AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1 dated as of February 26, 1996 among PERINI
CORPORATION (the "Borrower"), the BANKS listed on the signature pages hereof
(the "Banks") and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Credit
Agreement dated as of December 6, 1994 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as
provided hereinafter.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Agreement shall have the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall from and after the date hereof refer to the Agreement as amended
hereby.
2. Amendment of Section 1.01 of the Agreement. Section 1.01 of the
Agreement is amended hereby by: (A) adding thereto the following definitions:
"Bridge Bank" means each bank listed on the signature pages of the
Bridge Credit Agreement, each Assignee (as defined therein) which becomes a
Bridge Bank pursuant to Section 8.06(c) thereof, and their respective
successors.
"Bridge Commitment" means a commitment by a Bridge Bank under the
Bridge Credit Agreement.
"Bridge Credit Agreement" means the Agreement dated as of February
26, 1996 among Perini Corporation, the Bridge Banks and Xxxxxx Guaranty
Trust Company, as Agent.
"Bridge Loan" means a loan made by a Bridge Bank under the Bridge
Credit Agreement.
"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.
"Mortgage Banks" means (i) Comerica Bank, as successor to
Manufacturers National Bank of Detroit, in its capacity as holder of a
Promissory Note of the Borrower dated April 4, 1991, in the original
principal amount of $1,200,000, and the mortgagee pursuant to a mortgage on
the property described as Item 15 in Part I of Schedule III hereto which
secures such Promissory Note, and its successors and assigns, (ii) Xxxxxx
Trust and Savings Bank, as successor to Barclays Bank PLC, Boston Branch,
in its capacity as the issuer of a letter of credit for the account of the
Borrower in the initial stated amount of $4,106,850, the maker of a
commitment to lend up to $4,106,850 to the Borrower pursuant to the Letter
of Credit and Reimbursement Agreement dated as of October 1, 1985 and the
"Bank" described in the mortgage on the property described as Item 12 in
Part I of Schedule III hereto which secured the obligations of the under
such Letter of Credit and Reimbursement Agreement and (iii) Fleet Credit
Corporation, as the lessor of computer equipment and other personal
property to the Borrower and certain of its Subsidiaries and joint ventures
pursuant to the Master Equipment Lease No. 1100641700 dated December 30,
1988 (including the Addendum thereto dated December 30, 1988), and the
schedules executed thereunder prior to February 26, 1996.
"Other LC Bank" means each bank listed on Schedule V attached
hereto, its successors and assigns.
"Other Letters of Credit" means the letters of credit described on
Schedule V attached hereto.
"Other Mortgage/Lease Obligations" means the obligations of the
Borrower to any Mortgage Banks under the documents, agreements and
instruments described in the definition of Mortgage Banks, 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, 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.
"Xxxxxx Swap" means the interest rate exchange transaction between
Xxxxxx Center Associates, a California limited partnership, as Fixed Rate
Payor, and Citicorp Real Estate, Inc., as Variable Rate Payor, as confirmed
by the Confirmation for Interest Rate Exchange Transaction date October 18,
1993 with Transaction Reference Number 931913.
(B) deleting the definition of "Construction Claim"; (C) deleting "two, three or
six" in clause (1) of the definition of "Interest Period" and inserting in lieu
thereof "two or three"; (D) revising each of the following definitions to
read as follows:
"Borrower Pledge Agreement" means the Borrower Pledge Agreement
dated as of December 6, 1994 between the Borrower and the Agent, as amended
and restated as of February 26, 1996 in substantially the form of Exhibit
E-2 hereto, and as the same may be amended 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 in substantially the form of
Exhibit D hereto between the Borrower and the Agent and as the same may be
amended from time to time as permitted herein and in accordance with the
terms thereof (the Borrower Security Agreement dated as of December 6, 1994
executed and delivered in connection with the execution and delivery of
this Agreement having terminated upon collection by the Borrower of all the
Collateral pledged thereunder).
"Collateral Documents" means the Borrower Pledge Agreement, the
Borrower Security Agreement, the Subsidiary Security Agreement, the
Subsidiary Pledge Agreement, the Deeds of Trust, the Mortgages and all
other supplemental or additional security agreements, pledge agreements,
mortgages or similar instruments delivered pursuant hereto or thereto.
"Deeds of Trust" means the Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Financing Statement dated as of December 6,
1994 for each of the properties described as Items 1 and 2 on Schedule III
hereto, each substantially in the form of Exhibits H-1 and H-2 hereto.
"Financing Documents" means this Agreement, the Bridge Credit
Agreement, the Subsidiary Guarantee Agreement, the Notes, the Bridge Notes
(as defined in the Bridge Credit Agreement) and the Collateral Documents.
"Mortgaged Facilities" means the properties described as Items 1,
2, 3, 4, 5, 6, 8, 9, 12, 13 and 15 in Part I of Schedule III hereto.
"Mortgages" means the Mortgage, Assignment of Leases and Rents,
Security Agreement and Financing Statement dated as of February 26, 1996
for each of the Mortgaged Facilities described as Items 3, 4, 5, 6, 8, 9,
12, 13 and 15 in Part I of Schedule III hereto, each substantially in the
form of Exhibits I-1 through I-5 hereto.
"Paramount Development Associates" means Paramount Development
Associates, Inc., a Massachusetts corporation.
"Perini Land and Development" means Perini Land and Development
Company, a Delaware corporation, and its successor by merger, Perini Land
and Development Company, Inc., a Massachusetts corporation, upon its
reincorporation in Massachusetts on December 30, 1994.
"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 executed and delivered pursuant
to Section 3.01(c) hereof and attached hereto as Exhibit F-1, as amended by
Amendment No. 1 dated as of February 26, 1996 in substantially the form of
Exhibit F-2 hereto, and as the same may be amended from time to time as
permitted herein and in accordance with the terms thereof.
"Subsidiary Guarantor" means each of Perini Building Company,
Perini International, Perini Land and Development, R. E. Xxxxxx & Co.,
Paramount Development Associates, Pioneer Construction, Inc., a West
Virginia corporation, Perini Environmental Services, Inc., a Delaware
corporation, Perini Resorts, Inc., a California corporation 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 in substantially the form of
Exhibit J hereto among the Subsidiary Guarantors party thereto and the
Agent, as executed and delivered pursuant to Section 3.01(c) of the Bridge
Credit Agreement and as the same may be amended 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 in substantially the form of Exhibit G hereto, and as the same may be
amended from time to time as permitted herein and in accordance with the
terms thereof.
(E) changing "Perini" to "the Borrower's" each time it appears in "Consolidated
Current Assets"; and (F) renumbering clauses (v) and (vi) as (vi) and (vii) in
the definition of "Debt" and adding the following clause:
"(v) all non-contingent obligations of such Person to reimburse issuers of
letters of credit for drawings under such letters of credit (other than the
Other Reimbursement Obligations and the obligation to reimburse Hong Kong
and Shanghai Bank for $1,800,000 of letters of credit issued by it and
outstanding on the date hereof),"
3. Amendment of Section 2.09 of the Agreement. Section 2.09 of the
Agreement is hereby amended by adding the following proviso at the end of the
first sentence:
"; provided that any such voluntary termination or reduction of Commitments
may only be made after the repayment in full of the Bridge Loans and Bridge
Reimbursement Obligations and termination of the Bridge Commitments under
the Bridge Credit Agreement and termination of the Bridge Letters of
Credit."
4. Amendment of Section 2.10(b) of the Agreement. Clauses (i)
through (iii) of Section 2.10(b) of the Agreement are hereby amended to read in
their entirety as follows:
"(i) immediately upon receipt by the Borrower or any Subsidiary of
the proceeds from the collection, sale or other disposition of any
Collateral (excluding (A) payments in the ordinary course on construction
contracts, (B) operating receipts from Real Estate Investments, (C)
liability insurance proceeds and (D) income of not more than $70,000 earned
from Temporary Cash Investments during any fiscal year) by an amount equal
to (1) 100% of such proceeds net of all out-of-pocket costs, all senior
mortgage debt, fees, commissions and other expenses reasonably incurred in
respect of such collection, sale or disposition and any taxes paid or
payable (as estimated by a financial officer of the Borrower in good faith)
in respect thereof less (2) the amount by which the Bridge Commitments are
reduced pursuant to Section 2.10(b)(i) of the Bridge Credit Agreement with
respect to such sale or other disposition; provided that no such reduction
shall be required unless and until, and then only to the extent that, the
aggregate amount of such net proceeds received by the Borrower and its
Subsidiaries exceeds, in the case of an item of Collateral specified in
Schedule VII hereto, the amount set forth opposite such item or, in the
case of other Collateral, $2,000,000 in the aggregate for all such other
Collateral;
(ii) immediately upon the completion of an issuance by the
Borrower of convertible preferred stock or other equity issue, by an amount
equal to (1) $15,000,000 less (2) the amount by which the Bridge
Commitments are reduced pursuant to Section 2.10(b)(ii) of the Bridge
Credit Agreement with respect to such issuance; provided that in the event
that the proceeds of such issuance net of all out-of-pocket expenses
reasonably incurred in respect of such issuance and any taxes paid or
payable (as estimated by a financial officer of the Borrower in good faith)
in respect thereof exceeds $30,000,000, the aggregate amount of the
Commitments shall be reduced by an amount not less than the sum of (A)
$15,000,000 plus (B) 50% of the excess over $30,000,000 of such proceeds
less (C) the amount by which the Bridge Commitments are reduced pursuant to
Section 2.10(b)(ii) of the Bridge Credit Agreement with respect to such
issuance; and
(iii) by $2,000,000 on the first Euro-Dollar Business Day of each
month during the period beginning the later of (x) the repayment of all
amounts payable under, and termination of, the Bridge Credit Agreement or
(y) September 1, 1996 and ending December 31, 1996 unless such period is
extended by the Required Banks at any time or from time to time prior to
the end of such period as it may be so extended from time to time."
5. Amendment of Section 2.11(a) of the Agreement. Section 2.11(a)
of the Agreement is hereby amended by adding the following proviso at the end of
the first sentence:
"; provided that any such voluntary prepayments may only be made after
repayment in full of the Bridge Loans and Bridge Reimbursement Obligations
and termination of the Bridge Commitments under the Bridge Credit Agreement
and termination of the Bridge Letters of Credit."
6. Amendment of Section 2.16(c) of the Agreement. Section 2.16(c)
of the Agreement is hereby amended by: (A) changing "1.00%" to "1.75%" in clause
(i); and (B) changing "2.25%" to "2.75%" in clause (ii).
7. Amendment of Section 2.17 of the Agreement. Section 2.17 of the
Agreement is hereby amended to read in its entirety.
"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 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, the sum payable hereunder or under any Note to any Bank or the
Agent, (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) 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 8.01, the original or a certified copy of a receipt evidencing
payment thereof.
(c) In addition, the Borrower agrees to pay all Other Taxes.
(d) 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 imposed or asserted by any jurisdiction on amounts
payable under this Section) 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.
(e) 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 (a) of this
Section.
(f) For any period with respect to which a Bank has failed to
provide the Borrower or the Agent with the appropriate form pursuant to
subsection (d) of this Section (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 subsection (b) or (c) of this Section
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.
(g) If the Borrower is required to pay additional amounts to or
for the account of any Bank pursuant to this Section, then such Bank will
change the jurisdiction of its 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) if such change, in the judgment of
such Bank, is not otherwise disadvantageous to such Bank."
8. Amendment of Section 3.01(j) of the Agreement. Section 3.01(j)
of the Agreement is hereby amended by changing "General Counsel" to "Vice
President-Counsel".
9. Amendment of Section 3.02 of the Agreement. Section 3.02 of the
Agreement is hereby amended by: (A) changing the period at the end of clause (d)
to "; and"; (B) adding the following clause after clause (d):
"(e) the ability of the Borrower to obtain bonding for new
construction projects shall not be less than or more limited than at the
date hereof;
(f) the payment by the Borrower of all amounts theretofore payable
pursuant to Section 9.03 within seven days of demand; and
(g) at any time on or after March 8, 1996, receipt by the Agent of
(i) evidence of recording of the Mortgages on the Mortgaged Facilities
described in Items 13 and 15 in Schedule III and (ii) opinions of counsel
in each jurisdiction in which the foregoing Mortgages are recorded in form
and substance satisfactory to the Agent covering such matters relating
thereto as the Required Banks may reasonably request; and
(h) at any time on or after March 28, 1996, receipt by the Agent
of a policy of title insurance with respect to each Mortgage and Deed of
Trust relating to the Mortgaged Facilities described as Items 1, 2, 3, 4,
5, 6, 9 and 13 in Part I of Schedule III, insuring the perfection,
enforceability and first priority of the Lien created under such Mortgage
or Deed of Trust, as the case may be, as a valid first mortgage or deed of
trust Lien, as the case may be, on the Mortgaged Facilities described
therein, in form and substance satisfactory to the Agent and in the
respective amounts specified in Part I of Schedule III (with all premiums,
expenses and fees paid or caused to be paid by the Borrower), each of which
policies shall (i) be issued by a title company reasonably satisfactory to
the Agent, (ii) have been supplemented by such endorsements as shall be
requested by the Agent (including, without limitation, endorsements
relating to usury, revolving credit, doing business and restrictions) and
(iii) contain only such exceptions to title as shall be reasonably
satisfactory to the Agent, provided that the parties hereto agree that the
Permitted Liens (excluding for this purpose Permitted Encumbrances
described in clause (c) of the definition thereof unless satisfactory to
the Agent) constitute satisfactory exceptions to title.
and (C) changing the phrase "(c) and (d)" in the last sentence of such Section
to "(c), (d), (e) and (x)".
00. Amendment of Section 4.02 of the Agreement. Section 4.02 of
the Agreement is hereby amended by: (A) adding "(a)" at the beginning thereof;
and (B) by adding the following at the end thereof:
"(b) The execution, delivery and performance by each Obligor of
the amendments dated as of February 26, 1996 to the Financing Documents to
which it is a party and the performance by each Obligor of the Financing
Documents as so amended 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 as so amended, on any asset of
such Obligor or any of its Subsidiaries."
11. Amendment of Section 4.03 of the Agreement. Section 4.03 of
the Agreement is hereby amended by: (A) adding "(a)" at the beginning thereof;
(B) adding the following after the second sentence of subsection (a):
"The Borrower Security Agreement and the Subsidiary Pledge Agreement, when
executed and delivered in accordance with the Bridge Credit Agreement, will
constitute valid and binding agreements of each Obligor party thereto
enforceable against each such Obligor in accordance with their respective
terms. Each amendment to each Financing Document, when executed and
delivered in accordance with the Bridge Credit Agreement, and each
Financing Document as so amended will constitute a valid and binding
agreement of the Obligor party thereto in each case enforceable in
accordance with its terms."
(C) adding at the end of subsection (a) the following:
"(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) are listed in Part
1 of Schedule III hereto. The list of personal property of the Borrower and
each of its Subsidiaries, security interests in which are governed by
Article IX of the UCC as in effect in the relevant jurisdictions, set forth
in Part 2 of Schedule III hereto is complete in all material respects. The
location, ownership, status and lien information provided in Schedule III
for each item of real property and each type of personal property are
complete and correct.
(c) The"
(D) deleting "Subject to Section 2.17, the" in subsection (c); and (E) adding ",
as amended by the amendments thereto dated as of February 26, 1996," before
"create valid" in subsection (c).
12. Amendment of Section 4.08 of the Agreement. Section 4.08 of
the Agreement is hereby amended by changing the date of "1986" to "1989".
13. Amendment of Section 4.09 of the Agreement. Section 4.09 of
the Agreement is hereby amended by adding the following before the first
sentence thereof:
"All of the Borrower's Subsidiaries and all joint ventures and partnerships
in which the Borrower or any of its Subsidiaries have an interest as of the
date hereof are listed in Schedule VI hereto and the state of incorporation
or organization and the ownership interest of each thereof specified
therein are complete and correct."
14. Amendment of Section 4.11 of the Agreement. Section 4.11 of
the Agreement is hereby amended by: (A) adding at the end of the caption ; No
Derivatives Obligations; Certain Existing Agreements"; (B) adding "(a)" after
the caption; and (C) by adding the following subsection at the end of the
section:
"(b) Neither the Borrower nor any of its Subsidiaries is party to
any Derivatives Obligation except the Xxxxxx swap.
(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 IV hereto."
15. Amendment of Section 5.01 of the Agreement. Section 5.01 of
the Agreement is hereby amended by: (A) adding "(1)" at the beginning of
subsection (b) and adding the following at the end of subsection (b):
"(2) as soon as available and in any event within 45 days after
the end of each quarter of each fiscal year of Perini Land and Development,
a cash flow statement for Perini Land and Development for such quarter in a
format consistent with the format of the cash flow statement for Perini
Land and Development for the quarter ended December 31, 1995 previously
delivered to the Banks;"
(B) changing the letter designation of clause (k) to "(n)"; and (C) adding the
following new clauses (k), (l) and (m):
"(k) 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);
(l) prompt notice of any decision by the Borrower or any of its
Subsidiaries not to meet a capital call by any joint venture in which the
Borrower or any such Subsidiary is participating;
(m) prompt notice of the Borrower's or any Subsidiary's 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"
16. Amendment of Section 5.02 of the Agreement. Section 5.02 of
the Agreement is hereby amended by: (A) adding "; No Derivatives Obligations" in
the caption; (B) adding "(a)" after the caption; and (C) adding the following
subsection at the end of subsection (a):
"(b) The Borrower will not, nor will it permit any of its
Subsidiaries to, become a party to any Derivatives Obligation except the
Xxxxxx swap."
17. Amendment of Section 5.06 of the Agreement. Section 5.06 of
the Agreement is hereby amended by adding at the end thereof:
"; provided that in any event the Borrower shall hold a meeting for
representatives of the Banks at least once each fiscal quarter, at a time
and place in Framingham, Boston or New York City to be determined by the
Agent on 10 Business Days' notice, for purposes of holding such discussions
with such of the Borrower's officers, employees and independent public
accountants as the Agent shall designate at the reasonable request of any
Bank."
18. Amendment of Section 5.08 of the Agreement. Section 5.08 of
the Agreement is hereby amended by: (A) revising subsection (a) to read in its
entirety as follows:
"(a) After the date hereof, the Borrower will not incur or suffer
to exist any Debt other than (i) Debt existing on December 31, 1995 and
listed on Schedule I hereof, (ii) Debt under this Agreement, (iii) Debt
under the Bridge Credit Agreement, (iv) Debt owing to joint ventures in
which the Borrower is participating, (v) up to $3,000,000 of Debt to
finance insurance premiums, (vi) Debt owing by the Borrower to a Subsidiary
and evidenced by an intercompany note pledged to the Agent under the Pledge
Agreement and (vii) any refinancing, extension, renewal or refunding of the
Debt referred to in clauses (i) through (v) above; provided that in any
event at no time shall Modified Parent Company Debt exceed $150,000,000 and
at no time shall the aggregate outstanding amount of Debt to finance
insurance premiums and any refinancing, extension, renewal or refunding
thereof exceed $3,000,000."
and (B) revising subsection (b) to read in its entirety as
follows:
"(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, 1995 and listed on Schedule I 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 (vi) any refinancing,
extension, renewal or refunding of the Debt referred to in clauses (i)
through (iv) above."
19. Amendment of Section 5.09 of the Agreement. Section 5.09 of
the Agreement is hereby amended by: (A) changing "1993" to "1996" both times it
appears in the second sentence; and (B) revising the third sentence to read as
follows:
"For purposes of this Section, "Base Compliance Amount" means (i) for any
date during the period from and including December 31, 1995 to but
excluding June 30, 1996, $100,000,000, (ii) for any date during the period
from and including June 30, 1996 to but excluding September 30, 1996,
$105,000,000, (iii) for any date during the period from and including
September 30, 1996 to but excluding December 31, 1996, $112,000,000, (iv)
for any date during the period from and including December 31, 1996 to but
excluding March 31, 1997, $125,000,000 and (v) for any date during the
period from and including March 31, 1997 to the Termination Date,
$125,000,000 plus 50% of Consolidated Net Income during such period without
giving effect to any negative amount of Consolidated Net Income during any
fiscal quarter or fiscal year during such period."
20. Amendment of Section 5.10 of the Agreement. Section 5.10 of
the Agreement is hereby amended to read in its entirety as follows:
"Consolidated Earnings Before Interest and Taxes for each fiscal period
specified below shall be not less than the percentage specified below of
Consolidated Interest Charges for such fiscal period:
quarter ending March 31, 1996 300%
two quarters ending June 30, 1996 300%
three quarters ending September 30, 1996 250%
four quarters ending December 31, 1996 250%
four quarters ending each March 31,
June 30, September 30 and December 31
thereafter 200%"
21. Amendment of Section 5.11(i) of the Agreement. Section 5.11 is
hereby amended by: (A) relettering clause (i) as clause (k) and (B) adding after
clause (h) the following:
"(i) Liens (whether statutory, by contract or at common law and
whether in the nature of a security interest or constructive trust or
otherwise) of subcontractors, architects, engineers, surveyors, laborers,
materialmen, bonding companies and other Persons performing labor or
services or providing material for construction projects in and under
construction contracts to which the Borrower or any of its Subsidiaries is
a party as general or prime contractor, subcontractor or construction
manager;
(j) Liens granted to Fidelity and Deposit Company of Maryland (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;
and"
22. Amendment of Section 5.12 of the Agreement. Section 5.12 of
the Agreement is amended by: (A) revising the proviso in the last sentence of
subsection (a) to read in its entirety as follows:
"provided that the foregoing shall not prohibit (i) any Subsidiary
Guarantor from selling, leasing or otherwise transferring assets in the
ordinary course of its business or (ii) R. E. Xxxxxx & Co. from
transferring all of its assets to Perini Building Company."
(B) revising subsection (b) to read in its entirety as follows:
"(b) The Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise dispose of any item of Collateral
(except Accounts, Inventory and items listed in Schedule VII hereto up to
the amounts specified therein) unless (i) each of the Banks shall have
given its prior written consent thereto and (ii) the consideration therefor
(x) shall be at least equal to the fair market value of such asset (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) and (y) in the case of any agreement
entered into on or after the Effective Date of the Bridge Credit Agreement
for the sale, lease or other disposition of Collateral shall consist of
cash payable at closing; provided that the prior written consent of the
Required Banks shall not be required for any sale, lease or other
disposition of any item of Collateral having a fair market value not
exceeding $100,000 if the aggregate amount of the fair market value of all
such items of Collateral sold, leased or otherwise disposed of during any
fiscal year does not exceed $500,000 and the Borrower delivers to each of
the Banks prompt written notice of each such sale, lease or other
disposition."
23. Amendment of Section 5.14 of the Agreement. The first sentence
of Section 5.14 of the Agreement is hereby amended by adding the following
proviso at the end thereof:
"; provided that the Borrower will not declare or pay any preferred stock
dividend while (i) any Bridge Commitment or Bridge Letter of Credit is
outstanding or any Bridge Loan or Bridge Reimbursement Obligation is
outstanding or (ii) any Default is continuing or (iii) the aggregate
outstanding amount of the Borrower's Debt exceeds 50% of the Borrower's
Consolidated Tangible Net Worth."
24. Amendment of Section 6.01(n) of the Agreement. Section 6.01(n)
of the Agreement is hereby amended by deleting "subject to Section 2.17,".
25. Amendment of Section 7.01 of the Agreement. Section 7.01 of
the Agreement is hereby amended by adding at the end thereof the following:
"Each Bank which is also an Other LC Bank or a Mortgage Bank also makes the
foregoing appointment in its capacity as an Other LC Bank or a Mortgage
Bank, as the case may be, and agrees that the provisions of this Article
VII, including without limitation Sections 7.05 and 7.06, shall be for the
benefit of the Agent mutatis mutandis when acting in respect of such Other
LC Bank or Mortgage Bank, its Other Reimbursement Obligations, its Other
Letters of Credit or its Other Mortgage/Lease Obligations."
26. Amendment of Section 9.04 of the Agreement. Section 9.04 of
the Agreement is hereby amended by adding at the end of the proviso in the first
sentence "or under the Bridge Credit Agreement and nothing in any Financing
Documents shall require any Bank to share any payments received by such Bank if
such payments were made in respect of any obligations (including without
limitation Other Reimbursement Obligations and Other Mortgage/Lease Obligations)
not constituting Loans or Reimbursement Obligations."
27. Amendment of Section 9.05 of the Agreement. Section 9.05 of
the Agreement is hereby amended by adding at the end thereof:
", (vii) amend Section 9.04 or 9.06 hereof or (viii) notwithstanding any
provision of any Collateral Document to the contrary, release any item of
Collateral from the Lien provided by the Collateral Documents, 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, the Agent may release any Collateral at the
request of the Borrower, without the consent of each of the Banks, if (i)
such release is required in connection with any sale, lease or other
disposition of such Collateral and (ii) such sale, lease or other
disposition is in accordance with and permitted by the terms hereof
(including without limitation Sections 2.10(b)(i) and 5.12(b)) and of the
Bridge Credit Agreement)."
28. Amendment of Section 9.06 of the Agreement. Section 9.06 of
the Agreement is amended by: (A) adding "in amounts of at least the lesser of
its Commitment and $5,000,000" at the end of the first sentence of subsection
(b) and after "or a proportionate part" in the first sentence of subsection (c);
(B) adding "or another Bank" after "transferor Bank" in the proviso to the first
sentence of subsection (c); and (C) changing "Exhibit I" to "Exhibit K" in
subsection (c).
29. Amendment of Schedules to the Agreement. The Schedules to the
Agreement are hereby deleted and Schedules I to VII in the form attached hereto
are added to the Agreement.
30. Amendment of Table of Contents of the Agreement. The Table of
Contents of the Agreement is hereby amended as appropriate to reflect the
foregoing amendments.
31. Consent to Other Financing Documents and Amendments of Other
Financing Documents. Each Bank hereby consents to the execution and delivery of
the Borrower Security Agreement, the Borrower Pledge Agreement, Amendment No. 1
to the Subsidiary Guarantee Agreement, the Subsidiary Security Agreement and the
Subsidiary Pledge Agreement.
32. Representations and Warranties. The Borrower represents and
warrants that the representations and warranties of each Obligor contained in
each Financing Document, as amended, to which it is a party are true on and as
of the date hereof.
33. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
34. Counterparts; Effectiveness. This Amendment 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 Amendment shall become effective as of the date hereof when the Agent shall
have received duly executed counterparts hereof signed by the Borrower and the
Required Banks (or, in the case of any party as to which an executed counterpart
shall not have been received, the Agent shall have received telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party).
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
PERINI CORPORATION
By /s/ Xxxxx X. Xxxxxx
Title: President & CEO
By /s/ Xxxx X. Xxxxxxx
Title: Executive Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ D. Xxxxx Xxxxxxxxxx
Title: Vice President
FLEET NATIONAL BANK OF
MASSACHUSETTS
(f/k/a SHAWMUT BANK, N.A.)
By /s/ Xxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxxxx X. Xxxx
Title: Vice President
BAYBANK, N.A.,
as Bank and as LC Bank
By /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President
COMERICA BANK
By /s/ Xxxxxx X. Xxxxxxxx
Title: First Vice President
XXXXXX TRUST & SAVINGS BANK
By /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
STATE STREET BANK AND TRUST COMPANY
By /s/ Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ D. Xxxxx Xxxxxxxxxx
Title: Vice President
