SPA and 3.01(p) (Environmental Laws) of the
SPA, each of which are incorporated herein through Section 3(a) of this
Agreement, shall survive until the date that is six (6) months after the
expiration of the longest applicable federal or state statute of limitations;
and (iii) the representations and warranties set forth in the last two sentences
of Section 3(c) (Authorization; Binding Obligations) and the obligations set
forth in Section 6 (Indemnification) and in Section 11 (Miscellaneous) shall
survive indefinitely.
7. Conditions of Company's Obligations to Exchange. The obligation of the
Company to exchange the Exchange Securities for the Shares is subject to the
fulfillment of the following conditions, which may be waived in whole or in part
by the Company in its sole discretion.
(a) No Errors, etc. The representations and warranties of Union Labor Life
set forth in this Agreement that are qualified as to materiality shall be true
and correct and those that are not so qualified shall be true and correct in all
material respects as of the date of this Agreement and the Exchange Date as
though made at and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such
representations and warranties that are qualified as to materiality shall be
true and correct, and those that are not so qualified shall be true and correct
in all material respects, on and as of such earlier date).
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(b) Compliance with Agreement. Union Labor Life shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it on or before the Exchange Date.
(c) Certificate of Officer. Union Labor Life shall have delivered to the
Company a certificate dated the Exchange Date, executed by its President,
certifying the satisfaction of the conditions specified in subsections (a) and
(b) of this Section 7.
(d) Consummation of New Investment. The transactions contemplated by the
SPA shall have been consummated on the terms thereof.
(e) Authorization. The Exchange Securities and the issuance thereof
pursuant to this Agreement shall have been authorized for issuance by the
stockholders and of the Company.
8. Conditions of Union Labor Life's Obligations to Exchange. The obligation
of Union Labor Life to exchange the Shares for Exchange Securities is subject to
the fulfillment of the following conditions, any of which may be waived in whole
or in part by Union Labor Life in its sole discretion.
(a) No Errors, etc. The representations and warranties of the Company set
forth in this Agreement or in the SPA that are qualified as to materiality shall
be true and correct and those that are not so qualified shall be true and
correct in all material respects as of the date of this Agreement and the
Exchange Date as though made at and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties that are qualified as to materiality
shall be true and correct, and those that are not so qualified shall be true and
correct in all material respects, on and as of such earlier date).
(b) Compliance with Agreement. The Company shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it on or before the Exchange Date.
(c) Certificate of Officer. The Company shall have delivered to Union Labor
Life a certificate dated the Exchange Date, executed by its President,
certifying the satisfaction of the conditions specified in subsections (a) and
(b) of this Section 8.
(d) Qualification Under State Securities Laws. All registrations,
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qualifications, permits and approvals required under applicable state securities
laws shall have been obtained for the lawful execution, delivery and performance
of this Agreement, including without limitation the offer, sale, issue and
delivery of the Exchange Securities.
(e) Consummation of New Investment. All of the conditions to closing
pursuant to the SPA shall have been satisfied, all of the closing deliveries
required to be made by the SPA shall have been made (other than the delivery of
the Shares by the Company to the Purchasers), the SPA will be consummated on the
terms thereof and the conditions set forth in Sections 6.01(a), 6.01(b),
6.01(c), 6.02(a), 6.02(b), 6.02(c)(i)-(ii) and (iv)-(vi), 6.03(a)-(c), 6.03(g),
6.03(h)(ii)-(iii), 6.03(i), 6.03(k), and 6.03(p) of the SPA shall not have been
waived. The Company shall have provided Union Labor Life written certification
as to the matters set forth in the foregoing sentence and that the transactions
contemplated by the SPA will be consummated immediately following consummation
of the transactions contemplated hereby.
(f) Union Labor Life Approval. The SPA shall be in form and substance
satisfactory to Union Labor Life and such condition shall be deemed satisfied in
the event that the SPA is in the form as provided prior to the date hereof to
Union Labor Life.
(g) Appointment of Director. A designee of Union Labor Life shall have been
elected, subject to the consummation of the exchange contemplated by this
Agreement, as a member of the Company's Board of Directors (the "Board").
(h) Opinion of Counsel. The Company shall have delivered to Union Labor
Life the opinion of Xxxxxxx, Procter & Xxxx LLP, counsel to the Company, dated
as of the Exchange Date, set forth on Exhibit 7(h) hereto.
(i) Listing. The Exchange Securities shall have been approved for listing
on the American Stock Exchange, subject only to official notice of issuance.
(j) Authorization. The Exchange Securities and the issuance thereof
pursuant to this Agreement shall have been authorized for issuance by the
stockholders and Board of Directors of the Company.
9. Covenants of the Company. The Company agrees that from and after the
consummation of the transactions contemplated hereby, the Company will do the
following:
(a) Director's Indemnification. Enter into an Indemnification Agreement
with any person (the "ULL Designee") nominated by Union Labor Life in accordance
with the Shareholders Agreement in the form entered into with the other members
of the Board of
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Directors and maintain such levels of director and officer insurance each as
required under Section 5.12 of the SPA. The provisions of this Section 9(a) are
intended to be for the benefit of, and shall be enforceable by, each ULL
Designee and each ULL Designee's heirs and representatives.
(b) Access and Information. For so long as Union Labor Life holds at least
5% of the outstanding voting stock of the Company,
(i) Access. Permit Union Labor Life (and its designated
representatives) to visit and inspect any of the properties of the Company
and the Subsidiaries, including the books and records of the Company and
the Subsidiaries (and to make extracts and copies therefrom), and to
consult with respect to and discuss the affairs, businesses, finances,
operations and accounts of the Company and the Subsidiaries with the
officers, directors, employees, affiliates and agents of such entities, all
at such reasonable times and as often as Union Labor Life may reasonably
request.
(ii) Information. Deliver to such Union Labor Life the following:
(A) As soon as practicable and in any event within 45 days after
the end of each quarterly period (other than the last quarterly
period) in each fiscal year, (1) a consolidated statement of income
and consolidated statements of changes in financial position and cash
flows of the Company and the Subsidiaries for such quarterly period
and for the period from the beginning of the current fiscal year to
the end of such quarterly period, and (2) a consolidated balance sheet
of the Company and the Subsidiaries as at the end of such quarterly
period, setting forth in each case, in comparative form, figures for
the corresponding periods in the preceding fiscal year and
corresponding figures for the budget for such quarterly period, all in
reasonable detail and certified by an authorized financial officer of
the Company, subject to changes resulting from year-end adjustments;
provided, however, that delivery pursuant to clause (C) below of a
copy of the Quarterly Report on Form 10-Q of the Company for such
quarterly period filed with the SEC shall be deemed to satisfy the
requirements of this clause (A);
(B) As soon as practicable and in any event within 120 days after
the end of each fiscal year, (1) a consolidated statement of income
and consolidated statements of changes in financial position and cash
flows of the Company and the Subsidiaries for such year, and (2) a
consolidated balance sheet of the Company and the Subsidiaries as of
the
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end of such year, setting forth in each case, in comparative form,
corresponding consolidated figures from the preceding annual audit and
corresponding figures for the budget for such fiscal year, all in
reasonable detail together with an opinion directed to the Company of
independent public accountants of recognized standing selected by the
Company; provided, however, that delivery pursuant to clause (C) below
of a copy of the Annual Report on Form 10-K of the Company for such
fiscal year filed with the SEC shall be deemed to satisfy the
requirements of this clause (ii);
(C) Promptly upon transmission thereof, copies of all financial
statements, proxy statements, notices and reports as it shall send to
its public stockholders and copies of all registration statements
(without exhibits), other than on Form S-8 or any similar successor
form, and all reports which it files with the SEC (or any governmental
body or agency succeeding to the functions of the SEC);
(D) Promptly upon receipt thereof, copies of all reports
submitted to the Company by independent public accountants in
connection with each annual, interim or special audit of the books of
the Company or any Subsidiary made by such accountants, including the
comment letter submitted by such accountants to management in
connection with their annual audit; and
(E) With reasonable promptness, such other financial data as any
Union Labor Life may reasonably request.
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10. Additional Agreements.
(a) Voting Agreement. Union Labor Life shall be required, at any meeting of
the holders of Common Stock or Series B Preferred Stock, however called, or in
connection with any written consent of the holders of Common Stock or Series B
Preferred Stock, to vote (or cause to be voted) the Shares then held of record
or beneficially owned by it, unless the Special Committee withdraws its approval
of the SPA or the transactions contemplated by the Investment Agreements, (i) in
favor of the transactions contemplated by the SPA and this Agreement (together,
the "Investment Agreements"), the execution, delivery and performance by the
Company of the Investment Agreements and the approval of the terms thereof and
each of the other actions contemplated by the Investment Agreements and any
actions required in furtherance thereof and hereof including, without
limitation, the amendment of the terms of the Series B Preferred Stock
contemplated by the SPA; and (ii) unless Union Labor Life is required in its
exercise of its fiduciary duties or otherwise under the Employee Retirement
Income Security Act of 1974, as amended, to vote otherwise, against any action
or agreement that would impede, frustrate, prevent or nullify the transactions
contemplated by the Investment Agreements, or result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the SPA or which would result in any of the conditions set
forth in Article VI of the SPA not being fulfilled.
(b) No Inconsistent Arrangements. Union Labor Life hereby covenants and
agrees that, except as contemplated by the Investment Agreements, it shall not
(i) transfer (which term shall include, without limitation, any sale, gift,
pledge or other disposition), or consent to any transfer of, any or all of the
Shares or any interest therein, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of the
Shares or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to the Shares, or (iv) deposit the Shares
into a voting trust or enter into a voting agreement or arrangement with respect
to the Shares.
(c) Grant of Irrevocable Proxy; Appointment of Proxy.
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(i) Union Labor Life hereby irrevocably grants to, and appoints Xxxxxx Band
and Xxxxxx Xxxx, or either of them, in their respective capacities as officers
of the Company, and any individual who shall hereafter succeed to the office of
President or Clerk of the Company, and each of them individually, Union Labor
Life's proxy and attorney-in-fact (with full power of substitution), for and in
its name, place and stead, to vote the Shares, or grant a consent or approval in
respect of the Shares in favor of the Investment Agreements and all of the
transactions contemplated thereby.
(ii) Union Labor Life represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that any such proxies are hereby
revoked.
(iii) Union Labor Life understands and acknowledges that its execution,
delivery and performance of this Agreement is a condition to the closing of the
transactions contemplated by the SPA. Union Labor Life hereby affirms that the
irrevocable proxy granted hereunder is coupled with an interest is binding and
may under no circumstances be revoked. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 41 of
the Massachusetts Business Corporation Law.
(d) Waiver of Appraisal Rights. Union Labor Life hereby waives any rights
of appraisal or rights to dissent that it may have as a result of the amendment
of the terms of the Series B Preferred Stock contemplated by the SPA.
11. Miscellaneous.
(a) Amendments. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by the other party hereto.
(b) Delays or Omissions. It is agreed that no delay or omission to exercise
any right, power or remedy accruing to any party, upon any breach, default or
noncompliance by another party under this Agreement, shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any such
breach, default or noncompliance, or any acquiescence therein, or of or in any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any party's part of any breach, default or noncompliance under this Agreement,
or any waiver on such party's part of any provisions or conditions of the
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing.
14
(c) Notices.
(i) All notices and other communications required or permitted under this
Agreement shall be given in writing and shall be delivered to the relevant party
or sent by registered air mail or facsimile to the address of that party or that
party's facsimile number specified in subsection 11(c)(ii). Unless otherwise
specified herein, each notice or other communication shall be deemed effective
or having been given (i) on the date received, if personally delivered, (ii) the
earlier of actual receipt or eight (8) business days after being sent, if sent
by registered air mail, or (iii) one (1) business day after being sent, if sent
by telecopier with confirmation of transmission.
(ii) All notices and other communications shall be addressed as follows:
if to Union Labor Life:
The Union Labor Life Insurance Company
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx X.X.00000
Attention: Xxxxxx Xxxxxxx
Telecopy No.: ( 000) 000-0000
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
if to the Company: Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Band, President
Telecopy No.: (000) 000-0000
15
With a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other address or telecopy number of a party, as that party shall have
notified in writing to all other parties in accordance with subsection 11(b)(i).
(d) Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
(e) Parties in Interest. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors and permitted assigns and shall
inure to the benefit of and be enforceable by each such person. This Agreement
shall be not assignable or delegable by either party except with the prior
written consent of the other party hereto; provided, however, that the Company
may assign its rights and delegate its obligations under this Agreement to any
successor in interest of the Company, whether by merger, reorganization, sale of
assets or otherwise so long as such successor expressly assumes the obligations
hereof.
(f) Expenses. The Company agrees, whether or not the transactions
contemplated hereby are consummated, to pay, and hold Union Labor Life harmless
from liability for the payment of reasonable fees, costs and expenses incurred
by Union Labor Life in connection with the negotiation and execution of this
Agreement and the transactions contemplated hereby, including without
limitation, its counsel.
(g) Headings. The headings of the Sections and subsections of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
16
(h) Choice of Law.
(i) It is the intention of the parties that the internal substantive laws,
and not the laws of conflicts, of the State of New York shall govern the
enforceability and validity of this Agreement, the construction of its terms and
the interpretation of the rights and duties of the parties, except to the extent
that the provisions of the Massachusetts General Laws applicable to
Massachusetts corporations or other Massachusetts law shall mandatorily govern.
(ii) EACH PARTY HERETO HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK,
AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO OR ARISING
OUT OF THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN SUCH COURTS. EACH
PARTY HERETO HEREBY WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND
AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH
ACTION, SUIT, OR PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE
JURISDICTION OF THE ABOVE-NAMED COURTS, THAT IT IS IMMUNE FROM EXTRATERRITORIAL
INJUNCTIVE RELIEF OR OTHER INJUNCTIVE RELIEF, THAT ITS PROPERTY IS EXEMPT OR
IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY SUCH ACTION, SUIT, OR PROCEEDING
MAY NOT BE BROUGHT OR MAINTAINED IN ONE OF THE ABOVE-NAMED COURTS, THAT ANY SUCH
ACTION, SUIT OR PROCEEDING BROUGHT OR MAINTAINED IN ONE OF THE ABOVE-NAMED
COURTS SHOULD BE DISMISSED ON THE GROUNDS OF FORUM NON CONVENIENS, SHOULD BE
TRANSFERRED TO ANY COURT OTHER THAN ONE OF THE ABOVE-NAMED COURTS, OR THAT THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY ANY OF THE
ABOVE-NAMED COURTS. EACH OF THE PARTIES HERETO HEREBY CONSENTS TO SERVICE OF
PROCESS IN ANY SUCH ACTION, SUIT, OR PROCEEDING IN ANY MANNER PERMITTED BY THE
LAWS OF THE STATE OF NEW YORK, AGREES THAT SERVICE OF PROCESS BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE PERSONS AND AT THE ADDRESSES
SET FORTH IN SECTION 11(C) ABOVE, IS REASONABLY CALCULATED TO GIVE ACTUAL
NOTICE, AND WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR
OTHERWISE, IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY CLAIM THAT SUCH SERVICE OF
PROCESS DOES NOT CONSTITUTE GOOD AND
17
SUFFICIENT SERVICE OF PROCESS.
(iii) EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. THIS SUBSECTION 11(h)(iii) HAS BEEN FULLY DISCUSSED BY
EACH OF THE PARTIES HERETO AND THESE PROVISIONS SHALL NOT BE SUBJECT TO ANY
EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH
PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS
AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
(i) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts (including
by facsimile), with the same effect as if all parties had signed the same
document. All such counterparts shall be deemed an original, shall be construed
together and shall constitute one and the same instrument.
(j) No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(k) Entire Agreement. This Agreement contains the entire understanding of
the parties hereto in respect of the subject matter hereof. This Agreement
supersedes all
18
prior agreements and understandings between the parties hereto with respect to
such subject matter.
(l) Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable legal requirements or
otherwise, to consummate and make effective the transactions contemplated by
this Agreement. Nothing in this Agreement shall obligate the Company to
consummate the SPA. If at any time after the date hereof any further action is
necessary or desirable to carry out the purposes of this Agreement, either
party, as the case may be, shall take or cause to be taken all such necessary or
convenient action and execute, and deliver and file, or cause to be executed,
delivered and filed, all necessary or convenient documentation.
(k) Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate immediately in the event that the SPA is
terminated in accordance with its terms.
19
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be
executed by its duly authorized representative as of the date and year first set
forth above.
COMPANY:
PERINI CORPORATION
/s/Xxxxxx Band
By: Xxxxxx Band
Title: President
UNION LABOR LIFE:
THE UNION LABOR LIFE INSURANCE
COMPANY, on behalf of its Separate
Account P
/s/Xxxxxx XxXxxx
By: Xxxxxx XxXxxx
Title: Senior Vice President
20
Exhibit 10.2
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is entered into as of February
14, 2000 by and between Perini Corporation, a Massachusetts corporation (the
"Company"), and PB Capital Partners, L.P., a Delaware limited partnership ("PB
Capital").
RECITALS
A. Pursuant to that certain Stock Purchase and Sale Agreement dated as of
July 24, 1996 by and among Xxxxxxx Xxxx & Associates, L.P. and PB Capital and
the Company and that certain Assignment and Assumption Agreement dated as of
December 13, 1996 by and among PB Capital, Union Labor Life Insurance Company on
behalf of its Separate Account P ("Union Labor Life") and the Company
(collectively, with all agreements entered into in connection therewith, the
"Original Purchaser Documents"), PB Capital acquired 92,350 shares of Series B
Cumulative Convertible Preferred Stock ("Series B Preferred Stock") of the
Company (together with all shares of Series B Preferred Stock of the Company now
or hereafter issued as payment-in-kind dividends on the shares of such stock now
or hereafter held by PB Capital, the "Shares").
B. The Company has entered into that certain Securities Purchase Agreement
(the "SPA") dated as of February 5, 2000 by and among Xxxxx-Xxxxxx Corporation,
a California corporation, O&G Industries, Inc., a Connecticut corporation, and
the National Union Fire Insurance Company of Pittsburgh, PA, a Pennsylvania
corporation (collectively, the "Purchasers"), pursuant to which the Purchasers
have agreed to purchase an aggregate of 9,411,765 shares of newly issued common
stock of the Company ("Common Stock"). Capitalized terms used herein without
definition shall have the meanings ascribed thereto in the SPA.
C. In connection with the SPA, the Company and the Purchasers have
requested that PB Capital exchange the Shares for shares of Common Stock of the
Company.
D. PB Capital is willing to exchange the Shares for shares of Common Stock
on the terms and subject to the conditions and covenants set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereto agree as
follows:
1. Obligation to Exchange Securities. Upon satisfaction of the conditions
set forth in Section 7 and 8 and immediately prior to the consummation of the
transactions contemplated by the SPA, PB Capital will, subject to the terms and
conditions of this Agreement, exchange the Shares for shares of Common Stock
(the "Exchange Securities") as set forth herein. Subject to the terms and
conditions of this Agreement, the Shares will be exchanged into an aggregate of
(i) 4,589,145.12 newly issued shares of Common Stock plus (ii) the number of
shares of Common Stock equal to the product resulting from multiplying (x) the
number of calendar days from March 15, 2000 after which the transactions
contemplated hereby are consummated by (y) 1,274.76 The Exchange Securities
issuable hereunder upon exchange of the Shares shall be subject to adjustment
for any split, combination, reclassification, recapitalization or other change
in the Common Stock consummated prior to the consummation of the transactions
contemplated hereby. The Company shall issue the Exchange Securities to PB
Capital free of any liens, claims, charges, security interests, pledges, voting
or stockholder agreements, encumbrances or equities (other than any of the
foregoing created by PB Capital or arising under any federal or state securities
laws) (collectively, "Liens"). The Company acknowledges and agrees that the
Exchange Securities shall be deemed for all purposes to be "Registrable
Securities" as such term is used in that certain Registration Rights Agreement
by and among the Company, Union Labor Life and PB Capital dated as of January
17, 1997.
2. Mechanics of Exchange.
(a) Immediately following the satisfaction or waiver of the conditions set
forth in Sections 7 and 8, PB Capital shall surrender its certificate or
certificates for the Shares, with appropriate stock powers attached, duly
endorsed, at the office of the Company or any transfer agent for the Exchange
Securities, together with a written notice to the Company that PB Capital is
exchanging the Shares, represented by such certificate or certificates. Upon
such surrender, the Company shall issue and deliver to PB Capital, a certificate
or certificates representing the Exchange Securities to be issued, conveyed and
delivered to PB Capital pursuant to Section 1.
(b) PB Capital shall be treated for all purposes as the record holder of
the Exchange Securities as of the close of business on the date it surrenders
its certificate or certificates for the Exchange Securities (the "Exchange
Date").
(c) If PB Capital holds the Shares at the close of business on a record
date which occurs after March 15, 2000 for any payment of declared dividends on
the Shares or if the Company declares a dividend in cash or in kind other than
the dividend payable on March 15, 2000 in accordance with the terms of the
Series B Preferred Stock, PB Capital shall be entitled to receive the dividend
payable on the Shares on the corresponding dividend payment date notwithstanding
the surrender of the Shares for Exchange Securities following such record date
and prior to the corresponding dividend payment date.
(d) If PB Capital holds the Shares at the close of business on a record
date for any payment of declared dividends on the Common Stock, and after such
record date but prior to the corresponding dividend payment date, PB Capital
surrenders the Shares for Exchange Securities, PB Capital shall be entitled to
receive the dividend payable on such shares on the corresponding dividend
payment date as if it had been the record holder of such shares at the close of
business on the record date.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to PB Capital as follows:
(a) The SPA. The Representations and Warranties made by the Company in
Section 3.01 of the SPA were true and complete as of the date thereof and are
true and complete as of the date hereof.
(b) Corporate Power. The Company has all requisite corporate power and
authority to execute and deliver this Agreement, to issue and sell the Exchange
Securities hereunder, and to carry out the provisions of this Agreement.
(c) Authorization; Binding Obligations. Except for stockholder approval of
the Purchase and the transactions contemplated by this Agreement, all corporate
action on the part of the Company necessary for the authorization of the
execution and delivery of this Agreement and the performance of all obligations
of the Company hereunder has been taken. This Agreement constitutes the valid
and binding obligations of the Company enforceable against the Company in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws
3
of general application affecting enforcement of creditors' rights; and (ii)
general principles of equity that restrict the availability of equitable
remedies. The issuance and sale of the Exchange Securities are not and will not
be subject to any preemptive rights, rights of first refusal, rights of first
offer or other similar rights granted by the Company that have not been properly
waived or complied with. The Exchange Securities, when issued in accordance with
the terms hereof, shall be duly authorized, validly issued, fully paid and
non-assessable and free and clear of all Liens.
(d) Consents. No governmental orders, permissions, consents, approvals or
authorizations are required to be obtained by the Company and no registrations
or declarations are required to be filed by the Company in connection with the
execution and delivery of this Agreement and the offer, sale or issuance of the
Exchange Securities, except as will be duly and validly obtained or filed.
(e) Compliance with Laws and Other Instruments. Except for stockholder
approval of the Purchase and the transactions contemplated by this Agreement,
the execution, delivery and performance by the Company of this Agreement (a)
will not require from the board of directors of the Company any consent or
approval that has not been validly and lawfully obtained, (b) will not cause the
Company to violate or contravene (i) any provision of law, (ii) any rule or
regulation of any agency or government, domestic or foreign, (iii) any order,
writ, judgment, injunction, decree, determination or award, or (iv) any
provision of the Articles of Organization or By-laws of the Company, or (c) will
not result in a violation or conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under, any
indenture, credit agreement, note agreement, deed of trust, mortgage, security
agreement or other agreement, lease or instrument to which the Company is a
party or by which the Company or any of its properties or assets are bound which
would have a material adverse effect on the Company.
(f) Offering Valid. Assuming the accuracy of the representations and
warranties of PB Capital contained in Section 4 hereof, the offer, sale and
issuance of the Exchange Securities are and will be exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and will have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification requirements of
all applicable state securities laws.
(g) Disclosure. To the Knowledge of the Company (as defined in the SPA), no
representation or warranty by the Company contained in this Agreement or the
SPA, or in any certificate to be furnished by or on behalf of the Company
pursuant hereto or
4
thereto, contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading.
4. Representations and Warranties of PB Capital. PB Capital hereby
represents and warrants to the Company as follows:
(a) Good Standing and Qualification. PB Capital has all requisite corporate
power and authority to execute and deliver this Agreement and to carry out the
provisions of this Agreement.
(b) Authorization; Binding Obligations. All corporate action on the part of
PB Capital necessary for the authorization of the execution and delivery of this
Agreement and the performance of all obligations of PB Capital hereunder has
been taken. This Agreement constitutes the valid and binding obligations of PB
Capital enforceable against PB Capital in accordance with its terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of creditors' rights;
and (ii) general principles of equity that restrict the availability of
equitable remedies.
(c) Ownership and Validity of the Shares. PB Capital owns beneficially and
of record the Shares, free of any liens, claims, charges, security interests,
pledges, encumbrances or equities (other than any of the foregoing arising under
this Agreement, the Original Purchase Documents or any federal or state
securities laws).
(d) Acquisition for Investment. PB Capital is acquiring the Exchange
Securities for its own account for the purpose of investment and not with a view
to or for sale in connection with any distribution thereof, and PB Capital has
no present intention or plan to effect any distribution of the Exchange
Securities; provided that the disposition of PB Capital's property shall at all
times be and remain within its control and subject to the provisions of this
Agreement. PB Capital is an "Accredited Investor" within the meaning of Rule
501(a) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act").
5. Reservation of Common Stock. To the extent that the Company has
authorized stock which is not already reserved, the Company shall at all times
reserve and keep available for issue upon the exchange of shares of Series B
Preferred Stock for Exchange Securities such number of its authorized but
unissued shares of Common Stock
5
(or other Exchange Securities) as will be sufficient to permit the exchange in
full of the shares of Series B Preferred Stock held by PB Capital.
6. Indemnification.
(a) Company Indemnification. The Company covenants and agrees to defend,
indemnify and save and hold harmless PB Capital, together with its officers,
directors, partners, employees, trustees, attorneys and representatives and each
person who controls PB Capital within the meaning of the Securities and Exchange
Act of 1934, as amended (the "Exchange Act"), from and against any and all
losses, costs, expenses, liabilities, claims or legal damages (including,
without limitation, reasonable fees and disbursements of counsel and accountants
and other costs and expenses incident to any actual or threatened claim, suit,
action or proceeding, whether incurred in connection with a claim against the
Company (other than a claim under this Section 6) or a third party claim)
(collectively, "Losses") arising out of or resulting from: (a) any inaccuracy in
or breach of any representation, warranty, covenant or agreement made by the
Company in this Agreement; (b) the failure of the Company to perform or observe
fully any covenant, agreement or provision to be performed or observed by it
pursuant to this Agreement; (c) any legal, administrative or other proceedings
brought by a third party arising out of the transactions contemplated by this
Agreement; or (d) any actual or threatened claim, suit, action or proceeding
arising out of or resulting from the conduct by the Company of its business or
operations, or the Company's occupancy or use of its properties or assets;
provided, however, that, if and to the extent that such indemnification is
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of such indemnified liability which shall be
permissible under applicable laws; and provided further however, that the
Company shall not be liable for any Losses arising from any statement or
omission in any filings by the Company under the Securities Act or Exchange Act
in reliance upon and in conformity with written information provided to the
Company by PB Capital or for any Losses arising out of or resulting from any
breach of or failure to comply with this Agreement by any Indemnified Party or
any gross negligence or willful misconduct of any Indemnified Party.
(b) Procedure. (i) Each party entitled to be indemnified pursuant to
Section 6(a) (each, an "Indemnified Party") shall promptly notify the Company in
writing (a "Claim Notice") of any matter in respect of which the Company is or
may be obligated to provide indemnification to such Indemnified Party on account
of Section 6(a). The omission of any Indemnified Party so to notify the Company
of any such matter shall not relieve the Company from any liability which the
Company may have to such
6
Indemnified Party except to the extent the Company shall have been materially
prejudiced by the omission of such Indemnified Party so to notify the Company.
(ii) With respect to claims for indemnification relating to actions or
proceedings brought by any third party with respect to which an Indemnified
Party is entitled to indemnification hereunder:
(A) After the giving of the Claim Notice, if the Company shall
acknowledge in writing to each Indemnified Party that the Company shall be
obligated under the terms of its indemnity hereunder in connection with
such action or proceeding, then the Company shall be entitled, if it so
elects at its own cost, risk and expense, (i) to take control of the
defense and investigation of such action or proceeding, (ii) to employ and
engage attorneys of its own choice, subject to the reasonable approval of
the Indemnified Party, to handle and defend the same unless the named
parties to such action include both the Company or any of its officers,
directors, Subsidiaries or Affiliates, on the one hand, and the Indemnified
Party, on the other hand, and the Indemnified Party has been advised in
writing by counsel that there may be one or more legal defenses available
to such Indemnified Party that are in conflict with those available to the
Company or any such officer, director, Subsidiary or Affiliate, in which
event the Indemnified Party shall be entitled, at the Company's cost, risk
and expense, to separate counsel of its own choosing, and (iii) to
compromise or settle such claim, which compromise or settlement shall be
made only with the written consent of the Indemnified Party, which shall
not be unreasonably withheld or delayed; provided, however, if the
resolution of any such action will or is reasonably expected to have a
material adverse effect on PB Capital, then, notwithstanding the foregoing,
PB Capital shall be entitled to control such resolution, including, without
limitation, to take control of the defense and investigation of such
proceeding or action, to employ and engage attorneys of its own choice to
handle and defend the same, at the Company's cost, risk and expense, and to
compromise or settle such action.
(B) If the Company fails or is not permitted under the foregoing
paragraph to assume the defense of such action or proceeding within fifteen
(15) calendar days after receipt of the above-referenced notice, the
Indemnified Party against which such action or proceeding has been asserted
will, upon delivering notice to such effect to the Company, have the right
to undertake at the Company's risk, cost and expense, the defense,
compromise or settlement of such claim on behalf of and for the account and
risk of the Company.
7
(C) The Company shall be liable for any settlement of any action
effected pursuant to and in accordance with this Section 6(b) and for any
final judgment (subject to any right of appeal), and the Company agrees to
indemnify and hold harmless the Indemnified Party from and against any
Losses by reason of such settlement or judgment.
(c) Indemnification Non-Exclusive. The foregoing indemnification provisions
are in addition to, and not in derogation of, any statutory, equitable or
common-law or other remedy any party may have for breach of representation,
warranty, covenant or agreement.
(d) Attorneys Fees and Costs. In any claim brought by an Indemnified Party
under this Section 6 against the Company, the victorious party shall be entitled
to receive reasonable attorneys fees and costs incurred in prosecuting or
defending such claim.
(e) Survival of Representations, Warranties and Covenants. Except as
provided in clauses (i), (ii) and (iii) of this Section 6(e), the
representations, warranties and agreements included in this Agreement shall
survive for a period of 3 years: (i) the obligations set forth in Section 9 of
this Agreement shall survive for the period specified therein for the
performance of the covenants set forth therein; (ii) the representations set
forth in Sections 3.01(n) (Taxes) of the SPA, 3.01(o) (Employee Benefit Plans
and Related Matters; ERISA) of the SPA and 3.01(p) (Environmental Laws) of the
SPA, each of which are incorporated herein through Section 3(a) of this
Agreement, shall survive until the date that is six (6) months after the
expiration of the longest applicable federal or state statute of limitations;
and (iii) the representations and warranties set forth in the last two sentences
of Section 3(c) (Authorization; Binding Obligations) and the obligations set
forth in Section 6 (Indemnification) and in Section 11 (Miscellaneous) shall
survive indefinitely.
7. Conditions of Company's Obligations to Exchange. The obligation of the
Company to exchange the Exchange Securities for the Shares is subject to the
fulfillment of the following conditions, which may be waived in whole or in part
by the Company in its sole discretion.
(a) No Errors, etc. The representations and warranties of PB Capital set
forth in this Agreement that are qualified as to materiality shall be true and
correct and those that are not so qualified shall be true and correct in all
material respects as of the date of this Agreement and the Exchange Date as
though made at and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date (in which
8
case such representations and warranties that are qualified as to materiality
shall be true and correct, and those that are not so qualified shall be true and
correct in all material respects, on and as of such earlier date).
(b) Compliance with Agreement. PB Capital shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or
complied with by it on or before the Exchange Date.
(c) Certificate of Officer. PB Capital shall have delivered to the Company
a certificate dated the Exchange Date, executed by its General Partner,
certifying the satisfaction of the conditions specified in subsections (a) and
(b) of this Section 7.
(d) Consummation of New Investment. The transactions contemplated by the
SPA shall have been consummated on the terms thereof.
(e) Authorization. The Exchange Securities and the issuance thereof
pursuant to this Agreement shall have been authorized for issuance by the
stockholders and of the Company.
8. Conditions of PB Capital's Obligations to Exchange. The obligation of PB
Capital to exchange the Shares for Exchange Securities is subject to the
fulfillment of the following conditions, any of which may be waived in whole or
in part by PB Capital in its sole discretion.
(a) No Errors, etc. The representations and warranties of the Company set
forth in this Agreement or in the SPA that are qualified as to materiality shall
be true and correct and those that are not so qualified shall be true and
correct in all material respects as of the date of this Agreement and the
Exchange Date as though made at and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties that are qualified as to materiality
shall be true and correct, and those that are not so qualified shall be true and
correct in all material respects, on and as of such earlier date).
(b) Compliance with Agreement. The Company shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it on or before the Exchange Date.
(c) Certificate of Officer. The Company shall have delivered to PB Capital
a certificate dated the Exchange Date, executed by its President, certifying the
satisfaction
9
of the conditions specified in subsections (a) and (b) of this Section 8.
(d) Qualification Under State Securities Laws. All registrations,
qualifications, permits and approvals required under applicable state securities
laws shall have been obtained for the lawful execution, delivery and performance
of this Agreement, including without limitation the offer, sale, issue and
delivery of the Exchange Securities.
(e) Consummation of New Investment. All of the conditions to closing
pursuant to the SPA shall have been satisfied, all of the closing deliveries
required to be made by the SPA shall have been made (other than the delivery of
the Shares by the Company to the Purchasers), the SPA will be consummated on the
terms thereof and the conditions set forth in Sections 6.01(a), 6.01(b),
6.01(c), 6.02(a), 6.02(b), 6.02(c)(i)-(ii) and (iv)-(vi), 6.03(a)-(c), 6.03(g),
6.03(h)(ii)-(iii), 6.03(i), 6.03(k), and 6.03(p) of the SPA shall not have been
waived. The Company shall have provided PB Capital written certification as to
the matters set forth in the foregoing sentence and that the transactions
contemplated by the SPA will be consummated immediately following consummation
of the transactions contemplated hereby. In addition, the definitive agreements
contemplated by Section 6.03(g) of the SPA shall be reasonably satisfactory to
PB Capital.
(f) PB Capital Approval. The SPA shall be in form and substance
satisfactory to PB Capital and such condition shall be deemed satisfied in the
event that the SPA is in the form as provided prior to the date hereof to PB
Capital.
(g) Appointment of Director. A designee of PB Capital shall have been
elected, subject to the consummation of the exchange contemplated by this
Agreement, as a member of the Company's Board of Directors (the "Board").
(h) Opinion of Counsel. The Company shall have delivered to PB Capital the
opinion of Xxxxxxx, Procter & Xxxx LLP, counsel to the Company, dated as of the
Exchange Date, set forth on Exhibit 7(h) hereto and PB Capital shall have
received an opinion from its counsel that the consummation of the transactions
contemplated by this Agreement will not affect PB Capital's status as a "venture
capital operating company" under ERISA.
(i) Listing. The Exchange Securities shall have been approved for listing
on the American Stock Exchange, subject only to official notice of issuance.
(j) Authorization. The Exchange Securities and the issuance thereof
pursuant to this Agreement shall have been authorized for issuance by the
stockholders and Board of Directors of the Company.
10
9. Covenants of the Company. The Company agrees that from and after the
consummation of the transactions contemplated hereby, the Company will do the
following:
(a) Director's Indemnification. Enter into an Indemnification Agreement
with any person (the "PB Designee") nominated by PB Capital in accordance with
the Shareholders Agreement in the form entered into with the other members of
the Board of Directors and maintain such levels of director and officer
insurance each as required under Section 5.12 of the SPA. The provisions of this
Section 9(a) are intended to be for the benefit of, and shall be enforceable by,
each PB Designee and each PB Designee's heirs and representatives.
(b) Access and Information. For so long as PB Capital holds at least 5% of
the outstanding voting stock of the Company,
(i) Access. Permit PB Capital (and its designated representatives) to
visit and inspect any of the properties of the Company and the
Subsidiaries, including the books and records of the Company and the
Subsidiaries (and to make extracts and copies therefrom), and to consult
with respect to and discuss the affairs, businesses, finances, operations
and accounts of the Company and the Subsidiaries with the officers,
directors, employees, affiliates and agents of such entities, all at such
reasonable times and as often as PB Capital may reasonably request.
(ii) Information. Deliver to such PB Capital the following:
(A) As soon as practicable and in any event within 45 days after the
end of each quarterly period (other than the last quarterly period) in each
fiscal year, (1) a consolidated statement of income and consolidated
statements of changes in financial position and cash flows of the Company
and the Subsidiaries for such quarterly period and for the period from the
beginning of the current fiscal year to the end of such quarterly period,
and (2) a consolidated balance sheet of the Company and the Subsidiaries as
at the end of such quarterly period, setting forth in each case, in
comparative form, figures for the corresponding periods in the preceding
fiscal year and corresponding figures for the budget for such quarterly
period, all in reasonable detail and certified by an authorized financial
officer of the Company, subject to changes resulting from year-end
adjustments; provided, however, that delivery pursuant to clause (C) below
of a copy of the Quarterly Report on Form 10-Q of the Company for such
quarterly period filed with the SEC shall be deemed to satisfy the
requirements
11
of this clause (A);
(B) As soon as practicable and in any event within 120 days after the
end of each fiscal year, (1) a consolidated statement of income and
consolidated statements of changes in financial position and cash flows of
the Company and the Subsidiaries for such year, and (2) a consolidated
balance sheet of the Company and the Subsidiaries as of the end of such
year, setting forth in each case, in comparative form, corresponding
consolidated figures from the preceding annual audit and corresponding
figures for the budget for such fiscal year, all in reasonable detail
together with an opinion directed to the Company of independent public
accountants of recognized standing selected by the Company; provided,
however, that delivery pursuant to clause (C) below of a copy of the Annual
Report on Form 10-K of the Company for such fiscal year filed with the SEC
shall be deemed to satisfy the requirements of this clause (ii);
(C) Promptly upon transmission thereof, copies of all financial
statements, proxy statements, notices and reports as it shall send to its
public stockholders and copies of all registration statements (without
exhibits), other than on Form S-8 or any similar successor form, and all
reports which it files with the SEC (or any governmental body or agency
succeeding to the functions of the SEC);
(D) Promptly upon receipt thereof, copies of all reports submitted to
the Company by independent public accountants in connection with each
annual, interim or special audit of the books of the Company or any
Subsidiary made by such accountants, including the comment letter submitted
by such accountants to management in connection with their annual audit;
and
(E) With reasonable promptness, such other financial data as any PB
Capital may reasonably request.
12
10. Additional Agreements.
(a) Voting Agreement. PB Capital shall be required, at any meeting of the
holders of Common Stock or Series B Preferred Stock, however called, or in
connection with any written consent of the holders of Common Stock or Series B
Preferred Stock, to vote (or cause to be voted) the Shares then held of record
or beneficially owned by it, unless the Special Committee withdraws its approval
of the SPA or the transactions contemplated by the Investment Agreements, (i) in
favor of the transactions contemplated by the SPA and this Agreement (together,
the "Investment Agreements"), the execution, delivery and performance by the
Company of the Investment Agreements and the approval of the terms thereof and
each of the other actions contemplated by the Investment Agreements and any
actions required in furtherance thereof and hereof including, without
limitation, the amendment of the terms of the Series B Preferred Stock
contemplated by the SPA; and (ii) unless PB Capital is required in its exercise
of its fiduciary duties or otherwise under the Employee Retirement Income
Security Act of 1974, as amended, to vote otherwise, against any action or
agreement that would impede, frustrate, prevent or nullify the transactions
contemplated by the Investment Agreements, or result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the SPA or which would result in any of the conditions set
forth in Article VI of the SPA not being fulfilled.
(b) No Inconsistent Arrangements. PB Capital hereby covenants and agrees
that, except as contemplated by the Investment Agreements, it shall not (i)
transfer (which term shall include, without limitation, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the Shares
or any interest therein, (ii) enter into any contract, option or other agreement
or understanding with respect to any transfer of any or all of the Shares or any
interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to the Shares, or (iv) deposit the Shares into
a voting trust or enter into a voting agreement or arrangement with respect to
the Shares. Notwithstanding clause (i) or (ii), PB Capital may transfer the
Shares to its limited partners with the prior written consent of the Company
(which consent shall not be unreasonably withheld) as long as all such
transferees agree to the terms of and become parties to this Agreement.
13
(c) Grant of Irrevocable Proxy; Appointment of Proxy.
(i) PB Capital hereby irrevocably grants to, and appoints Xxxxxx Band
and Xxxxxx Xxxx, or either of them, in their respective capacities as
officers of the Company, and any individual who shall hereafter succeed to
the office of President or Clerk of the Company, and each of them
individually, PB Capital's proxy and attorney-in-fact (with full power of
substitution), for and in its name, place and stead, to vote the Shares, or
grant a consent or approval in respect of the Shares in favor of the
Investment Agreements and all of the transactions contemplated thereby.
(ii) PB Capital represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that any such proxies are
hereby revoked.
(iii) PB Capital understands and acknowledges that its execution,
delivery and performance of this Agreement is a condition to the closing of
the transactions contemplated by the SPA. PB Capital hereby affirms that
the irrevocable proxy granted hereunder is coupled with an interest is
binding and may under no circumstances be revoked. Such irrevocable proxy
is executed and intended to be irrevocable in accordance with the
provisions of Section 41 of the Massachusetts Business Corporation Law.
(d) Waiver of Appraisal Rights. PB Capital hereby waives any rights of
appraisal or rights to dissent that it may have as a result of the amendment of
the terms of the Series B Preferred Stock contemplated by the SPA.
11. Miscellaneous.
(a) Amendments. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by the other party hereto.
(b) Delays or Omissions. It is agreed that no delay or omission to exercise
any right, power or remedy accruing to any party, upon any breach, default or
noncompliance by another party under this Agreement, shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any such
breach, default or noncompliance, or any acquiescence therein, or of or in any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any party's part of any breach, default or noncompliance under this Agreement,
or any waiver on such party's part of any provisions or conditions of the
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing.
14
(c) Notices.
(i) All notices and other communications required or permitted under
this Agreement shall be given in writing and shall be delivered to the
relevant party or sent by registered air mail or facsimile to the address
of that party or that party's facsimile number specified in subsection
11(c)(ii). Unless otherwise specified herein, each notice or other
communication shall be deemed effective or having been given (i) on the
date received, if personally delivered, (ii) the earlier of actual receipt
or eight (8) business days after being sent, if sent by registered air
mail, or (iii) one (1) business day after being sent, if sent by telecopier
with confirmation of transmission.
(ii) All notices and other communications shall be addressed as
follows:
if to PB Capital:
c/o BLUM Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
if to the Company: Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Band, President
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other address or telecopy number of a party, as that party shall
have notified in writing to all other parties in accordance with subsection
11(b)(i).
15
(d) Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
(e) Parties in Interest. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors and permitted assigns and shall
inure to the benefit of and be enforceable by each such person. This Agreement
shall be not assignable or delegable by either party except with the prior
written consent of the other party hereto; provided, however, that the Company
may assign its rights and delegate its obligations under this Agreement to any
successor in interest of the Company, whether by merger, reorganization, sale of
assets or otherwise so long as such successor expressly assumes the obligations
hereof.
(f) Expenses. The Company agrees, whether or not the transactions
contemplated hereby are consummated, to pay, and hold PB Capital harmless from
liability for the payment of reasonable fees, costs and expenses incurred by PB
Capital in connection with the negotiation and execution of this Agreement and
the transactions contemplated hereby, including without limitation, its counsel.
(g) Headings. The headings of the Sections and subsections of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(h) Choice of Law.
(i) It is the intention of the parties that the internal substantive
laws, and not the laws of conflicts, of the State of New York shall govern
the enforceability and validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties,
except to the extent that the provisions of the Massachusetts General Laws
applicable to Massachusetts corporations or other Massachusetts law shall
mandatorily govern.
(ii) EACH PARTY HERETO HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION
OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE
OF NEW YORK, AND
16
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO OR ARISING
OUT OF THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN SUCH COURTS.
EACH PARTY HERETO HEREBY WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE,
IN ANY SUCH ACTION, SUIT, OR PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT
PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT IT IS IMMUNE
FROM EXTRATERRITORIAL INJUNCTIVE RELIEF OR OTHER INJUNCTIVE RELIEF, THAT
ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY
SUCH ACTION, SUIT, OR PROCEEDING MAY NOT BE BROUGHT OR MAINTAINED IN ONE OF
THE ABOVE-NAMED COURTS, THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT OR
MAINTAINED IN ONE OF THE ABOVE-NAMED COURTS SHOULD BE DISMISSED ON THE
GROUNDS OF FORUM NON CONVENIENS, SHOULD BE TRANSFERRED TO ANY COURT OTHER
THAN ONE OF THE ABOVE-NAMED COURTS, OR THAT THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF MAY NOT BE ENFORCED IN OR BY ANY OF THE ABOVE-NAMED COURTS.
EACH OF THE PARTIES HERETO HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY
SUCH ACTION, SUIT, OR PROCEEDING IN ANY MANNER PERMITTED BY THE LAWS OF THE
STATE OF NEW YORK, AGREES THAT SERVICE OF PROCESS BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE PERSONS AND AT THE
ADDRESSES SET FORTH IN SECTION 11(C) ABOVE, IS REASONABLY CALCULATED TO
GIVE ACTUAL NOTICE, AND WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION,
AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY CLAIM
THAT SUCH SERVICE OF PROCESS DOES NOT CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS.
(iii) EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SUBSECTION 11(h)(iii) HAS BEEN
FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS SHALL
NOT BE SUBJECT TO ANY
17
EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT
SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH
PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT
IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO (OR
ASSIGNMENTS OF) THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
(i) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts (including
by facsimile), with the same effect as if all parties had signed the same
document. All such counterparts shall be deemed an original, shall be construed
together and shall constitute one and the same instrument.
(j) No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(k) Entire Agreement. This Agreement contains the entire understanding of
the parties hereto in respect of the subject matter hereof. This Agreement
supersedes all prior agreements and understandings between the parties hereto
with respect to such subject matter.
(l) Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable legal requirements or
otherwise, to consummate and make effective the transactions contemplated by
this Agreement. Nothing in this Agreement shall obligate the Company to
consummate the SPA. If at any time after the date hereof any further action is
necessary or desirable to carry out the purposes of this Agreement, either
party, as the case may be, shall take or cause to be taken all such necessary or
convenient action and execute, and deliver and file, or cause to be executed,
delivered and
18
filed, all necessary or convenient documentation.
(k) Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate immediately in the event that the SPA is
terminated in accordance with its terms.
19
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be executed by its duly authorized representative as of the date and
year first set forth above.
COMPANY:
PERINI CORPORATION
By:/s/ Xxxxxx Band
Name: Xxxxxx Band
Title: President
PB CAPITAL:
PB CAPITAL PARTNERS, L.P.
By: Xxxx Capital Partners, L.P., its General Partner
By: Xxxxxxx X. Xxxx & Associates, Inc., its General Partner
By: /s/Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Managing Director & CFO
20
Exhibit 10.3
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is entered into as of February
14, 2000 by and between Perini Corporation, a Massachusetts corporation (the
"Company"), and The Common Fund for Non-profit Organizations, a New York
non-profit corporation ("The Common Fund").
RECITALS
A. Pursuant to that certain Stock Purchase and Sale Agreement dated as of
July 24, 1996 by and among Xxxxxxx Xxxx & Associates, L.P. ("RCBA") and PB
Capital Partners, L.P. ("PB Capital") and the Company and that certain
Assignment and Assumption Agreement dated as of December 13, 1996 by and among
PB Capital, RCBA, The Common Fund and the Company (collectively, with all
agreements entered into in connection therewith, the "Original Purchaser
Documents"), The Common Fund acquired 23,300 shares of Series B Cumulative
Convertible Preferred Stock ("Series B Preferred Stock") of the Company
(together with all shares of Series B Preferred Stock of the Company now or
hereafter issued as payment-in-kind dividends on the shares of such stock now or
hereafter held by The Common Fund, the "Shares").
B. The Company has entered into that certain Securities Purchase Agreement
(the "SPA") dated as of February 5, 2000 by and among Xxxxx-Xxxxxx Corporation,
a California corporation, O&G Industries, Inc., a Connecticut corporation, and
the National Union Fire Insurance Company of Pittsburgh, PA, a Pennsylvania
corporation (collectively, the "Purchasers"), pursuant to which the Purchasers
have agreed to purchase an aggregate of 9,411,765 shares of newly issued common
stock of the Company ("Common Stock"). Capitalized terms used herein without
definition shall have the meanings ascribed thereto in the SPA.
C. In connection with the SPA, the Company and the Purchasers have
requested that The Common Fund exchange the Shares for shares of Common Stock of
the Company.
D. The Common Fund is willing to exchange the Shares for shares of Common
Stock on the terms and subject to the conditions and covenants set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereto agree as
follows:
1. Obligation to Exchange Securities. Upon satisfaction of the conditions
set forth in Section 7 and 8 and immediately prior to the consummation of the
transactions contemplated by the SPA, The Common Fund will, subject to the terms
and conditions of this Agreement, exchange the Shares for shares of Common Stock
(the "Exchange Securities") as set forth herein. Subject to the terms and
conditions of this Agreement, the Shares will be exchanged into an aggregate of
(i) 1,157,846.03 newly issued shares of Common Stock plus (ii) the number of
shares of Common Stock equal to the product resulting from multiplying (x) the
number of calendar days from March 15, 2000 after which the transactions
contemplated hereby are consummated by (y) 321.62. The Exchange Securities
issuable hereunder upon exchange of the Shares shall be subject to adjustment
for any split, combination, reclassification, recapitalization or other change
in the Common Stock consummated prior to the consummation of the transactions
contemplated hereby. The Company shall issue the Exchange Securities to The
Common Fund free of any liens, claims, charges, security interests, pledges,
voting or stockholder agreements, encumbrances or equities (other than any of
the foregoing created by The Common Fund or arising under any federal or state
securities laws) (collectively, "Liens").
2. Mechanics of Exchange.
(a) Immediately following the satisfaction or waiver of the conditions set
forth in Sections 7 and 8, The Common Fund shall surrender its certificate or
certificates for the Shares, with appropriate stock powers attached, duly
endorsed, at the office of the Company or any transfer agent for the Exchange
Securities, together with a written notice to the Company that The Common Fund
is exchanging the Shares, represented by such certificate or certificates. Upon
such surrender, the Company shall issue and deliver to The Common Fund, a
certificate or certificates representing the Exchange Securities to be issued,
conveyed and delivered to The Common Fund pursuant to Section 1.
(b) The Common Fund shall be treated for all purposes as the record holder
of the Exchange Securities as of the close of business on the date it surrenders
its certificate or certificates for the Exchange Securities (the "Exchange
Date").
(c) If The Common Fund holds the Shares at the close of business on a
record date which occurs after March 15, 2000 for any payment of declared
dividends on the Shares or if the Company declares a dividend in cash or in kind
other than the dividend payable on March 15, 2000 in accordance with the terms
of the Series B Preferred Stock, The Common Fund shall be entitled to receive
the dividend payable on the Shares on the corresponding dividend payment date
notwithstanding the surrender of the Shares for Exchange Securities following
such record date and prior to the corresponding dividend payment date.
(d) If The Common Fund holds the Shares at the close of business on a
record date for any payment of declared dividends on the Common Stock, and after
such record date but prior to the corresponding dividend payment date, The
Common Fund surrenders the Shares for Exchange Securities, The Common Fund shall
be entitled to receive the dividend payable on such shares on the corresponding
dividend payment date as if it had been the record holder of such shares at the
close of business on the record date.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to The Common Fund as follows:
(a) The SPA. The Representations and Warranties made by the Company in
Section 3.01 of the SPA were true and complete as of the date thereof and are
true and complete as of the date hereof.
(b) Corporate Power. The Company has all requisite corporate power and
authority to execute and deliver this Agreement, to issue and sell the Exchange
Securities hereunder, and to carry out the provisions of this Agreement.
(c) Authorization; Binding Obligations. Except for stockholder approval of
the Purchase and the transactions contemplated by this Agreement, all corporate
action on the part of the Company necessary for the authorization of the
execution and delivery of this Agreement and the performance of all obligations
of the Company hereunder has been taken. This Agreement constitutes the valid
and binding obligations of the Company enforceable against the Company in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights; and (ii) general principles of
equity that restrict the availability of equitable remedies. The issuance and
sale of the Exchange Securities are not and will not be subject to any
preemptive rights, rights of first refusal, rights of first offer or other
similar rights granted by the Company that have not been properly waived or
complied with. The Exchange Securities, when
3
issued in accordance with the terms hereof, shall be duly authorized, validly
issued, fully paid and non-assessable and free and clear of all Liens.
(d) Consents. No governmental orders, permissions, consents, approvals or
authorizations are required to be obtained by the Company and no registrations
or declarations are required to be filed by the Company in connection with the
execution and delivery of this Agreement and the offer, sale or issuance of the
Exchange Securities, except as will be duly and validly obtained or filed.
(e) Compliance with Laws and Other Instruments. Except for stockholder
approval of the Purchase and the transactions contemplated by this Agreement,
the execution, delivery and performance by the Company of this Agreement (a)
will not require from the board of directors of the Company any consent or
approval that has not been validly and lawfully obtained, (b) will not cause the
Company to violate or contravene (i) any provision of law, (ii) any rule or
regulation of any agency or government, domestic or foreign, (iii) any order,
writ, judgment, injunction, decree, determination or award, or (iv) any
provision of the Articles of Organization or By-laws of the Company, or (c) will
not result in a violation or conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under, any
indenture, credit agreement, note agreement, deed of trust, mortgage, security
agreement or other agreement, lease or instrument to which the Company is a
party or by which the Company or any of its properties or assets are bound which
would have a material adverse effect on the Company.
(f) Offering Valid. Assuming the accuracy of the representations and
warranties of The Common Fund contained in Section 4 hereof, the offer, sale and
issuance of the Exchange Securities are and will be exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and will have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification requirements of
all applicable state securities laws.
(g) Disclosure. To the Knowledge of the Company (as defined in the SPA), no
representation or warranty by the Company contained in this Agreement or the
SPA, or in any certificate to be furnished by or on behalf of the Company
pursuant hereto or thereto, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
4
4. Representations and Warranties of The Common Fund. The Common Fund
hereby represents and warrants to the Company as follows:
(a) Good Standing and Qualification. The Common Fund has all requisite
corporate power and authority to execute and deliver this Agreement and to carry
out the provisions of this Agreement.
(b) Authorization; Binding Obligations. All corporate action on the part of
The Common Fund necessary for the authorization of the execution and delivery of
this Agreement and the performance of all obligations of The Common Fund
hereunder has been taken. This Agreement constitutes the valid and binding
obligations of The Common Fund enforceable against The Common Fund in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights; and (ii) general principles of equity that
restrict the availability of equitable remedies.
(c) Ownership and Validity of the Shares. The Common Fund owns beneficially
and of record the Shares, free of any liens, claims, charges, security
interests, pledges, encumbrances or equities (other than any of the foregoing
arising under this Agreement, the Original Purchase Documents or any federal or
state securities laws).
(d) Acquisition for Investment. The Common Fund is acquiring the Exchange
Securities for its own account for the purpose of investment and not with a view
to or for sale in connection with any distribution thereof, and The Common Fund
has no present intention or plan to effect any distribution of the Exchange
Securities; provided that the disposition of The Common Fund's property shall at
all times be and remain within its control and subject to the provisions of this
Agreement. The Common Fund is an "Accredited Investor" within the meaning of
Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act").
5. Reservation of Common Stock. To the extent that the Company has
authorized stock which is not already reserved, the Company shall at all times
reserve and keep available for issue upon the exchange of shares of Series B
Preferred Stock for Exchange Securities such number of its authorized but
unissued shares of Common Stock (or other Exchange Securities) as will be
sufficient to permit the exchange in full of the shares of Series B Preferred
Stock held by The Common Fund.
6. Indemnification.
5
(a) Company Indemnification. The Company covenants and agrees to defend,
indemnify and save and hold harmless The Common Fund, together with its
officers, directors, partners, employees, trustees, attorneys and
representatives and each person who controls The Common Fund within the meaning
of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
from and against any and all losses, costs, expenses, liabilities, claims or
legal damages (including, without limitation, reasonable fees and disbursements
of counsel and accountants and other costs and expenses incident to any actual
or threatened claim, suit, action or proceeding, whether incurred in connection
with a claim against the Company (other than a claim under this Section 6) or a
third party claim) (collectively, "Losses") arising out of or resulting from:
(a) any inaccuracy in or breach of any representation, warranty, covenant or
agreement made by the Company in this Agreement; (b) the failure of the Company
to perform or observe fully any covenant, agreement or provision to be performed
or observed by it pursuant to this Agreement; (c) any legal, administrative or
other proceedings brought by a third party arising out of the transactions
contemplated by this Agreement; or (d) any actual or threatened claim, suit,
action or proceeding arising out of or resulting from the conduct by the Company
of its business or operations, or the Company's occupancy or use of its
properties or assets; provided, however, that, if and to the extent that such
indemnification is unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of such indemnified
liability which shall be permissible under applicable laws; and provided further
however, that the Company shall not be liable for any Losses arising from any
statement or omission in any filings by the Company under the Securities Act or
Exchange Act in reliance upon and in conformity with written information
provided to the Company by The Common Fund or for any Losses arising out of or
resulting from any breach of or failure to comply with this Agreement by any
Indemnified Party or any gross negligence or willful misconduct of any
Indemnified Party.
(b) Procedure. (i) Each party entitled to be indemnified pursuant to
Section 6(a) (each, an "Indemnified Party") shall promptly notify the Company in
writing (a "Claim Notice") of any matter in respect of which the Company is or
may be obligated to provide indemnification to such Indemnified Party on account
of Section 6(a). The omission of any Indemnified Party so to notify the Company
of any such matter shall not relieve the Company from any liability which the
Company may have to such Indemnified Party except to the extent the Company
shall have been materially prejudiced by the omission of such Indemnified Party
so to notify the Company.
(ii) With respect to claims for indemnification relating to actions or
6
proceedings brought by any third party with respect to which an Indemnified
Party is entitled to indemnification hereunder:
(A) After the giving of the Claim Notice, if the Company shall
acknowledge in writing to each Indemnified Party that the Company shall be
obligated under the terms of its indemnity hereunder in connection with
such action or proceeding, then the Company shall be entitled, if it so
elects at its own cost, risk and expense, (i) to take control of the
defense and investigation of such action or proceeding, (ii) to employ and
engage attorneys of its own choice, subject to the reasonable approval of
the Indemnified Party, to handle and defend the same unless the named
parties to such action include both the Company or any of its officers,
directors, Subsidiaries or Affiliates, on the one hand, and the Indemnified
Party, on the other hand, and the Indemnified Party has been advised in
writing by counsel that there may be one or more legal defenses available
to such Indemnified Party that are in conflict with those available to the
Company or any such officer, director, Subsidiary or Affiliate, in which
event the Indemnified Party shall be entitled, at the Company's cost, risk
and expense, to separate counsel of its own choosing, and (iii) to
compromise or settle such claim, which compromise or settlement shall be
made only with the written consent of the Indemnified Party, which shall
not be unreasonably withheld or delayed; provided, however, if the
resolution of any such action will or is reasonably expected to have a
material adverse effect on The Common Fund, then, notwithstanding the
foregoing, The Common Fund shall be entitled to control such resolution,
including, without limitation, to take control of the defense and
investigation of such proceeding or action, to employ and engage attorneys
of its own choice to handle and defend the same, at the Company's cost,
risk and expense, and to compromise or settle such action.
(B) If the Company fails or is not permitted under the foregoing
paragraph to assume the defense of such action or proceeding within fifteen
(15) calendar days after receipt of the above-referenced notice, the
Indemnified Party against which such action or proceeding has been asserted
will, upon delivering notice to such effect to the Company, have the right
to undertake at the Company's risk, cost and expense, the defense,
compromise or settlement of such claim on behalf of and for the account and
risk of the Company.
(C) The Company shall be liable for any settlement of any action
effected pursuant to and in accordance with this Section 6(b) and for any
final judgment (subject to any right of appeal), and the Company agrees to
indemnify
7
and hold harmless the Indemnified Party from and against any Losses by
reason of such settlement or judgment.
(c) Indemnification Non-Exclusive. The foregoing indemnification provisions
are in addition to, and not in derogation of, any statutory, equitable or
common-law or other remedy any party may have for breach of representation,
warranty, covenant or agreement.
(d) Attorneys Fees and Costs. In any claim brought by an Indemnified Party
under this Section 6 against the Company, the victorious party shall be entitled
to receive reasonable attorneys fees and costs incurred in prosecuting or
defending such claim.
(e) Survival of Representations, Warranties and Covenants. Except as
provided in clauses (i), (ii) and (iii) of this Section 6(e), the
representations, warranties and agreements included in this Agreement shall
survive for a period of 3 years: (i) the obligations set forth in Section 9 of
this Agreement shall survive for the period specified therein for the
performance of the covenants set forth therein; (ii) the representations set
forth in Sections 3.01(n) (Taxes) of the SPA, 3.01(o) (Employee Benefit Plans
and Related Matters; ERISA) of the SPA and 3.01(p) (Environmental Laws) of the
SPA, each of which are incorporated herein through Section 3(a) of this
Agreement, shall survive until the date that is six (6) months after the
expiration of the longest applicable federal or state statute of limitations;
and (iii) the representations and warranties set forth in the last two sentences
of Section 3(c) (Authorization; Binding Obligations) and the obligations set
forth in Section 6 (Indemnification) and in Section 11 (Miscellaneous) shall
survive indefinitely.
7. Conditions of Company's Obligations to Exchange. The obligation of the
Company to exchange the Exchange Securities for the Shares is subject to the
fulfillment of the following conditions, which may be waived in whole or in part
by the Company in its sole discretion.
(a) No Errors, etc. The representations and warranties of The Common Fund
set forth in this Agreement that are qualified as to materiality shall be true
and correct and those that are not so qualified shall be true and correct in all
material respects as of the date of this Agreement and the Exchange Date as
though made at and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such
representations and warranties that are qualified as to materiality shall be
true and correct, and those that are not so qualified shall be true and correct
in all material respects, on and as of such earlier date).
8
(b) Compliance with Agreement. The Common Fund shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it on or before the Exchange Date.
(c) Certificate of Officer. The Common Fund shall have delivered to the
Company a certificate dated the Exchange Date, executed by its President,
certifying the satisfaction of the conditions specified in subsections (a) and
(b) of this Section 7.
(d) Consummation of New Investment. The transactions contemplated by the
SPA shall have been consummated on the terms thereof.
(e) Authorization. The Exchange Securities and the issuance thereof
pursuant to this Agreement shall have been authorized for issuance by the
stockholders and of the Company.
8. Conditions of The Common Fund's Obligations to Exchange. The obligation
of The Common Fund to exchange the Shares for Exchange Securities is subject to
the fulfillment of the following conditions, any of which may be waived in whole
or in part by The Common Fund in its sole discretion.
(a) No Errors, etc. The representations and warranties of the Company set
forth in this Agreement or in the SPA that are qualified as to materiality shall
be true and correct and those that are not so qualified shall be true and
correct in all material respects as of the date of this Agreement and the
Exchange Date as though made at and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties that are qualified as to materiality
shall be true and correct, and those that are not so qualified shall be true and
correct in all material respects, on and as of such earlier date).
(b) Compliance with Agreement. The Company shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it on or before the Exchange Date.
(c) Certificate of Officer. The Company shall have delivered to The Common
Fund a certificate dated the Exchange Date, executed by its President,
certifying the satisfaction of the conditions specified in subsections (a) and
(b) of this Section 8.
(d) Qualification Under State Securities Laws. All registrations,
9
qualifications, permits and approvals required under applicable state securities
laws shall have been obtained for the lawful execution, delivery and performance
of this Agreement, including without limitation the offer, sale, issue and
delivery of the Exchange Securities.
(e) Consummation of New Investment. All of the conditions to closing
pursuant to the SPA shall have been satisfied, all of the closing deliveries
required to be made by the SPA shall have been made (other than the delivery of
the Shares by the Company to the Purchasers), the SPA will be consummated on the
terms thereof and the conditions set forth in Sections 6.01(a), 6.01(b),
6.01(c), 6.02(a), 6.02(b), 6.02(c)(i)-(ii) and (iv)-(vi), 6.03(a)-(c), 6.03(g),
6.03(h)(ii)-(iii), 6.03(i), 6.03(k), and 6.03(p) of the SPA shall not have been
waived. The Company shall have provided The Common Fund written certification as
to the matters set forth in the foregoing sentence and that the transactions
contemplated by the SPA will be consummated immediately following consummation
of the transactions contemplated hereby.
(f) The Common Fund Approval. The SPA shall be in form and substance
satisfactory to The Common Fund and such condition shall be deemed satisfied in
the event that the SPA is in the form as provided prior to the date hereof to
The Common Fund.
(g) Intentionally omitted.
(h) Opinion of Counsel. The Company shall have delivered to The Common Fund
the opinion of Xxxxxxx, Procter & Xxxx LLP, counsel to the Company, dated as of
the Exchange Date, set forth on Exhibit 7(h) hereto.
(i) Listing. The Exchange Securities shall have been approved for listing
on the American Stock Exchange, subject only to official notice of issuance.
(j) Authorization. The Exchange Securities and the issuance thereof
pursuant to this Agreement shall have been authorized for issuance by the
stockholders and Board of Directors of the Company.
9. Covenants of the Company. The Company agrees that from and after the
consummation of the transactions contemplated hereby, the Company will do the
following:
(a) Intentionally omitted.
(b) Access and Information. For so long as The Common Fund holds at least
10
5% of the outstanding voting stock of the Company,
(i) Access. Permit The Common Fund (and its designated
representatives) to visit and inspect any of the properties of the Company
and the Subsidiaries, including the books and records of the Company and
the Subsidiaries (and to make extracts and copies therefrom), and to
consult with respect to and discuss the affairs, businesses, finances,
operations and accounts of the Company and the Subsidiaries with the
officers, directors, employees, affiliates and agents of such entities, all
at such reasonable times and as often as The Common Fund may reasonably
request.
(ii) Information. Deliver to such The Common Fund the following:
(A) As soon as practicable and in any event within 45 days after
the end of each quarterly period (other than the last quarterly
period) in each fiscal year, (1) a consolidated statement of income
and consolidated statements of changes in financial position and cash
flows of the Company and the Subsidiaries for such quarterly period
and for the period from the beginning of the current fiscal year to
the end of such quarterly period, and (2) a consolidated balance sheet
of the Company and the Subsidiaries as at the end of such quarterly
period, setting forth in each case, in comparative form, figures for
the corresponding periods in the preceding fiscal year and
corresponding figures for the budget for such quarterly period, all in
reasonable detail and certified by an authorized financial officer of
the Company, subject to changes resulting from year-end adjustments;
provided, however, that delivery pursuant to clause (C) below of a
copy of the Quarterly Report on Form 10-Q of the Company for such
quarterly period filed with the SEC shall be deemed to satisfy the
requirements of this clause (A);
(B) As soon as practicable and in any event within 120 days after
the end of each fiscal year, (1) a consolidated statement of income
and consolidated statements of changes in financial position and cash
flows of the Company and the Subsidiaries for such year, and (2) a
consolidated balance sheet of the Company and the Subsidiaries as of
the end of such year, setting forth in each case, in comparative form,
corresponding consolidated figures from the preceding annual audit and
corresponding figures for the budget for such fiscal year, all in
reasonable detail together with an opinion directed to the Company of
independent public accountants of recognized standing selected by the
Company; provided, however, that delivery pursuant to clause (C) below
of a copy of
11
the Annual Report on Form 10-K of the Company for such fiscal year
filed with the SEC shall be deemed to satisfy the requirements of this
clause (ii);
(C) Promptly upon transmission thereof, copies of all financial
statements, proxy statements, notices and reports as it shall send to
its public stockholders and copies of all registration statements
(without exhibits), other than on Form S-8 or any similar successor
form, and all reports which it files with the SEC (or any governmental
body or agency succeeding to the functions of the SEC);
(D) Promptly upon receipt thereof, copies of all reports
submitted to the Company by independent public accountants in
connection with each annual, interim or special audit of the books of
the Company or any Subsidiary made by such accountants, including the
comment letter submitted by such accountants to management in
connection with their annual audit; and
(E) With reasonable promptness, such other financial data as any
The Common Fund may reasonably request.
12
10. Additional Agreements.
(a) Voting Agreement. The Common Fund shall be required, at any meeting of
the holders of Common Stock or Series B Preferred Stock, however called, or in
connection with any written consent of the holders of Common Stock or Series B
Preferred Stock, to vote (or cause to be voted) the Shares then held of record
or beneficially owned by it, unless the Special Committee withdraws its approval
of the SPA or the transactions contemplated by the Investment Agreements, (i) in
favor of the transactions contemplated by the SPA and this Agreement (together,
the "Investment Agreements"), the execution, delivery and performance by the
Company of the Investment Agreements and the approval of the terms thereof and
each of the other actions contemplated by the Investment Agreements and any
actions required in furtherance thereof and hereof including, without
limitation, the amendment of the terms of the Series B Preferred Stock
contemplated by the SPA; and (ii) unless The Common Fund is required in its
exercise of its fiduciary duties or otherwise under the Employee Retirement
Income Security Act of 1974, as amended, to vote otherwise, against any action
or agreement that would impede, frustrate, prevent or nullify the transactions
contemplated by the Investment Agreements, or result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the SPA or which would result in any of the conditions set
forth in Article VI of the SPA not being fulfilled.
(b) No Inconsistent Arrangements. The Common Fund hereby covenants and
agrees that, except as contemplated by the Investment Agreements, it shall not
(i) transfer (which term shall include, without limitation, any sale, gift,
pledge or other disposition), or consent to any transfer of, any or all of the
Shares or any interest therein, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of the
Shares or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to the Shares, or (iv) deposit the Shares
into a voting trust or enter into a voting agreement or arrangement with respect
to the Shares.
13
(c) Grant of Irrevocable Proxy; Appointment of Proxy.
(i) The Common Fund hereby irrevocably grants to, and appoints Xxxxxx
Band and Xxxxxx Xxxx, or either of them, in their respective capacities as
officers of the Company, and any individual who shall hereafter succeed to
the office of President or Clerk of the Company, and each of them
individually, The Common Fund's proxy and attorney-in-fact (with full power
of substitution), for and in its name, place and stead, to vote the Shares,
or grant a consent or approval in respect of the Shares in favor of the
Investment Agreements and all of the transactions contemplated thereby.
(ii) The Common Fund represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that any such proxies are
hereby revoked.
(iii) The Common Fund understands and acknowledges that its execution,
delivery and performance of this Agreement is a condition to the closing of
the transactions contemplated by the SPA. The Common Fund hereby affirms
that the irrevocable proxy granted hereunder is coupled with an interest is
binding and may under no circumstances be revoked. Such irrevocable proxy
is executed and intended to be irrevocable in accordance with the
provisions of Section 41 of the Massachusetts Business Corporation Law.
(d) Waiver of Appraisal Rights. The Common Fund hereby waives any rights of
appraisal or rights to dissent that it may have as a result of the amendment of
the terms of the Series B Preferred Stock contemplated by the SPA.
11. Miscellaneous.
(a) Amendments. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by the other party hereto.
(b) Delays or Omissions. It is agreed that no delay or omission to exercise
any right, power or remedy accruing to any party, upon any breach, default or
noncompliance by another party under this Agreement, shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any such
breach, default or noncompliance, or any acquiescence therein, or of or in any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any party's part of any breach, default or noncompliance under this Agreement,
or any waiver on such party's part of any
14
provisions or conditions of the Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing.
(c) Notices.
(i) All notices and other communications required or permitted under
this Agreement shall be given in writing and shall be delivered to the
relevant party or sent by registered air mail or facsimile to the address
of that party or that party's facsimile number specified in subsection
11(c)(ii). Unless otherwise specified herein, each notice or other
communication shall be deemed effective or having been given (i) on the
date received, if personally delivered, (ii) the earlier of actual receipt
or eight (8) business days after being sent, if sent by registered air
mail, or (iii) one (1) business day after being sent, if sent by telecopier
with confirmation of transmission.
(ii) All notices and other communications shall be addressed as
follows:
if to The Common Fund:
c/o BLUM Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile:(000) 000-0000
if to the Company: Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Band, President
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other address or telecopy number of a party, as that party shall have
notified in
15
writing to all other parties in accordance with subsection 11(b)(i).
(d) Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
(e) Parties in Interest. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors and permitted assigns and shall
inure to the benefit of and be enforceable by each such person. This Agreement
shall be not assignable or delegable by either party except with the prior
written consent of the other party hereto; provided, however, that the Company
may assign its rights and delegate its obligations under this Agreement to any
successor in interest of the Company, whether by merger, reorganization, sale of
assets or otherwise so long as such successor expressly assumes the obligations
hereof.
(f) Expenses. The Company agrees, whether or not the transactions
contemplated hereby are consummated, to pay, and hold The Common Fund harmless
from liability for the payment of reasonable fees, costs and expenses incurred
by The Common Fund in connection with the negotiation and execution of this
Agreement and the transactions contemplated hereby, including without
limitation, its counsel.
(g) Headings. The headings of the Sections and subsections of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(h) Choice of Law.
(i) It is the intention of the parties that the internal substantive
laws, and not the laws of conflicts, of the State of New York shall govern
the enforceability and validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties,
except to the extent that the provisions of the Massachusetts General Laws
applicable to Massachusetts corporations or other Massachusetts law shall
mandatorily govern.
(ii) EACH PARTY HERETO HEREBY CONSENTS TO THE
16
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND IRREVOCABLY AGREES THAT
ALL ACTIONS OR PROCEEDINGS RELATING TO OR ARISING OUT OF THIS
AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN SUCH COURTS. EACH PARTY
HERETO HEREBY WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW,
AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE,
IN ANY SUCH ACTION, SUIT, OR PROCEEDING, ANY CLAIM THAT IT IS NOT
SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT
IT IS IMMUNE FROM EXTRATERRITORIAL INJUNCTIVE RELIEF OR OTHER
INJUNCTIVE RELIEF, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM
ATTACHMENT OR EXECUTION, THAT ANY SUCH ACTION, SUIT, OR PROCEEDING MAY
NOT BE BROUGHT OR MAINTAINED IN ONE OF THE ABOVE-NAMED COURTS, THAT
ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT OR MAINTAINED IN ONE OF
THE ABOVE-NAMED COURTS SHOULD BE DISMISSED ON THE GROUNDS OF FORUM NON
CONVENIENS, SHOULD BE TRANSFERRED TO ANY COURT OTHER THAN ONE OF THE
ABOVE-NAMED COURTS, OR THAT THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF MAY NOT BE ENFORCED IN OR BY ANY OF THE ABOVE-NAMED COURTS.
EACH OF THE PARTIES HERETO HEREBY CONSENTS TO SERVICE OF PROCESS IN
ANY SUCH ACTION, SUIT, OR PROCEEDING IN ANY MANNER PERMITTED BY THE
LAWS OF THE STATE OF NEW YORK, AGREES THAT SERVICE OF PROCESS BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE PERSONS
AND AT THE ADDRESSES SET FORTH IN SECTION 11(C) ABOVE, IS REASONABLY
CALCULATED TO GIVE ACTUAL NOTICE, AND WAIVES AND AGREES NOT TO ASSERT
BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, SUIT
OR PROCEEDING ANY CLAIM THAT SUCH SERVICE OF PROCESS DOES NOT
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS.
(iii) EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.
17
THIS SUBSECTION 11(h)(iii) HAS BEEN FULLY DISCUSSED BY EACH OF THE
PARTIES HERETO AND THESE PROVISIONS SHALL NOT BE SUBJECT TO ANY
EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS
THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR
MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS AGREEMENT. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL (WITHOUT A JURY) BY THE COURT.
(i) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts (including
by facsimile), with the same effect as if all parties had signed the same
document. All such counterparts shall be deemed an original, shall be construed
together and shall constitute one and the same instrument.
(j) No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(k) Entire Agreement. This Agreement contains the entire understanding of
the parties hereto in respect of the subject matter hereof. This Agreement
supersedes all prior agreements and understandings between the parties hereto
with respect to such subject matter.
(l) Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable legal requirements or
otherwise, to consummate and make effective the transactions contemplated by
this Agreement. Nothing in this Agreement shall obligate the Company to
consummate the SPA. If at any time after the date hereof any further action is
necessary or desirable to carry out the purposes of this Agreement,
18
either party, as the case may be, shall take or cause to be taken all such
necessary or convenient action and execute, and deliver and file, or cause to be
executed, delivered and filed, all necessary or convenient documentation.
(k) Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate immediately in the event that the SPA is
terminated in accordance with its terms.
19
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be
executed by its duly authorized representative as of the date and year first set
forth above.
COMPANY:
PERINI CORPORATION
By: /s/Xxxxxx Band
Name: Xxxxxx Band
Title: President
THE COMMON FUND:
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS
By: Xxxx Capital Partners, L.P., its attorney-in-fact
By: Xxxxxxx X. Xxxx & Associates, Inc., its General Partner
By: /s/Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Managing Director & CFO
20
Exhibit 10.4
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
March 29, 2000
among
PERINI CORPORATION,
The BANKS Listed Herein
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Agent
___________________
FLEET NATIONAL BANK, as Co-Agent
TABLE OF CONTENTS
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Page
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ARTICLE 1
Definitions
Section 1.01. Definitions...............................................................................1
Section 1.02. Accounting Terms and Determinations......................................................22
Section 1.03. Types of Borrowing.......................................................................22
ARTICLE 2
The Credits
Section 2.01. The Loans................................................................................22
Section 2.02. Method of Borrowing; Method of Electing Interest Rates...................................23
Section 2.03. Notes....................................................................................25
Section 2.04. Maturity of Revolving Loans..............................................................26
Section 2.05. Interest Rates...........................................................................26
Section 2.06. Commitment Fees..........................................................................27
Section 2.07. Restructuring Fee........................................................................28
Section 2.08. Agency Fee...............................................................................28
Section 2.09. Termination or Reduction of Revolving Commitments........................................28
Section 2.10. Repayment of Term Loans..................................................................29
Section 2.11. Optional Prepayments.....................................................................31
Section 2.12. General Provisions as to Payments........................................................31
Section 2.13. Funding Losses...........................................................................32
Section 2.14. Computation of Interest and Fees.........................................................32
Section 2.15. Maximum Interest Rate....................................................................32
Section 2.16. Letters of Credit........................................................................33
Section 2.17. Taxes....................................................................................37
ARTICLE 3
Conditions; Post-Closing Requirements
Section 3.01. Effectiveness............................................................................39
Section 3.02. Credit Events............................................................................43
Section 3.03. Post-Closing Requirement.................................................................43
ARTICLE 4
Representations and Warranties
Page
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Section 4.01. Corporate Existence and Power............................................................44
Section 4.02. Corporate and Governmental Authorization; No Contravention...............................44
Section 4.03. Binding Effect; Liens of Collateral Documents............................................44
Section 4.04. Financial Information....................................................................45
Section 4.05. Litigation...............................................................................45
Section 4.06. Compliance with ERISA....................................................................45
Section 4.07. Environmental Matters....................................................................45
Section 4.08. Taxes....................................................................................47
Section 4.09. Subsidiaries.............................................................................47
Section 4.10. Not An Investment Company................................................................47
Section 4.11. No Burdensome Restrictions; No Derivatives Obligations; Certain Existing Agreements......47
Section 4.12. Full Disclosure..........................................................................48
Section 4.13. Ownership of Property; Liens.............................................................48
Section 4.14. Representations and Warranties Incorporated from Other Financing Documents...............48
Section 4.15. Bank Accounts and Cash Management System.................................................48
Section 4.16. Representations in Perfection Certificates...............................................49
ARTICLE 5
Covenants
Section 5.01. Information..............................................................................49
Section 5.02. Payment of Obligations; No Derivatives Obligations.......................................53
Section 5.03. Maintenance of Property; Insurance.......................................................54
Section 5.04. Conduct of Business and Maintenance of Existence.........................................54
Section 5.05. Compliance with Laws.....................................................................54
Section 5.06. Inspection of Property, Books and Records................................................54
Section 5.07. Minimum Working Capital Ratio............................................................55
Section 5.08. Maximum Total Debt Ratio.................................................................55
Section 5.09. Debt.....................................................................................55
Section 5.10. Minimum Consolidated Tangible Net Worth..................................................57
Section 5.11. Minimum Net Operating Profit.............................................................57
Section 5.12. Consolidations, Mergers and Sales of Assets..............................................58
Section 5.13. Negative Pledge..........................................................................59
Section 5.14. Use of Proceeds..........................................................................60
Section 5.15. Restricted Payments......................................................................60
Section 5.16. Real Estate Investments..................................................................61
Section 5.17. Purchase of Assets; Investments..........................................................61
ii
Page
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Section 5.18. Capital Expenditures.....................................................................62
Section 5.19. Transactions with Affiliates.............................................................62
Section 5.20. Amendments or Waivers....................................................................62
Section 5.21. Debt Payments............................................................................62
Section 5.22. Cash Management System...................................................................63
Section 5.23. Limitation on Restrictions Affecting Subsidiaries........................................63
Section 5.24. Further Assurances.......................................................................63
ARTICLE 6
Defaults
Section 6.01. Event of Defaults........................................................................64
Section 6.02. Cash Cover...............................................................................67
Section 6.03. Notice of Default........................................................................67
ARTICLE 7
The Agent
Section 7.01. Appointment and Authorization............................................................67
Section 7.02. Agent and Affiliates.....................................................................67
Section 7.03. Action by Agent..........................................................................67
Section 7.04. Consultation with Experts................................................................67
Section 7.05. Liability of Agent.......................................................................68
Section 7.06. Indemnification..........................................................................68
Section 7.07. Credit Decision..........................................................................69
Section 7.08. Successor Agent..........................................................................69
Section 7.09. Collateral Documents.....................................................................69
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair.................................70
Section 8.02. Illegality...............................................................................70
Section 8.03. Increased Cost and Reduced Return........................................................71
Section 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans...............................72
ARTICLE 9
Miscellaneous
Section 9.01. Notices..................................................................................73
Section 9.02. No Waivers...............................................................................73
iii
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Section 9.03. Expenses; Documentary Taxes; Indemnification.............................................73
Section 9.04. Sharing of Setoffs.......................................................................74
Section 9.05. Amendments and Waivers...................................................................75
Section 9.06. Successors and Assigns...................................................................76
Section 9.07. Certain Collateral.......................................................................77
Section 9.08. Governing Law; Submission to Jurisdiction................................................77
Section 9.09. Counterparts; Integration................................................................77
Section 9.10. WAIVER OF JURY TRIAL.....................................................................77
Section 9.11. Other Reimbursement Obligations..........................................................78
Section 9.12. Consents in Connection with Creation of New Headquarters
Subsidiary and the Headquarters Refinancing........................................................78
Section 9.13. Release of Certain Mortgages.............................................................78
Section 9.14. Consent to Subordination of Liens on Equipment...........................................79
SCHEDULES
Schedule 1.01 - Other XX Xxxxx and Other Letters of Credit
Schedule 4.03(b) - Real and Personal Property Interests Owned by the
Borrower and Its Subsidiaries
Schedule 4.09 - Subsidiaries of the Borrower
Schedule 4.11 - Certain Existing Agreements
Schedule 4.15 - Bank Accounts
Schedule 5.09 - Existing Debt
Schedule 5.13 - Existing Liens
Schedule 5.21 - Permitted Debt Payments
EXHIBITS
Exhibit A - Form of Second Amended and Restated Note
Exhibit B - Form of Opinion of Special Counsel for the Borrower
iv
Exhibit C - Form of Opinion of Special New York Counsel for the
Agent
Exhibit D - Sample Mortgage
Exhibit E - Form of Assignment and Assumption Agreement
Exhibit F - Form of Release of Claims
v
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 29, 2000
among PERINI CORPORATION (with its successors, the "Borrower"), the BANKS listed
on the signature pages hereof and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Agent (with its successors in such capacity, the "Agent"), amending and
restating the Amended and Restated Credit Agreement dated as of January 17, 1997
(as amended to the date hereof, the "Existing Credit Agreement") among the
Borrower, the banks listed on the signature pages thereof and the Agent.
WHEREAS, the parties to this Agreement are parties to the Existing Credit
Agreement;
WHEREAS, the Borrower has requested amendments to certain provisions of the
Existing Credit Agreement as incorporated in this Agreement, and the Banks and
the Agent have agreed to such amendments, subject to the satisfaction of the
terms and conditions set forth herein, which amendments shall become effective
only at such time as this Agreement becomes effective in accordance with Section
3.01;
WHEREAS, the parties have agreed that, upon the effectiveness of this
Agreement, any outstanding "Letters of Credit" issued pursuant to the Existing
Credit Agreement, together with all other "Letters of Credit" issued pursuant to
this Agreement, shall constitute "Letters of Credit" hereunder and shall be
governed by the terms and conditions of this Agreement; and
WHEREAS, in order to set forth in one document, for the convenience of the
parties, the text of the Existing Credit Agreement as amended by the amendments
to be made upon the effectiveness hereof, the Existing Credit Agreement will,
upon satisfaction of the conditions set forth in Section 3.01 hereof, be amended
and restated to read in full as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Administrative Questionnaire" means, with respect to each Bank, the
administrative questionnaire in the form submitted to such Bank by the Agent and
submitted to the Agent (with a copy to the Borrower) duly completed by such
Bank.
"Adjusted Euro-Dollar Rate" means, with respect to any Interest Period, a
rate per annum equal to the quotient obtained (rounded upward, if necessary, to
the next higher 1/100 of 1%) by dividing (i) the applicable Euro-Dollar Rate by
(ii) 1.00 minus the Euro-Dollar Reserve Percentage.
"Affiliate" means, with respect to any Person, (i) any other Person that
directly, or indirectly through one or more intermediaries, controls such Person
(a "Controlling Person") or (ii) any other Person which is controlled by or is
under common control with a Controlling Person. As used herein, the term
"control" of any Person means the possession, directly or indirectly, of the
power to vote 10% or more of any class of voting securities of such Person or to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" means Xxxxxx Guaranty Trust Company of New York in its capacity as
agent for the Banks under the Financing Documents, and its successors in such
capacity.
"Agreement" means the Existing Credit Agreement, as amended and restated by
this Second Amended and Restated Credit Agreement, as it may be amended from
time to time.
"Applicable Base Rate Margin" means (i) at any time when neither clause
(ii) nor clause (iii) of this definition is applicable, 1.75%, (ii) at any time
when the sum of (A) the aggregate outstanding amount of Letter of Credit
Liabilities, (B) the outstanding principal amount of the Revolving Loans and (C)
the outstanding principal amount of the Term Loans is equal to or greater than
$35,000,000 but less than or equal to $41,000,000, 1.50% or (iii) at any time
when the sum of (A) the aggregate outstanding amount of Letter of Credit
Liabilities, (B) the outstanding principal amount of the Revolving Loans and (C)
the outstanding principal amount of the Term Loans is less than $35,000,000,
1.00%.
"Applicable Euro-Dollar Margin" means (i) at any time when neither clause
(ii) nor clause (iii) of this definition is applicable, 3.00%, (ii) at any time
when the sum of (A) the aggregate outstanding amount of Letter of Credit
Liabilities, (B) the outstanding principal amount of the Revolving Loans and (C)
the outstanding principal amount of the Term Loans is equal to or greater than
$35,000,000 but less than or equal to $41,000,000, 2.75% or (iii) at any time
when the sum of (A) the aggregate outstanding amount of Letter of Credit
Liabilities, (B) the outstanding principal amount of the Revolving Loans and (C)
the outstanding principal amount of the Term Loans is less than $35,000,000,
2.25%.
2
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Asset Sale Letter" means a letter from the Borrower to the Banks and the
Agent listing certain potential asset sales and a minimum cash price for each
such asset sale, which letter shall have been delivered to the Banks and the
Agent not less than five Domestic Business Days prior to the Effective Date and
shall be in form and substance satisfactory to each Bank.
"Assignee" has the meaning set forth in Section 9.06(c).
"Assignment and Assumption Agreement" means an Assignment and Assumption
Agreement entered into by a Lender and an Assignee with the consent of the
Agent, substantially in the form of Exhibit E.
"Available LC Amount" means at any time an amount equal to the lesser of
(x) $12,000,000 and (y) the excess, if any, of (i) the aggregate amount of the
Revolving Commitments over (ii) the aggregate outstanding principal amount of
the Revolving Loans.
"Bank" means each bank listed on the signature pages hereof, each Assignee
which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"Bankruptcy Proceeding" means, with respect to any Person, a case or other
proceeding seeking liquidation, reorganization or other relief with respect to
such Person or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of such Person or any
substantial part of its property.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means a Loan which bears interest based on the Base Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or pursuant to Section 2.02(g) or the provisions of Article 8.
"BCP" means Xxxx Capital Partners, L.P., a California limited partnership.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
3
"Bonding Company" means Fidelity and Deposit Company of Maryland, American
International Companies and Liberty Bond Services.
"Borrower" means Perini Corporation, a Massachusetts corporation, and its
successors.
"Borrower Pledge Agreement" means the Amended and Restated Borrower Pledge
Agreement dated as of December 6, 1994 between the Borrower and the Agent, as
amended and restated as of February 26, 1996, as amended and restated as of
January 17, 1997, as further amended prior to the Effective Date and as the same
may thereafter be amended, modified, supplemented and restated from time to time
as permitted herein and in accordance with the terms thereof.
"Borrower Security Agreement" means the Borrower Security Agreement dated
as of February 26, 1996 between the Borrower and the Agent, as amended and
restated as of January 17, 1997, as further amended prior to the Effective Date
and as the same may thereafter be amended, modified, supplemented and restated
from time to time as permitted herein and in accordance with the terms thereof.
"Borrower's 1999 Form 10-K" means the Borrower's annual report on Form 10-K
for the fiscal year ended December 31, 1999, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934.
"Borrowing" means a "Borrowing" as defined in and made and outstanding
under the Existing Credit Agreement or a borrowing under this Agreement, in
either case consisting of Loans made to the Borrower on the same date and of the
same type (subject to Article 8) and, in the case of Euro-Dollar Loans, for the
same Interest Period.
"Business Plan" means, at any time, the most recently delivered of (i) the
business plan delivered pursuant to Section 3.01(o) and (ii) the annual
projected consolidated balance sheets and income statements, operating and
capital expenditure budgets and cash flow forecasts for the Borrower and its
Consolidated Subsidiaries delivered pursuant to Section 5.01(i).
"Cash Management Letter" means a letter from the Borrower to the Banks and
the Agent, stating that there have been no changes, other than insignificant
ones, in the cash management system of the Borrower and its Subsidiaries since
the description delivered in connection with the Preceding Effective Date.
"Casualty" has the meaning provided for such term in any Mortgage.
4
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time, and any rules or
regulations promulgated thereunder.
"Class" refers to a determination whether a Loan is a Revolving Loan or a
Term Loan (or whether a Borrowing is or is to be comprised of Revolving Loans or
Term Loans).
"Collateral" means all property, real and personal, tangible and
intangible, with respect to which Liens are created or are purported to be
created pursuant to the Collateral Documents.
"Collateral Documents" means the Borrower Pledge Agreement, the Borrower
Security Agreement, the Subsidiary Pledge Agreement, the Subsidiary Security
Agreement, the Mortgages and all other supplemental or additional security
agreements, pledge agreements, mortgages, deeds of trust or similar instruments
delivered pursuant hereto or thereto.
"Common Stock" means the common stock of the Borrower.
"Condemnation" has the meaning provided for such term in any Mortgage.
"Consolidated Capital Expenditures" means, for any period, the aggregate
amount of expenditures by the Borrower and its Consolidated Subsidiaries for
plant, property and equipment during such period (including any such expenditure
by way of acquisition of a Person or by way of assumption of indebtedness or
other obligations of a Person, to the extent reflected as plant, property and
equipment), but excluding any such expenditures made for the replacement or
restoration of assets to the extent financed by condemnation awards or proceeds
of insurance received with respect to the loss or taking of or damage to the
asset or assets being replaced or restored. The term "Consolidated Capital
Expenditures" shall not include any Real Estate Investments.
"Consolidated Subsidiary" of any Person means at any date any Subsidiary of
such Person or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements if such statements
were prepared as of such date.
"Consolidated Tangible Net Worth" means, at any date, the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries, less
their consolidated Intangible Assets, all determined as of such date. For
purposes of this definition "Intangible Assets" means the amount (to the extent
reflected in determining such consolidated stockholders' equity) of (i) all
write-ups (other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business
5
made within twelve months after the acquisition of such business) subsequent to
December 31, 1999 in the book value of any asset owned by the Borrower or a
Consolidated Subsidiary and (ii) all unamortized debt discount and expense,
capitalized real estate taxes (to the extent not permitted to be capitalized in
accordance with generally accepted accounting principles as in effect on the
date hereof), goodwill, patents, trademarks, service marks, trade names,
copyrights, organization or developmental (other than real estate developmental)
expenses and other intangible items.
"Construction Business" means the general contracting, construction
management, engineering and design-build services business of the Borrower and
its Consolidated Subsidiaries.
"Credit Event" means the making of a Loan or the issuance of a Letter of
Credit or the extension of an Evergreen Letter of Credit.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all non-contingent obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v) all
obligations of such Person to reimburse issuers of letters of credit for
drawings under such letters of credit, (vi) all Debt secured by a Lien on any
asset of such Person, whether or not such Debt is otherwise an obligation of
such Person, and (vii) all Debt of others Guaranteed by such Person; provided
that advances to the Borrower or a Subsidiary by a joint venture out of the
Borrower's or such Subsidiary's share of the undistributed earnings of such
joint venture shall not constitute Debt.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Disposition" means any sale, conveyance, lease, granting of any Lien,
exchange, assignment, Casualty, Condemnation or other transfer and to "Dispose"
means to sell,
6
convey, lease, exchange, assign, suffer a Casualty or Condemnation or to
otherwise transfer, in each case (i) whether voluntary or involuntary, (ii)
whether direct or indirect and (iii) including any agreement providing for a
Disposition or granting any right or option providing for a Disposition.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City or Massachusetts are authorized
or required by law to close.
"Domestic Lending Office" means, as to each Bank, its office located at its
address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
"Effective Date Commitment Amount" means, (a) in the aggregate,
$21,000,000; and
(b) for each Bank, $21,000,000 multiplied by the percentage set forth
below for such Bank:
Xxxxxx Guaranty Trust Company of New York 20.64%
Fleet National Bank 44.80%
Bank of America, National Association 14.56%
Comerica Bank 8.00%
Xxxxxx Trust & Savings Bank 8.00%
Citizens Bank of Massachusetts 4.00%
"Effective Time" means the time on the Effective Date when this Agreement
becomes effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
7
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"Environmental Liabilities" means any and all liabilities of or relating to
the Borrower or any of its Subsidiaries (including any liabilities derived from
an entity which is, in whole or in part, a predecessor of the Borrower or any of
its Subsidiaries), whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which arise under or relate to matters covered by
Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower
and the Agent.
"Euro-Dollar Loan" means a Loan which bears interest based on the Adjusted
Euro-Dollar Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election.
"Euro-Dollar Rate" means, with respect to any Interest Period, the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which deposits in dollars are offered to each of the
Euro-Dollar Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Euro-Dollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest Period.
"Euro-Dollar Reference Banks" means the principal London offices of Bank of
America, N.A. and Xxxxxx Guaranty Trust Company of New York.
8
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted Euro-Dollar Rate shall be adjusted automatically
on and as of the effective date of any change in the Euro-Dollar Reserve
Percentage.
"Event of Default" has the meaning set forth in Section 6.01.
"Evergreen Letter of Credit" has the meaning set forth in Section 2.16(b).
"Exempt Group" means (i) any employee benefit plan of the Borrower or any
Subsidiary, (ii) any entity or Person holding shares of common stock of Borrower
organized, appointed or established by the Borrower or any Subsidiary for or
pursuant to the terms of any such plan, (iii) The Perini Memorial Foundation,
Inc., The Xxxxxx Xxxxxx Memorial Foundation, or any of the various trusts
established under the xxxxx of Xxxxx X. Xxxxxx, Senior, Xxxxxx X. Xxxxxx, Senior
or Xxxxxxx X. Xxxxxx, Senior, (iv) the Investor Group, (v) O&G Industries, Inc.
or (vi) National Union Fire Insurance Company.
"Existing Notes" has the meaning set forth in Section 2.03(a).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Financing Documents" means this Agreement, the Notes, the Subsidiary
Guarantee Agreement, the Collateral Documents, the Warrants, the Warrantholders
Rights Agreement, the Securityholders Agreement and all other supplemental or
additional agreements and instruments delivered pursuant hereto or thereto.
9
"GAAP" means generally accepted accounting principles as in effect from
time to time.
"Group of Loans" means, at any time, a group of Loans consisting of (i) all
Loans which are Base Rate Loans at such time or (ii) all Loans which are
Euro-Dollar Loans having the same Interest Period at such time; provided that,
if a Loan of any particular Bank is converted to or made as a Base Rate Loan
pursuant to Section 8.02 or 8.04, such Loan shall be included in the same Group
or Groups of Loans from time to time as it would have been in if it had not been
so converted or made.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such Debt of the payment
thereof or to protect such holder against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
collection or deposit or bid and performance bonds and guarantees in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Xxxxxx Bank" means Xxxxxx Trust and Savings Bank.
"Xxxxxx Bank LC" means the letter of credit listed on Schedule 1.01 issued
by Xxxxxx Bank to State Street Bank and Trust Company, as Trustee, as the same
may be amended from time to time.
"Hazardous Substances" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics.
"Headquarters Building" means the office building located at 00 Xxxxx Xxxxx
Xxxxxx xx Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx.
"Headquarters Refinancing" means a financing secured by the Headquarters
Building on terms either (i) substantially the same as the terms described in
the August 13, 1999 Application/Commitment issued to Amresco Capital, L.P. by
the Borrower and a borrower to be determined or (ii) approved by the Required
Banks, such approval not to be unreasonably withheld.
10
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Interest Period" means with respect to each Euro-Dollar Borrowing, the
period commencing on the date of such Borrowing specified in the applicable
Notice of Borrowing or on the date specified in the applicable Notice of
Interest Rate Election (which for this purpose, as contemplated by Section 2.01,
includes a Notice of Borrowing or Notice of Interest Rate Election delivered
under the Existing Credit Agreement) and ending one, two or three months
thereafter, as the Borrower may elect in such Notice of Borrowing or Notice of
Interest Rate Election, as the case may be; provided that:
(a) any Interest Period that would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period that begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) any Interest Period that would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means of share
purchase, capital contribution, loan, Guarantee, time deposit or otherwise.
"Investor" means PB Capital Partners, L.P., a Delaware limited partnership.
"Investor Group" means the Investor, The Common Fund, Separate Account P,
BCP, Xxxxxxx X. Xxxx, Tutor, Xxxxx-Xxxxxx Corp., and their respective
Affiliates.
"Lake Ridge Sale" means the sale by Perini/138 Joint Venture, a Georgia
real estate owning general partnership of which Perini Land and Development is a
general partner, of the land located in Xxxxxxx County, Georgia and described in
the Asset Sale Letter as "Perini/138 Partnership - Villages @ Lake Ridge; Single
Family (undeveloped)".
11
"LC Bank" means Fleet National Bank, formerly known as BankBoston, N.A.,
and its successors, or such other Bank as the Borrower may designate from time
to time (with the consent of such other Bank).
"LC Exposure" means, at any time and for any Bank, an amount equal to such
Bank's Revolving Commitment Percentage at such time multiplied by the aggregate
amount of Letter of Credit Liabilities in respect of all Letters of Credit at
such time.
"Letter of Credit" has the meaning set forth in Section 2.16(a).
"Letter of Credit Liabilities" means, at any time and in respect of any
Letter of Credit, the sum, without duplication, of (i) the amount available for
drawing under such Letter of Credit plus (ii) the aggregate unpaid amount of all
Reimbursement Obligations in respect of previous drawings made under such Letter
of Credit.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a "Loan" as defined in and outstanding under the Existing
Credit Agreement or a loan made by a Bank pursuant to Section 2.02 hereof;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Loan" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be.
"Loan Commitment" means for any Bank at any time an amount equal to the
excess, if any, of such Bank's Revolving Commitment at such time over such
Bank's LC Exposure at such time.
"Lot 13 Sale" means the sale by Paramount Development Associates of Lot 13
of the real property located in Bristol County, Massachusetts and described in
Schedule 4.03(b) hereto as the "Raynham Xxxxx Commerce Center".
"Management Agreement" means the management agreement dated as of January
17, 1997 among the Borrower, Xxxxx-Xxxxxx Corp. and Tutor, as amended by
Amendment No. 1 to Management Agreement dated as of December 23, 1998 and as
further amended to the date hereof and from time to time hereafter in accordance
with the terms hereof.
12
"Material Plan" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $10,000,000.
"Material Subsidiary" means at any time a Subsidiary which as of such time
meets the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the Securities and Exchange Commission.
"Mortgage Bank" means Xxxxxx Bank, as successor to Barclays Bank PLC,
Boston Branch, in its capacity as mortgagee of the Headquarters Building.
"Mortgaged Facilities" means the properties encumbered by the Mortgages and
described as Items 1, 2, 3, 4, 5 and 6 in Part I of Schedule 4.03(b) hereto.
"Mortgages" means the mortgages or deeds of trust described in Part III of
Schedule 4.03(b), as the same may be amended, modified, supplemented and
restated from time to time as permitted herein and in accordance with the terms
hereof and thereof, and "Mortgage" means any of the foregoing.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Net Income from Continuing Operations" means, for any period, the
consolidated net income of the Borrower and its Consolidated Subsidiaries for
such period, but eliminating any extraordinary items of income or expense.
"Net Operating Profit" means, for any period, Operating Cash Flow for such
period determined without regard to clause (iii) of the definition of Operating
Cash Flow.
"Net Proceeds" means
(a) with respect to any Disposition by the Borrower or any Subsidiary of
any asset, property or business, an amount equal to the proceeds received by the
Borrower or any Subsidiary in respect thereof (including Insurance Proceeds (as
defined in any Mortgage) received in respect of any Casualty, but only to the
extent exceeding the aggregate amount to restore or replace the applicable
Mortgaged Facility (or portion thereof subject to such Casualty), and including
all Awards (as defined in any Mortgage) received in respect of any
Condemnation), less (without duplication) reasonable out-of-pocket fees,
commissions and other transaction expenses paid or payable by the Borrower or
such Subsidiary to unaffiliated third parties in connection with such
Disposition, all senior mortgage debt owed to unaffiliated third parties and
required to be repaid at the
13
time of such Disposition and any property taxes paid or payable (as estimated by
a financial officer of the Borrower in good faith) in respect thereof; provided
that with respect to any Disposition by a Subsidiary that is not 100%-owned
(directly or indirectly) by the Borrower (a "Joint Venture"), the term "Net
Proceeds" shall be the product of the amount determined as set forth above in
this definition, multiplied by the greater of (i) the aggregate percentage
ownership interest that the Borrower, directly or indirectly, holds in such
Joint Venture and (ii) the aggregate percentage of such Net Proceeds that the
Borrower and its 100%-owned (directly or indirectly) Subsidiaries would be
entitled to receive if such Joint Venture were to immediately distribute all of
such Net Proceeds to the partners, joint venturers or other holders of interests
in such Joint Venture, determined in accordance with the applicable partnership
agreement, joint venture agreement or other governing document; and
(b) with respect to the Headquarters Refinancing, the aggregate amount of
cash proceeds received by the Borrower or any Subsidiary from the Headquarters
Refinancing, minus the sum of (i) the out-of-pocket transaction costs incurred
by the Borrower or the New Headquarters Subsidiary in connection with the
Headquarters Refinancing, including all fees, commissions and reserve or escrow
fundings and (ii) the amount paid by the Borrower to the Mortgage Bank on the
Effective Date pursuant to Section 3.01(h).
"Net Working Investment" means, at any date, an amount calculated as
follows:
(i) the aggregate amount of accounts and notes receivable, unbilled
work and investments in construction joint ventures which are shown as
current assets,
minus
(ii) the aggregate amount of accounts payable, advances from
construction joint ventures, deferred contract revenue and accrued
expenses,
in each case as shown on the consolidated balance sheet for the Borrower and its
Consolidated Subsidiaries determined as of such date.
"New Headquarters Subsidiary" means a direct 100%-owned Subsidiary of
the Borrower to be formed for the purpose of acquiring the Headquarters
Building from the Borrower and leasing the office space in such office
building to the Borrower and others.
"New Investors" means Xxxxx-Xxxxxx Corporation and the other investors
named in the Stock Purchase Agreement.
14
"Notes" means promissory notes of the Borrower, substantially in the form
of Exhibit A, evidencing the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Notice of Interest Rate Election" has the meaning set forth in Section
2.02(e).
"Obligor" means each of the Borrower and the Subsidiary Guarantors, and
"Obligors" means all of the foregoing.
"Operating Cash Flow" means, for any period, an amount calculated as
follows:
(i) the consolidated revenues of the Borrower and its
Consolidated Subsidiaries less the consolidated cost of operations of
the Borrower and its Consolidated Subsidiaries, in each case to the
extent attributable to the Construction Business for such period;
minus
(ii) the aggregate consolidated amount of all general,
administrative and selling expenses of the Borrower and its
Consolidated Subsidiaries for such period;
minus (or plus)
(iii) any increase (or decrease) in Net Working Investment from
the last day of such period relative to Net Working Investment on the
first day of such period.
"Original Credit Agreement" means the $125,000,000 Credit Agreement dated
as of December 6, 1994 among the Borrower, the banks listed therein and Xxxxxx
Guaranty Trust Company of New York, as agent for such banks, as amended to
January 17, 1997.
"Other Asset" means any asset, property or business of the Borrower or any
Subsidiary, other than any Real Estate Investment or any other real property, if
the aggregate amount of Net Proceeds in respect of any Disposition thereof shall
exceed $25,000.
"Other LC Bank" means each Bank listed on Schedule 1.01 attached hereto and
its successors and assigns.
15
"Other Letters of Credit" means the letters of credit described on Schedule
1.01 attached hereto.
"Other Mortgage Obligations" means the obligations of the Borrower to the
Mortgage Bank under the documents, agreements and instruments described in the
definition of Mortgage Bank, and all other supplemental or additional documents,
agreements and instruments delivered in connection therewith prior to February
26, 1996.
"Other Reimbursement Obligations" means, at any date, the obligations of
the Borrower, whether or not contingent at such time and whether direct or as a
guarantee, to reimburse any Other XX Xxxxx for the amount paid or payable by
such Other LC Bank in respect of a drawing under an Other Letter of Credit.
"Paramount Development Associates" means Paramount Development Associates,
Inc., a Massachusetts corporation.
"Parent" means, with respect to any Bank, any Person controlling such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PELP Sale" means the sale by Perini Eagle Limited Partnership, a
Subsidiary of each of the Borrower and Perini Land and Development, of the
unimproved land at the Grove at Black Canyon in Phoenix, Arizona described in
the Asset Sale Letter as "Perini Eagle Limited Partnership - Grove@Black Canyon;
Commercial Land".
"Performance Letter of Credit" means a Letter of Credit which constitutes a
performance standby letter of credit within the meaning of Appendix A to
Regulation H of the Board of Governors of the Federal Reserve system or other
applicable capital adequacy guidelines promulgated by bank regulatory
authorities.
"Perini Building Company" means Perini Building Company, Inc., an Arizona
corporation.
"Perini Environmental Services" means Perini Environmental Services, Inc.,
a Delaware Corporation.
"Perini Land and Development" means Perini Land and Development Company,
Inc., a Massachusetts corporation.
"Perini Management Services" means Perini Management Services, Inc., a
Massachusetts corporation.
16
"Perini Resorts" means Perini Resorts, Inc., a California corporation.
"Permitted Accounts" means, collectively, (i) the deposit, checking,
operating and other bank accounts listed on Schedule 4.15, (ii) payroll and
xxxxx cash accounts opened in the ordinary course of business with imprest
balances not to exceed $7,500 for each such account, (iii) all other deposit,
checking, operating and other bank accounts established after the Effective Date
with the prior written consent of the Required Banks, (iv) the Cash Collateral
Account established pursuant to the Borrower Security Agreement and (v) the Cash
Collateral Account established pursuant to the Subsidiary Security Agreement.
"Permitted Encumbrances" means, with respect to any property owned or
leased by the Borrower or any of its Subsidiaries:
(a) Liens for taxes, assessments or other governmental charges not yet
due or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of the Borrower or such Subsidiary, as the case may be, in accordance
with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising by operation of law in the ordinary course of
business so long as (A) the underlying obligations are not overdue for a
period of more than 60 days or (B) such Liens are being contested in good
faith and by appropriate proceedings and adequate reserves with respect
thereto are maintained on the books of the Borrower or such Subsidiary, as
the case may be, in accordance with GAAP;
(c) other Liens or, with respect to real property, title defects
(including matters which an accurate survey might disclose) which (x) do
not secure Debt; and (y) do not materially detract from the value of such
property or materially impair the use thereof by the Borrower or such
Subsidiary in the operation of its business.
"Permitted Liens" means the Liens permitted to exist under Section 5.13.
"Person" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is
17
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Preceding Effective Date" means the Effective Date under the Existing
Credit Agreement.
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Raynham Xxxxx Sale" means the sale by Paramount Development Associates of
the real property (other than Lot 13) located in Bristol County, Massachusetts
and described in Schedule 4.03(b) hereto as the "Raynham Wood Commerce Center".
"Real Estate Investment" means (i) the acquisition, construction or
improvement of any real property, other than real property used by the Borrower
or a Consolidated Subsidiary in the conduct of its Construction Business or (ii)
any Investment in any Person (including Perini Land and Development or another
Consolidated Subsidiary, but without duplication of any Real Estate Investment
made by such Person with the proceeds of such Investment) engaged in real estate
investment or development or whose principal assets consist of real property.
"Real Estate Plan" means a plan from the Borrower describing the reasonable
costs it plans to incur in connection with real property owned by the Borrower
or any Consolidated Subsidiary as of the date hereof, which plan shall have been
delivered to the Banks and the Agent not less than five Domestic Business Days
prior to the Effective Date and shall be in form and substance satisfactory to
each Bank.
"R. E. Xxxxxx & Co." means R. E. Xxxxxx & Co., a Michigan corporation.
"Regulated Activity" means any generation, treatment, storage, recycling,
transportation or Release of any Hazardous Substance.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Reimbursement Obligations" means at any date the obligations of the
Borrower then outstanding under Section 2.16 to reimburse any Bank for the
amount paid by such Bank in respect of a drawing under a Letter of Credit.
18
"Release" means any discharge, emission or release, including a Release as
defined in CERCLA at 42 U.S.C. 9601(22). The term "Released" has a
corresponding meaning.
"Release of Claims" means the Release of Claims dated as of the date hereof
among the Borrower, the Subsidiary Guarantors, the Banks and the Agent,
substantially in the form of Exhibit F.
"Required Banks" means at any time Banks having at least 60% of the
aggregate amount of the Revolving Commitments or, if the Revolving Commitments
shall have been terminated, holding Notes evidencing at least 60% of the
aggregate unpaid principal amount of the Loans.
"Restricted Payment" means (i) any dividend or other distribution on any
shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
capital stock or (b) any option, warrant or other right to acquire shares of the
Borrower's capital stock.
"Revolving Commitment" means, with respect to each Bank, (i) at the
Effective Time, such Bank's Effective Date Commitment Amount and (ii)
thereafter, such amount as reduced from time to time pursuant to Section 2.09
and Section 2.10.
"Revolving Commitment Percentage" means, with respect to each Bank at any
time, the percentage that such Bank's Revolving Commitment constitutes of the
aggregate amount of the Revolving Commitments at such time.
"Revolving Loan" means (i) a Loan outstanding under the Existing Credit
Agreement immediately prior to the Effective Time but which Loan does not become
a Term Loan pursuant to Section 2.01(a) of this Agreement or (ii) a Loan made
pursuant to Section 2.01(b) of this Agreement.
"Route 44 Sale" means the sale by Paramount Development Associates of the
real property located in Bristol County, Massachusetts and described in Schedule
4.03(b) hereto as "Route 44 North - Raynham".
"Securityholders Agreement" means the Securityholders Agreement dated as of
January 17, 1997 among the Borrower, the Series B Shareholders named therein,
and the Banks.
"Separate Account P" means The Union Labor Life Insurance Company Separate
Account P.
19
"Series B Preferred Stock" means the Series B Cumulative Convertible
Preferred Stock of the Borrower.
"Specified Real Estate Sales" means the Lake Ridge Sale, the Lot 13 Sale,
the PELP Sale, the Raynham Xxxxx Sale, the Route 44 Sale and the Wareham Sale.
"Stock Purchase" means the purchases of shares of Common Stock and all of
the other transactions contemplated by the Stock Purchase Agreement, including
the exhibits and schedules thereto, to be consummated on or before the Effective
Date.
"Stock Purchase Agreement" means the agreement dated as of February 5, 2000
among the Borrower and the New Investors, pursuant to which the Borrower has
agreed to issue and sell to the New Investors, and the New Investors have agreed
to purchase from the Borrower, under the terms and conditions set forth therein,
shares of newly issued Common Stock for $40,000,000.
"Subsidiary" of any Person means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"Subsidiary Guarantee Agreement" means the Subsidiary Guarantee Agreement
dated as of December 6, 1994 between the Borrower, the Subsidiary Guarantors
party thereto and the Agent, as amended and restated as of January 17, 1997, as
further amended prior to the Effective Date and as the same may thereafter be
amended, modified, supplemented and restated from time to time as permitted
herein and in accordance with the terms thereof.
"Subsidiary Guarantor" means each of Perini Building Company, Perini
Management Services, Perini Land and Development, R. E. Xxxxxx & Co., Paramount
Development Associates, Perini Environmental Services, Perini Resorts and each
other Subsidiary of the Borrower which becomes a party to the Subsidiary
Guarantee Agreement, and their respective successors.
"Subsidiary Pledge Agreement" means the Subsidiary Pledge Agreement dated
as of February 26, 1996 among the Subsidiary Guarantors party thereto and the
Agent, as amended and restated as of January 17, 1997, as further amended prior
to the Effective Date and as the same may thereafter be amended, modified,
supplemented and restated from time to time as permitted herein and in
accordance with the terms thereof.
"Subsidiary Security Agreement" means the Subsidiary Security Agreement
dated as of December 6, 1994 among the Subsidiary Guarantors party thereto and
the Agent, as amended and restated as of February 26, 1996, as further amended
and restated as of
20
January 17, 1997, as further amended prior to the Effective Date and as the same
may thereafter be amended, modified, supplemented and restated from time to time
as permitted herein and in accordance with the terms thereof.
"Temporary Cash Investments" means investments, satisfactory to the
Required Banks and the Agent, including for purposes of perfecting the security
interest of the Agent therein, of cash balances in a Permitted Account in United
States Government securities or other short-term money market investments.
"Termination Date" means January 21, 2003.
"Term Loan" means a Loan made by a Bank and designated a Term Loan in
accordance with Section 2.01(a) of this Agreement.
"Term Loan Repayment Date" means the last Domestic Business Day of March,
June, September, and December in 2000, 2001 and 2002.
"The Common Fund" means The Common Fund for Non-Profit Organizations for
the account of its Equity Fund.
"Total Debt" means, at any date, the Debt of the Borrower and its
Consolidated Subsidiaries, determined as of such date on a consolidated basis.
"Tutor" means Xxxxxx X. Tutor, an individual.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Usage" means, at any date, the sum of the aggregate outstanding principal
amount of the Revolving Loans at such date plus the aggregate amount of Letter
of Credit Liabilities at such date with respect to all Letters of Credit.
"Wareham Sale" means the sale by Paramount Development Associates of the
real property located in Plymouth County, Massachusetts and described in
Schedule 4.03(b) hereto as the "Wareham Commerical Center".
"Warrantholders Rights Agreement" means the Warrantholders Rights Agreement
dated as of January 17, 1997 among the Borrower and the Banks.
21
"Warrants" means the warrants issued by the Borrower to the Banks pursuant
to Section 2.18 of the Existing Credit Agreement.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated Subsidiary of
the Borrower all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
Section 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks.
Section 1.3. Types of Borrowing. The term "Borrowing" denotes (i) the
aggregation of Loans of one or more Banks made or to be made to the Borrower on
the same day, all of which Loans are of the same type (subject to Article 8)
and, except in the case of Base Rate Loans, have the same initial Interest
Period and (ii) if the context so requires, the borrowing of such Loans.
Borrowings are classified for purposes of this Agreement (i) by reference to the
Class of Loans comprising such Borrowing (e.g., a "Revolving Borrowing" is a
Borrowing comprised of Revolving Loans) or (ii) by reference to the pricing of
the Loans comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a
Borrowing comprised of Euro-Dollar Loans).
ARTICLE 2
The Credits
Section 2.1. The Loans. (a Division of Loans. Immediately prior to the
Effective Time, each Bank has "Loans" to the Borrower outstanding under the
Existing Credit Agreement. At the Effective Time, (i) $35,000,000 in principal
amount of "Loans" outstanding under the Existing Credit Agreement (which shall
be chosen by the Borrower with the consent of the Agent) shall automatically be
converted to and become Term Loans hereunder, (ii) all other "Loans" outstanding
under the Existing Credit Agreement shall automatically be converted to and
become Revolving Loans hereunder and (iii) all "Euro-Dollar Loans" outstanding
under the Existing Credit Agreement shall continue as Euro-Dollar Loans
hereunder, with the Interest Period for each such Euro-Dollar Loan unchanged.
Each Bank's outstanding Term Loan and Revolving Loan, upon giving effect
22
to the foregoing, shall in each case be an amount equal to (i) the aggregate
amount of Term Loans and Revolving Loans, as the case may be, (ii) multiplied by
the percentage set forth for such Bank in clause (b) of the definition of
Effective Date Commitment Amount.
(b Revolving Loans. From time to time prior to the Termination Date, each
Bank severally agrees, on the terms and conditions set forth in this Agreement,
to make loans to the Borrower from time to time in amounts such that the sum of
(i) the aggregate principal amount of all Revolving Loans outstanding for such
Bank plus (ii) the LC Exposure for such Bank does not exceed, in the aggregate
at any time, the amount of such Bank's Revolving Commitment. Each Borrowing
under this Section shall be in an aggregate principal amount of $500,000 or any
larger multiple thereof (except that any such Borrowing may be in the aggregate
amount of the unused Revolving Commitments) and shall be made from the several
Banks ratably in proportion to their respective Revolving Commitments. Within
the foregoing limits, the Borrower may borrow under this Section, repay, or to
the extent permitted by Section 2.09 or Section 2.11, prepay Revolving Loans and
reborrow at any time prior to the Termination Date under this Section. Each
Revolving Loan shall be a Base Rate Loan or, subject to Article 8, a Euro-Dollar
Loan if specified as such in the applicable Notice Of Borrowing.
(c Term Loans. Term Loans are not revolving in nature and amounts of such
Loans repaid or prepaid may not be reborrowed.
Section 2.2. Method of Borrowing; Method of Electing Interest Rates.
(a The Borrower shall give the Agent notice (a "Notice of Borrowing") not
later than 11:30 A.M. (New York City time) on the date of each Base Rate
Borrowing and at least three Euro-Dollar Business Days before each Euro-Dollar
Borrowing, specifying:
(i the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing;
(ii the aggregate amount of such Borrowing;
(iii whether the Loans comprising such Borrowing shall be Base Rate
Loans or Euro-Dollar Loans; and
(iv in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
23
(b Upon receipt of a Notice of Borrowing, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable share of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by the
Borrower.
(c Not later than 1:30 P.M. (New York City time) on the date of each
Borrowing, each Bank shall make available its ratable share of such Borrowing,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 9.01. Unless the Agent determines that any
applicable condition specified in Article 3 has not been satisfied, the Agent
will make the funds so received from the Banks available to the Borrower at the
Agent's aforesaid address.
(d Unless the Agent shall have received notice from a Bank prior to the
date of any Borrowing (or, in the case of a Base Rate Borrowing, prior to noon
(New York City time) on the date of such Borrowing) that such Bank will not make
available to the Agent such Bank's share of such Borrowing, the Agent may assume
that such Bank has made such share available to the Agent on the date of such
Borrowing in accordance with Section 2.02(c) and the Agent may, in reliance upon
such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have so made such share
available to the Agent, such Bank and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at (i) in the case
of the Borrower, a rate per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable thereto pursuant to Section 2.05 and (ii) in
the case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement.
(e) The Loans included in each Borrowing shall bear interest initially at
the type of rate specified by the Borrower in the applicable Notice of
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans as
24
Euro-Dollar Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a "Notice of
Interest Rate Election") to the Agent at least three Euro-Dollar Business
Days before the conversion or continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if it so specifies,
apply to only a portion of the aggregate principal amount of the relevant
Group of Loans; provided that (i) such portion is allocated ratably among
the Loans comprising such Group and (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each
$500,000 or any larger multiple thereof.
(f) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
Section 2.02(e) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the duration of
the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(g) Upon receipt of a Notice of Interest Rate Election from the Borrower
pursuant to Section 2.02(e) above, the Agent shall promptly notify each Bank of
the contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Agent for any Group of Euro-Dollar Loans, such Loans shall be
converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
Section 2.3. Notes.
(a) In connection with the effectiveness of the Existing Credit Agreement,
the Borrower delivered to the Agent, for the account of each Bank, duly executed
"Notes" substantially in the form of Exhibit A to the Existing Credit Agreement
(collectively, the "Existing Notes") to evidence the "Loans" of each Bank as
defined therein. On or prior
25
to the Effective Date, pursuant to Section 3.01(b), the Borrower shall deliver
to the Agent, for the account of each Bank, duly executed Notes, substantially
in the form of Exhibit A hereto. On the Effective Date, each Bank's Existing
Note shall be deemed amended and restated by such duly executed new Note, and
each Bank's Existing Note shall be deemed cancelled. From and after the
Effective Date, the Loans of each Bank (whether made under the Existing Credit
Agreement, prior thereto or pursuant to this Agreement) shall be evidenced by a
single Note payable to the order of such Bank for the account of its Applicable
Lending Office. Each Bank agrees that it will, promptly after the Effective
Date, deliver to the Agent, for cancellation and delivery to the Borrower, its
Existing Note (or in the case of loss thereof, a written agreement of indemnity
by such Bank for such loss in customary form and executed by such Bank).
(b) Each Bank may, by notice to the Borrower and the Agent, request that
its Loans of a particular Class or type be evidenced by a separate Note in an
amount equal to the aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A, with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
Class or type. Each reference in this Agreement to the "Note" of such Bank shall
be deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Note pursuant to Section 2.03(a) or Section
2.03(b), the Agent shall mail such Note to such Bank. Each Bank shall record the
date, amount and maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect thereto, and may, if
such Bank so elects in connection with any transfer or enforcement of its Note,
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Loan then outstanding;
provided that the failure of any Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Notes. Each Bank is hereby irrevocably authorized by the Borrower so to
endorse its Note and to attach to and make a part of its Note a continuation of
any such schedule as and when required.
Section 2.4. Maturity of Revolving Loans. Unless payable earlier pursuant
to Section 2.09 or Section 6.01, each Revolving Loan shall mature, and the
principal amount thereof shall be due and payable, on the Termination Date.
Section 2.5. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Base Rate Loan is made until it
becomes due, at a rate per annum equal to the sum of the Applicable Base Rate
Margin plus the Base Rate for such day. Such interest shall be payable on the
last Domestic Business Day of each
27
month. Any overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 2% plus the rate otherwise applicable to such Base Rate Loan for
such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Euro-Dollar Margin plus the applicable
Adjusted Euro-Dollar Rate. Such interest shall be payable for each Interest
Period on the last day thereof.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall bear
interest, payable on demand, for each day from and including the date payment
thereof was due to but excluding the date of actual payment, at a rate per annum
equal to the sum of 2% plus the higher of (i) the sum of the Applicable
Euro-Dollar Margin plus the Adjusted Euro-Dollar Rate applicable to such Loan
and (ii) the Applicable Euro-Dollar Margin plus the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (x) the
average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other period of
time not longer than three months as the Agent may elect) deposits in dollars in
an amount approximately equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered to such Euro-Dollar Reference Bank in
the London interbank market for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the
circumstances described in clause (a) or (b) of Section 8.01 shall exist, at a
rate per annum equal to the sum of 2% plus the rate applicable to Base Rate
Loans for such day).
(d) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Banks of
each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(e) Each Euro-Dollar Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as contemplated hereby. If any Euro-Dollar
Reference Bank does not furnish a timely quotation, the Agent shall determine
the relevant interest rate on the basis of the quotation or quotations furnished
by the remaining Euro-Dollar Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 8.01 shall
apply.
Section 2.6. Commitment Fees. The Borrower shall pay to the Agent, for the
account of each Bank, a commitment fee at the rate of 0.60% per annum on the
daily average unused portion of such Bank's aggregate Revolving Commitments.
Such commitment fees shall accrue from and including the Effective Date to but
excluding the
27
Termination Date. Such commitment fees shall be payable on the last day of each
fiscal quarter of the Borrower prior to the Termination Date and on the
Termination Date.
Section 2.7. Restructuring Fee. The Borrower shall pay to the Agent on the
Effective Date a restructuring fee for the account of the Banks in the aggregate
amount of $100,000 (to be shared in proportion to their Revolving Commitments).
Section 2.8. Agency Fee. The Borrower shall pay to the Agent as
compensation for its services hereunder and under the Collateral Documents
agency fees payable in the amounts and at the times heretofore agreed between
the Borrower and the Agent.
Section 2.9. Termination or Reduction of Revolving Commitments. (a) The
Borrower may, upon three Domestic Business Days' notice to the Agent, terminate
at any time, or proportionately permanently reduce from time to time by an
aggregate amount of $100,000 or any larger multiple thereof, the unused portions
of the Revolving Commitments. If the Revolving Commitments are terminated in
their entirety, all accrued commitment fees shall be payable on the effective
date of such termination.
(b) The Revolving Commitments shall terminate on the Termination Date, and
all Revolving Loans then outstanding and all Letter of Credit Liabilities (in
each case, together with accrued interest thereon) shall be due and payable on
such date.
(c) The Revolving Commitments of all Banks shall be permanently,
automatically and ratably reduced immediately upon receipt by the Borrower or
any Subsidiary of any proceeds from any Specified Real Estate Sale or the
Headquarters Refinancing in an amount equal to (i) after giving effect to such
Specified Real Estate Sale or Headquarters Refinancing, the amount, if any, by
which the total Net Proceeds received by the Borrower or any Subsidiary
subsequent to the Effective Date in respect of Specified Real Estate Sales and
the Headquarters Refinancing exceeds $11,000,000, minus (ii) the aggregate
amount by which the Revolving Commitments have been previously reduced pursuant
to this Section 2.09(c).
(d) If at any time the Borrower or any Subsidiary shall receive any
proceeds from
(i) any Disposition of any Real Estate Investment or any other real
property of the Borrower or any Subsidiary (including without limitation
any proceeds received by the Borrower or any Subsidiary as consideration
for the granting of any right or option providing for a Disposition but
excluding (A) operating receipts from Real Estate Investments and (B) any
proceeds received by the Borrower or any Subsidiary from (I) any Specified
Real Estate Sales or (II) the Headquarters Refinancing); or
28
(ii) any Disposition of any Other Assets (including, without
limitation any proceeds received by the Borrower or any Subsidiary as
consideration for the granting of any right or option providing for a
Disposition but excluding (A) payments in the ordinary course on
construction contracts, (B) operating receipts from Real Estate
Investments, (C) liability insurance proceeds, (D) income of not more than
$100,000 earned from Temporary Cash Investments during any fiscal year and
(E) in-kind proceeds resulting from trade-ins or other Dispositions of
obsolete or surplus equipment),
then the Revolving Commitments shall be permanently, automatically and ratably
reduced in an amount equal to the amount, if any, by which 100% of the Net
Proceeds realized by the Borrower or any Subsidiary in respect of such
Disposition exceeds the aggregate amount of Term Loans required to be prepaid in
respect of such Disposition pursuant to Section 2.10(b) hereof; provided that no
such reduction shall be required pursuant to clause 2.09(d)(ii) unless and until
the aggregate amount of Net Proceeds from all Dispositions of Other Assets after
the Effective Date and not previously applied to reduce the Revolving
Commitments pursuant to clause 2.09(d)(ii) shall equal or exceed $125,000 or any
higher integral multiple of $125,000, at which time the Revolving Commitments
shall be reduced in amount equal to $125,000 or such higher integral multiple of
$125,000, as the case may be.
(e) On each day on which the Revolving Commitments are reduced pursuant to
this Section 2.09, the Borrower shall repay such principal amount (together with
accrued interest thereon) of each Bank's outstanding Revolving Loans as may be
necessary so that after such repayment, the aggregate unpaid principal amount of
each Bank's Revolving Loans plus such Bank's LC Exposure does not exceed the
amount of such Bank's Revolving Commitment after giving effect to such
reduction. In the event that the aggregate amount of the Revolving Commitments
is reduced to an amount less than the aggregate amount of Letter of Credit
Liabilities at such time in respect of all Letters of Credit, the Borrower
hereby agrees that it shall forthwith, without any demand or taking of any other
action by the Required Banks or the Agent, pay to the Agent an amount in
immediately available funds equal to the difference to be held as security for
the Letter of Credit Liabilities for the benefit of all Banks pursuant to
arrangements satisfactory to the Agent and the Banks.
Section 2.10. Repayment of Term Loans.
(a) On each Term Loan Repayment Date, there shall become due and payable
and the Borrower shall repay the aggregate principal amount of the Term Loans
set forth below opposite such date (or, if less, the aggregate outstanding
principal amount of the Term Loans), in each case together with accrued and
unpaid interest on the principal amount being repaid:
29
Term Loan Repayment Aggregate Principal Amount of
Date Occurring in Term Loan Repayment
---------------------- -----------------------------
March 2000 $3,750,000
June 2000 $3,750,000
September 2000 $3,750,000
December 2000 $3,750,000
March 2001 $2,500,000
June 2001 $2,500,000
September 2001 $2,500,000
December 2001 $2,500,000
March 2002 $2,500,000
June 2002 $2,500,000
September 2002 $2,500,000
December 2002 $2,500,000
provided that if the Term Loans shall be repaid at any time in accordance with
Section 2.10(b), such repayments shall be applied to decrease the amounts set
forth above, first to decrease the aggregate amount of repayment of Term Loans
required on the last Term Loan Repayment Date, and thereafter to decrease the
amount of repayment of Term Loans in reverse chronological order.
(b) Until the Term Loans have been repaid in full, there shall become due
and payable, and the Borrower shall repay, an aggregate principal amount of the
Term Loans (or, if less, the aggregate outstanding principal amount of the Term
Loans) in the following amounts at the following times, together with accrued
and unpaid interest on the principal amount being repaid:
(i) immediately upon receipt by the Borrower or any Subsidiary at any
time of any proceeds from any Disposition of any Real Estate Investment or
any other real property of the Borrower or any Subsidiary (including
without limitation any proceeds received by the Borrower or any Subsidiary
as consideration for the granting of any right or option providing for a
Disposition but excluding (A) operating receipts from Real Estate
Investments and (B) any proceeds received by the Borrower or any Subsidiary
from (I) any Specified Real Estate Sale or (II) the Headquarters
Refinancing), in an amount equal to 100% of the Net Proceeds realized by
the Borrower or any Subsidiary in respect thereof; and
(ii) immediately upon receipt by the Borrower or any Subsidiary of any
proceeds from any Disposition of any Other Assets (including, without
limitation any proceeds received by the Borrower or any Subsidiary as
consideration for the granting of any right or option providing for a
Disposition but excluding (A)
30
payments in the ordinary course on construction contracts, (B) operating
receipts from Real Estate Investments, (C) liability insurance proceeds,
(D) income of not more than $100,000 earned from Temporary Cash Investments
during any fiscal year and (E) in-kind proceeds resulting from trade-ins or
other Dispositions of obsolete or surplus equipment) in an amount equal to
100% of the Net Proceeds realized by the Borrower or any Subsidiary in
respect thereof; provided that no such repayment shall be required unless
and until the aggregate amount of Net Proceeds from all Dispositions of
Other Assets after the Effective Date and not previously applied to repay
the Term Loans pursuant to this clause 2.10(b)(ii) shall equal or exceed
$125,000 or any higher integral multiple of $125,000, at which time the
Term Loans shall be repaid in amount equal to $125,000 or such higher
integral multiple of $125,000, as the case may be.
Section 2.11. Optional Prepayments.
(a) The Borrower may, upon notice to the Agent not later than 11:30 A.M.
(New York City time) on any Domestic Business Day, prepay or repay on such
Domestic Business Day the Base Rate Loans in whole at any time, or from time to
time in part in amounts aggregating $100,000 or any larger multiple thereof, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks.
(b) Subject to Section 2.13, the Borrower may, upon notice to the Agent not
later than 11:30 A.M. (New York City time) on any Euro-Dollar Business Day,
prepay or repay on such Euro-Dollar Business Day the Loans comprising a Group of
Euro-Dollar Loans in whole at any time, or from time to time in part in amounts
aggregating $100,000 or any larger multiple thereof, by paying the principal
amount to be prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Group.
(c) Upon receipt of a notice of prepayment or repayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
Section 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, not later than 1:30 P.M. (New York City time)
on the date when due, in Federal or other funds immediately available in New
York City, to the Agent at its address referred to in Section 9.01. The Agent
will promptly distribute to
31
each Bank its ratable share of each such payment received by the Agent for the
account of the Banks. Whenever any payment of principal of, or interest on, the
Base Rate Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Agent, at the Federal
Funds Rate.
Section 2.13. Funding Losses. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (pursuant to Article 2, Section 6 or 8 or
otherwise) on any day other than the last day of the Interest Period applicable
thereto, or the last day of an applicable period fixed pursuant to Section
2.05(c), or if the Borrower fails to borrow or prepay any Euro-Dollar Loans
after notice has been given to any Bank in accordance with Section 2.02(b) or
2.11(c), the Borrower shall reimburse each Bank on demand for any resulting loss
or expense incurred by it (or by any existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion or failure to borrow,
provided that such Bank shall have delivered to the Borrower a certificate as to
the amount of such loss or expense, which certificate shall be conclusive in the
absence of manifest error.
Section 2.14. Computation of Interest and Fees. Interest based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed (including the first day
but excluding the last day). All other interest and commitment fees shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
32
Section 2.15. Maximum Interest Rate.
(a) Nothing contained in this Agreement or the Notes shall require the
Borrower to pay interest at a rate exceeding the maximum rate permitted by
applicable law. Neither this Section 2.15 nor Section 9.08 is intended to limit
the rate of interest payable for the account of any Bank to the maximum rate
permitted by the laws of the State of New York if a higher rate is permitted
with respect to such Bank by supervening provisions of U.S. federal law.
(b) If the amount of interest payable for the account of any Bank on any
interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to Section 2.05, would exceed the maximum
amount permitted by applicable law to be charged by such Bank, the amount of
interest payable for its account on such interest payment date shall be
automatically reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of any Bank in
respect of any interest computation period is reduced pursuant to Section
2.15(b) and the amount of interest payable for its account in respect of any
subsequent interest computation period, computed pursuant to Section 2.05, would
be less than the maximum amount permitted by applicable law to be charged by
such Bank, then the amount of interest payable for its account in respect of
such subsequent interest computation period shall be automatically increased to
such maximum permissible amount; provided that at no time shall the aggregate
amount by which interest paid for the account of any Bank has been increased
pursuant to this Section 2.15(c) exceed the aggregate amount by which interest
paid for its account has theretofore been reduced pursuant to Section 2.15(b).
Section 2.16. Letters of Credit.
(a) Prior to the Effective Time, upon the request of the Borrower, the LC
Bank has issued "Letters of Credit" under and as defined in the Existing Credit
Agreement. On the Effective Date, all of such "Letters of Credit" shall be
deemed to be Letters of Credit hereunder. Subject to the terms and conditions
hereof, the LC Bank agrees to issue letters of credit hereunder from time to
time before the Termination Date upon the request of the Borrower (such letters
of credit issued, collectively with the "Letters of Credit" issued under the
Existing Credit Agreement, the "Letters of Credit"); provided that, immediately
after each such Letter of Credit is issued, (i) the aggregate amount of the
Letter of Credit Liabilities for all Letters of Credit shall not exceed the
Available LC Amount and (ii) the aggregate amount of the Letter of Credit
Liabilities for all Performance Letters of Credit shall not exceed $3,000,000;
and provided further that no Letter of Credit shall be issued to replace, in
whole or in part, directly or indirectly, the Xxxxxx Bank LC. Upon the date of
issuance by the LC Bank of a Letter of Credit in
33
accordance with this Section 2.16, the LC Bank shall be deemed, without further
action by any party hereto, to have sold to each Bank, and each Bank shall be
deemed, without further action by any party hereto, to have purchased from the
LC Bank, a participation in such Letter of Credit and the related Letter of
Credit Liabilities in proportion to its Revolving Commitment Percentage.
(b) The Borrower shall give the LC Bank at least three Domestic Business
Days' prior notice (effective upon receipt) specifying the date each Letter of
Credit is to be issued, and describing the proposed terms of such Letter of
Credit and the nature of the transactions proposed to be supported thereby. Upon
receipt of such notice the LC Bank shall promptly notify the Agent, and the
Agent shall promptly notify each Bank, of the contents thereof and of the amount
of such Bank's participation in such proposed Letter of Credit. The issuance by
the LC Bank of any Letter of Credit shall, in addition to the conditions
precedent set forth in Article 3 (the satisfaction of which the LC Bank shall
have no duty to ascertain), be subject to the conditions precedent that such
Letter of Credit shall be satisfactory to the LC Bank and that the Borrower
shall have executed and delivered such other instruments and agreements relating
to such Letter of Credit as the LC Bank shall have reasonably requested. Each
Letter of Credit shall have an expiry date not later than one year after its
date of issue; provided that no Letter of Credit shall have a term extending
beyond the Termination Date; and provided further that any such Letter of Credit
may include an evergreen or renewal option, pursuant to which the expiry date of
such Letter of Credit will be automatically extended unless notice of
non-renewal is given by the LC Bank (provided that such Letter of Credit has an
absolute expiry date not later than the Termination Date); and provided further
that the LC Bank shall deliver notice of non-renewal at the time such notice is
required to be given unless requested not to by the Borrower, which request will
be treated in the same manner as a request for issuance of a new Letter of
Credit on the same terms (any such Letter of Credit, an "Evergreen Letter of
Credit").
(c) The Borrower shall pay to the Agent a letter of credit fee at a rate
per annum equal to 3.00% multiplied by the aggregate amount available for
drawings under each Letter of Credit issued from time to time, any such fee to
be payable for the account of the Banks ratably in proportion to their Revolving
Commitment Percentages. Such fee shall be payable in arrears on the last day of
each fiscal quarter of the Borrower for so long as such Letter of Credit is
outstanding and on the date of termination thereof. The Borrower shall pay to
the LC Bank additional fees and expenses in the amounts and at the times as
agreed between the Borrower and the LC Bank.
(d) Upon receipt from the beneficiary of any Letter of Credit of any demand
for payment or other drawing under such Letter of Credit, the LC Bank shall
notify the Agent and the Agent shall promptly notify the Borrower and each other
Bank as to the amount to be paid as a result of such demand or drawing and the
respective payment date. The
34
responsibility of the LC Bank to the Borrower and each Bank shall be only to
determine that the documents (including each demand for payment or other
drawing) delivered under each Letter of Credit issued by it in connection with
such presentment shall be in conformity in all material respects with such
Letter of Credit. The LC Bank shall endeavor to exercise the same care in the
issuance and administration of the Letters of Credit as it does with respect to
letters of credit in which no participations are granted, it being understood
that in the absence of any gross negligence or willful misconduct by the LC
Bank, each Bank severally agrees that it shall be unconditionally and
irrevocably liable without regard to the occurrence of any Event of Default or
any condition precedent whatsoever, pro rata to the extent of such Bank's
Revolving Commitment Percentage, to reimburse the LC Bank on demand for the
amount of each payment made by the LC Bank under each Letter of Credit issued by
the LC Bank to the extent such amount is not reimbursed by the Borrower pursuant
to clause 2.16(e) below together with interest on such amount for each day from
the date of the LC Bank's demand for such payment (or, if such demand is made
after 11:00 A.M. (New York City time) on such date, from the next succeeding
Domestic Business Day) to the date of payment by such Bank of such amount at a
rate of interest per annum equal to the Federal Funds Rate for such day.
(e) The Borrower shall be irrevocably and unconditionally obligated
forthwith to reimburse the LC Bank for any amounts paid by the LC Bank upon any
drawing under any Letter of Credit, without presentment, demand, protest or
other formalities of any kind; provided that neither the Borrower nor any Bank
shall hereby be precluded from asserting any claim for direct (but not
consequential) damages suffered by the Borrower or such Bank to the extent, but
only to the extent, caused by (i) the willful misconduct or gross negligence of
the LC Bank in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (ii) such Bank's
failure to pay under any Letter of Credit after the presentation to it of a
request strictly complying with the terms and conditions of the Letter of
Credit. All such amounts paid by the LC Bank and remaining unpaid by the
Borrower shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 2% plus the rate applicable to Base Rate
Loans for such day. The LC Bank will pay to each Bank, ratably in accordance
with its Revolving Commitment Percentage, all amounts received from the Borrower
for application in payment, in whole or in part, of the Reimbursement Obligation
in respect of any Letter of Credit, but only to the extent such Bank has made
payment to the LC Bank in respect of such Letter of Credit pursuant to Section
2.16(d).
(f) If after the date hereof, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank with any request or directive
(whether or not having the force of
35
law) of any such authority, central bank or comparable agency shall impose,
modify or deem applicable any tax, reserve, special deposit or similar
requirement against or with respect to or measured by reference to Letters of
Credit issued or to be issued hereunder or participations therein, and the
result shall be to increase the cost to any Bank of issuing or maintaining any
Letter of Credit or any participation therein, or reduce any amount receivable
by any Bank hereunder in respect of any Letter of Credit (which increase in
cost, or reduction in amount receivable, shall be the result of such Bank's
reasonable allocation of the aggregate of such increases or reductions resulting
from such event), then, upon demand by such Bank (which demand shall not be
unreasonably delayed, provided that a demand within six months of the accrual of
such increased cost or reduction in amount receivable will not be deemed to be
unreasonably delayed), the Borrower agrees to pay to such Bank, from time to
time as specified by such Bank, such additional amounts as shall be sufficient
to compensate such Bank for such increased costs or reductions in amount
incurred by such Bank. A certificate of such Bank submitted by such Bank to the
Borrower shall be conclusive as to the amount thereof in the absence of manifest
error.
(g) The Borrower's obligations under this Section 2.16 shall be absolute
and unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which the Borrower may have or have
had against the LC Bank, any Bank or any beneficiary of a Letter of Credit. The
Borrower further agrees with the LC Bank and the Banks that the LC Bank and the
Banks shall not be responsible for, and the Borrower's Reimbursement Obligation
in respect of any Letter of Credit shall not be affected by, among other things,
the validity or genuineness of documents or of any endorsements thereon, even if
such documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower, any of its
Subsidiaries, the beneficiary of any Letter of Credit or any financing
institution or other party to whom any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower or any of its Subsidiaries
against the beneficiary of any Letter of Credit or any such transferee. The LC
Bank shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit issued, extended or renewed
by it. The Borrower agrees that any action taken or omitted by the LC Bank or
any Bank under or in connection with each Letter of Credit and the related
drafts and documents, if done in good faith and without gross negligence, shall
be binding upon the Borrower and shall not put the LC Bank or any Bank under any
liability to the Borrower.
(h) To the extent not inconsistent with clause 2.16(g) above, the LC Bank
shall be entitled to rely, and shall be fully protected in relying upon, any
Letter of Credit, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to
36
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the LC Bank. The LC Bank shall be
fully justified in failing or refusing to take any action under this Agreement
unless it shall first have received such advice or concurrence of the Required
Banks as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. Notwithstanding any other provision of this Section 2.16, the LC Bank
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the Required Banks, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon the Banks and all future holders of participations in any Letters
of Credit.
(i) The Borrower hereby indemnifies and holds harmless each Bank and the
Agent from and against any and all claims and damages, losses, liabilities,
costs or expenses which such Bank or the Agent may incur (or which may be
claimed against such Bank or the Agent by any Person whatsoever) by reason of or
in connection with the execution and delivery or transfer of or payment or
failure to pay under any Letter of Credit, including, without limitation, any
claims, damages, losses, liabilities, costs or expenses which the LC Bank may
incur by reason of or in connection with the failure of any other Bank to
fulfill or comply with its obligations to the LC Bank hereunder (but nothing
herein contained shall affect any rights the Borrower may have against such
defaulting Bank); provided that the Borrower shall not be required to indemnify
any Bank or the Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the LC Bank in determining whether a request
presented under any Letter of Credit complied with the terms of such Letter of
Credit or (ii) the LC Bank's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of the Letter of Credit. Nothing in this Section 2.16(i) is intended to limit
the obligations of the Borrower under any other provision of this Agreement.
(j) Each Bank shall, ratably in accordance with its Revolving Commitment
Percentage, indemnify the LC Bank, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct or the LC Bank's
failure to pay under any Letter of Credit after the presentation to it of a
request strictly complying with the terms and conditions of the Letter of
Credit) that such indemnitees may suffer or incur in connection with this
Section 2.16 or any action taken or omitted by such indemnitees hereunder.
37
(k) In its capacity as a Bank the LC Bank shall have the same rights and
obligations as any other Bank.
Section 2.17. Taxes.
(a) For purposes of this Section, the following terms have the following
meanings:
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to
any payment by the Borrower pursuant to this Agreement or under any
Note, and all liabilities with respect thereto, excluding (i) in the
case of each Bank and the Agent, taxes imposed on its income, and
franchise or similar taxes imposed on it, by a jurisdiction under the
laws of which such Bank or the Agent (as the case may be) is organized
or in which its principal executive office is located or, in the case
of each Bank, in which its Applicable Lending Office is located and
(ii) in the case of each Bank, any United States withholding tax
imposed on such payments but only to the extent that such Bank is
subject to United States withholding tax at the time such Bank first
becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or
levies, which arise from any payment made pursuant to this Agreement
or under any Note or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note.
(b) Any and all payments by the Borrower to or for the account of any Bank
or the Agent hereunder or under any Note shall be made without deduction for any
Taxes or Other Taxes; provided that, if the Borrower shall be required by law to
deduct any Taxes or Other Taxes from any such payments, (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.17) such Bank or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the Agent,
at its address referred to in Section 9.01, the original or a certified copy of
a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes
38
imposed or asserted by any jurisdiction on amounts payable under this Section
2.17) paid by such Bank or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be paid within 15 days after such Bank or
the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the United
States, on or prior to the date of its execution and delivery of this Agreement
in the case of each Bank listed on the signature pages hereof and on or prior to
the date on which it becomes a Bank in the case of each other Bank, and from
time to time thereafter if requested in writing by the Borrower (but only so
long as such Bank remains lawfully able to do so), shall provide the Borrower
and the Agent with Internal Revenue Service form 1001 or 4224, as appropriate,
or any successor form prescribed by the Internal Revenue Service, certifying
that such Bank is entitled to benefits under an income tax treaty to which the
United States is a party which exempts the Bank from United States withholding
tax or reduces the rate of withholding tax on payments of interest for the
account of such Bank or certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States. If the form provided by a Bank at the time such Bank first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from "Taxes" as defined in subsection 2.17(a) of this Section.
(e) For any period with respect to which a Bank has failed to provide the
Borrower or the Agent with the appropriate form pursuant to Section 2.17(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
2.17(b) or (c) with respect to Taxes imposed by the United States; provided that
if a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 2.17, then such Bank will change
the jurisdiction of its Applicable Lending Office if, in the judgment of such
Bank, such change (i) will eliminate or reduce any such additional payment which
may thereafter accrue and (ii) is not otherwise disadvantageous to such Bank.
39
ARTICLE 3
Conditions; Post-Closing Requirements
Section 3.1. Effectiveness. This Agreement shall become effective on the
first date by which all of the following conditions shall have been satisfied
(or waived in accordance with Section 9.05), but only if all of such conditions
shall have been satisfied (or waived) on or before April 15, 2000:
(a) receipt by the Agent of counterparts of this Agreement signed by each
of the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, facsimile, telex or other written
confirmation from such party of execution of a counterpart hereof by such
party);
(b) receipt by the Agent of duly executed Notes for the account of each
Bank, dated on or before the Effective Date and complying with the provisions of
Section 2.03;
(c) receipt by the Agent of counterparts of the the Release of Claims,
dated as of the date hereof and duly executed by each of the parties thereto;
(d) the aggregate "Commitments" under the Existing Credit Agreement shall
have been reduced to an amount not exceeding $56,000,000 and the Borrower shall
have repaid such principal amount of the "Loans" outstanding thereunder
(together with any accrued interest on the amount repaid and any amount payable
pursuant to Section 2.12 of the Existing Credit Agreement) as shall be required
in connection with such reduction (taking into account any outstanding Letter of
Credit Liabilities);
(e) evidence reasonably satisfactory to the Agent that no additional
financing statements are required to be filed under the Uniform Commercial Code
of any jurisdiction in order to perfect the security interests created by the
Collateral Documents;
(f) receipt by the Agent of evidence satisfactory to the Agent of the
insurance coverage required by Section 5.03;
(g) receipt by the Agent of evidence satisfactory to the Agent that (i)
prior to or simultaneously with the transactions hereunder contemplated to take
place on the Effective Date, (A) the Stock Purchase shall have been consummated
in accordance with the terms and conditions of the Stock Purchase Agreement, and
the Borrower shall have received at least $40,000,000 in gross cash proceeds
from the Stock Purchase and (B) all shares of Series B Preferred Stock
outstanding prior to such date shall be exchanged for shares of Common Stock;
and (ii) all transactions contemplated by the Stock Purchase Agreement to be
consummated on or before the closing date for such sales will take place
40
prior to or simultaneously with the transactions hereunder contemplated to take
place on the Effective Date;
(h) receipt by the Agent of evidence satisfactory to the Agent that prior
to or simultaneously with the transactions hereunder contemplated to take place
on the Effective Date, the Borrower shall have paid in full all indebtedness and
other obligations owing to the Mortgage Bank;
(i) receipt by the Agent of an opinion of Xxxxxxx, Procter & Xxxx LLP,
special counsel for the Borrower, covering the matters set forth on Exhibit B,
or with such changes as shall be acceptable to the Agent and the Required Banks
and covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(j) receipt by the Agent of an opinion of Xxxxx Xxxx & Xxxxxxxx, special
New York counsel for the Agent, covering the matters set forth on Exhibit C, or
with such changes as shall be acceptable to the Agent and the Required Banks;
(k) receipt by the Agent, on behalf of the Banks and on behalf of itself in
its capacity as Agent, of all interest, fees and other amounts (other than
principal, subject to Section 3.01(r) below) due and payable under the Existing
Credit Agreement or hereunder (including fees and expenses payable pursuant to
Section 9.03 hereunder, bills for which may include a reasonable allowance for
post-Effective Date work) of which the Borrower has received notice;
(l) each Bank's satisfaction in its sole good faith discretion as to the
absence of any material adverse change in any aspect of the business,
operations, properties, prospects or condition (financial or otherwise) of the
Borrower and its Subsidiaries, or any event or condition that is reasonably
likely to result in such a material adverse change;
(m) receipt by the Agent of a certificate signed by the chief financial
officer or treasurer of the Borrower to the effect that, both before and
immediately after the making of the Loans and the consummation of the Stock
Purchase and the other transactions contemplated to take place on the date
hereof, (i) no Default shall have occurred and be continuing and (ii) the
representations and warranties of the Borrower and any Subsidiaries made in or
pursuant to any Financing Documents are true;
(n) receipt by the Agent of a Cash Management Letter, in form and substance
satisfactory to the Banks;
41
(o) receipt by each of the Banks of (i) a business plan for the Borrower
and its Subsidiaries prepared by the Borrower and Tutor in accordance with GAAP,
in a form and containing such detail as may be reasonably satisfactory to the
Banks, (ii) any other information it may reasonably request concerning the
financial condition, results of operations, liabilities (contingent or
otherwise, including with respect to environmental liabilities and employee and
retiree benefits) and prospects of, and the financial reporting and accounting
systems and the management information systems of, the Borrower and satisfaction
by each Bank in its sole good faith discretion with all such information;
(p) receipt by the Agent, to the extent not previously delivered to the
Agent under the Existing Credit Agreement, of copies of any amendments to the
Management Agreement (including Amendment No. 2 dated as of December 31, 1999)
and of any other agreements between the Borrower or any of its Subsidiaries and
any members of the Investor Group (other than agreements between the Borrower or
any of its Subsidiaries and Xxxxx-Xxxxxx Corp. which shall have been entered
into in the ordinary course of the Construction Business), all of which shall be
in form and substance satisfactory to the Banks;
(q) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Obligors, the corporate authority for and the
validity of the Financing Documents and any other matters relevant hereto, all
in form and substance satisfactory to the Agent;
(r) receipt by the Agent of evidence satisfactory to it that prior to or
simultaneously with the transactions hereunder contemplated to take place on the
Effective Date, that upon the effectiveness of this Agreement, the sum of the
aggregate outstanding principal amount of the Revolving Loans plus the aggregate
amount of all Letter of Credit Liabilities shall not exceed the aggregate amount
of the Revolving Commitments;
(s) receipt by the Agent and the Banks of the Asset Sale Letter, in form
and substance satisfactory to each Bank;
(t) receipt by the Agent and the Banks of the Real Estate Plan, in form and
substance satisfactory to each Bank;
(u) receipt by the Agent and the Banks of the information described in
Sections 5.01(e), 5.01(f), 5.01(g) and 5.01(h) for the most recent date prior to
the Effective Date when such information would have been deliverable pursuant to
such sections, which information shall be provided in a format that is
acceptable to the Banks; and
42
(v) receipt by the Agent of evidence satisfactory to it that all approvals,
consents and other actions by or in respect of, or filings with any governmental
body, agency, official, authority or any other Person required in connection
with the Stock Purchase or the transactions contemplated by the Stock Purchase
Agreement or any Financing Documents shall have been obtained, taken or made.
This Agreement shall not become effective or be binding on any party hereto
unless all of the foregoing conditions are satisfied not later than April 15,
2000. With respect to clauses (l) and (o) above, each Bank shall be conclusively
deemed to be satisfied unless on or before the Domestic Business Day immediately
preceding the Effective Date it shall have given notice to the Agent, making
specific reference to clause (l) or (o), as appropriate, identifying the matter
or matters as to which it is not satisfied. Prior to the effectiveness of this
Agreement in accordance with this Section 3.01, none of the terms and conditions
of the Existing Credit Agreement or any Financing Document (as defined in the
Existing Credit Agreement) shall be amended, waived or otherwise modified by
this Agreement and all of such terms and conditions shall remain in full force
and effect and are hereby ratified and confirmed in all respects. The Agent
shall promptly notify the Borrower and the Banks of the Effective Date, and such
notice shall be conclusive and binding on all parties hereto.
Section 3.2. Credit Events. The obligation of any Bank to make a Loan on
the occasion of any Borrowing and of the LC Bank to issue a Letter of Credit (or
to permit the extension of an Evergreen Letter of Credit) on the occasion of a
request therefor by the Borrower is subject to the satisfaction of the following
conditions:
(a) receipt (i) by the Agent of a Notice of Borrowing as required by
Section 2.02, in the case of a Borrowing or (ii) by the LC Bank of notice as
required by Section 2.16, in the case of a Letter of Credit;
(b) the fact that, after giving effect to such Credit Event, the Usage
shall not exceed the aggregate amount of the Revolving Commitments;
(c) the fact that, immediately after such Credit Event, no Default shall
have occurred and be continuing;
(d) the fact that the representations and warranties of each Obligor
contained in each Financing Document to which it is a party shall be true on and
as of the date of such Borrowing (unless stated to relate solely to an earlier
date, in which case such representations and warranties shall be true as of such
earlier date);
(e) the ability of the Borrower to obtain bonding for new construction
projects shall not be less than or more limited than on the Effective Date; and
43
(f) the payment by the Borrower of all amounts theretofore payable pursuant
to Section 9.03 within seven days of demand.
Each Borrowing shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing as to the facts specified in clauses (b),
(c), (d), (e) and (f) of this Section.
Section 3.3. Post-Closing Requirement. The Borrower covenants that it will
on or promptly after, and in any event no more than five Domestic Business Days
following, the Effective Date deliver to the Agent an endorsement to each title
insurance policy delivered to the Agent pursuant to the Existing Credit
Agreement or any other prior agreements of the Borrower insuring that the
coverage under such policy is unaffected by this Agreement.
ARTICLE 4
Representations and Warranties
The Borrower represents and warrants that:
Section 4.1. Corporate Existence and Power. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of
Massachusetts, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
Section 4.2. Corporate and Governmental Authorization; No Contravention .
The execution, delivery and performance by each Obligor of the Financing
Documents to which it is a party are within its corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of such Obligor or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon such Obligor or any of its Subsidiaries or result in the creation
or imposition of any Lien, except Liens created by the Collateral Documents, on
any asset of such Obligor or any of its Subsidiaries.
Section 4.3. Binding Effect; Liens of Collateral Documents.
(a) Each of the Financing Documents (other than the Notes) to which the
Borrower is a party constitutes a valid and binding agreement of the Borrower
and the
44
Notes, when executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of the Borrower, enforceable in
accordance with their terms. Each of the Financing Documents to which any
Subsidiary Guarantor is a party, when executed and delivered in accordance with
this Agreement, will constitute valid and binding agreements of each Subsidiary
Guarantor party thereto, in each case enforceable against each such Subsidiary
Guarantor in accordance with their respective terms.
(b) All real property in which the Borrower or any of its Subsidiaries has
an interest, directly or indirectly (whether through an interest in a joint
venture or partnership or otherwise) as of the date hereof is listed in Part I
of Schedule 4.03(b) hereto. The list of personal property of the Borrower and
each of its Subsidiaries set forth in Part II of Schedule 4.03(b), security
interests in which are governed by Article 9 of the UCC as in effect in the
relevant jurisdictions, is complete in all material respects. The location,
ownership status and lien information provided in Schedule 4.03(b) for each item
of real property and each type of personal property are complete and correct.
(c) The Collateral Documents create valid security interests in, and first
mortgage Liens on, the Collateral purported to be covered thereby, which
security interests and mortgage Liens are and will remain perfected (except in
the case of inventory located at construction sites) security interests and duly
recorded mortgage Liens, prior to all other Liens except Liens permitted by the
Collateral Documents.
Section 4.4. Financial Information.
(a) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 1999 and the related consolidated statements of
income, stockholders' equity and cash flows for the fiscal year then ended,
reported on by Xxxxxx Xxxxxxxx LLP and set forth in the Borrower's 1999 Form
10-K, a copy of which has been delivered to each of the Banks, fairly present,
in conformity with GAAP, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) Since December 31, 1999 there has been no material adverse change in
the business, financial position, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
Section 4.5. Litigation. Except as disclosed in the Borrower's 1999 Form
10-K, there is no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Borrower
45
and its Consolidated Subsidiaries or which in any manner draws into question the
validity of any Financing Document.
Section 4.6. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability to the PBGC or any other Person under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 4.7. Environmental Matters.
(a) In the ordinary course of its business, the Borrower conducts periodic
reviews of the effect of Environmental Laws on the business, operations and
properties of the Borrower and its Subsidiaries and compliance therewith. The
Borrower and its Subsidiaries also attempt, whenever possible, to negotiate
specific provisions in contracts for construction services that allocate to the
contracting governmental agency or private owner, the entire risk and
responsibility for Hazardous Substances encountered during the course of
construction. On the basis of such reviews and contract provisions and
procedures, the Borrower has reasonably concluded that the costs and associated
liabilities of compliance with Environmental Laws are unlikely to have a
material adverse effect on the business, financial condition, results of
operations or prospects of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
(b) Without limiting the foregoing, as of the Effective Date:
(i) no notice, notification, demand, request for information,
citation, summons, complaint or order has been issued, no complaint has
been filed, no penalty has been assessed and no investigation or review is
pending or, to the knowledge of the Obligors, threatened by any
governmental or other entity with respect to any (A) alleged violation by
the Borrower or any of its Subsidiaries of any Environmental Law involving
any Mortgaged Facility, (B) alleged failure by the Borrower or any of its
Subsidiaries to have any environmental permit, certificate, license,
approval, registration or authorization required in connection with the
conduct of its business at any Mortgaged Facility, (C) Regulated Activity
46
conducted at any Mortgaged Facility or (D) Release of Hazardous Substances
at or in connection with any Mortgaged Facility;
(ii) other than generation of Hazardous Substances in compliance with
all applicable Environmental Laws, no Regulated Activity has occurred at or
on any Mortgaged Facility;
(iii) no polychlorinated biphenyls, radioactive material, urea
formaldehyde, lead, asbestos, asbestos-containing material or underground
storage tank (active or abandoned) is or has been present at any Mortgaged
Facility;
(iv) no Hazardous Substance has been Released (and no written
notification of such Release has been filed) or is present (whether or not
in a reportable or threshold planning quantity) at, on or under any
Mortgaged Facility;
(v) no Mortgaged Facility is listed or, to the knowledge of the
Obligors, proposed for listing, on the National Priorities List promulgated
pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar
federal, state or foreign list of sites requiring investigation or
clean-up; and
(vi) there are no Liens under Environmental Laws on any Mortgaged
Facility, no government actions have been taken or are in process which
could subject any Mortgaged Property to such Liens and neither the Borrower
nor any of its Subsidiaries would be required to place any notice or
restriction relating to Hazardous Substances in any deed to any Mortgaged
Facility.
(c) No environmental investigation, study, audit, test, review or other
analysis has been conducted of which the Obligors have knowledge in relation to
any Mortgaged Facility which has not been delivered to the Banks.
Section 4.8. Taxes. United States Federal income tax returns of the
Borrower and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1996. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
Section 4.9. Subsidiaries. All of the Borrower's Subsidiaries and all joint
ventures and partnerships in which the Borrower or any of its Subsidiaries has
an interest as of the date hereof are listed in Schedule 4.09 hereto and the
state of incorporation or
47
organization and the ownership interest of each Subsidiary, joint venture and
partnership specified therein are complete and correct. Each of the Borrower's
corporate Subsidiaries is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation, and has
all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
Section 4.10. Not An Investment Company. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
Section 4.11. No Burdensome Restrictions; No Derivatives Obligations;
Certain Existing Agreements.
(a) No contract, lease, agreement or other instrument to which the Borrower
or any of its Subsidiaries is a party or by which any of its property is bound
or affected, no charge, corporate restriction, judgment, decree or order and no
provision of applicable law or governmental regulation has or is reasonably
expected to materially and adversely affect the business, operations or
financial condition of the Borrower and its Consolidated Subsidiaries, taken as
a whole, or the ability of the Borrower to perform its obligations under this
Agreement.
(b) Neither the Borrower nor any of its Subsidiaries is party to any
Derivatives Obligation other than any Derivatives Obligation permitted to be
incurred pursuant to Section 5.02(b).
(c) All agreements to which the Borrower or any Subsidiary Guarantor is a
party or by which it is bound (other than the Financing Documents) containing a
negative pledge or limitations on its incurrence of Debt or sale of assets are
listed on Schedule 4.11 hereto.
Section 4.12. Full Disclosure. All information heretofore furnished by the
Borrower to the Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Agent or any Bank will be, true and
accurate in all material respects (or in the case of projections and similar
information based on reasonable estimates) on the date as of which such
information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts which materially and adversely affect or may
reasonably be expected to materially and adversely affect (to the extent the
Borrower can now reasonably foresee), the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries, taken as a whole,
or the ability of the Borrower to perform its obligations under this Agreement.
48
Section 4.13. Ownership of Property; Liens. The Borrower and its
Subsidiaries have good and marketable title to and are in lawful possession of,
or have valid leasehold interests in, or have the right to use pursuant to valid
and enforceable agreements or arrangements, all of their respective properties
and other assets (real or personal, tangible, intangible or mixed), except where
the failure to have or possess the same with respect to such properties or other
assets could not, in the aggregate, have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole. None of such
properties or other assets is subject to any Lien except Permitted Liens.
Section 4.14. Representations and Warranties Incorporated from Other
Financing Documents. As of the Effective Date, each of the representations and
warranties made in this Agreement, the Subsidiary Guarantee Agreement and the
Collateral Documents by any of the parties thereto is true and correct in all
material respects, and such representations and warranties are hereby
incorporated herein by reference with the same effect as though set forth in
their entirety herein, as qualified therein.
Section 4.15. Bank Accounts and Cash Management System. All deposit,
checking, operating or other bank accounts maintained by the Borrower or any
Subsidiary Guarantor (other than payroll and xxxxx cash accounts opened in the
ordinary course of business with imprest balances not to exceed $7,500 for each
such account) and, for each such account, the name of the account party, the
name of the bank, the account number and the type of account, are listed on
Schedule 4.15. As to be confirmed by the Cash Management Letter delivered on the
Effective Date, the Cash Management Letter delivered in connection with the
Preceding Effective Date provides a complete and accurate description of the
cash management system of the Borrower and its Subsidiaries.
Section 4.16. Representations in Perfection Certificates. All of the
information set forth in each Perfection Certificate (as defined in the Borrower
Security Agreement or the Subsidiary Security Agreement) delivered to the Agent
prior to the Effective Date is correct and complete as of the Effective Date.
ARTICLE 5
Covenants
The Borrower agrees that, so long as any Bank has any Revolving Commitment
hereunder or any amount payable under any Note remains unpaid or any Letter of
Credit
49
remains outstanding or any Reimbursement Obligation with respect thereto remains
unpaid:
Section 5.1. Information. The Borrower will deliver to each of the Banks:
(a) as soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower, consolidated and consolidating balance sheets
of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal
year and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on in a manner acceptable to the Securities and Exchange Commission by Xxxxxx
Xxxxxxxx LLP or other independent public accountants of nationally recognized
standing;
(b) as soon as available and in any event within 45 days after the end of
each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statement of income and
cash flows for such quarter and for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of the
Borrower's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by the chief
financial officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial statements
referred to in clause 5.01(a) or 5.01(b) above:
(1) a certificate of the chief financial officer or the chief
accounting officer of the Borrower (x) setting forth in
reasonable detail the calculations required to establish whether
the Borrower was in compliance with the requirements of Sections
5.07 to 5.11, inclusive, 5.12, 5.15, 5.16 and 5.18 on the date of
such financial statements and (y) stating whether there exists on
the date of such certificate any Default and, if any Default then
exists, setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
and
(2) a report prepared by management of the Borrower, in sufficient
detail as may be
50
reasonably acceptable to the Required Banks, providing a
description of and an explanation for any material variances
between such financial statements and the Business Plan;
(d) simultaneously with the delivery of each set of financial statements
referred to in clause 5.01(a) above, a statement of the firm of independent
public accountants which reported on such statements (i) whether anything has
come to their attention to cause them to believe that there existed on the date
of such statements any Default and (ii) confirming the calculations set forth in
the officer's certificate delivered simultaneously therewith pursuant to clause
5.01(c) above;
(e) as soon as available and in any event within 45 days after the end of
each quarter of each fiscal year of the Borrower, a copy of the most recent
"retainage report", "new work potential report" and "new work acquisition
report" (including a description of new work and a comparison of such new work
to the new work projected in the Business Plan) prepared by management of the
Borrower, substantially in the format for such information delivered pursuant to
Section 3.01(u);
(f) as soon as available and in any event within 45 days after the end of
each quarter of each fiscal year of the Borrower (subject to the proviso at the
end of this Section 5.01(f)), a schedule in substantially the format for such
information delivered pursuant to Section 3.01(u), dated as of the last day of
such quarter (or month, as the case may be) listing each construction contract
which provides for aggregate total payments in excess of $2,500,000 and with
respect to which the Borrower or a Consolidated Subsidiary of the Borrower is a
party or participates through a joint venture, and setting forth as of the date
of such schedule for each such contract the Borrower's original estimate of
revenue and profit, the Borrower's current estimate of revenue and profit,
cumulative realized and estimated remaining revenue and profit, "cash ahead/cash
behind" information, the percentage of completion and anticipated completion
date of each such contract and a forecast by quarter of the remaining cash flows
for each such contract, certified as to consistency, accuracy and reasonableness
of estimates by the chief financial officer or the chief accounting officer of
the Borrower; provided that if the Borrower shall fail to comply with its
obligations under Section 5.01(g) or 5.01(h) due to extenuating circumstances
for five Domestic Business Days after the due date thereof or such later date as
the Required Banks may approve, the Borrower shall thereafter be required to
provide the information described in this Section 5.01(f) on a monthly basis,
within twenty Domestic Business Days after the end of each month;
(g) as soon as available and in any event within three Domestic Business
Days after the end of each month, a copy of the weekly and monthly cash flow
projections which management of the Borrower has customarily prepared every two
weeks by
51
project, by division and on a consolidated basis, prepared in a manner and
format easily comparable to the financial information provided under Section
5.01(f), substantially in the format for such information delivered pursuant to
Section 3.01(u), with a variance analysis comparing the current projections to
the most recent prior projections;
(h) as soon as available and in any event within two Domestic Business Days
after the last day of each calendar week, a weekly "flash report," substantially
in the format for such information delivered pursuant to Section 3.01(u),
providing information regarding:
(i) the Borrower's approximate consolidated aggregate cash receipts
and cash disbursements for such week and for the most recent three prior
weeks;
(ii) the Borrower's cash balances as of the close of business on the
last day of such week and as of the close of business on the last day of
the most recent three prior weeks;
(iii) the aggregate principal amount of all Loans and outstanding
Letters of Credit as of the close of business on the last day of such week
and as of the close of business on the last day of the most recent three
prior weeks;
(iv) the estimated amounts of outstanding checks, net borrowings from
joint ventures (including a listing of the major net borrowings by project)
and overdue obligations, including held checks, as of the close of business
on the last day of such week and as of the close of business on the last
day of the most recent three prior weeks; and
(v) any material developments of which the chief financial officer of
the Borrower is aware relating to, or any changes in, any construction
contracts, including any profit write-downs and/or any loss of float in an
amount which exceeds $100,000 for any individual construction contract and
"significant" cash flow timing variances (relative to the most recent
information provided pursuant to the Business Plan or Section 5.01(f)) that
are not expected to be reversed within ninety days of the date when such
timing variance is expected to occur (or has occurred), with "significant"
for purposes of this Section 5.01(h)) meaning a cash flow variance of
$500,000 or more for any individual construction contract;
(i) by March 31 of each fiscal year, beginning with fiscal year 2001, the
annual projected consolidated and consolidating balance sheets and income
statements, operating and capital expenditure budgets and cash flow forecasts,
prepared on a quarterly basis and in accordance with GAAP, for the Borrower and
its Consolidated Subsidiaries for the next succeeding three fiscal years,
presented on a quarterly basis and in a format
52
reasonably acceptable to the Required Banks, and certified by the chief
financial officer of the Borrower as containing reasonable assumptions to the
best of his knowledge;
(j) forthwith upon the occurrence of any Default, a certificate of the
chief financial officer or the chief accounting officer of the Borrower setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(k) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(l) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and annual, quarterly or monthly reports which the Borrower
shall have filed with the Securities and Exchange Commission;
(m) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 407 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer or the chief accounting officer of the Borrower setting forth details as
to such occurrence and action, if any, which the Borrower or applicable member
of the ERISA Group is required or proposes to take;
(n) prompt notice of the receipt of any complaint, order, citation, notice
or other written communication from any Person with respect to (i) the existence
or alleged existence of a violation of any applicable Environmental Law at or
on, or of any
53
Environmental Liability arising with respect to, any Mortgaged Facility, (ii)
any Release on any Mortgaged Facility or any part thereof in a quantity that is
reportable under any applicable Environmental Law, and (iii) any pending or
threatened proceeding for the termination, suspension or non-renewal of any
permit required under any applicable Environmental Law with respect to any
Mortgaged Facility;
(o) prompt notice of any change in the Borrower's ability to obtain bonding
for new construction projects (including without limitation a reduction in the
amount of bonding commitments of any bonding company to the Borrower and any
restrictions on use of such commitments);
(p) prompt notice of any decision by the Borrower, any of its Subsidiaries
or any joint venture partner not to meet a capital call by any joint venture in
which the Borrower or any such Subsidiary is participating;
(q) prompt notice of the Borrower or any Subsidiary obtaining or increasing
an interest in a joint venture or partnership which, in the case of any
construction joint venture, need not be given until reasonably promptly after a
bid by such joint venture for a construction contract shall have been accepted;
and
(r) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as the Agent, at the
request of any Bank, may reasonably request.
Section 5.2. Payment of Obligations; No Derivatives Obligations.
(a) The Borrower will pay and discharge, and will cause each Subsidiary to
pay and discharge, at or before maturity, all their respective material
obligations and liabilities, including, without limitation, tax liabilities,
except where the same may be contested in good faith by appropriate proceedings,
and will maintain, and will cause each Subsidiary to maintain, in accordance
with GAAP, appropriate reserves for the accrual of any of the same.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
become a party to any Derivatives Obligation other than an interest rate swap,
interest rate cap, interest rate collar or other interest rate hedging
transactions and/or any foreign currency exchange or other currency hedging
transactions, but only if (x) each such transaction is with a Bank or an
Affiliate of a Bank, (y) each such transaction is entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or any of
its Subsidiaries is exposed in the conduct of its business or the management of
its liabilities, and (z) the aggregate notional amount of obligations for which
the interest
54
rate or currency exposure is hedged by all such transactions does not at any
time exceed $4,000,000.
Section 5.3. Maintenance of Property; Insurance. The Borrower will keep,
and will cause each Subsidiary to keep, all property useful and necessary in its
business in good working order and condition, ordinary wear and tear excepted;
will maintain, and will cause each Subsidiary to maintain (either in the name of
the Borrower or in such Subsidiary's own name) with financially sound and
reputable insurance companies, insurance on all their property in at least such
amounts and against at least such risks as are usually insured against in the
same general area by companies of established repute engaged in the same or a
similar business; and will furnish to the Banks, upon written request from the
Agent, full information as to the insurance carried.
Section 5.4. Conduct of Business and Maintenance of Existence. The Borrower
will continue, and will cause each Subsidiary Guarantor to continue, to engage
in business of the same general type as now conducted by the Borrower and its
Subsidiaries, and will preserve, renew and keep in full force and effect, and
will cause each Subsidiary Guarantor to preserve, renew and keep in full force
and effect their respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal conduct of
business.
Section 5.5. Compliance with Laws. The Borrower will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
Section 5.6. Inspection of Property, Books and Records.
(a) The Borrower will keep, and will cause each Subsidiary to keep, proper
books of record and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to its business and activities; and will permit, and will cause each Subsidiary
to permit, representatives of any Bank at such Bank's expense (subject to
Section 9.03(a)(ii)) to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times and as often as may reasonably be desired.
(b) The Borrower shall hold a meeting for representatives of the Banks at
least once each fiscal quarter, at a time and place to be determined by the
Agent (after
55
consultation with the Banks) on ten Domestic Business Days' notice to the
Borrower and the Banks, for purposes of holding such discussions with the chief
operating officer and chief financial officer of the Borrower (each of whom
shall attend each such meeting) and such other of the Borrower's officers,
employees and independent public accountants as the Borrower shall designate or
as the Agent shall designate at the reasonable request of any Bank; provided
that the chief executive officer of the Borrower also shall attend each of the
first five meetings held pursuant to this Section 5.06(b).
Section 5.7. Minimum Working Capital Ratio. The Borrower shall not permit
the ratio of (i) the consolidated current assets (including cash and cash
equivalents) of the Borrower and its Consolidated Subsidiaries to (ii) the
consolidated current liabilities (excluding Debt under this Agreement) of the
Borrower and its Consolidated Subsidiaries to be (x) prior to December 31, 2000,
less than 1.15:1 and (y) thereafter, less than 1.25:1.
Section 5.8. Maximum Total Debt Ratio. The Borrower shall not permit the
ratio of (i) Total Debt as at the last day of any fiscal year set forth below to
(ii) Operating Cash Flow for such fiscal year to be greater than the amount set
forth below opposite such fiscal year:
Maximum
Fiscal Year Ending Total Debt Ratio
------------------ ----------------
December 31, 2000 7:1
December 31, 2001 5:1
December 31, 2002 3.5:1
Section 5.9. Debt.
(a) After the date hereof, the Borrower will not incur or suffer to exist
any Debt other than:
(i) Debt existing on December 31, 1999 and listed on Schedule 5.09
hereof;
(ii) Debt under this Agreement;
(iii) Debt owing to joint ventures in which the Borrower is
participating;
(iv) Debt incurred to finance insurance premiums, in an aggregate
principal amount not to exceed $3,000,000 at any time;
56
(v) Debt owed by the Borrower to a Subsidiary and evidenced by an
intercompany note pledged to the Agent under the Subsidiary Pledge
Agreement;
(vi) Debt incurred or assumed by the Borrower for the purpose of
financing all or any part of the cost of acquiring any fixed assets of the
Borrower (including through capital leases), provided that the aggregate
outstanding principal amount of all such Debt incurred or assumed by the
Borrower and its Consolidated Subsidiaries shall not exceed $13,000,000 at
any time;
(vii) Debt incurred by the Borrower in connection with the
Headquarters Refinancing, including a limited recourse Guarantee by the
Borrower of the Debt incurred by the New Headquarters Subsidiary in
connection with the Headquarters Refinancing, the scope of such Guarantee
to be as contemplated by the permitted terms of the Headquarters
Refinancing; and
(viii) any refinancing, extension, renewal or refunding of any Debt
referred to in clauses 5.09(a)(i) through 5.09(a)(vii) above; provided that
any refinancing, extension, renewal or refunding of any such Debt (A) shall
not increase the principal amount of such Debt and (B) in the case of
clause (vii), itself satisfies the requirements of clause (vii).
(b) After the date hereof, the Borrower will not permit any Subsidiary to
incur or suffer to exist any Debt other than
(i) Debt existing on December 31, 1999 and listed on Schedule 5.09
hereof;
(ii) Debt under the Subsidiary Guarantee Agreement;
(iii) Debt owing to joint ventures in which such Subsidiary is
participating;
(iv) Debt owing by a Subsidiary to the Borrower and evidenced by an
intercompany note pledged to the Agent under the Borrower Security
Agreement; and
(v) Debt incurred or assumed by a Subsidiary for the purpose of
financing all or any part of the cost of acquiring any fixed assets of such
Subsidiary (including through capital leases), provided that the aggregate
outstanding principal amount of all such Debt incurred or assumed by the
Borrower and its Consolidated Subsidiaries shall not exceed $13,000,000 at
any time;
57
(vi) Debt incurred by the New Headquarters Subsidiary in connection
with the Headquarters Refinancing; and
(vii) any refinancing, extension, renewal or refunding of the Debt
referred to in clauses 5.09(b)(i) through 5.09(b)(vi) above; provided that
any extension, renewal or refunding on any such Debt (A) shall not increase
the principal amount of such Debt and (B) in the case of clause (vi),
itself satisfies the requirements of clause (vi).
Section 5.10. Minimum Consolidated Tangible Net Worth. The Borrower will
not permit Consolidated Tangible Net Worth during any fiscal quarter set forth
below to be less than the amount set forth below opposite such fiscal quarter:
Minimum Consolidated
Fiscal Quarter Ending Tangible Net Worth
--------------------- ------------------
March 31, 2000 $30,000,000
June 30, 2000 $30,000,000
September 30, 2000 $29,000,000
December 31, 2000 $33,000,000
March 31, 2001 $34,000,000
June 30, 2001 $36,000,000
September 30, 2001 $40,000,000
December 31, 2001 $43,000,000
March 31, 2002 $45,000,000
June 30, 2002 $47,000,000
September 30, 2002 $53,000,000
December 31, 2002 $56,000,000
58
Section 5.11. Minimum Net Operating Profit. (a) The Borrower shall not
permit Net Operating Profit to be less than $3,000,0000 for the fiscal quarter
ending March 31, 2000.
(b) The Borrower shall not permit Net Operating Profit to be less than
$7,500,000 for the period of two consecutive fiscal quarters ending June 30,
2000.
(c) The Borrower shall not permit Net Operating Profit to be less than
$12,000,000 for the period of three consecutive fiscal quarters ending September
30, 2000.
(d) The Borrower shall not permit Net Operating Profit to be less than
$17,500,000 for the period of four consecutive fiscal quarters ending December
31, 2000.
(e) The Borrower shall not permit Net Operating Profit to be less than
$20,000,000 for each of the periods of four consecutive fiscal quarters ending
on March 31, 2001 and June 30, 2001.
(f) The Borrower shall not permit Net Operating Profit to be less than
$21,000,000 for each of the periods of four consecutive fiscal quarters ending
on September 30, 2001, December 31, 2001, March 31, 2002 and June 30, 2002.
(g) The Borrower shall not permit Net Operating Profit to be less than
$22,000,000 for each of the periods of four consecutive fiscal quarters ending
on September 30, 2002 and December 31, 2002.
Section 5.12. Consolidations, Mergers and Sales of Assets.
(a) The Borrower will not, and will not permit any of its Subsidiaries to,
consolidate or merge with or into any other Person, other than a Subsidiary into
a Subsidiary Guarantor or into the Borrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
Dispose of any of its or their assets, other than:
(i) Sales of inventory in the ordinary course of their respective
businesses;
(ii) Dispositions of Temporary Cash Investments;
59
(iii) Dispositions of other assets if (x) each of the Banks shall have
given its prior written consent thereto and (y) the consideration therefor
shall consist of cash payable at closing in an amount at least equal to the
fair market value of such assets (as determined in good faith by a
financial officer of the Borrower or, if such value exceeds $15,000,000, by
the board of directors of the Borrower or a duly constituted committee
thereof); provided that the prior written consent of the Banks shall not be
required for either (A) a Disposition of any asset if the aggregate amount
of the fair market value of all Dispositions for which consent is not
provided during any fiscal year is less than $500,000 and the Borrower
delivers to each of the Banks prompt written notice of each such
Disposition or (B) a Disposition of any asset listed on the Asset Sale
Letter if the consideration therefor equals or exceeds the amount set forth
thereon;
(iv) operating leases at market rentals of residential and commercial
space held by the Borrower or any of its Subsidiaries in connection with
their real estate investment and development activities, but only to the
extent that such leases are entered into in the ordinary course of their
respective businesses, consistent with past practices as in effect prior to
the Effective Date;
(v) operating leases at market rentals of portions of office space not
then utilized by the Borrower or any of its Subsidiaries in the Borrower's
headquarters office building in Framingham, Massachusetts; and
(vi) the transfer of the Headquarters Building by the Borrower to the
New Headquarters Subsidiary.
Section 5.13. Negative Pledge. Neither the Borrower nor any Consolidated
Subsidiary of the Borrower will create, assume or suffer to exist any Lien on
any asset (including, without limitation, capital stock of Subsidiaries) now
owned or hereafter acquired by it, except:
(a) Liens existing on December 31, 1999 securing Debt outstanding on
December 31, 1999 as described in Schedule 5.13;
(b) any Lien on any asset securing Debt incurred or assumed for the purpose
of financing all or any part of the cost of acquiring such asset, provided that
(i) such Lien attaches to such asset concurrently with or within 90 days after
the acquisition thereof, (ii) such Lien secures only such Debt and (iii) the
aggregate outstanding principal amount of all such Debt incurred or assumed by
the Borrower and its Consolidated Subsidiaries does not exceed $13,000,000;
60
(c) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(d) Permitted Encumbrances;
(e) Liens granted to the Bonding Company to secure amounts owing by the
Borrower or any of its Subsidiaries in connection with surety bonds,
undertakings and instruments of guarantee issued by the Bonding Company on
behalf of the Borrower or any of its Subsidiaries in the ordinary course of
their respective businesses;
(f) Liens created by the Collateral Documents; and
(g) Liens on the Headquarters Building arising from the Headquarters
Refinancing;
provided that protective filings of Uniform Commerical Code financing statements
by lessor of equipment under operating leases shall not constitute a violation
of this Section.
Section 5.14. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower for general corporate purposes. None of
such proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any 'margin stock"
within the meaning of Regulation U.
Section 5.15. Restricted Payments. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Payment; provided that the foregoing shall
not restrict or prohibit:
(a) cash payments in the ordinary course of business in full or partial
settlement of employee stock options or in full or partial settlement of similar
incentive compensation arrangements providing employees options, warrants or
other rights to acquire shares of the Borrower's capital stock to employees, up
to an aggregate amount not to exceed $100,000 during any period of twelve
consecutive calendar months;
(b) the redemption, for an aggregate redemption price not exceeding
$200,000, of the "Rights" issued pursuant to the Shareholder Rights Agreement
dated as of September 23, 1988, as amended to the Effective Date;
(c) the redemption, for an aggregate redemption price not exceeding
$10,000,000, of the Series A Preferred Stock of the Borrower; and
61
(d) other Restricted Payments, but only if and to the extent that, before
and after giving effect thereto: (i) no Default shall have occurred and be
continuing; (ii) the aggregate amount of the Revolving Commitments plus the
aggregate principal amount of the outstanding Term Loans shall be less than
$41,000,000; (iii) the aggregate amount of all Restricted Payments during any
fiscal quarter, when added to the aggregate amount of all Restricted Payments
during the three immediately preceding fiscal quarters, shall not exceed 50% of
Net Income from Continuing Operations for the four immediately preceding fiscal
quarters; and (iv) Consolidated Tangible Net Worth on the date such Restricted
Payment is made shall be at least equal to the amount set forth below opposite
the last full fiscal quarter immediately preceding such payment:
. Minimum Consolidated
Fiscal Quarter Ending Tangible Net Worth
--------------------- ------------------
March 31, 2000 $36,277,000
June 30, 2000 $38,793,000
September 30, 2000 $41,821,000
December 31, 2000 $46,557,000
March 31, 2001 $48,192,000
June 30, 2001 $51,111,000
September 30, 2001 $55,336,000
December 31, 2001 $59,955,000
March 31, 2002 $61,644,000
June 30, 2002 $64,703,000
September 30, 2002 $71,119,000
December 31, 2002 $75,145,000
Section 5.16. Real Estate Investments. The Borrower will not, and will not
permit any Consolidated Subsidiary to, make any Real Estate Investment; provided
that this section shall not prohibit the Borrower or any Consolidated Subsidiary
from
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incurring reasonable costs associated with any real property owned by the
Borrower or any Consolidated Subsidiary on the date hereof in accordance with
the Real Estate Plan.
Section 5.17. Purchase of Assets; Investments. Neither the Borrower nor any
Consolidated Subsidiary will acquire any assets other than in the ordinary
course of business. Neither the Borrower nor any Consolidated Subsidiary will
make or acquire any Investment in any Person other than:
(a) Real Estate Investments permitted by Section 5.16;
(b) Investments in Subsidiaries or joint ventures principally engaged in
the Construction Business; and
(c) Temporary Cash Investments;
provided that no Real Estate Investments may be made pursuant to clause (b) or
(c) above. Without limiting the generality of the foregoing, the Borrower will
not, and will not permit any Subsidiary to, acquire or create any Subsidiary
without the consent of the Required Banks and arrangements satisfactory to the
Required Banks for (x) a pledge of the stock of such Subsidiary to the Agent for
the benefit of the Banks, (y) a guaranty by such Subsidiary of the obligations
of the Borrower hereunder and (z) a grant of a Lien on the assets of such
Subsidiary to the Agent for the benefit of the Banks to secure such guaranty;
provided that the Borrower may create the New Headquarters Subsidiary and this
Section shall not require the New Headquarters Subsidiary to guarantee the
Borrower's obligations hereunder or to xxxxx x Xxxx on its assets to secure such
guaranty for so long as the New Headquarters Subsidiary shall be prohibited by
the terms of the Headquarters Refinancing from giving such a guaranty or
granting a Lien on its assets to secure such a guaranty.
Section 5.18. Capital Expenditures.
(a) The Borrower will not permit the aggregate amount of Consolidated
Capital Expenditures during any fiscal year, commencing with the fiscal year
ending December 31, 2000, to exceed $5,000,000.
(b) All Consolidated Capital Expenditures by the Borrower or any
Consolidated Subsidiaries shall be in connection with the Construction Business.
Section 5.19. Transactions with Affiliates. Neither the Borrower nor any
Subsidiary will, directly or indirectly, enter into or permit to exist any
transaction (including the Disposition of any asset or property or the rendering
of any service) with any member of the Investor Group or any other Affiliate of
the Borrower on terms that
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are less favorable to the Borrower or such Subsidiary, as the case may be, than
those which might be obtained by the Borrower at the time from a Person which is
not an Affiliate of the Borrower. Neither the Borrower nor any Subsidiary shall,
directly or indirectly, pay or become obligated to pay any fees or other amounts
to or for the account of any member of the Investor Group other than fees
payable to Xxxxx-Xxxxxx Corp. in accordance with the terms and conditions of the
Management Agreement; provided that this Section shall not prohibit the Borrower
from transferring the Headquarters Building to the New Headquarters Subsidiary
or from leasing the Headquarters Building from the New Headquarters Subsidiary
as a condition to the Headquarters Refinancing.
Section 5.20. Amendments or Waivers. Without the prior written consent of
the Required Banks, neither the Borrower nor any Subsidiary will agree to any
amendment or waiver to the Stock Purchase Agreement, the Management Agreement or
any other agreements with any members of the Investor Group (other than
agreements between the Borrower or any of its Subsidiaries and Xxxxx-Xxxxxx
Corp. which shall have been entered into in the ordinary course of the
Construction Business) or to any amendment or waiver of any material provision
of any other material partnership or joint venture agreements.
Section 5.21. Debt Payments. Other than any refinancing or refunding of
Debt permitted by Section 5.09, neither the Borrower nor any Subsidiary will
prepay, redeem, defease (whether actually or in substance), purchase in any
manner or make any payment in respect of principal, interest or premium in
respect of any Debt (or deposit or set aside funds for the purpose of any of the
foregoing) other than regularly scheduled repayments of principal and payments
of interest required in accordance with the terms of the instruments governing
such Debt to the extent set forth on Schedule 5.21; provided that this Section
shall not prohibit the Borrower from using a portion of the proceeds of the
Stock Purchase to pay the principal, interest and other amounts owed to the
Mortgage Bank.
Section 5.22. Cash Management System. Without the prior written consent of
the Required Banks, the Borrower will not modify the cash management system of
the Borrower and its Subsidiaries from that described in the Cash Management
Letter delivered on the Preceding Effective Date. Neither the Borrower nor any
Subsidiary Guarantor shall maintain any deposit, checking, operating or other
bank accounts other than the Permitted Accounts.
Section 5.23. Limitation on Restrictions Affecting Subsidiaries. Neither
the Company nor any of its Subsidiaries will enter into, or suffer to exist, any
agreement with any Person which prohibits or limits the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any Debt owed
to the Company or any Subsidiary, (b) make loans or advances to the Company or
any Subsidiary, (c) transfer any of its properties or assets to the Company or
any Subsidiary or (d) create, incur, assume or
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suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired as security for the obligations of the Company
under the Financing Documents, other than (1) any Financing Document, (2) any
agreement governing Debt secured by a Lien permitted by clause (b) or (c) of
Section 5.13, to the extent it imposes restrictions only on the related
property, and (3) any agreement governing Debt listed on Schedule 5.09 or any
Debt that refinances, extends, renews or refunds any such Debt but only if the
restrictions contained therein are no more restrictive, taken as a whole, than
the restrictions in the Debt listed on Schedule 5.09 that is being so
refinanced, extended, renewed or refunded.
Section 5.24. Further Assurances.
(a) The Borrower will, and will cause each of its Subsidiaries to, at its
sole cost and expense, do, execute, acknowledge and deliver all such further
acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers and assurances as the Agent shall from time to time request, which may
be necessary or desirable in the reasonable judgment of the Agent from time to
time to assure, perfect, convey, assign, transfer and confirm unto the Agent the
property and rights conveyed or assigned pursuant to the Collateral Documents,
or which the Borrower or such Subsidiaries may be or may hereafter become bound
to convey or assign to the Agent or which may facilitate the performance of the
terms of the Collateral Documents or the filing, registering or recording of the
Collateral Documents.
(b) All costs and expenses in connection with the security interests and
Liens created by the Collateral Documents, including reasonable legal fees and
other reasonable costs and expenses in connection with the granting, perfecting
and maintenance of such security interests and Liens, the preparation,
execution, delivery, recordation or filing of documents and any other acts in
connection with the grant of such security interests and Liens as the Agent may
reasonably request, shall be paid by the Borrower promptly when due.
ARTICLE 6
Defaults
Section 6.1. Event of Defaults. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan, any
Reimbursement Obligation, any fees or any other amount payable hereunder;
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(b) the Borrower shall fail to pay any interest on any Loan within three
Domestic Business Days after the due date thereof;
(c) the Borrower or any Subsidiary Guarantor shall fail to observe or
perform any covenant contained in Sections 5.07 to 5.24, inclusive, or in
Section 3.01 of the Subsidiary Guarantee Agreement;
(d) any Obligor shall fail to observe or perform any covenant or agreement
contained in any Financing Document (other than those covered by clauses
6.01(a), 6.01(b) and 6.01(c) above) for 10 days after written notice thereof has
been given to such Obligor by the Agent at the request of any Bank;
(e) any representation, warranty, certification or statement made by any
Obligor in any Financing Document or in any certificate, financial statement or
other document delivered pursuant thereto shall prove to have been incorrect in
any material respect when made (or deemed made);
(f) the Borrower shall fail to make any payment in respect of any Debt
(other than the Notes or Reimbursement Obligations) when due or within any
applicable grace period;
(g) any Subsidiary shall fail to make any payment in respect of any Debt
the aggregate principal amount of which is $250,000 or more when due or within
any applicable grace period;
(h) any event or condition shall occur which results in the acceleration of
the maturity of any Debt of the Borrower or any Subsidiary 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;
(i) the Borrower or any Subsidiary shall commence a voluntary Bankruptcy
Proceeding or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary Bankruptcy Proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(j) an involuntary Bankruptcy Proceeding shall be commenced against the
Borrower or any Subsidiary and such involuntary Bankruptcy Proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered
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against the Borrower or any Subsidiary under the federal bankruptcy laws as now
or hereafter in effect;
(k) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $5,000,000 which it shall have become liable to
pay to the PBGC or any other Person under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one
or more Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $5,000,000;
(l) a judgment or order for the payment of money in excess of $5,000,000
shall be rendered against the Borrower or any Subsidiary and such judgment or
order shall continue unsatisfied, unstayed and unbonded for a period of 10 days;
(m) any of the following: (i) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
(other than the Exempt Group) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act) of 15% or more of the outstanding shares of common stock of the
Borrower; (ii) the Borrower shall cease to own 100% of the capital stock of any
Subsidiary Guarantor; (iii) Tutor shall cease to be the beneficial owner of the
same percentage of the outstanding shares of Common Stock and preferred stock of
the Borrower as he is the beneficial owner of on the Effective Date (after
giving effect to the closing of the transactions contemplated by the Stock
Purchase Agreement and calculated on a pro forma basis by subtracting from the
aggregate number of shares of Common Stock or preferred stock, as the case may
be, outstanding on the date of determination the number of shares of Common
Stock or preferred stock, as the case may be, issued after the date hereof (A)
for cash or, in the case of shares issued pursuant to employee stock options,
for in-kind consideration, (B) in consideration for the acquisition of any
investment (including by way of merger) or property or the provision of services
or (C) upon the exercise of any warrant, option, convertible security or similar
instrument issued after the date hereof for any consideration described in the
foregoing clauses (A) and (B)); (iv) BCP shall cease to be the beneficial owner
of at least, during any period prior to the second anniversary of the Effective
Date, 85% and, during any period thereafter, 80% of the outstanding shares of
Common Stock and preferred stock of the Borrower as it is beneficial owner of on
the
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Effective Date (after giving effect to the closing of the transactions
contemplated by the Stock Purchase Agreement) without the prior written consent
of the Required Banks, such consent not to be unreasonably withheld, provided
that if BCP distributes shares of Common Stock and preferred stock of the
Borrower to its partners such distribution itself shall not be the basis of an
Event of Default, but any subsequent determination of whether an Event of
Default has occurred pursuant to this clause (iv) shall be made on a pro forma
basis aggregating the beneficial ownerships of BCP and its partners; (v) Tutor
ceases to be chairman and chief executive officer of the Borrower unless, within
90 days, the Borrower engages a new chief executive officer who is satisfactory
to the Required Banks; or (vi) BCP shall cease to be the general partner of the
Investor; or
(n) any Financing Document shall cease to be in full force and effect or
shall be declared null and void, or the validity or enforceability thereof shall
be contested by any Obligor, or the Agent on behalf of the Banks shall at any
time fail to have a valid and perfected Lien on all of the Collateral purported
to be subject to such Lien, subject to no prior or equal Lien except Liens
permitted by the Collateral Documents, or any Obligor shall so assert in
writing;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Revolving Commitments, by notice to the
Borrower terminate the Revolving Commitments and they shall thereupon terminate,
and (ii) if requested by Banks holding Notes evidencing more than 50% in
aggregate principal amount of the Loans, by notice to the Borrower declare the
Notes (together with accrued interest thereon) to be, and the Notes shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Obligors; provided that in the case of any of the Events of Default specified in
clause 6.01(i) or 6.01(j) above with respect to any Obligor, without any notice
to the Borrower or any other act by the Agent or the Banks, the Revolving
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Obligors.
Section 6.2. Cash Cover. The Borrower hereby agrees, in addition to the
provisions of Section 6.01 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the Agent upon
instructions from Banks having more than 50% in aggregate amount of the
Revolving Commitments, pay (and, in the case of any of the Events of Default
specified in clause 6.01(i) or 6.01(j) above with respect to any Obligor,
forthwith, without any demand or the taking of any other action by the Agent or
any Bank, it shall pay) to the Agent an amount in immediately available funds
equal to the then aggregate Letter of Credit Liabilities for all Letters of
Credit to be held as security therefor for the benefit of all Banks pursuant to
arrangements satisfactory to the Agent and the Banks.
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Section 6.3. Notice of Default. The Agent shall give notice to the Borrower
under Section 6.01(d) promptly upon being requested to do so by any Bank and
shall thereupon notify all the Banks thereof.
ARTICLE 7
The Agent
Section 7.1. Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Financing Documents as are delegated to the Agent
by the terms thereof, together with all such powers as are reasonably incidental
thereto.
Section 7.2. Agent and Affiliates. Xxxxxx Guaranty Trust Company of New
York shall have the same rights and powers under the Financing Documents as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and Xxxxxx Guaranty Trust Company of New York and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not the Agent hereunder.
Section 7.3. Action by Agent. The obligations of the Agent under the
Financing Documents are only those expressly set forth herein. Without limiting
the generality of the foregoing, the Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article 6.
Section 7.4. Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for an Obligor), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts; provided that no Bank shall be required to
reimburse the Agent (to the extent not paid by the Borrower) for the fees and
expenses of any experts (other than any legal counsel and E&Y Restructuring LLC)
who shall not have been approved by the Required Banks.
Section 7.5. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in
69
connection with the Financing Documents or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower;
(iii) the satisfaction of any condition specified in Article 3, except receipt
of items required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of any Financing Document or any other instrument
or writing furnished in connection herewith. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
Without limiting the generality of the foregoing, the use of the term "agent" in
this Agreement with reference to any Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.
Section 7.6. Indemnification. Each Bank shall, ratably in accordance with
its Revolving Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents, advisors and employees (to the extent
not reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder. Each
Bank agrees that the indemnity set forth in this Section 7.06 shall require each
Bank to pay (to the extent not reimbursed by the Borrower) the reasonable fees
and disbursements of counsel retained by the Agent in connection with this
Agreement and the reasonable fees and disbursements of E&Y Restructuring LLC and
other experts approved by the Required Banks retained by the Agent in connection
with this Agreement, but no Bank shall be required to indemnify any advisor
retained by the Agent, and no Bank shall hereby indemnify the Agent for any
indemnity given by the Agent to any advisor (other than an indemnity for
reasonable fees and disbursements in accordance with the agreement to pay
reasonable fees and disbursements set forth in this sentence), unless such Bank
shall have separately given its express written consent to give such indemnity.
Section 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.8. Successor Agent. The Agent may resign at any time by giving
notice thereof to the Banks and the Borrower. Upon any such resignation, the
Required
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Banks shall have the right to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Agent gives notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $150,000,000. Upon the acceptance of
its appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
Section 7.9. Collateral Documents.
(a) As to any matters not expressly provided for in the Collateral
Documents (including the timing and methods of realization upon the Collateral),
and which do not otherwise require the signature of all Banks pursuant to
Section 9.05, the Agent shall act or refrain from acting in accordance with
written instructions from the Required Banks or, in the absence of such
instructions, in accordance with its discretion; provided that the Agent shall
not be obligated to take any action if the Agent believes that such action is or
may be contrary to any applicable law or might cause the Agent to incur any loss
or liability for which it has not been indemnified to its satisfaction.
(b) The Agent shall not be responsible for the existence, genuineness or
value of any of the Collateral or for the validity, perfection, priority or
enforceability of the security interests in any of the Collateral, whether
impaired by operation of law or by reason of any action or omission to act on
its part under the Collateral Documents. The Agent shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms of
the Collateral Documents by any Obligor.
ARTICLE 8
Change in Circumstances
Section 8.1. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar Loan:
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(a) the Agent is advised by the Reference Banks that deposits in dollars
(in the applicable amounts) are not being offered to the Reference Banks in the
relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the Revolving
Commitments advise the Agent that the Adjusted Euro-Dollar Rate, as determined
by the Agent will not adequately and fairly reflect the cost to such Banks of
funding their Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make Euro-Dollar Loans or to convert Base Rate Loans into Euro-Dollars Loans
shall be suspended and (ii) each outstanding Euro-Dollar Loan shall be converted
into a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Agent at least two Domestic
Business Days before the date of any Euro-Dollar Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Base Rate Borrowing.
Section 8.2. Illegality. If, after the date of this Agreement, the adoption
of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank (or
its Euro-Dollar Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or its Euro-Dollar
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Bank
shall so notify the Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank notifies the Borrower
and the Agent that the circumstances giving rise to such suspension no longer
exist, the obligation of such Bank to make Euro-Dollar Loans, or to convert
outstanding Loans into Euro-Dollar Loans, shall be suspended. Before giving any
notice to the Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, each Euro-Dollar Loan of such
Bank then outstanding shall be converted to a Base Rate Loan (and the Borrower
shall contemporaneously pay accrued interest on such Euro-Dollar Loan to the
date of conversion) either (a) on the last day of the then current Interest
Period applicable to such Euro-Dollar Loan if such Bank may lawfully continue to
maintain and fund such Loan to
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such day or (b) immediately if such Bank shall determine that it may not
lawfully continue to maintain and fund such Loan to such day.
Section 8.3. Increased Cost and Reduced Return.
(a) If after the date hereof, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Euro-Dollar Loans, its Note
or its obligation to make Euro-Dollar Loans, or shall change the basis of
taxation of payments to any Bank (or its Applicable Lending Office) of the
principal of or interest on its Euro-Dollar Loans or any other amounts due
under this Agreement in respect of its Euro-Dollar Loans or its obligation
to make Euro-Dollar Loans (except for changes in the rate of tax on the
overall net income of such Bank or its Applicable Lending Office imposed by
the jurisdiction in which such Bank's principal executive office or
Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Applicable Lending Office) or shall
impose on any Bank (or its Applicable Lending Office) or on the United
States market for certificates of deposit or the London interbank market
any other condition affecting its Euro-Dollar Loans, its Note or its
obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
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(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank (or its Parent)
for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any event
of which it has knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
Section 8.4. Base Rate Loans Substituted for Affected Euro-Dollar Loans. If
(i) the obligation of any Bank to make or maintain Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Bank through the Agent, have elected that
the provisions of this Section shall apply to such Bank, then, unless and until
such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as (or continued
as or converted into) Euro-Dollar Loans shall be made instead as Base Rate Loans
(on which interest and principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid (or converted to a
Base Rate Loan), all payments of principal which would otherwise be applied to
repay such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
74
ARTICLE 9
Miscellaneous
Section 9.1. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Agent, at its address or telex or facsimile number
set forth on the signature pages hereof, (y) in the case of any Bank, at its
address or telex or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address or telex or
facsimile number as such party may hereafter specify for the purpose by notice
to the Agent and the Borrower. Each such notice, request or other communication
shall be effective (i) if given by telex, when such telex is transmitted to the
telex number specified in this Section and the appropriate answerback is
received, (ii) if given by facsimile transmission, when such facsimile is
transmitted to the facsimile number specified in this Section and receipt of
such facsimile is confirmed, either orally or in writing, by the party receiving
such transmission, (iii) if given by certified mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent under
Article 2 shall not be effective until received.
Section 9.2. No Waivers. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege under any Financing Document shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies therein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 9.3. Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of the Agent
(including fees and disbursements of special counsel for the Agent but excluding
fees and disbursements of accountants, financial advisors and other experts
retained by the Agent) in connection with the preparation of any Financing
Documents, any waiver or consent under any Financing Document, any amendment of
any Financing Document or any Default or alleged Default or otherwise in
connection with this Agreement or any other Financing Documents; provided that
the Borrower shall pay all fees and disbursements of any firm of independent
public accountants, financial advisors and other experts retained
75
by the Agent in connection with any waiver or consent under any Financing
Document, any amendment of any Financing Document or any Default; and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the Agent and
each Bank, including fees and disbursements of counsel (including allocated
costs of internal counsel and disbursements of internal counsel), in connection
with such Event of Default and any collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom. The Borrower shall indemnify each
Bank against any transfer taxes, documentary taxes, assessments or charges made
by any governmental authority by reason of the execution and delivery of any
Financing Document.
(b) The Borrower agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (including allocated costs of internal counsel and
disbursements of internal counsel), which may be incurred by any Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of any Financing Document or any actual or
proposed use of proceeds of Loans hereunder; provided that no Indemnitee shall
have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
(c) The Borrower agrees to indemnify each Indemnitee and hold each
Indemnitee harmless from and against any and all liabilities, losses, damages,
costs and expenses of any kind (including without limitation reasonable expenses
of investigation by engineers, environmental consultants and similar technical
personnel and reasonable fees and disbursements of counsel including allocated
costs of internal counsel and disbursements of internal counsel) of any
Indemnitee arising out of, in respect of or in connection with any and all
Environmental Liabilities. Without limiting the generality of the foregoing, the
Borrower hereby waives all rights for contribution or any other rights of
recovery with respect to liabilities, losses, damages, costs or expenses arising
under or related to Environmental Laws that it might have by statute or
otherwise against any Indemnitee.
Section 9.4. Sharing of Setoffs. Each Bank agrees that if it shall, by
exercising any right of setoff or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount due with respect to any Loan or
Reimbursement Obligation owed to it which is greater than the proportion
received by any other Bank in respect of the aggregate amount due with respect
to any Loan or Reimbursement Obligation owed to such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Loans and Reimbursement Obligations owed to the other
76
Banks, and such other adjustments shall be made, as may be required so that all
such payments with respect to the Loans and Reimbursement Obligations owed to
the Banks shall be shared by the Banks pro rata; provided that (i) nothing in
this Section shall impair the right of any Bank to exercise any right of setoff
or counterclaim it may have and to apply the amount subject to such exercise to
the payment of indebtedness of the Borrower other than its indebtedness
hereunder and (ii) nothing in any Financing Documents shall require any Bank to
share any payments and distributions received by such Bank if such payments and
distributions were made in respect of any obligations (including without
limitation Other Reimbursement Obligations and Other Mortgage Obligations) not
constituting Loans or Reimbursement Obligations. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder of
a participation in a Loan or Reimbursement Obligation, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of setoff or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
Section 9.5. Amendments and Waivers. (a) Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent or the LC Bank are affected thereby, by the Agent
or the LC Bank, as the case may be); provided that no such amendment or waiver
shall, unless signed by all the Banks, (i) increase or decrease the Revolving
Commitment of any Bank (except for a ratable decrease in the Revolving
Commitments of all Banks), (ii) amend Section 2.10 or 5.12(b)(iii), (iii)
subject any Bank to any additional obligation, (iv) reduce the principal of or
rate of interest on any Loan or any fees hereunder, (v) postpone the date fixed
for any payment of principal of or interest on any Loan, any Reimbursement
Obligation or any fees hereunder or for termination or reduction of any
Revolving Commitment, (vi) reinstate the Revolving Commitments or cause the
Notes to be no longer immediately due and payable after the Revolving
Commitments shall have been terminated and the Notes shall have become
immediately due and payable pursuant to Section 6.01, (vii) change the
percentage of the Revolving Commitments or of the aggregate unpaid principal
amount of the Notes, or change the number of Banks, which shall be required for
the Banks or any of them to take any action under this Section 9.05 or any other
provision of any Financing Documents, (viii) release any Subsidiary Guarantor
from the Subsidiary Guarantee Agreement, (ix) amend Section 9.04, 9.05 or 9.06
hereof or (x) notwithstanding any provision of any Collateral Document to the
contrary, modify any definition of Collateral in any Financing Document or
release any item of Collateral from any Lien provided by any Collateral Document
except for the sale or other disposition of such item by the Agent in the
exercise of its rights as provided therein (provided that unless an Event of
Default has occurred and is continuing or the Agent has received written notice
from the Borrower or any Bank of the existence of any Default, the Agent may
release any item of Collateral at the request of the Borrower, without the
consent of
77
any Banks if such release is required in connection with any Disposition of such
Collateral and such Disposition is permitted under this Agreement).
Section 9.6. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one bank or other institution (a
"Participant") a participating interest in its Revolving Commitment and its
Loans in the full amount of its Revolving Commitment. In the event of any such
grant by a Bank of a participating interest to a Participant, whether or not
upon notice to the Borrower and the Agent, such Bank shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the Agent
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement. Any agreement pursuant
to which any Bank may grant such a participating interest shall provide that
such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that such Bank
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 9.05 without the consent of
the Participant. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may assign to one or more banks, financial institutions or
"accredited investors" (as defined in Regulation D of the Securities Act of
1933, as amended as of the Effective Date) (each an "Assignee") all or any part
(subject to the proviso below) of its rights and obligations under this
Agreement and the Notes and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit E, executed by such Assignee and such transferor Bank with
the subscribed consent of the Agent, which consent shall not be unreasonably
withheld or delayed; provided that (i) if an Assignee is an affiliate of such
transferor Bank or another Bank, no such consent shall be required, (ii) unless
the Assignee is an affiliate of such transferor Bank, the Assignee is another
Bank or the assignment shall be for all of the transferor Bank's rights and
obligations under the Credit Agreement, the assignment must be of at least an
aggregate $5,000,000 of the transferor Bank's Revolving Commitments and Term
Loans and (iii) any assignment of part of any Bank's rights and obligations
shall include equally proportionate parts of such Bank's
78
Revolving Commitment and Term Loans. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Revolving Commitment as set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this subsection (c), the transferor Bank, the
Agent and the Borrower shall make appropriate arrangements so that, if required
or requested by the Assignee, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank or the Assignee, as
agreed between them, shall pay to the Agent an administrative fee for processing
such assignment in the amount of $2,500.
(d) Any Bank may at any time assign all or any portion of its rights under
this Agreement and its Note to a Federal Reserve Bank (i.e., an agency of the
Federal government known as a "Federal Reserve Bank"). No such assignment shall
release the transferor Bank from its obligations hereunder.
Section 9.7. Certain Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
Section 9.8. Governing Law; Submission to Jurisdiction. This Agreement and
each Note shall be construed in accordance with and governed by the law of the
State of New York. The Borrower hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
Section 9.9. Counterparts; Integration. This Agreement 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. This
Agreement constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
79
Section 9.10. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 9.11. Other Reimbursement Obligations. The execution of this
Agreement and any other documents, agreements or instruments in connection
herewith does not constitute a waiver or amendment of any term or condition of
any documents, agreements or instruments evidencing or otherwise delivered in
connection with the Other Reimbursement Obligations or the Other Mortgage
Obligations. No Bank shall have any rights or obligations under any such
documents, agreements or instruments unless party thereto and as set forth
therein. Nothing in any Financing Documents requires any Bank to obtain any
consent from any other Bank in taking actions permitted to be taken in
accordance with the terms and conditions of any documents, agreements or
instruments evidencing or otherwise delivered in connection with the Other
Reimbursement Obligations or Other Mortgage Obligations to which it is a party,
or in omitting to take any such actions.
Section 9.12. Consents in Connection with Creation of New Headquarters
Subsidiary and the Headquarters Refinancing. (a) Each Bank hereby consents to
the creation of the New Headquarters Subsidiary, but if the New Headquarters
Subsidiary is created as a corporation, then such consent is conditional on the
following occurring promptly following such creation (and, in any event, on or
prior to the date of closing of the Headquarters Refinancing): (A) the Borrower
Pledge Agreement shall be amended to add all of the shares of capital stock of
the New Headquarters Subsidiary and the related rights, entitlements, privileges
and other interests described in Section 3 thereof as Collateral thereunder and
(B) the Borrower shall deliver certificates representing such capital stock to
the Agent, with duly executed instruments of transfer or assignment in blank in
form and substance satisfactory to the Agent; provided that each Bank agrees
that it will consider in good faith a request by the Borrower that it consent to
a pledge of less than all (including none) of the shares of capital stock of the
New Headquarters Subsidiary if the Borrower demonstrates to the reasonable
satisfaction of the Banks that the Headquarters Refinancing is available to it
on commercially reasonable terms only if it pledges less than all (including
none) of the shares of capital stock of the New Headquarters Subsidiary to the
Banks.
(b) Each Bank consents to the amendment to the Borrower Pledge Agreement
contemplated by clause 9.12(a) above, and acknowledges and agrees that the Agent
is authorized to execute and deliver such amendment to the Borrower Pledge
Agreement.
80
Section 9.13. Release of Certain Mortgages. Each Bank acknowledges and
agrees that the Agent is authorized to release:
(a) the Mortgage on the Headquarters Building upon the closing of the
Headquarters Refinancing; and
(b) the Mortgages on any property sold in a Specified Real Estate Sale at
the time of such sale,
but only if the Revolving Commitments are reduced by the amount, if any, by
which they are required to be reduced pursuant to Section 2.09(c) as a result of
such Specified Real Estate Sale or Headquarters Refinancing..
Section 9.14. Consent to Subordination of Liens on Equipment. Each Bank
agrees that, if the Borrower shall so request, the Agent is authorized to
execute and deliver whatever letter, agreement or other document the Agent shall
reasonably determine is necessary in order to subordinate Liens on equipment
granted to the Banks pursuant to the Collateral Documents to Liens permitted by
Section 5.13 hereof with respect to such equipment.
81
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
PERINI CORPORATION
By:/s/Xxxxxx Band
------------------------------
Name: Xxxxxx Band
Title: President & COO
By:/s/Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
By:/s/Xxxx Xxxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President
Revolving
Commitments Term Loans BANKS
----------- ---------- -----
$4,334,400 $7,224,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:/s/Xxxx Xxxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxx Xxxxxx
Tite: Vice President
82
$9,408,000 $15,680,000 FLEET NATIONAL BANK,
as Bank and as LC Bank
By:/s/Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Sr. Vice President
$3,057,600 $5,096,000 BANK OF AMERICA, N.A.
By:/s/Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
$1,680,000 $2,800,000 COMERICA BANK
By:/s/Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
$1,680,000 $2,800,000 XXXXXX TRUST & SAVINGS BANK
By:/s/Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Sr. Vice President
83
$840,000 $1,400,000 CITIZENS BANK OF MASSACHUSETTS
By:/s/Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
____________ ___________
$21,000,000 $35,000,000 TOTAL COMMITMENTS AND TERM LOANS
EACH OF THE UNDERSIGNED SUBSIDIARY GUARANTORS CONSENTS TO THE
AMENDMENT AND RESTATEMENT OF THE EXISTING CREDIT AGREEMENT AS SET
FORTH HEREIN:
PERINI BUILDING COMPANY, INC.
By:/s/Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
PERINI MANAGEMENT SERVICES, INC.
By:/s/Xxxxxx Band
-----------------------------
Name: Xxxxxx Band
Title: President
PERINI LAND AND DEVELOPMENT
COMPANY, INC.
By:/s/Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
84
R. E. XXXXXX & CO.
By:/s/Xxxxxx Band
-----------------------------
Name: Xxxxxx Band
Title: President
PARAMOUNT DEVELOPMENT
ASSOCIATES, INC.
By:/s/Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
PERINI ENVIRONMENTAL SERVICES, INC.
By:/s/Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
PERINI RESORTS, INC.
By:/s/Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
85
EXHIBIT A
SECOND AMENDED AND RESTATED NOTE
New York, New York
____________ __, 2000
For value received, Perini Corporation, a Massachusetts corporation (the
"Borrower"), promises to pay to the order of (the "Bank"), for the account of
its Lending Office, the unpaid principal amount of each Loan made by the Bank to
the Borrower pursuant to or otherwise outstanding under the Credit Agreement
referred to below, on the maturity date provided for in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each
such Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Xxxxxx Guaranty Trust Company of New York, 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx.
All Loans made by the Bank and maturities thereof and all repayments of the
principal thereof shall be recorded by the Bank and, if the Bank so elects in
connection with any transfer or enforcement of this note, appropriate notations
to evidence the foregoing information with respect to each such Loan then
outstanding may be endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Second Amended and
Restated Credit Agreement dated as of March 29, 2000 among the Borrower, the
banks listed on the signature pages thereof, and Xxxxxx Guaranty Trust Company
of New York, as Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
mandatory and optional prepayment hereof and the acceleration of the maturity
hereof.
Payment of principal and interest on this Note is unconditionally
guaranteed, subject to the limitations contained in the Subsidiary Guarantee
Agreement, by the Subsidiary Guarantors pursuant to the Subsidiary Guarantee
Agreement.
PERINI CORPORATION
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Date Amount of Principal Notation
Loan Repaid Made by
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3
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of _________________ ___,
______ among [ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee") and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Second Amended and Restated Credit Agreement dated as of March 29, 2000
among Perini Corporation (the "Borrower"), the Banks party thereto and the Agent
(the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor on the date
hereof has a Revolving Commitment in the amount of $_____;
WHEREAS, the Assignor on the date hereof has Revolving Loans outstanding
under the Credit Agreement in the aggregate principal amount of $______ and Term
Loans outstanding under the Credit Agreement in the aggregate principal amount
of $_______; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of $__________ of its
Revolving Commitment (the "Assigned Revolving Amount") together with a
corresponding portion of the Revolving Loans and Letter of Credit Liabilities,
and all of the rights of the Assignor under the Credit Agreement in respect of
$__________ of its Term Loans (the "Assigned Term Loans Amount"), and the
Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
Section 15. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
1
Section 16. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement with
respect to a Revolving Commitment in the amount of the Assigned Revolving Amount
and with respect to a Term Loans in the amount of the Assigned Term Loans
Amount, and the Assignee hereby accepts such assignment from the Assignor and
assumes all of the obligations of the Assignor under the Credit Agreement to the
extent of its Revolving Commitment in the amount of the Assigned Revolving
Amount and its Term Loans in the amount of the Assigned Term Loans Amount. Upon
the execution and delivery hereof by the Assignor, the Assignee and the Agent,
the payment of the amounts specified in Section 3 required to be paid on the
date hereof and receipt by the Agent of the administrative fee required to be
paid pursuant to Section 9.06(c) of the Credit Agreement: (i) the Assignee
shall, as of the date hereof, succeed to the rights and be obligated to perform
the obligations of a Bank under the Credit Agreement with a Revolving Commitment
in an amount equal to the Assigned Revolving Amount, with corresponding amounts
of Revolving Loans and Letter of Credit Liabilities, and Term Loans in an amount
equal to the Assigned Term Loans Amount, and (ii) the Revolving Commitment,
Revolving Loans, Letter of Credit Liabilities and Term Loans of the Assignor
shall, as of the date hereof, be reduced by like amounts and (iii) the Assignor
shall be released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
Section 17. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them. It is
understood that commitment and other fees accrued under the Credit Agreement to
the date hereof with respect to the Assigned Revolving Amount of the Assignor's
Revolving Commitment and the Assigned Term Loans Amount are for the account of
the Assignor and such fees and commissions accruing from and including the date
hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
Section 18. Consent of the Agent. This Agreement is conditioned upon the
consent of the Agent pursuant to Section 9.06(c) of the Credit Agreement. The
execution of this Agreement by the Agent is evidence of such consent. Pursuant
to Section 9.06(c) of the Credit Agreement, the Borrower has agreed to execute
and deliver a Note payable to the order of the Assignee to evidence the
assignment and assumption provided for herein.
2
Section 19. Non-reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of the Borrower or any
Subsidiary Guarantor, or the validity and enforceability of the obligations of
the Borrower or any Subsidiary Guarantor in respect of the Financing Documents.
The Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrower and
the Subsidiary Guarantors.
Section 20. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 21. Counterparts. This Agreement 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By:______________________________
Name:
Title:
[ASSIGNEE]
By:______________________________
Name:
Title:
THE AGENT HEREBY CONSENTS TO
THE FOREGOING ASSIGNMENT:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
By:______________________________
Name:
Title:
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