TUTOR PERINI CORPORATION SECOND AMENDMENT
TUTOR
PERINI CORPORATION
SECOND
AMENDMENT
THIS
SECOND AMENDMENT (this “Amendment”) is
entered into as of January 13, 2010 by and among TUTOR PERINI CORPORATION, a
Massachusetts corporation f/k/a Perini Corporation (“Borrower”), with its
chief executive office at 00 Xx. Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000, the Guarantors party hereto, BANK OF AMERICA, N.A., as
Administrative Agent (“Agent”), and the
Lenders under the Credit Agreement, as defined below. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Credit Agreement, as defined below.
R E C I T A L
S
WHEREAS,
Borrower, Guarantors, Agent and the Lenders have previously entered into a Third
Amended and Restated Credit Agreement dated as of September 8, 2008, as
amended by a Joinder Agreement dated February 13, 2009 executed by
Xxxxxx X. Xxxxxxx Construction Company and by a First Amendment dated as of
February 23, 2009 (as amended, the “Credit Agreement”)
providing for $155,000,000 in Aggregate Revolving Commitments pursuant to Section 2.01.1(a),
subject to increase in an amount not to exceed $45,000,000 pursuant to Section 2.01.1(b)
thereof;
WHEREAS,
Borrower has requested that the Aggregate Revolving Commitments available under
Section 2.01.1(a)
be increased from $155,000,000 to $205,000,000 and that it be permitted to
obtain Letters of Credit in certain currencies other than Dollars;
WHEREAS,
pursuant to Articles of Amendment filed with the Secretary of the Commonwealth
of Massachusetts on May 28, 2009 and effective on such date, Perini
Corporation changed its legal name to Tutor Perini Corporation;
NOW
THEREFORE, in consideration of the foregoing premises and the mutual benefits to
be derived by Borrower, Guarantors, Agent and the Lenders from a continuing
relationship under the Credit Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
A. Amendments to Credit
Agreement. As of the Second Amendment Effective Date, the
Credit Agreement is hereby amended as follows:
1. The
following defined terms appearing in Section 1.01 of the
Credit Agreement are hereby amended in their entirety to read as
follows:
“Aggregate Revolving
Commitments” means the Revolving Commitments of all the Revolving
Lenders. The amount of the Aggregate Revolving Commitments in effect
on the Second Amendment Effective Date is Two Hundred Five Million Dollars
($205,000,000).
“Aggregate Supplemental
Revolver Commitments” means the Supplemental Revolver Commitments of all
the Supplemental Revolver Lenders. The amount of the Aggregate
Supplemental Revolver Commitments in effect on the Second Amendment Effective
Date is One Hundred Seven Million Twenty-Five Thousand Dollars
($107,025,000).
“Applicable Rate”
means, the following percentages per annum, in each case based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 7.02(b),
respectively for
(a) the
Revolving Commitment Fee, the fee for Letters of Credit, the Revolving Loans and
the Swing Line Loans,
|
Pricing
Tier
|
Consolidated
Leverage
Ratio
|
Revolving
Commitment Fee
|
Letters
of Credit
|
Eurodollar
Rate Loans
|
Base
Rate
Loans/Swing
Line Loans
|
|
I
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≤
0.5
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0.50%
|
2.50%
|
2.50%
|
1.50%
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II
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≤1.0
and >0.5
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0.50%
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2.75%
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2.75%
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1.75%
|
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III
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≤1.5
and >1.0
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0.50%
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3.00%
|
3.00%
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2.00%
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IV
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≤2.0
and >1.5
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0.50%
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3.25%
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3.25%
|
2.25%
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V
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>2.0
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0.50%
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3.50%
|
3.50%
|
2.50%
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and
(b) the Supplemental Revolver Commitment Fee and the Supplemental Revolver
Loans,
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Pricing
Tier
|
Consolidated
Leverage
Ratio
|
Supplemental
Revolver Commitment Fee
|
Eurodollar
Rate Loans
|
Base
Rate
Loans
|
|
I
|
≤
1.0
|
0.20%
|
1.00%
|
0.00%
|
|
II
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≤1.5
and >1.0
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0.25%
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1.25%
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0.00%
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|
III
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≤2.0
and >1.5
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0.30%
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1.50%
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0.25%
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|
IV
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≤2.5
and >2.0
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0.35%
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1.75%
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0.50%
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Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section 7.02(b);
provided however, that if a Compliance Certificate is not delivered when due in
accordance with Section 7.02(b), then
the highest Pricing Tier (Tiers V and IV, respectively) shall apply as of the
first Business Day after the date on which such Compliance Certificate was
required to have been delivered until such time as a Compliance Certificate is
properly delivered pursuant to Section
7.02(b). The Applicable Rate in effect from the Amendment
Effective Date through the first Business Day immediately following the date a
Compliance Certificate is required to be delivered pursuant to Section 7.02(b)
for the fiscal quarter ending December 31, 2009 shall be determined
based upon a Consolidated Leverage Ratio of 0.45.
“Audited Financial
Statements” means the audited consolidated balance sheet of Borrower and
its Subsidiaries for the fiscal year ended December 31, 2008, and the
related consolidated statements of income or operations, shareholders’ equity
and cash flows of Borrower and its Subsidiaries for such fiscal year, including
the notes thereto.
“Base Rate” means for
any day a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate plus 0.50%, (b) the Eurodollar Base Rate plus 1.0% and
(c) the rate of interest in effect for such day as publicly announced from
time to time by Bank of America as its “prime rate.” The “prime rate”
is a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions
and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in the
“prime rate” announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such
change.
“CIS” means PCR
Insurance Company, an Arizona corporation, one hundred percent of the equity
interests in which are held by Borrower, which acts as a “captive insurance
subsidiary” for the purpose of engaging in the business of insuring certain
business risks of Borrower and its Subsidiaries and Permitted
Insureds.
“Collateral Securities
Account” means the investment account numbered 394987 maintained by
Borrower with Banc of America Securities LLC, in the name of “Bank of America,
N.A., as Agent f/b/o Certain Lenders, and as Pledgee of Tutor Perini
Corporation” and any other account(s) opened in addition thereto or as a
replacement therefor to hold all or any portion of the securities listed on
Annex I to Schedule 2.01.2 as of the Amendment Effective
Date.
“Consolidated EBITDA”
means for any period, for Borrower and its Subsidiaries on a consolidated basis,
an amount equal to Consolidated Net Income for such period, plus (a) to the
extent deducted in calculating Consolidated Net Income, the sum of
(i) Consolidated Interest Charges for such period, (ii) the provision
for federal, state, local and foreign income taxes payable for such period,
and (iii) the amount of depreciation and amortization expense for such
period and (b) the lesser of (i) with respect to any four fiscal
quarter period ending on and after December 31, 2009, to the extent deducted in
calculating Consolidated Net Income, the amount of any non-cash goodwill
impairment charge taken during such period, and (ii) Pro Forma
Consolidated Net Income for such four fiscal quarter period.
“Designated Foreign
Subsidiary” means any one of Black Construction Corporation, a Guam
corporation, Black Micro Corporation, a Northern Marianas corporation, Perini
Holding Company Cayman Islands, Tutor International, Ltd., Tutor Asia Limited,
and Tutor Cayman, Ltd., each a Cayman Islands company or partnership, and “Designated Foreign
Subsidiaries” means all of such Subsidiaries.
“Equity Issuance”
means any issuance by Borrower or any Subsidiary to any Person of its Equity
Interests, other than (a) any issuance of its Equity Interests pursuant to
the exercise of options, warrants, or grants (b) any issuance of its Equity
Interests pursuant to the conversion of any debt securities to equity or the
conversion of any class of equity securities to any other class of equity
securities, (c) any issuance of options, warrants, or grants relating to
its Equity Interests, and (d) any issuance by Borrower of its Equity
Interests as consideration for a Permitted Investment. The term
“Equity Issuance” shall not be deemed to include any Disposition.
“Excluded Property”
means, with respect to any Loan Party, (a) unless requested by the
Administrative Agent or the Required Lenders (i) any owned or leased real
property which is located outside of the United States, (ii) any IP Rights
for which a perfected Lien thereon is not effected either by filing of a Uniform
Commercial Code financing statement or by appropriate evidence of such Lien
being filed in either the United States Copyright Office or the United States
Patent and Trademark Office, (iii) any personal property (other than
personal property described in clause (a)(ii) above) for which the
attachment or perfection of a Lien thereon is not governed by the Uniform
Commercial Code, (b) the Equity Interests
of
Borrower and any Subsidiary or Joint Venture, (c) any property which,
subject to the terms of Section 8.09, is
subject to a Lien of the type described in Section 8.01(i)
and Section
8.01(p) pursuant to documents which prohibit such Loan Party from
granting any other Liens in such property, (d) the property
known as “Duck Creek” located at APNs 161-31-702-027, 161-31-702-022,
161-31-702-024, Las Vegas, Nevada (the “Duck Creek
Property”), (e) the property located at APN 103-10-010-007, Xxxxx
County Nevada (the “Xxxxx County
Property,” and together with the Duck Creek Property, the “Nevada Properties”),
(f) the Material Real Estate Assets identified on Schedule 1.01(b),
and (g) the corporate jet owned by Xxxxx-Xxxxxx Corporation, identified as
a 2000 Boeing 737-700 S/N 30772.
“Fee Letter” means
that certain letter agreement dated as of May 27, 2009, as amended and restated
by that certain letter dated December 9, 2009 among Borrower, the
Administrative Agent and the Arranger.
“Letter of Credit
Sublimit” means with respect to all Letters of Credit, an amount equal to
the lesser of (i) the Aggregate Revolving Commitments and (ii) the
Dollar Equivalent of $50,000,000. The Letter of Credit Sublimit is
part of, and not in addition to, the Aggregate Revolving
Commitments.
“Loan Notice” means a
notice of (a) a Borrowing of Revolving Loans or Supplemental Revolving
Loans, (b) a conversion of Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans, in each case pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit 2.02.
“Outstanding Amount”
means (i) with respect to any Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of any Loans occurring on such date; and (ii) with respect to
any L/C Obligations on any date, the Dollar Equivalent of the aggregate
amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the
Dollar Equivalent of the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements by Borrower of Unreimbursed
Amounts.
“Revolving Commitment”
means, as to each Revolving Lender, its obligation to (a) make Revolving
Loans to Borrower pursuant to Section 2.01.1,
(b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the Dollar amount set forth opposite such
Lender’s name on Schedule 2.01.1
for Revolving Loans at such time, or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as such amount or
percentage may be adjusted from time to time in accordance with this Agreement,
including without limitation, pursuant to Section 2.01.1(b):
“Revolving Exposure”
means with respect to any Revolving Lender as of any date of determination,
(a) prior to the termination of the Revolving Commitments, that Lender’s
Revolving Commitment; and (b) after the termination of the Revolving
Commitments, the sum of (i) the aggregate principal Outstanding Amount of
the Revolving Loans of that Lender, (ii) in the case of the
L/C Issuer, the Dollar Equivalent of the aggregate amount of
L/C Obligations (net of any participations by Lenders therein),
(iii) the Dollar Equivalent of the aggregate amount of all participations
by that Lender in any outstanding L/C Obligations, (iv) in the case of
Swing Line Lender, the aggregate principal
Outstanding
Amount of all Swing Line Loans (net of any participations by Lenders therein),
and (v) the aggregate amount of all participations by that Lender in any
outstanding Swing Line Loans.
2. Section 1.01 of the
Credit Agreement is hereby further amended to add the following new defined
terms:
“Alternative Currency”
means each of Euro, Sterling, Yen, and each other currency (other than Dollars)
that is approved in accordance with Section 1.06.
“Alternative Currency
L/C” means a Letter of Credit issued by the L/C Issuer which is
denominated in an Alternative Currency, and “Alternative Currency L/C’s” means
all of such Letters of Credit.
“Alternative Currency Letter
of Credit Sublimit” means an amount equal to the lesser of (i) the
Aggregate Revolving Commitments and (ii) $20,000,000. The
Alternative Currency Sublimit is part of, and not in addition to, the Letter of
Credit Sublimit.
“Applicable Time”
means, with respect to any payments in any Alternative Currency, the local time
in the place of settlement for such Alternative Currency as may be determined by
the Administrative Agent or the L/C Issuer, as the case may be, to be necessary
for timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment.
“Cash Collateral” has
the meaning specified in Section
2.03(g).
“Dollar Equivalent”
means at any time, (a) with respect to any amount denominated in Dollars,
such amount, and (b) with respect to any amount denominated in any
Alternative Currency, the equivalent amount thereof in Dollars, as determined by
the Administrative Agent or the L/C Issuer, as the case may be, at such
time on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of Dollars with such Alternative
Currency.
“EMU” means the
economic and monetary union in accordance with the Treaty of Rome 1957, as
amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty of 1992 and the
Amsterdam Treaty of 1998.
“EMU Legislation”
means the legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European
currency.
“Euro” and “EUR” means
the lawful currency of the Participating Member States introduced in accordance
with the EMU Legislation.
“Exchange Rate” means
on any day, (a) with respect to any Alternative Currency, the Spot Rate at
which Dollars are offered on such day by the Administrative Agent in London for
such Alternative Currency at approximately 11:00 A.M. (London time), and
(b) with respect to Dollars in relation to any specified Alternative
Currency, the Spot Rate at which such specified Alternative Currency is offered
on such day by the Administrative Agent in London for Dollars at approximately
11:00 A.M. (London time).
“First Amendment to Security
Agreement” means the First Amendment to Security Agreement dated as of
the Second Amendment Effective Date executed in favor of the Administrative
Agent by each of the Loan Parties.
“Nevada Properties”
has the meaning specified in the defined term “Excluded
Collateral”.
“Overnight Rate”
means, for any day, (a) with respect to any amount denominated in Dollars,
the greater of (i) the Federal Funds Rate and (ii) an overnight rate
determined by the Administrative Agent, the L/C Issuer, or the Swing Line
Lender, as the case may be, in accordance with banking industry rules on
interbank compensation, and (b) with respect to any amount denominated in
an Alternative Currency, the rate of interest per annum at which overnight
deposits in the applicable Alternative Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by a branch or Affiliate of Bank of America in the
applicable offshore interbank market for such currency to major banks in such
interbank market.
“Participating Member
State” means each state so described in any EMU Legislation.
“Pro Forma Consolidated Net
Income” means consolidated net income as calculated using Pro Forma
Pre-Tax Income for the period in question with federal, state, local and foreign
income taxes calculated on a pro forma basis without giving effect to any
impairment charge.
“Pro Forma Pre-Tax
Income” means “Income before Income Taxes,” as shown on the Borrower’s
consolidated statements of income for the period in question, plus, with respect to
any four fiscal quarter period ending on or after December 31, 2009,
to the extent deducted therefrom, the amount of any non-cash goodwill impairment
charge taken during such four-quarter fiscal period.
“Revaluation Date”
means (a) with respect to any Letter of Credit, each of the following:
(i) each date of issuance of a Letter of Credit denominated in an
alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by the
L/C Issuer under any Letter of Credit denominated in an Alternative
Currency, and (iv) such additional dates as the Administrative Agent or the
L/C Issuer shall determine or the Required Class Lenders shall
require.
“Second Amendment Effective
Date” means January 13, 2010.
“Spot Rate” for a
currency means the rate determined by the Administrative Agent or the L/C
Issuer, as applicable, to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with
another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date as of
which the foreign exchange computation is made; provided that the Administrative
Agent or the L/C Issuer may obtain such spot rate from another financial
institution designated by the Administrative Agent or the L/C Issuer if the
Person acting in such capacity does not have as of the date of determination a
spot buying rate for any such currency; and provided further that the L/C
Issuer may use such spot rate quoted on the date as of which the foreign
exchange computation is made in the case of any Letter of Credit denominated in
an Alternative Currency.
“Sterling” and “£” means the lawful
currency of the United Kingdom.
“Yen” and “¥” means
the lawful currency of Japan.
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3.
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Section 1.05 of
the Credit Agreement is hereby amended in its entirety to read as
follows:
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1.05
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Exchange Rates;
Currency Equivalents.
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The
Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot
Rates as of each Revaluation Date to be used for calculating Dollar Equivalent
amounts of Credit Extensions and Outstanding Amounts denominated in Alternative
Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts
between the applicable currencies until the next Revaluation Date to
occur. Except for purposes of financial statements delivered by Loan
Parties hereunder or calculating financial covenants hereunder or except as
otherwise provided herein, the applicable amount of any currency (other than
Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent
amount as so determined by the Administrative Agent or the L/C Issuer, as
applicable.
(a) Wherever
in this Agreement in connection with the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is
expressed in Dollars, but such Letter of Credit is denominated in an Alternative
Currency, such amount shall be the relevant Alternative Currency Equivalent of
such Dollar amount (rounded to the nearest unit of such Alternative Currency,
with 0.5 of a unit being rounded upward), as determined by the L/C
Issuer.
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4.
|
Section 1.06 of
the Credit Agreement is hereby amended in its entirety to read as
follows:
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1.06
|
Additional Alternative
Currencies.
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(a) Borrower
may from time to time request that Letters of Credit be issued in a currency
other than those specifically listed in the definition of “Alternative
Currency;” provided that such
requested currency is a lawful currency (other than Dollars) that is readily
available and freely transferable and convertible into Dollars. In
the case of any such request with respect to the issuance of Letters of Credit,
such request shall be subject to the approval of the Administrative Agent and
the L/C Issuer.
(b) Any
such request shall be made to the Administrative Agent not later than
11:00 a.m., twenty (20) Business Days prior to the date of the desired
Credit Extension (or such other time or date as may be agreed by the
Administrative Agent and, in the case of any such request pertaining to Letters
of Credit, the L/C Issuer, in its or their sole discretion). In the
case of any such request pertaining to Letters of Credit, the Administrative
Agent shall promptly notify the L/C Issuer thereof. The L/C Issuer
(in the case of a request pertaining to Letters of Credit) shall notify the
Administrative Agent, not later than 11:00 a.m., ten Business Days after receipt
of such request whether it consents, in its sole discretion, to the issuance of
Letters of Credit in such requested currency.
(c) Any
failure by the L/C Issuer to respond to such request within the time period
specified in the preceding sentence shall be deemed to be a refusal by the L/C
Issuer to permit Letters of Credit to be issued in such requested
currency. If the Administrative Agent and the L/C Issuer consent to
the issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify Borrower and such currency shall thereupon be deemed for
all purposes to be an Alternative Currency hereunder for purposes of any Letter
of Credit issuances. If the Administrative Agent shall fail to obtain consent to
any request for an additional currency under this Section 1.06,
the Administrative Agent shall promptly so notify Borrower.
5. The
Credit Agreement is hereby amended by adding immediately following the end of
Section 1.06
thereof, the following new Sections 1.07, 1.08 and 1.09:
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1.07
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Change of
Currency.
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(a) Each
obligation of Borrower to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its
lawful currency after the date hereof shall be redenominated into Euro at the
time of such adoption (in accordance with the EMU Legislation). If,
in relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the
Euro.
(c) Each
provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in
currency.
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1.08
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Times of
Day.
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Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
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1.09
|
Letter of Credit
Amounts.
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Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the Dollar Equivalent of the stated amount of such Letter of
Credit in effect at such time; provided, however, that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related
thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the Dollar
Equivalent of the maximum stated
amount of
such Letter of Credit after giving effect to all such increases, whether or not
such maximum stated amount is in effect at such time.
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6.
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Section
2.01.1(b)(i) is hereby amended in its entirety to read as
follows:
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(i) the
Aggregate Revolving Commitments shall not exceed $250,000,000 without the
consent of the Required Class Lenders having Revolving Exposure;
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7.
|
Section 2.01.2 of the
Credit Agreement is hereby amended in its entirety to read as
follows:
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2.01.2
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Supplemental Revolver
Loans.
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Subject
to the terms and conditions set forth herein, each Supplemental Revolver Lender
severally agrees to make loans (each such loan, a “Supplemental Revolver
Loan”) to Borrower in Dollars from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Supplemental Revolver Commitment; provided, however, that
(a) after giving effect to any Borrowing of Supplemental Revolver Loans,
(i) the Total Revolving Outstandings shall equal the Aggregate Revolving
Commitments, and (ii) the aggregate amount of all Supplemental
Revolver Loans outstanding shall not exceed the Maximum Supplemental Revolver
Commitment, and (b) during the twenty (20) consecutive Business Day
period ending on the day immediately preceding the date of such Borrowing, there
shall have been at least one (1) day when the aggregate amount of cash and
Cash Equivalents (excluding auction rate securities held in the Collateral
Securities Account) held by Borrower and its Subsidiaries was less than
$275,000,000. Within the limits of each Supplemental Revolver
Lender’s Supplemental Revolver Commitment, and subject to the other terms and
conditions hereof, Borrower may borrow under this Section 2.01.2,
prepay under Section 2.05,
and reborrow under this Section 2.01.2. Supplemental
Revolver Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
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8.
|
The
last sentence of Section 2.02(a)
is hereby amended in its entirety to read as
follows:
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Borrower
shall not submit a Loan Notice for any Supplemental Revolver Loan unless, after
giving effect to the Borrowing requested by such Loan Notice and any Loan
Notice, requesting a Revolving Loan delivered concurrently with such Loan
Notice, if any, the conditions set forth in subclauses (a)(i) and (ii), and (b)
of Section 2.01.2
shall have been satisfied, and each request by Borrower for a Supplemental
Revolver Loan shall be deemed to be a representation by Borrower that the
Supplemental Revolver Loan so requested complies with each such
condition.
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9.
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Section 2.03 of
the Credit Agreement is hereby amended in its entirety to read as
follows:
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2.03
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Letters of
Credit.
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(a)
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The Letter of Credit
Commitment.
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(i) Subject
to the terms and conditions set forth herein, (A) the L/C Issuer
agrees, in reliance upon the agreements of the Revolving Lenders set forth in
this Section 2.03, (1) from
time to time on any Business Day during the period from
the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of
Credit denominated in Dollars or in one or more Alternative Currencies for the
account of Borrower or any of its Subsidiaries, and to amend or extend Letters
of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drawings under the Letters
of Credit; and (B) the Revolving Lenders severally agree to participate in
Letters of Credit issued for the account of Borrower or its Subsidiaries and any
drawings thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (x) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all
L/C Obligations, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Commitment and (z) the Outstanding Amount of the
L/C Obligations shall not exceed the Letter of Credit
Sublimit. Each request by Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by Borrower that the
L/C Credit Extension so requested complies with the conditions set forth in
the proviso to the preceding sentence. Within the foregoing limits,
and subject to the terms and conditions hereof, Borrower’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
(ii) The
L/C Issuer shall not issue any Letter of Credit if:
(A) subject
to Section 2.03(b)(iii),
the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last extension, unless the Required Class
Lenders having Revolving Exposure have approved such expiry date;
or
(B) the
expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Revolving Lenders have approved such
expiry date.
(iii) The
L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:
(A) any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or request
that the L/C Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the
L/C Issuer with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall impose
upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx
material to it;
(B) the
issuance of such Letter of Credit would violate one or more policies of the
L/C Issuer applicable to letters of credit generally;
(C) except
as otherwise agreed by the Administrative Agent and the L/C Issuer, such
Letter of Credit is in an initial stated amount less than $100,000, in the case
of a standby Letter of Credit;
(D) except
as otherwise agreed by the Administrative Agent and the L/C Issuer, such
Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;
(E) the
L/C Issuer does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency;
(F) such
Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or
(G) a
default of any Revolving Lender’s obligations to fund under Section 2.03(c)
exists or any Revolving Lender is at such time a Defaulting Lender hereunder,
unless the L/C Issuer has entered into satisfactory arrangements with
Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to
such Lender.
(iv) The
L/C Issuer shall be under no obligation to amend any Letter of Credit
if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(v) The
L/C Issuer shall act on behalf of the Revolving Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
L/C Issuer shall have all of the benefits and immunities (A) provided
to the Administrative Agent in Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents pertaining to
such Letters of Credit as fully as if the term “Administrative Agent” as used in
Article X included the L/C Issuer with respect to such acts or omissions,
and (B) as additionally provided herein with respect to the
L/C Issuer.
(b) Procedures for Issuance and
Amendment of Letters of Credit; Auto-Extension Letters of
Credit.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of
Borrower. Such Letter of Credit Application must be received by the
L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least
five (5) Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of
a Letter of
Credit,
such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
and currency thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing
thereunder; (g) the purpose and nature thereof, and
(H) such other matters as the L/C Issuer may require. In
the case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the
L/C Issuer may require. Additionally, Borrower shall furnish to
the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative
Agent may reasonably require.
(ii) Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the L/C Issuer has received
written notice from any Lender, the Administrative Agent or any Loan Party, at
least one Business Day prior to the requested date of issuance or amendment of
the applicable Letter of Credit, that one or more applicable conditions
contained in Article V shall not be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of Borrower or the applicable Subsidiary or
enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit,
each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Letter of
Credit.
(iii) If Borrower so requests in any
applicable Letter of Credit Application, the L/C Issuer shall issue a
Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the
L/C Issuer to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the
“Non-Extension Notice Date”) in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension. Once
an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall
be deemed to have authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an expiry date not later
than the Letter of Credit Expiration Date; provided, however, that the
L/C Issuer shall not permit any such extension if (A) the
L/C Issuer has determined that it would not be permitted,
or
would have no obligation, at such time
to issue such Letter of Credit in its revised form (as extended) under the terms
hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the day
that is five Business Days before the Non-Extension Notice Date from the
Administrative Agent, any Revolver Lender or Borrower that one or more of the
applicable conditions specified in Section 5.02 is not then satisfied, and in each
case directing the L/C Issuer not to permit such
extension.
(iv) Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the L/C Issuer will also deliver to Borrower and the Administrative Agent a
true and complete copy of such Letter of Credit or amendment.
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(c)
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Drawings and
Reimbursements; Funding of
Participations.
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(i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify Borrower and the
Administrative Agent thereof. In the case of a Letter of Credit
denominated in an Alternative Currency, Borrower shall reimburse the L/C Issuer
in such Alternative Currency, unless (A) the L/C Issuer (at its option)
shall have specified in such notice that it will require reimbursement in
Dollars, or (B) in the absence of any such requirement for reimbursement in
Dollars, Borrower shall have notified the L/C Issuer promptly following
receipt of the notice of drawing that Borrower will reimburse the
L/C Issuer in Dollars. In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, the L/C Issuer shall notify Borrower of the Dollar Equivalent of
the amount of the drawing promptly following the determination
thereof. Not later than 2 p.m. on the date of any payment by the
L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the
Applicable Time on the date of any payment by the L/C Issuer under a Letter
of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”),
Borrower shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing and in the applicable
currency. If Borrower fails to so reimburse the L/C Issuer by
such time, the Administrative Agent shall promptly notify each Revolving Lender
of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars
in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the
amount of such Revolving Lender’s Applicable Percentage thereof. In
such event, Borrower shall be deemed to have requested a Borrowing of Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the conditions set forth
in Section 5.02
(other than the delivery of a Loan Notice) and provided that, after giving
effect to such Borrowing, the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments. Any notice given by the
L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each
Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the
L/C Issuer, in Dollars, at the Administrative Agent’s Office for
Dollar-denominated payments in an amount equal to its Applicable Percentage of
the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii),
each Revolving Lender that so makes funds available shall be deemed to have made
a Base Rate Loan to Borrower in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
of Base Rate Loans because the conditions set forth in Section 5.02
cannot be satisfied or for any other reason, Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
due and payable on demand (together with interest) and shall bear interest
at the Default Rate. In such event, each Revolving Lender’s payment
to the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until
each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to
this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Applicable Percentage of such amount shall
be solely for the account of the L/C Issuer.
(v) Each
Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 5.02
(other than delivery by Borrower of a Loan Notice). No such making of
an L/C Advance shall relieve or otherwise impair the obligation of Borrower
to reimburse the L/C Issuer for the amount of any payment made by the
L/C Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If
any Revolving Lender fails to make available to the Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum
equal to the applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the
L/C Issuer in
connection
with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s
Revolving Loan included in the relevant Borrowing or L/C Advance in respect
of the relevant L/C Borrowing, as the case may be. A certificate
of the L/C Issuer submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.
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(d)
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Repayment of
Participations.
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(i) At
any time after the L/C Issuer has made a payment under any Letter of Credit
and has received from any Revolving Lender such Lender’s L/C Advance in
respect of such payment in accordance with Section 2.03(c),
if the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof in
Dollars and in the same funds as those received by the Administrative
Agent.
(ii) If
any payment received by the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Percentage thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to
the Overnight Rate from time to time in effect. The obligations of
the Revolving Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Obligations
Absolute. The obligation of Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any
lack of validity or enforceability of such Letter of Credit, this Agreement or
any other Loan Document;
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that
Borrower or any Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other
document presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any
loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such Letter
of Credit;
(iv) any
payment by the L/C Issuer under such Letter of Credit against presentation
of a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the L/C Issuer under such Letter
of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law;
(v) any
adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to Borrower or in the relevant currency markets
generally; or
(vi) any
other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Borrower or any Subsidiary except for
circumstances or happenings arising from the gross negligence or willful
misconduct of the L/C Issuer.
Borrower
shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance
with Borrower’s instructions or other irregularity, Borrower will immediately
notify the L/C Issuer. Borrower shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents
unless such notice is given as aforesaid.
(f) Role of
L/C Issuer. Each Revolving Lender and Borrower agree
that, in paying any drawing under a Letter of Credit, the L/C Issuer shall
not have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by such Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such
document. None of the L/C Issuer, the Administrative Agent, any
of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Revolving Lender for
(i) any action taken or omitted in connection herewith at the request or
with the approval of the Revolving Lenders or the Required Class Lenders having
Revolving Exposure, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer
Document. Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any
of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (vi) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, Borrower may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to Borrower, to the extent, but only to the
extent, of any direct, as
opposed
to consequential or exemplary, damages suffered by Borrower which Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross
negligence or the L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter
of Credit. In furtherance and not in limitation of the foregoing, the
L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
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(g)
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Cash
Collateral.
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(i) Upon
the request of the Administrative Agent, (A) if the L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, or (B) if, as of the
Maturity Date, any L/C Obligation for any reason remains outstanding,
Borrower shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations;
(ii) In
addition, if the Administrative Agent notifies Borrower at any time that either
(A) the Outstanding Amount of all L/C Obligations denominated in Dollars at such
time exceeds 100% of the Letter of Credit Sublimit then in effect, or
(B) the Outstanding Amount of all L/C Obligations denominated in an
Alternate Currency at such time exceeds 110% of the Alternative Currency Letter
of Credit Sublimit then in effect, then within two Business Days after receipt
of such notice, Borrower shall, without duplication, Cash Collateralize the L/C
Obligations in an amount equal to the amount of such excess; and
(iii) Sections 2.05 and
9.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this Section 2.03,
Section 2.05 and
Section 9.02(c),
“Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Revolving
Lenders, as collateral for the L/C Obligations, cash or deposit account
balances (“Cash
Collateral”) pursuant to documentation in form and substance satisfactory
to the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term have
corresponding meanings. Borrower hereby grants to the Administrative
Agent, for the benefit of the L/C Issuer and the Revolving Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP and
UCP. Unless otherwise expressly agreed by the L/C Issuer
and Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP shall
apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.
(i) Letter of Credit
Fees. Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Applicable Percentage,
in Dollars, a Letter of Credit fee (the “Letter of Credit
Fee”) equal to the Applicable Rate times the Dollar Equivalent of
the daily amount available to be drawn under such Letter of
Credit. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.09. Letter
of Credit Fees shall be (i) due and payable on the first Business Day after
the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand and (ii) computed on a
quarterly basis in arrears. If there is any change in the Applicable
Rate during any quarter, the daily amount available to be drawn under each
Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein,
upon the request of the Required Class Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.
(j) Documentary and Processing
Charges Payable to L/C Issuer. Borrower shall pay directly to the
L/C Issuer for its own account, in Dollars, the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to
time in effect. Such customary fees and standard costs and charges
are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer
Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for
Subsidiaries. Notwithstanding that a Letter of Credit issued
or outstanding hereunder is in support of any obligations of, or is for the
account of, a Subsidiary, Borrower shall be obligated to reimburse the
L/C Issuer hereunder for any and all drawings under such Letter of
Credit. Borrower hereby acknowledges that the issuance of Letters of
Credit for the account of Subsidiaries inures to the benefit of Borrower, and
that Borrower’s business derives substantial benefits from the businesses of
such Subsidiaries.
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10.
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The
third sentence of Section 6.11
is hereby amended in its entirety to read as
follows:
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There is
no tax assessment that has been made against Borrower or any Subsidiary that
could be reasonably expected to have a Material Adverse Effect.
11. Section 8.01 is
hereby amended by amending Section 8.01(f)
in its entirety as set forth below and by adding the following new Sections 8.01(r) and
(s) immediately
after Section 8.01(q):
(f) deposits
to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance
bonds, insurance contracts and other obligations of a like nature incurred in
the ordinary course of business;
(r) Liens
on the real properties constituting the Nevada Properties securing Indebtedness
permitted by Section 8.03(p);
and
(s) Liens
securing Indebtedness permitted under Section 8.03(m).
12. Sections 8.02(d)(vi)
of the Credit Agreement is hereby amended in its entirety to read as
follows:
(vi) the
Purchase Price paid by such Loan Party for any such Acquisition shall not
exceed (i) $75,000,000 for any one such Acquisition and
(ii) $150,000,000 in the aggregate for all such Acquisitions occurring
during the term of this Agreement, or, if the Purchase Price is greater than
such dollar amounts, the prior written approval of the Required Lenders shall
have been obtained.
13. Sections 8.03(h) and
(m) of the
Credit Agreement are hereby amended in their entirety to read, respectively, as
follows:
(h) Guarantees
of Indebtedness permitted under clauses (a) through (g,), (k), (m) and (n)
of this Section 8.03
incurred by a Loan Party;
(m) Indebtedness
in the initial principal amount of $35,000,000 owing by Xxxxx-Xxxxxx to U.S.
Bancorp Equipment Finance, Inc., secured by that certain corporate jet owned by
Xxxxx-Xxxxxx and identified as a 2000 Boeing 737-700 S/N 30772,
and renewals, refinancings and extensions thereof; provided that the
amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to a reasonable
premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder;
|
|
14.
|
Section 8.03 is
further amended by adding the following at the end
thereof:
|
(p) Indebtedness
in an aggregate amount not to exceed $30,000,000 incurred with respect to
financing for the Nevada Properties, on market terms, and renewals, refinancings
and extensions thereof; provided that the
amount of such Indebtedness is not increased at the time of such renewal,
refinancing, or extension except by an amount equal to a reasonable premium or
other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder;
15. The
Credit Agreement is hereby amended to delete the defined term “Dividend Notes” and
all references thereto, and Section 8.06(c) is
hereby amended in its entirety to read as follows:
(c) Intentionally
Omitted.
16. Section 8.11(a) of
the Credit Agreement is hereby amended in its entirety to read as
follows:
(a) Consolidated Net
Worth. Permit Consolidated Net Worth to be less than $1,100,000,000
as of the Borrower’s fiscal quarter ending December 31, 2009, and at
any time thereafter, an amount equal to the sum of (i) $1,100,000,000,
(ii) an amount
equal to
50% of the aggregate amount of Consolidated Net Income for each fiscal
quarter ending on and after March 31, 2010 (with no deduction for net losses),
and (iii) an amount equal to 100% of the aggregate amount of all Equity
Issuances after September 30, 2009 that increase consolidated
shareholders’ equity.
17. Section 9.01(e) of
the Credit Agreement is hereby amended by deleting “$1,000,000” in each of
subclause (i)(A) and (ii)(B) and substituting in its stead
$10,000,000.
18. Section 10.10 of the
Credit Agreement is hereby amended in its entirety to read as
follows:
|
|
10.10
|
Collateral and
Guaranty Matters.
|
(a) The
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent,
at its option and in its discretion:
(i) to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (x) upon termination of the Aggregate Revolving
Commitments and payment in full of all Obligations (other than
(1) contingent indemnification obligations, (2) Obligations
under Treasury Management Agreements and (3) Obligations under Swap
Contracts where the Borrower has pledged and deposited with or delivered to the
Administrative Agent as collateral for such Obligations cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent) and the expiration or termination of all Letters of
Credit, (y) that is transferred or to be transferred as part of or in
connection with any Disposition permitted hereunder or under any other Loan
Document or any Involuntary Disposition, or (z) as approved in accordance
with Section 11.01;
(ii) to
subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is
permitted by Section 8.01(i);
and
(iii) to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
(b) anything
contained in any of the Loan Documents to the contrary notwithstanding (other
than Section
11.08), Borrower, Administrative Agent and each Lender hereby agree
that:
(i) no
Lender shall have any right individually to realize upon any of the Collateral
or to enforce the Guaranty, it being understood and agreed that all powers,
rights and remedies hereunder and all powers, rights and remedies under the
Collateral Documents may be exercised solely by Administrative Agent in
accordance with the terms hereof and thereof; and
(ii) in
the event of a foreclosure by Administrative Agent on any of the Collateral
pursuant to a public or private sale, Administrative Agent may be the purchaser
of any or all of such Collateral at any such sale and Administrative Agent, as
agent for and representative of the Lenders as secured parties under the
Collateral Documents (but not any Lender or Lenders in its or their
respective
individual
capacities unless the Required Lenders shall otherwise agree in writing) shall
be entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the
purchase price for any collateral payable by Administrative Agent at such
sale.
Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty, pursuant to this Section 10.10.
19. Section 11.08 of the
Credit Agreement is hereby amended by inserting the phrase “and regardless of
the adequacy of any collateral” immediately preceding the comma following the
phrase “to the fullest extent permitted by applicable law,” appearing
therein.
20. Schedule 2.01.1
(Commitments and Applicable Percentages for Revolving Commitments), Schedule 2.01.2
(Commitments and Applicable Percentages for Supplemental Revolver Commitments,
Schedule 11.02
(Certain Addresses For Notices), and Exhibit 7.02
(Form of Compliance Certificate), each of the foregoing, to the Credit
Agreement, are hereby deleted and replaced with the new Schedule 2.01.1,
Schedule
2.01.2, Schedule 11.02,
and Exhibit 7.02
attached hereto, respectively.
21. Exhibit 2.02 to
the Credit Agreement (Form of Loan Notice) is hereby deleted and the Form of
Loan Notice attached hereto and marked “Exhibit 2.02” substituted
therefor.
B. Representations and
Warranties. Each Loan Party represents and warrants to Agent
and the Lenders that: (a) such Loan Party has the full power and authority
to execute, deliver and perform its respective obligations under the Credit
Agreement, as amended by this Amendment, (b) the execution and delivery of
this Amendment has been duly authorized by all necessary action of the Board of
Directors (or equivalent) of such Loan Party; (c) after giving effect to
this Amendment, the representations and warranties contained or referred to in
Article VI of the Credit Agreement are true and accurate in all material
respects as if such representations and warranties were being made as of the
Effective Date except to the extent that such representations and warranties
specifically refer to an earlier date; and (d) after giving effect to the
amendments to the Credit Agreement set forth herein, no Default or Event of
Default has occurred and is continuing.
|
|
C.
|
Other.
|
1. The
provisions set forth in Section A of this
Amendment shall be effective as of the date (the “Second Amendment Effective
Date”) upon which Agent receives:
|
|
(i)
|
this
Amendment duly executed and delivered by Agent, the Required Lenders, the
Loan Parties and each lender becoming a Lender under the Credit Agreement
pursuant to this Amendment such that the Aggregate Revolving Commitments
increase from $155,000,000 to
$205,000,000;
|
|
|
(ii)
|
a
First Amendment to Security Agreement executed and delivered by the Loan
Parties;
|
|
|
(iii)
|
revolving
credit promissory notes executed by Borrower and payable to each Revolving
Lender;
|
|
|
(iv)
|
(a) resolutions
of the Board of Directors of each Loan Party, approving and authorizing
the execution, delivery and performance of this Amendment and the other
documents delivered in connection herewith to which it is a party,
certified as of the Second Amendment Effective Date by its secretary or an
assistant secretary as being in full force and effect without modification
or amendment; (b) incumbency certificates including
certification from the secretary or assistant secretary of each Loan Party
that the Organization Documents such Loan Party previously delivered in
connection with the Credit Agreement remain true and correct as of the
Second Amendment Effective Date;
|
|
|
(v)
|
originally
executed copies of favorable written opinions, each dated as of the Second
Amendment Effective Date and otherwise in form and substance, and from
counsel reasonably satisfactory to
Agent;
|
|
|
(vi)
|
satisfactory
evidence that Agent (on behalf of the Lenders) shall have a valid and
perfected first priority lien and security interest in the
Collateral;
|
|
|
(vii)
|
all
documentation and other information required by bank regulatory
authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including without limitation the USA
Patriot Act;
|
|
|
(viii)
|
such
other financial information as may be reasonably requested by Arranger or
the Agent;
|
|
|
(ix)
|
certificate
of the chief executive officer, chief financial officer or chief operating
officer certifying that no material adverse change has occurred
(x) in the business, assets, properties, liabilities (actual or
contingent), operations or financial condition of Borrower and its
Subsidiaries, taken as a whole, since December 31, 2008 or
(y) in the facts and information regarding such entities as
represented to date;
|
|
|
(x)
|
certificate
of the chief executive officer, chief financial officer or chief operating
officer certifying that no any action, suit, investigation or proceeding
is pending or, to the knowledge of the Borrower, threatened in any court
or before any arbitrator or governmental authority that could reasonably
be expected to (x) have a material adverse effect on the business,
assets, properties, liabilities (actual and contingent), operations,
financial condition or prospects of the Borrower and its Subsidiaries,
taken as a whole, (y) adversely affect the ability of the Borrower or
any Guarantor to perform its obligations under the Loan Documents, or
(z) adversely affect the rights and remedies of any of the Agent or
the Lenders under the Loan
Documents;
|
|
|
(xi)
|
certificate
of the chief executive officer, chief financial officer or chief operating
officer certifying that all representations and warranties are true and
correct and no Default shall have occurred and be continuing under the
Credit Agreement;
|
|
|
(xii)
|
payment
to the Agent, for the pro rata accounts of the Revolving Lenders party to
this agreement of the amendment fee and the upfront fee set forth in the
Fee Letter
|
to be
debited to Borrower’s demand deposit account number #0236422481 maintained with
Bank of America, N.A.; and
|
|
(xiii)
|
all
accrued fees, costs and expenses (including, without limitation, the
reasonable costs and expenses of Agent’s counsel) incurred by Arranger,
Agent and Lenders in connection with this Amendment and invoiced to
Borrower.
|
a. By
its execution of this Amendment, each Lender who was not a Lender under the
Credit Agreement prior to the Second Amendment Effective Date (a) represents and
warrants that (i) it has full power and authority, and has taken all action
necessary, to become a Lender under the Credit Agreement, (ii) from and after
the Second Amendment Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder, (v) it has received a copy of the
Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to
Section 7.01
thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to become a Lender
under the Credit Agreement, (vi) it has, independently and without reliance
upon the Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to
become a Lender under the Credit Agreement; and (b) agrees that (i) it will,
independently and without reliance upon the Agent, or any other Lender, 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 action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
b. This
Amendment is executed as an instrument under seal and shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts
without regard to its conflicts of law rules. All parts of the Credit
Agreement and any other Loan Document not affected by this Amendment are hereby
ratified and affirmed in all respects, provided that if any provision
of the Credit Agreement shall conflict or be inconsistent with this Amendment,
the terms of this Amendment shall supersede and prevail. Upon the
execution of this Amendment, all references to the Credit Agreement in that
document, or in any other Loan Document, shall mean the Credit Agreement as
amended by this Amendment. Except as expressly provided in this
Amendment, the execution and delivery of this Amendment does not and will not
amend, modify or supplement any provision of, or constitute a consent to or a
waiver of any noncompliance with the provisions of the Credit Agreement, and,
except as specifically provided in this Amendment, the Credit Agreement shall
remain in full force and effect. This Amendment may be executed in
one or more counterparts with the same effect as if the signatures hereto and
thereto were upon the same instrument.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, each of Borrower, Guarantors, Agent and the Lenders in
accordance with Section 11.01 of
the Credit Agreement, has caused this Amendment to be executed and delivered by
their respective duly authorized officers as of the date first written
above.
|
BORROWER:
|
||
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
TUTOR PERINI CORPORATION,
f/k/a Perini Corporation, a Massachusetts
corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
GUARANTORS:
|
||
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
PERINI BUILDING COMPANY, INC.,
an Arizona corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
PERINI ENVIRONMENTAL SERVICES,
INC., a Delaware corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
INTERNATIONAL CONSTRUCTION
MANAGEMENT SERVICES, INC., a Delaware corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
PERINI MANAGEMENT SERVICES,
INC., a Massachusetts corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
BOW EQUIPMENT LEASING COMPANY,
INC., a New Hampshire corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
R.E. XXXXXX & CO., a
Michigan corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
PERINI LAND AND DEVELOPMENT
COMPANY, INC., a Massachusetts corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
PARAMOUNT DEVELOPMENT
ASSOCIATES, INC., a Massachusetts corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
PERCON CONSTRUCTORS,
INC., a Delaware corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
PERLAND CONSTRUCTION,
INC., a West Virginia corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
XXXXX X. XXXXXXXX, INC.,
a Florida corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
CHERRY HILL CONSTRUCTION,
INC., a Maryland corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
XXXXXXX AND XXXXXXX,
INC., a California corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
XXXXX-XXXXXX LLC, a
California limited liability company
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
XXXXX-XXXXXX
CORPORATION,
f/k/a
Xxxxx-Xxxxxx Builders, a California corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
POWERCO ELECTRIC
CORP., a California corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
TUTOR HOLDINGS, LLC, a
Delaware limited liability company
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
TUTOR
PACIFIC CONSTRUCTION, LLC,
a
Delaware limited liability company
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
TUTOR
MICRONESIA CONSTRUCTION, LLC,
a
Delaware limited liability company
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
X.X. XXXXXX CONSTRUCTION
COMPANY, INC., a Hawaii corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
E.E. BLACK, LIMITED, a
Hawaii corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
DESERT
PLUMBING & HEATING CO., INC.,
a
Nevada corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
TUTOR INVESTMENTS,
INC., a Nevada
corporation
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
TPC AGGREGATES, LLC, a
Nevada limited liability company
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
WITNESS:
_________________________________
_________________________________
Print
Name
|
XXXXXX X. XXXXXXX CONSTRUCTION
COMPANY, LLC,
a
Delaware limited liability company (successor by conversion
to
Xxxxxx X. Xxxxxxx Construction Company, a Pennsylvania
corporation)
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
|
ADMINISTRATIVE
AGENT:
|
||
|
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
||
|
LENDERS:
|
|
|
BANK OF AMERICA, N.A.,
as a Supplemental Revolver Lender and a Revolving Lender
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
BMO CAPITAL MARKETS FINANCING,
INC., as a Revolving Lender
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
TD BANK, N.A., as a
Revolving Lender
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
SOVEREIGN BANK, as a
Revolving Lender
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
COMERICA BANK, as a
Revolving Lender
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
UNION BANK, N.A., as a
Revolving Lender
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
|
U.S. BANK, NATIONAL
ASSOCIATION, as a Revolving Lender
By:_______________________________________
Name:__________________________________
Title:___________________________________
|
SCHEDULE
2.01.1
COMMITMENTS
AND APPLICABLE PERCENTAGES
FOR
REVOLVING LOAN COMMITMENT
|
Lender
|
Applicable Percentage As of Second Amendment
Effective Date
|
Revolving Commitment As of Second Amendment
Effective Date
|
||||||
|
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
|
21.951220 | % | $ | 45,000,000 | ||||
|
BMO
Capital Markets Financing, Inc.
mail
code: III – 10C
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
12.195122 | % | $ | 25,000,000 | ||||
|
Comerica
Bank
MC
4420, LA Towers
000
Xx. Xxxxxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
|
14.634146 | % | $ | 30,000,000 | ||||
|
TD
Bank, N. A.
Suite
700
7
New England Executive Park
Xxxxxxxxxx,
XX 00000
|
14.634146 | % | $ | 30,000,000 | ||||
|
Sovereign
Bank
00
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
|
12.195122 | % | $ | 25,000,000 | ||||
|
U.S.
Bank, National Association
000
Xxxxxxxx Xxxx
Xxxxxxxxxxx,
XX 00000
|
9.756098 | % | $ | 20,000,000 | ||||
|
Union
Bank, N.A.
000
X. Xxxxxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
|
14.634146 | % | $ | 30,000,000 | ||||
SCHEDULE
2.01.2
COMMITMENTS
AND APPLICABLE PERCENTAGES
FOR
SUPPLEMENTAL REVOLVER COMMITMENTS
|
Supplemental Revolver
Lender
|
Initial Applicable
Percentage
|
Supplemental Revolver
Commitment
|
||||||
|
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
|
100.000000000 | % | $ | 107,025,000 | ||||
ANNEX
I TO SCHEDULE 2.01.2
|
SECURITY
|
CUSIP
|
POSITION
|
||||||
| 1. |
The
Xxxxxxx School, CA Series 2006A
|
00000XXX0
|
$ | 8,000,000 | ||||
| 2. |
Brazos
Higher Xx Xxxx 2006 2-A-14
|
00000XXX0
|
$ | 8,250,000 | ||||
| 3. |
GCO
ELF Loan Funding Trust-I Student Loan Asset-Backed 2007-1
A-5AR
(144A – QUIB)
|
00000XXX0
|
$ | 13,975,000 | ||||
| 4. |
GCO
ELF Loan Funding Trust-1 Student Loan Asset-Baked 2007-1
A-6AR
(144A – QUIB)
|
00000XXX0
|
$ | 5,500,000 | ||||
| 5. |
GOAL
Financial (ELAB Trust Estate) 2003-A-8 (QUIB or Accredited Investor
Only)
|
000000XX0
|
$ | 9,600,000 | ||||
| 6. |
Nat
Colleg 1st
Marblehead 2007-3
A-3-AR-7
– NO LETTER REQUIRED
|
00000XXX0
|
$ | 15,000,000 | ||||
| 7. |
Nat
Colleg 1st
Marblehead 2007-4
A-2-AR-7
– NO LETTER REQUIRED
|
00000XXX0
|
$ | 8,000,000 | ||||
| 8. |
NELNET
Student Loan Trust NSLT 2007-2 A-4 AR-1 (144A – QUIB Only)
|
00000XXX0
|
$ | 10,000,000 | ||||
| 9. |
SLM
Student Loan Trust 2006-7 A-6C
|
00000XXX0
|
$ | 8,100,000 | ||||
| 10. |
NextStudent
Master Trust-I 2007-1
A-15
(QUIB only)
|
00000XXX0
|
$ | 6,000,000 | ||||
| 11. |
Panhandle
Plains Higher Xx Xxxx 2007 A-3-Limited Retail Due to Blue Sky
Laws
|
000000XX0
|
$ | 14,600,000 | ||||
SCHEDULE
11.02
CERTAIN
ADDRESSES FOR NOTICES
|
BORROWER
|
Tutor
Perini Corporation
00000
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxxx, Executive Vice President
(p)
818-362-8391
(f)
000-000-0000
xxxx.xxxxxx@xxxxxxxxxxx.xxx
|
|
ALL
OTHER LOAN PARTIES
|
[NAME
OF LOAN PARTY]
c/o
Tutor Perini Corporation
00000
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxxx, Executive Vice President
(p)
818-362-8391
(f)
000-000-0000
xxxx.xxxxxx@xxxxxxxxxxx.xxx
|
|
ADMINISTRATIVE
AGENT
|
Bank
of America, N.A.
000
X. XxXxxxx Xxxxxx
10th
Floor, IL1-231-10-41
Xxxxxxx,
XX 00000-0000
Attn: Xxxxxx
Xxxxxx, Agency Management
Officer, Global Product
Solutions
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
|
|
L/C
ISSUER
|
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attn: Xxxx
X. Xxxxxxxxx, Senior Vice President
Middle Market Banking,
MA5-100-08-13
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
|
|
SWING
LINE LENDER
|
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attn: Xxxx
X. Xxxxxxxxx, Senior Vice President
Middle Market Banking,
MA5-100-07-05
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
|
|
LENDERS
|
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attn: Xxxx
X. Xxxxxxxxx, Senior Vice President
Middle Market Banking,
MA5-100-07-05
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
BMO
Capital Markets Financing, Inc.
BMO
Capital Markets
Investment
& Corporate Banking
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn: Xxxx
X. Xxxxxxxxx, Vice President
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxx.x.xxxxxxxxx@xxx.xxx
Sovereign
Bank, N.A.
00
Xxxxx Xxxxxx
Xxxxxx,
Xxxx 00000
Attn: Xxxxxxx
X. Batsevitsky, Senior Vice President
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxxxxxx@xxxxxxxxxxxxx.xxx
TD
Bank, N.A.
7
New England Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Attn: Xxxxxxx
X Xxxxxxxx, Senior Vice President
(p)
(000) 000-00000
(f)
(000) 000-0000
xxxxxxx.xxxxxxxx@xxxxxxxxxxx.xxx
Comerica
Bank
MC
4420, LA Towers
000
Xx. Xxxxxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
Attn: Nunilo
X. Xxxxx, First Vice President
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxxxx@xxxxxxxx.xxx
|
|
U.S.
Bank, National Association
000
XX Xxx Xx., 0xx Xxxxx
Xxxxxxxx,
XX 00000
Attn: Xxxx
Xxxx, Portfolio Manager
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxx.xxxx@xxxxxx.xxx
Union
Bank, N.A.
00000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx
xx Xxxxxxxx, XX 00000
Attn: Xxxx
Xxxxxxx, Vice President
(p)
(000) 000-0000
(f)
(000) 000-0000
xxxx.xxxxxxx@xxxx.xxx
|
EXHIBIT
2.02
FORM
OF LOAN NOTICE
Date: ___________,
_____
|
To:
|
Bank
of America, N.A., as Administrative
Agent
|
|
|
Ladies
and Gentlemen:
|
Reference
is made to that certain Third Amended and Restated Credit Agreement dated as of
September 8, 2008 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among Tutor Perini
Corporation, a Massachusetts corporation (the “Borrower”), the
Subsidiaries of Borrower identified therein, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The
undersigned hereby requests (select one):
|
|
o Borrowing of
Revolving Loans
|
o
Conversion/continuation of Revolving
Loans
|
|
|
o Borrowing of
Supplemental Revolver Loans
|
o
Conversion/continuation of Supplemental Revolver
Loans
|
1. On
______ (a Business Day).
2. In
the amount of $_______.
3. Comprised
of __________.
[Type of Loan requested]
4. For
Eurodollar Rate Loans: with an Interest Period of _______
months.
[Select
One]
o The Borrowing of
Revolving Loans, if any, requested herein complies with the provisos to the
first sentence of Section 2.01.1
of the Agreement.
o The Borrowing of
Supplemental Revolver Loans, if any, requested herein complies with the provisos
to the first sentence of Section 2.01.2
of the Agreement. In furtherance of the foregoing, the undersigned
hereby certifies that there was at least one (1) day during the period of
twenty (20) consecutive Business Days ending on the day immediately
preceding the date of the Borrowing requested herein, when the aggregate amount
of cash and Cash Equivalents (excluding auction rate securities held in the
Collateral Securities Account) held by Borrower and its Subsidiaries was less
than $275,000,000.
TUTOR
PERINI CORPORATION
By: _________________________________________
Name: ______________________________________
Title: _______________________________________
EXHIBIT
7.02
FORM
OF COMPLIANCE CERTIFICATE
Financial
Statement Date:__________, _____
|
To:
|
Bank
of America, N.A., as Administrative
Agent
|
|
|
Ladies
and Gentlemen:
|
Reference
is made to that certain Third Amended and Restated Credit Agreement dated as of
September 8, 2008 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among Tutor Perini
Corporation, a Massachusetts corporation (the “Borrower”), certain
Subsidiaries of the Borrower, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
The
undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the___________
_______________________________of
the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:
[Use
following paragraph 1 for fiscal year-end financial
statements]
1. Attached
hereto are the year-end audited financial statements required by Section 7.01(a)
of the Agreement for the fiscal year of the Borrower ended as of the above date,
together with the report and opinion of an independent certified public
accountant required by such section.
[Use
following paragraph 1 for fiscal quarter-end financial
statements]
1. Attached
hereto are the unaudited financial statements required by Section 7.01(b) of
the Agreement for the fiscal quarter of the Borrower ended as of the above
date. Such financial statements fairly present the financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The
undersigned has reviewed and is familiar with the terms of the Agreement and has
made, or has caused to be made under his/her supervision, a detailed review of
the transactions and condition (financial or otherwise) of the Borrower during
the accounting period covered by the attached financial statements.
3. A
review of the activities of the Borrower during such fiscal period has been made
under the supervision of the undersigned with a view to determining whether
during such fiscal period the Borrower performed and observed all its
Obligations under the Loan Documents, and
[select
one:]
[to
the best knowledge of the undersigned during such fiscal period, the Borrower
performed and observed each covenant and condition of the Loan Documents
applicable to it, and no Default has occurred and is continuing.]
--or--
[the
following covenants or conditions have not been performed or observed and the
following is a list of each such Default and its nature and
status:]
--
4. The
representations and warranties of the Borrower contained in Article VI of the
Agreement, and any representations and warranties of any Loan Party that are
contained in any document furnished at any time under or in connection with the
Loan Documents, are true and correct on and as of the date hereof, except
(i) to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, (ii) for purposes of this Compliance Certificate, the
representations and warranties contained in subsections (a) and (b) of Section 6.05 of
the Agreement shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 7.01 of the
Agreement, including the statements in connection with which this Compliance
Certificate is delivered, and (iii) as otherwise described on Schedule II
attached hereto.
5. The
financial covenant analyses and information set forth on Schedule I attached
hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the
undersigned has executed this Certificate as of
________________, _____.
TUTOR
PERINI CORPORATION
By: _________________________________________
Name: ______________________________________
Title: _______________________________________
SCHEDULE
I
to the
Compliance Certificate
($ in
000’s)
| I. |
Section
8.11(a) – Consolidated Net Worth.
|
||||||||||||
| A. |
Consolidated
Shareholders Equity at Statement Date
|
$_____
|
|||||||||||
| B. |
Minimum
Required Consolidated Net Worth [Sum
of
following (i)-(iii]
|
$_____
|
|||||||||||
|
$_____
|
|||||||||||||
|
(i)
|
$ | 1,100,000,000 | |||||||||||
|
(ii)
|
50%
of Consolidated Net Income for each
full
fiscal quarter ending after December 31, 2009
(no
reduction for net losses)
|
$_____
|
|||||||||||
|
(iii)
|
Equity
Issuances after the September 30, 2009
that
increase consolidated shareholders’ equity
|
$_____
|
|||||||||||
|
II.
|
Section
8.11 (b) – Consolidated Leverage Ratio.
|
||||||||||||
| A. |
Consolidated Funded
Indebtedness at Statement Date [Sum
of
following (i) – (vii)]
|
$_____
|
|||||||||||
|
(i)
|
obligations
for borrowed money, and all obligations
evidenced
by bonds (other than surety bonds),
debentures,
notes, loan agreements or other similar
instruments
|
$_____
|
|||||||||||
|
(ii)
|
purchase
money Indebtedness
|
$_____
|
|||||||||||
|
(iii)
|
all
obligations arising under letters of credit (including
standby
and commercial), bankers’ acceptances, bank
guaranties,
and similar instruments
|
$_____
|
|||||||||||
|
(iv)
|
all
obligations in respect of the deferred purchase
price
of property or services
|
$_____
|
|||||||||||
|
(v)
|
all
Attributable Indebtedness
|
$_____
|
|||||||||||
|
(vi)
|
all
Guarantees with respect to Indebtedness of the
|
||||||||||||
|
types
specified in (i) through (v) above of another
Person
|
$_____
|
||||||||||||
|
(vii)
|
all
non-recourse Indebtedness of the types referred to
above
of any partnership or joint venture in which
borrower
or a Subsidiary is a general partner or
joint
venturer
|
$_____
|
|||||||||||
| B. |
Pro Forma Consolidated Net
Income [Line (i) minus (ii)]
|
$_____
|
|||||||||||
|
(i)
|
Pro
Forma Pre-Tax Income [Line (1) plus (2)]
|
$_____
|
|||||||||||
| (1 | ) |
Income
before Income Taxes
|
$_____
|
||||||||||
| (2 | ) |
Total
Non-Cash Goodwill
Impairment
Charges (to the
extent
they reduced (1))
|
$_____
|
||||||||||
|
(ii)
|
Pro
Forma Income Taxes (calculated using
Pro
Forma Pre-Tax Income as the amount of income)
|
$_____
|
|||||||||||
|
Consolidated EBITDA for
four quarters ending at Statement Date
|
|||||||||||||
|
[Sum
of Lines (i) - (vi)]
|
$_____
|
||||||||||||
|
(i)
|
Consolidated
Net Income
|
$_____
|
|||||||||||
|
(ii)
|
Consolidated
Interest Charges
|
$_____
|
|||||||||||
|
(iii)
|
Provision
for Income Taxes
|
$_____
|
|||||||||||
|
(iv)
|
Depreciation
expenses
|
$_____
|
|||||||||||
|
(v)
|
Amortization
expenses
|
$_____
|
|||||||||||
|
(vi)
|
Lesser
of Pro Forma Consolidated Net Income and
Total
Non-Cash Goodwill Impairment Charges
|
$_____
|
|||||||||||
| C. |
Consolidated Leverage
Ratio (Line II.A ¸ Consolidated
EBITDA
as
calculated under the above B)
|
_____to
1
|
|||||||||||
|
Maximum
permitted
|
[2.5
to 1]
|
||||||||||||
|
III.
|
Section
8.11 (c) – Consolidated Fixed Charge Coverage Ratio.
|
||||||||||||
| A. |
Consolidated
Adjusted EBITDA for Subject Period
[line
(i) minus
sum of lines (ii), (iii) and (iv)]
|
$_____
|
|||||||||||
|
(i)
|
Consolidated
EBITDA (From Line II (B))
|
$_____
|
|||||||||||
|
(ii)
|
Consolidated
Maintenance Capital Expenditure
for
Subject Period paid in cash
|
$_____
|
|||||||||||
|
(iii)
|
Restricted
Payments during Subject Period paid
in
cash
|
$_____
|
|||||||
|
(iv)
|
Income
taxes paid in cash
|
$_____
|
|||||||
| B. |
Consolidated
Fixed Charges [sum of lines (i) and (ii) below]
|
$_____
|
|||||||
|
(i)
|
Cash
portion of Consolidated Interest Charges
|
$_____
|
|||||||
|
(ii)
|
Consolidated
Scheduled Funded Debt Payments
|
$_____
|
|||||||
| C. |
Consolidated
Fixed Charge Coverage Ratio [(Line III.A. ¸
Line III.B)]
|
____to
1
|
|||||||
|
Minimum
required
|
[1.5
to 1]
|
||||||||
|
IV.
|
Section
8.11 (d) – Consolidated Asset Coverage Ratio.
|
||||||||
| A. |
Net
Outstanding Amount of Eligible Accounts [line (i) minus
sum
of lines (ii), (iii) and (iv) below]
|
$_____
|
|||||||
|
(i)
|
Total
Accounts per listing attached
|
$_____
|
|||||||
|
(ii)
|
Ineligible
Accounts [Sum of (a)-(h) below]
|
$_____
|
|||||||
|
(a)
|
Accounts
arising under any contract the
performance
of which has not been completed
but
which performance is backed by a bond,
guaranty
or other undertaking issued by a surety
|
$_____
|
|||||||
|
(b)
|
Accounts
that remain unpaid more than 90 days
after
the date of the original invoices giving
rise
to such Accounts
|
$_____
|
|||||||
|
(c)
|
Accounts
that are evidenced by promissory
notes
or chattel paper
|
$_____
|
|||||||
|
(d)
|
Accounts
that represent amounts due from
Affiliates
or employees of the Borrower
|
$_____
|
|||||||
|
(e)
|
Accounts
that represent amounts due from
an
account debtor when such account debtor
is
located outside the United States of America
and
such Account is not supported by a letter
of
credit in form and substance satisfactory to
the
Administrative Agent or otherwise approved
by
the Administrative Agent
|
||||||||
|
$______
|
|||||||||
|
(f)
|
Unless
otherwise approved by the Lenders,
Accounts
owing by any account debtor (other than an Approved Payor) which
when
|
||||||||
|
aggregated
with any other Accounts owing
by
such account debtor or any affiliate of
such
account debtor constitute more than
twenty
percent (20%) of all other Eligible
Accounts
outstanding as of the date of any
determination,
unless such Accounts are
covered
by credit insurance (after giving
effect
to any deductible applicable to such
Accounts)
payable in U.S. dollars issued
by
an insurer on terms and in amounts
acceptable
to the Administrative Agent,
and,
if requested by the Administrative
Agent,
payable directly to the
Administrative
Agent
|
$_____
|
||||||||
|
(g)
|
Accounts
as to which a contra or other right
of
set-off exists, or as to which an account
debtor
has asserted a counterclaim, defense
or
dispute, to the extent of the portion of
such
account receivable subject to a contra
or
other right of setoff, counterclaim,
defense
or dispute
|
$_____
|
|||||||
|
(h)
|
Accounts
owing by any account debtor
(other
than an Approved Payor) whose
accounts
with Borrower are past due more
than
ninety (90) days after the date of the
original
invoices evidencing such Accounts
which
constitute more than thirty percent
(30%)
of the total Accounts owing by such
account
debtor
|
$_____
|
|||||||
|
(iii)
|
Applicable
Credits and Adjustment
|
$_____
|
|||||||
|
(iv)
|
Retainages
|
$_____
|
|||||||
| B. |
Total
Revolving Outstandings [Loans, L/Cs and
Swing
Line Advances]
|
$_____
|
|||||||
| C. |
Consolidated
Asset Coverage Ratio (Line IV.A. ¸ Line
IV.B)
|
______
to 1
|
|||||||
|
Minimum
required:
|
1.5
to 1
|
||||||||
