[CONFORMED COPY]
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
January 17, 1997
among
PERINI CORPORATION,
The BANKS Listed Herein
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Agent
-------------------
FLEET NATIONAL BANK, as Co-Agent
AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT dated as of January 17, 1997 among PERINI
CORPORATION (with its successors, the "Borrower"), the BANKS listed on the
signature pages hereof and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent
(with its successors in such capacity, the "Agent"), amending and restating the
Credit Agreement dated as of December 6, 1994 (as amended, the "Original Credit
Agreement") among the Borrower, the banks listed on the signature pages thereof
and the Agent and the Bridge Credit Agreement dated as of February 26, 1996 (as
amended, the "Bridge Credit Agreement") among the Borrower, the banks listed on
the signature pages thereof and the Agent.
WHEREAS, the parties to this Agreement are parties to the
Original Credit Agreement and the Bridge Credit Agreement;
WHEREAS, the Borrower has requested amendments to certain
provisions of the Original Credit Agreement and the Bridge Credit Agreement as
incorporated in this Agreement, and the Banks and the Agent have agreed to such
amendments, subject to the satisfaction of the terms and conditions set forth
herein, which amendments shall become effective only at such time as this
Agreement becomes effective in accordance with Section 3.01;
WHEREAS, the parties have agreed that upon the effectiveness
of this Agreement, any outstanding "Loans" made pursuant to the Original Credit
Agreement by each Bank (as defined herein) shall be consolidated with any
outstanding "Bridge Loans" made pursuant to the Bridge Credit Agreement by such
Bank and all such "Loans" and "Bridge Loans," together with all other "Loans"
made pursuant to this Agreement by such Bank, shall constitute "Loans"
hereunder, shall be governed by the terms and conditions of this Agreement and
shall be evidenced by an amended and restated promissory note of the Borrower,
substantially in the form of Exhibit A;
WHEREAS, the parties have agreed that, upon the effectiveness
of this Agreement, any outstanding "Letters of Credit" issued pursuant to the
Original Credit Agreement and any outstanding "Bridge Letters of Credit" issued
pursuant to the Bridge Credit Agreement, together with all other "Letters of
Credit" issued pursuant to this Agreement, shall constitute "Letters of Credit"
hereunder and shall be governed by the terms and conditions of this Agreement;
and
WHEREAS, in order to set forth in one document, for the
convenience of the parties, the text of the Original Credit Agreement and the
Bridge Credit
Agreement, in each case as amended by the amendments to be made upon the
effectiveness hereof, the Original Credit Agreement and the Bridge Credit
Agreement will, upon satisfaction of the conditions set forth in Section 3.01
hereof, be amended and restated to read in full as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"Administrative Questionnaire" means, with respect to each
Bank, the administrative questionnaire in the form submitted to such Bank by the
Agent and submitted to the Agent (with a copy to the Borrower) duly completed by
such Bank.
"Adjusted Euro-Dollar Rate" means, with respect to any
Interest Period, a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable Euro-Dollar Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
"Affected Subsidiary" has the meaning set forth in Section
9.05(b).
"Affiliate" means, with respect to any Person, (i) any other
Person that directly, or indirectly through one or more intermediaries, controls
such Person (a "Controlling Person") or (ii) any other Person which is
controlled by or is under common control with a Controlling Person. As used
herein, the term "control" of any Person means the possession, directly or
indirectly, of the power to vote 10% or more of any class of voting securities
of such Person or to direct or cause the direction of the management or policies
of a Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means Xxxxxx Guaranty Trust Company of New York in its
capacity as agent for the Banks under the Financing Documents, and its
successors in such capacity.
"Applicable Base Rate Margin" means (i) in the case of Tranche
A Loans, 1.00% and (ii) in the case of Tranche B Loans, 2.00%.
"Applicable Euro-Dollar Margin" means 2.25%.
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"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Base Rate Loans, its Domestic Lending Office and (ii) in
the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Asset Sale Letter" means a letter from the Borrower to the
Banks and the Agent listing certain potential asset sales and a minimum cash
price for each such asset sale, which letter shall have been delivered to the
Banks and the Agent not less than five Domestic Business Days prior to the
Effective Date and shall be in form and substance satisfactory to each Bank.
"Assignee" has the meaning set forth in Section 9.06(c).
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement entered into by a Lender and an Assignee with the consent
of the Agent, substantially in the form of Exhibit L.
"Available LC Amount" means at any time an amount equal to the
lesser of (x) $25,000,000 and (y) the excess, if any, of (i) the aggregate
amount of the Tranche A Commitments over (ii) the aggregate outstanding
principal amount of the Tranche A Loans.
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(c), and their
respective successors.
"Bankruptcy Proceeding" means, with respect to any Person, a
case or other proceeding seeking liquidation, reorganization or other relief
with respect to such Person or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of such
Person or any substantial part of its property.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Tranche B Loan or (ii) a Tranche
A Loan which bears interest based on the Base Rate pursuant to the applicable
Notice of Borrowing or Notice of Interest Rate Election pursuant to the
provisions of Article VIII.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer
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Plan and which is maintained or otherwise contributed to by any member of the
ERISA Group.
"Bonding Company" means Fidelity and Deposit Company of
Maryland.
"Borrower" means Perini Corporation, a Massachusetts
corporation, and its successors.
"Borrower Pledge Agreement" means the Amended and Restated
Borrower Pledge Agreement dated as of December 6, 1994 between the Borrower and
the Agent, as amended and restated as of February 26, 1996, as amended and
restated as of the date hereof in substantially the form of Exhibit C, and as
the same may be amended, modified, supplemented and restated from time to time
as permitted herein and in accordance with the terms thereof.
"Borrower Security Agreement" means the Borrower Security
Agreement dated as of February 26, 1996 between the Borrower and the Agent, as
amended and restated as of the date hereof in substantially the form of Exhibit
B, and as the same may be amended, modified, supplemented and restated from time
to time as permitted herein and in accordance with the terms thereof.
"Borrower's 1995 Form 10-K" means the Borrower's annual report
on Form 10-K for the fiscal year ended December 31, 1995, as filed with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934.
"Borrowing" means a borrowing under the Original Credit
Agreement, the Bridge Credit Agreement or this Agreement consisting of Loans
made to the Borrower at the same time by one or more Banks on a single date and
for a single Interest Period.
"Bridge Credit Agreement" means the Bridge Credit Agreement
dated as of February 26, 1996 among the Borrower, the banks listed on the
signature pages thereof and Xxxxxx Guaranty Trust Company of New York, as the
agent for such banks, as amended to the Effective Date.
"Bridge Note" has the meaning set forth in Section 2.03.
"Business Plan" means, at any time, the most recently
delivered of (i) the business plan delivered pursuant to Section 3.01(q) and
(ii) the annual projected consolidated balance sheets and income statements,
operating and capital expenditure budgets and cash flow forecasts for the
Borrower and its Consolidated Subsidiaries delivered pursuant to Section
5.01(i).
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"Cash Management Letter" means a letter from the Borrower to
the Banks and the Agent describing the cash management system of the Borrower
and its Subsidiaries as of the Effective Date, as set forth on Schedule 3.01(p).
"Casualty" has the meaning provided for such term in any
Mortgage.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, and any
rules or regulations promulgated thereunder.
"Class" refers to a determination whether a Loan is a Tranche
A Loan or a Tranche B Loan (or whether a Borrowing is to be comprised of, or a
Commitment relates to the making of, Tranche A Loans or Tranche B Loans).
"Collateral" means all property, real and personal, tangible
and intangible, with respect to which Liens are created or are purported to be
created pursuant to the Collateral Documents.
"Collateral Documents" means the Borrower Pledge Agreement,
the Borrower Security Agreement, the Subsidiary Pledge Agreement, the Subsidiary
Security Agreement, the Mortgages and all other supplemental or additional
security agreements, pledge agreements, mortgages, deeds of trust or similar
instruments Delivered pursuant hereto or thereto.
"Commitment" means a Tranche A Commitment or a Tranche B
Commitment and "Commitments" means all or any combination of the foregoing, as
the context may require.
"Commitment Reduction Date" means the last Domestic Business
Day occurring in each of December 1997, December 1998, March 1999, June 1999 and
September 1999.
"Condemnation" has the meaning provided for such term in any
Mortgage.
"Consolidated Adjusted Tangible Net Worth" means, at any date,
Consolidated Tangible Net Worth, plus to the extent deducted in determining the
consolidated net income (or loss) of the Borrower and its Consolidated
Subsidiaries, the aggregate amount of non-cash charges incurred in accordance
with GAAP after the Effective Date in connection with any Dispositions or
write-downs of any Real Estate Investments or of any other real property of the
Borrower or any Subsidiary, minus to the extent included in determining the
consolidated net income (or loss) of the Borrower and its Consolidated
Subsidiaries, the aggregate amount of non-cash gains realized in accordance with
GAAP after the Effective Date in connection with
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Dispositions of any Real Estate Investments or of any other real property of the
Borrower or any Subsidiary, all determined as of such date.
"Consolidated Capital Expenditures" means, for any period, the
aggregate amount of expenditures by the Borrower and its Consolidated
Subsidiaries for plant, property and equipment during such period (including any
such expenditure by way of acquisition of a Person or by way of assumption of
indebtedness or other obligations of a Person, to the extent reflected as plant,
property and equipment), but excluding any such expenditures made for the
replacement or restoration of assets to the extent financed by condemnation
awards or proceeds of insurance received with respect to the loss or taking of
or damage to the asset or assets being replaced or restored. The term
"Consolidated Capital Expenditures" shall not include any Real Estate
Investments.
"Consolidated Subsidiary" of any Person means at any date any
Subsidiary of such Person or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
if such statements were prepared as of such date.
"Consolidated Tangible Net Worth" means, at any date, the
consolidated stockholders' equity of the Borrower and its Consolidated
Subsidiaries (including the Series B Preferred Stock, whether or not otherwise
included in stockholders' equity), less their consolidated Intangible Assets,
all determined as of such date. For purposes of this definition "Intangible
Assets" means the amount (to the extent reflected in determining such
consolidated stockholders' equity) of (i) all write-ups (other than write-ups
resulting from foreign currency translations and write-ups of assets of a going
concern business made within twelve months after the acquisition of such
business) subsequent to September 30, 1996 in the book value of any asset owned
by the Borrower or a Consolidated Subsidiary and (ii) all unamortized debt
discount and expense, capitalized real estate taxes (to the extent not permitted
to be capitalized in accordance with generally accepted accounting principles as
in effect on the date hereof), goodwill, patents, trademarks, service marks,
trade names, copyrights, organization or developmental (other than real estate
developmental) expenses and other intangible items.
"Construction Business" means the general contracting,
construction management, engineering and design-build services business of the
Borrower and its Consolidated Subsidiaries.
"Credit Event" means the making of a Loan or the issuance of a
Letter of Credit or the extension of an Evergreen Letter of Credit.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person
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evidenced by bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all non- contingent obligations of such Person as lessee which
are capitalized in accordance with generally accepted accounting principles, (v)
all obligations of such Person to reimburse issuers of letters of credit for
drawings under such letters of credit, (vi) all Debt secured by a Lien on any
asset of such Person, whether or not such Debt is otherwise an obligation of
such Person, and (vii) all Debt of others Guaranteed by such Person; provided
that advances to the Borrower or a Subsidiary by a joint venture out of the
Borrower's or such Subsidiary's share of the undistributed earnings of such
joint venture shall not constitute Debt.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations
of such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Disposition" means any sale, lease, assignment, transfer,
Casualty, Condemnation, or other disposition.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City or Massachusetts
are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Agent.
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses,
7
agreements and other governmental restrictions relating to the environment, the
effect of the environment on human health or to emissions, discharges or
releases of pollutants, contaminants, Hazardous Substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or the clean-up or
other remediation thereof.
"Environmental Liabilities" means any and all liabilities of
or relating to the Borrower or any of its Subsidiaries (including any
liabilities derived from an entity which is, in whole or in part, a predecessor
of the Borrower or any of its Subsidiaries), whether vested or unvested,
contingent or fixed, actual or potential, known or unknown, which arise under or
relate to matters covered by Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Agent.
"Euro-Dollar Loan" means a Tranche A Loan which bears interest
based on the Adjusted Euro-Dollar Rate pursuant to the applicable Notice of
Borrowing or Notice of Interest Rate Election.
"Euro-Dollar Rate" means, with respect to any Interest Period,
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to each of
the Euro-Dollar Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the
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Euro-Dollar Loan of such Euro-Dollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest Period.
"Euro-Dollar Reference Banks" means the principal London
offices of Bank of America National Trust and Savings Association and Xxxxxx
Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted Euro-Dollar Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
"Event of Default" has the meaning set forth in Section 6.01.
"Evergreen Letter of Credit" has the meaning set forth in
Section 2.16(b).
"Exempt Group" means (i) any employee benefit plan of the
Borrower or any Subsidiary, (ii) any entity or Person holding shares of common
stock of Borrower organized, appointed or established by the Borrower or any
Subsidiary for or pursuant to the terms of any such plan, (iii) The Perini
Memorial Foundation, Inc., The Xxxxxx Xxxxxx Memorial Foundation, or any of the
various trusts established under the xxxxx of Xxxxx X. Xxxxxx, Senior, Xxxxxx X.
Xxxxxx, Senior or Xxxxxxx X.
Xxxxxx, Senior, or (iv) the Investor.
"Exercise Price Letter" means an Exercise Price Letter,
completed and delivered by the Agent to the Borrower, dated the Effective Date
and countersigned by the Borrower, substantially in the form of Exhibit Q.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business
9
Day, and (ii) if no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to Xxxxxx Guaranty Trust Company of New York on such day on such
transactions as determined by the Agent.
"Financial Letter of Credit" means any Letter of Credit which
constitutes a financial standby letter of credit within the meaning of Appendix
A to Regulation H of the Board of Governors of the Federal Reserve System or
other applicable capital adequacy guidelines promulgated by bank regulatory
authorities (including without limitation workmen's compensation letters of
credit).
"Financing Documents" means this Agreement, the Notes, the
Subsidiary Guarantee Agreement, the Collateral Documents, the Warrants, the
Warrantholders Rights Agreement, the Securityholders Agreement and all other
supplemental or additional agreements and instruments delivered pursuant hereto
or thereto.
"GAAP" means generally accepted accounting principles as in
effect from time to time.
"Group of Loans" means, at any time, a group of Loans
consisting of (i) all Loans which are Base Rate Loans at such time or (ii) all
Loans which are Euro- Dollar Loans having the same Interest Period at such time;
provided that, if a Loan of any particular Bank is converted to or made as a
Base Rate Loan pursuant to Section 8.02 or 8.04, such Loan shall be included in
the same Group or Groups of Loans from time to time as it would have been in if
it had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the holder of such Debt of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit or bid and performance bonds and
guarantees in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Xxxxxx'x XX" means the Letter of Credit dated September 27,
1996, letter of credit no. 00103213, issued by the LC Bank in the amount of
$4,650,000 in favor of Xxxxxx'x Operating Co. Inc.
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"Hazardous Substances" means any toxic, radioactive, caustic
or otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Interest Period" means, with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing as specified in
the applicable Notice of Borrowing or on the date specified in the applicable
Notice of Interest Rate Election and ending one, two or three months thereafter,
as the Borrower may elect in such Notice of Borrowing or Notice of Interest Rate
Election, as the case may be; provided that:
(a) any Interest Period that would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period that begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(c) any Interest Period that would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, Guarantee, time deposit or
otherwise.
"Investor" means PB Capital Partners, L.P., a Delaware limited
partnership.
"Investor Group" means the Investor, The Common Fund, Separate
Account P, RCBA, Xxxxxxx X. Xxxx, Xxxxxx Xxxxx, Xxxxx-Xxxxxx Corp., and their
respective Affiliates.
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"LC Bank" means BayBank, N.A., and its successors, or such
other Bank as the Borrower may designate from time to time (with the consent of
such other Bank).
"LC Exposure" means, at any time and for any Bank, an amount
equal to such Bank's Tranche A Commitment Percentage at such time multiplied by
the aggregate amount of Letter of Credit Liabilities in respect of all Letters
of Credit at such time.
"Letter of Credit" has the meaning set forth in Section
2.16(a).
"Letter of Credit Liabilities" means, at any time and in
respect of any Letter of Credit, the sum, without duplication, of (i) the amount
available for drawing under such Letter of Credit plus (ii) the aggregate unpaid
amount of all Reimbursement Obligations in respect of previous drawings made
under such Letter of Credit.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a loan made by a Bank pursuant to Section 2.02 of
the Original Credit Agreement, Section 2.02 of the Bridge Credit Agreement or
Section 2.02 hereof; provided that, if any such loan or loans (or portions
thereof) are combined or subdivided pursuant to a Notice of Interest Rate
Election, the term "Loan" shall refer to the combined principal amount resulting
from such combination or to each of the separate principal amounts resulting
from such subdivision, as the case may be.
"Loan Commitment" means for any Bank at any time an amount
equal to the excess, if any, of such Bank's Commitment at such time over such
Bank's LC Exposure at such time.
"Management Agreement" means a management agreement between
the Borrower and Xxxxx-Xxxxxx Corp. entered into in accordance with the Stock
Purchase Agreement.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $10,000,000.
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"Material Subsidiary" means at any time a Subsidiary which as
of such time meets the definition of a "significant subsidiary" contained as of
the date hereof in Regulation S-X of the Securities and Exchange Commission.
"Modified Parent Company Debt" means at any date the Debt of
the Borrower (other than Debt payable to any Wholly-Owned Consolidated
Subsidiary) determined on an unconsolidated basis as of such date.
"Mortgage Amendments" means the amendments to the mortgages
and deeds of trust described in Part III of Schedule 4.03(c), each substantially
in the form of Exhibit K-1 or Exhibit K-2 hereto.
"Mortgage Banks" means (i) Xxxxxx Trust and Savings Bank, as
successor to Barclays Bank PLC, Boston Branch, in its capacity as the issuer of
a letter of credit for the account of the Borrower in the initial stated amount
of $4,106,850, the maker of a commitment to lend up to $4,106,850 to the
Borrower pursuant to the Letter of Credit and Reimbursement Agreement dated as
of October 1, 1985 and the "Bank" described in the mortgage on the property
described as Item 12 in Part I of Schedule 4.03(c) hereto which secure the
obligations of the Borrower under such Letter of Credit and Reimbursement
Agreement and (ii) Fleet Credit Corporation, as the lessor of computer equipment
and other personal property to the Borrower and certain of its Subsidiaries and
joint ventures pursuant to the Master Equipment Lease No. 1100641700 dated
December 30, 1988 (including the Addendum thereto dated December 30, 1988), and
the schedules executed thereunder prior to February 26, 1996.
"Mortgaged Facilities" means the properties encumbered by the
Mortgages and described as Items 1, 2, 3, 4, 5, 6, 7, 10, 11 and 12 in Part I of
Schedule 4.03(c) hereto.
"Mortgages" means the mortgages or deeds of trust described in
Part III of Schedule 4.03(c), as amended as of the date hereof by the Mortgage
Amendments, and as the same may be amended, modified, supplemented and restated
from time to time as permitted herein and in accordance with the terms hereof
and thereof, and "Mortgage" means any of the foregoing.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
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"Net Income from Continuing Operations" means, for any period,
the consolidated net income of the Borrower and its Consolidated Subsidiaries
for such period, but eliminating any extraordinary items of income or expense.
"Net Proceeds" means, with respect to any Disposition by the
Borrower or any Subsidiary of any asset, property or business, an amount equal
to the proceeds received by the Borrower or any Subsidiary in respect thereof
(including Insurance Proceeds (as defined in any Mortgage) received in respect
of any Casualty, but only to the extent exceeding the aggregate amount to
restore or replace the applicable Mortgaged Facility (or portion thereof subject
to such Casualty), and including all Awards (as defined in any Mortgage)
received in respect of any Condemnation, less (without duplication)
out-of-pocket transaction costs, all senior mortgage debt required to be repaid
at the time of such Disposition, fees, commissions and other transaction
expenses reasonably incurred by the Borrower or such Subsidiary in connection
with such Disposition and any taxes paid or payable (as estimated by a financial
officer of the Borrower in good faith) in respect thereof.
"Net Working Investment" means, at any date, an amount
calculated as follows:
(i) the aggregate amount of accounts and notes receivable,
unbilled work and investments in construction joint ventures which are shown as
current assets,
minus
(ii) the aggregate amount of accounts payable, advances from
construction joint ventures, deferred contract revenue and accrued expenses,
in each case as shown on the consolidated balance sheet for the Borrower and its
Consolidated Subsidiaries determined as of such date; provided that for purposes
of calculating any increase or decrease in Net Working Investment to determine
Operating Cash Flow, Net Working Investment on the first day of the relevant
measurement period shall be deemed to be the lesser of $45,000,000 and the
amount calculated as shown above.
"Notes" means promissory notes of the Borrower, substantially
in the form of Exhibit A, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Notice of Interest Rate Election" has the meaning set forth
in Section 2.02(f).
14
"Obligor" means each of the Borrower and the Subsidiary
Guarantors, and "Obligors" means all of the foregoing.
"Operating Cash Flow" means, for any period, an amount
calculated as follows:
(i) the consolidated revenues of the Borrower and its
Consolidated Subsidiaries less the consolidated cost of operations of the
Borrower and its Consolidated Subsidiaries, in each case to the extent
attributable to the Construction Business for such period;
minus
(ii) the aggregate consolidated amount of all general,
administrative and selling expenses of the Borrower and its Consolidated
Subsidiaries for such period;
minus (or plus)
(iii) any increase (or decrease) in Net Working Investment
from the last day of such period relative to Net Working Investment on
the first day of such period.
"Original Credit Agreement" means the $125,000,000 Credit
Agreement dated as of December 6, 1994 among the Borrower, the banks listed
therein and Xxxxxx Guaranty Trust Company of New York, as agent for such banks,
as amended to the Effective Date.
"Original Note" has the meaning set forth in Section 2.03.
"Other Asset" means any asset, property or business of the
Borrower or any Subsidiary, other than any Real Estate Investment or any other
real property, if the aggregate amount of Net Proceeds in respect of any
Disposition thereof shall exceed $25,000.
"Other LC Bank" means each Bank listed on Schedule 1.01
attached hereto and its successors and assigns.
"Other Letters of Credit" means the letters of credit
described on Schedule 1.01 attached hereto.
"Other Mortgage/Lease Obligations" means the obligations of
the Borrower to any Mortgage Banks under the documents, agreements and
instruments described in the definition of Mortgage Banks, and all other
supplemental or
15
additional documents, agreements and instruments delivered in connection
therewith prior to February 26, 1996.
"Other Reimbursement Obligations" means, at any date, the
obligations of the Borrower, whether or not contingent at such time and whether
direct or as a guarantee, to reimburse any Other XX Xxxxx for the amount paid or
payable by such Other LC Bank in respect of a drawing under an Other Letter of
Credit.
"Paramount Development Associates" means Paramount Development
Associates, Inc., a Massachusetts corporation.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Letter of Credit" means a Letter of Credit which
constitutes a performance standby letter of credit within the meaning of
Appendix A to Regulation H of the Board of Governors of the Federal Reserve
system or other applicable capital adequacy guidelines promulgated by bank
regulatory authorities, it being understood that the Xxxxxx'x XX and similar
types of Letters of Credit are Performance Letters of Credit.
"Perini Building Company" means Perini Building Company, Inc.,
an Arizona corporation.
"Perini International" means Perini International Corporation,
a Massachusetts corporation.
"Perini Land and Development" means Perini Land and
Development Company, Inc. a Massachusetts corporation.
"Permitted Accounts" means, collectively, (i) the deposit,
checking, operating and other bank accounts listed on Schedule 4.15, (ii)
payroll and xxxxx cash accounts opened in the ordinary course of business with
imprest balances not to exceed $7,500 for each such account, (iii) all other
deposit, checking, operating and other bank accounts established after the
Effective Date with the prior written consent of the Required Banks, (iv) the
Cash Collateral Account established pursuant to the Borrower Security Agreement
and (v) the Cash Collateral Account established pursuant to the Subsidiary
Security Agreement.
16
"Permitted Encumbrances" means, with respect to any property
owned or leased by the Borrower or any of its Subsidiaries:
(a) Liens for taxes, assessments or other governmental charges
not yet due or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of the Borrower or such Subsidiary, as the case may be, in accordance with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising by operation of law in the ordinary
course of business so long as (A) the underlying obligations are not overdue for
a period of more than 60 days or (B) such Liens are being contested in good
faith and by appropriate proceedings and adequate reserves with respect thereto
are maintained on the books of the Borrower or such Subsidiary, as the case may
be, in accordance with GAAP;
(c) other Liens or, with respect to real property, title
defects (including matters which an accurate survey might disclose) which (x) do
not secure Debt; and (y) do not materially detract from the value of such
property or materially impair the use thereof by the Borrower or such Subsidiary
in the operation of its business.
"Permitted Liens" means the Liens permitted to exist under
Section 5.11.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
"Pledged Securities" has the meaning set forth in Section 1 of
the Borrower Pledge Agreement and the Subsidiary Pledge Agreement.
17
"Prime Rate" means the rate of interest publicly announced by
Xxxxxx Guaranty Trust Company of New York in New York City from time to time as
its Prime Rate.
"RCBA" means Xxxxxxx X. Xxxx & Associates, L.P., a California
limited partnership.
"Real Estate Investment" means (i) the acquisition,
construction or improvement of any real property, other than real property used
by the Borrower or a Consolidated Subsidiary in the conduct of its Construction
Business or (ii) any Investment in any Person (including Perini Land and
Development or another Consolidated Subsidiary, but without duplication of any
Real Estate Investment made by such Person with the proceeds of such Investment)
engaged in real estate investment or development or whose principal assets
consist of real property.
"R. E. Xxxxxx & Co." means R. E. Xxxxxx & Co., a Michigan
corporation.
"Refunding Borrowing" means a Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Loans made by any Bank.
"Regulated Activity" means any generation, treatment, storage,
recycling, transportation or Release of any Hazardous Substance.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Reimbursement Obligations" means at any date the obligations
of the Borrower then outstanding under Section 2.16 to reimburse any Bank for
the amount paid by such Bank in respect of a drawing under a Letter of Credit.
"Release" means any discharge, emission or release, including
a Release as defined in CERCLA at 42 U.S.C. ss. 9601(22). The term "Released"
has a corresponding meaning.
"Release of Claims" means the Release of Claims dated as of
the Closing Date among the Borrower, the Subsidiary Guarantors, the Banks and
the Agent, substantially in the form of Exhibit M.
"Required Banks" means at any time Banks having at least 60%
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 60% of the aggregate unpaid
principal amount of the Loans.
18
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock (except dividends
payable solely in shares of its capital stock) or (ii) any payment on account of
the purchase, redemption, retirement or acquisition of (a) any shares of the
Borrower's capital stock or (b) any option, warrant or other right to acquire
shares of the Borrower's capital stock.
"Xxxxxx Agreements" means all agreements, documents and
instruments to which the Borrower, Xxxxxx Center Associates or any other
Subsidiary of the Borrower or Xxxxxx Center Associates is a party relating to
Xxxxxx Center in San Francisco, California.
"Xxxxxx Swap" means the interest rate exchange transaction
between Xxxxxx Center Associates, a California limited partnership, as Fixed
Rate Payor, and Citicorp Real Estate, Inc., as Variable Rate Payor, as confirmed
by the Confirmation for Interest Rate Exchange Transaction date October 18, 1993
with Transaction Reference Number 931913.
"Securityholders Agreement" means the Securityholders
Agreement dated as of the date hereof among the Borrower, the Series B
Shareholders named therein and the Banks, substantially in the form of Exhibit
P.
"Separate Account P" means The Union Labor Life Insurance
Company Separate Account P.
"Series B Preferred Stock" means the Series B Cumulative
Convertible Preferred Stock of the Borrower.
"Stock Purchase" means the purchase by the Investor, The
Common Fund and Separate Account P of an aggregate 150,150 shares of Series B
Preferred Stock and all of the other transactions contemplated by the Stock
Purchase Agreement, including the exhibits and schedules thereto, to be
consummated on or before the Effective Date.
"Stock Purchase Agreement" means the Stock Purchase and Sale
Agreement dated as of July 24, 1996 among RCBA, the Investor and the Borrower,
as amended by letter agreements dated August 21, 1996, September 16, 1996,
September 30, 1996 and October 9, 1996 and by the Second Amendment to Stock
Purchase Agreement dated as of November 8, 1996.
"Subsidiary" of any Person means any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person.
19
"Subsidiary Guarantee Agreement" means the Subsidiary
Guarantee Agreement dated as of December 6, 1994 between the Borrower, the
Subsidiary Guarantors party thereto and the Agent, as amended by Amendment No. 1
dated as of February 26, 1996, as amended and restated as of the date hereof in
substantially the form of Exhibit D, and as the same may be amended, modified,
supplemented and restated from time to time as permitted herein and in
accordance with the terms thereof.
"Subsidiary Guarantor" means each of Perini Building Company,
Perini International, Perini Land and Development, R. E. Xxxxxx & Co., Paramount
Development Associates, Perini Environmental Services, Inc., a Delaware
corporation, Perini Resorts, Inc., a California corporation and each other
Subsidiary of the Borrower which becomes a party to the Subsidiary Guarantee
Agreement, and their respective successors.
"Subsidiary Pledge Agreement" means the Subsidiary Pledge
Agreement dated as of February 26, 1996 among the Subsidiary Guarantors party
thereto and the Agent, as amended and restated as of the date hereof in
substantially the form of Exhibit F, and as the same may be amended, modified,
supplemented and restated from time to time as permitted herein and in
accordance with the terms thereof.
"Subsidiary Security Agreement" means the Subsidiary Security
Agreement dated as of December 6, 1994 among the Subsidiary Guarantors party
thereto and the Agent, as amended and restated as of February 26, 1996, as
amended and restated as of the date hereof in substantially the form of Exhibit
E, and as the same may be amended, modified, supplemented and restated from time
to time as permitted herein and in accordance with the terms thereof.
"Temporary Cash Investments" means investments of cash
balances in a Permitted Account in United States Government securities or other
short-term money market investments; provided that after January 31, 1997, the
arrangements for any such investments must be satisfactory to the Required Banks
and the Agent, including for purposes of perfecting the security interest of the
Agent therein.
"Termination Date" means the first Domestic Business Day of
January, 2000.
"The Common Fund" means The Common Fund for Non-Profit
Organizations for the account of its Equity Fund.
"Tranche A Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the signature pages hereof as
its Tranche A Commitment, as such amount may be reduced from time to time
pursuant
20
to Section 2.09 and Section 2.10. The aggregate amount of the Tranche A
Commitments of the Banks on the Effective Date is $110,000,000.
"Tranche A Commitment Percentage" means, with respect to each
Bank at any time, the percentage that such Bank's Tranche A Commitment
constitutes of the aggregate amount of the Tranche A Commitments at such time.
"Tranche A Loan" means a "Tranche A Loan" made by a Bank
pursuant to Section 2.01(a) of the Original Credit Agreement or a Loan made by a
Bank pursuant to Section 2.01(b) of this Agreement.
"Tranche B Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the signature pages hereof as
its Tranche B Commitment, as such amount may be reduced from time to time
pursuant to Section 2.09 and Section 2.10. The aggregate amount of the Tranche B
Commitments of the Banks on the Effective Date is $19,536,000.
"Tranche B Loan" means a "Tranche B Loan" made by a Bank
pursuant to Section 2.01(b) of the Original Credit Agreement, a "Bridge Loan"
made by a Bank pursuant to the Bridge Credit Agreement or a Loan made by a Bank
pursuant to Section 2.01(c) of this Agreement.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA Group
to the PBGC or any other Person under Title IV of ERISA.
"Usage" means, at any date, the sum of the aggregate
outstanding principal amount of the Loans at such date plus the aggregate amount
of Letter of Credit Liabilities at such date with respect to all Letters of
Credit.
"Warrantholders Rights Agreement" means the Warrantholders
Rights Agreement dated as of the date hereof among the Borrower and the Banks,
substantially in the form of Exhibit O.
"Warrants" has the meaning set forth in Section 2.18.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary of the Borrower all of the shares of capital stock or other ownership
21
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with the most
recent audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregation of Loans of one or more Banks made to the Borrower
pursuant to Article II of the Original Credit Agreement, the Bridge Credit
Agreement or this Agreement on the same date, all of which Loans are of the same
type (subject to Article VIII) and, except in the case of Base Rate Loans, have
the same Interest Period or initial Interest Period. Borrowings are classified
for purposes of this Agreement by reference to the Class of Loans comprising
such Borrowing (e.g., a "Tranche A Borrowing" is a Borrowing comprised of
Tranche A Loans) or by reference to the pricing of the Loans comprising such
Borrowing (e.g., a "Euro- Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans).
ARTICLE II
THE CREDITS
SECTION 2.01. The Loans.
(a) Consolidation of Loans and Bridge Loans. Prior to the
Effective Date, each Bank has made "Loans" to the Borrower pursuant to the
Original Credit Agreement and "Bridge Loans" (comprised of "Bridge Revolving
Loans" and "Bridge Term Loans") to the Borrower pursuant to the Bridge Credit
Agreement. On the Effective Date, (i) the Borrower shall repay all "Bridge Term
Loans" outstanding under the Bridge Credit Agreement, (ii) all outstanding
"Loans" and "Bridge Revolving Loans" shall be deemed to be "Loans" hereunder,
(iii) all "Tranche A Loans" outstanding under the Original Credit Agreement on
the Effective Date shall be deemed to be "Tranche A Loans" hereunder, (iv) all
"Bridge Revolving Loans" outstanding under the Bridge Credit Agreement and all
"Tranche B Loans" outstanding under the Original Credit Agreement on the
Effective Date shall be deemed to be "Tranche B Loans" hereunder and (v) all
"Euro-Dollar Loans" outstanding under the Original Credit Agreement shall
continue as Euro-Dollar Loans hereunder, with the Interest Period for each such
Euro-Dollar Loan unchanged.
22
(b) Tranche A Loans. From time to time prior to the
Termination Date, each Bank severally agrees, on the terms and conditions set
forth in this Agreement, to make loans to the Borrower from time to time in
amounts such that the sum of (i) the aggregate principal amount of all Tranche A
Loans outstanding for such Bank plus (ii) the LC Exposure for such Bank does not
exceed, in the aggregate at any time, the amount of such Bank's Tranche A
Commitment. Each Borrowing under this Section shall be in an aggregate principal
amount of $500,000 or any larger multiple thereof (except that any such
Borrowing may be in the aggregate amount of the unused Tranche A Commitments)
and shall be made from the several Banks ratably in proportion to their
respective Tranche A Commitments. Within the foregoing limits, the Borrower may
borrow under this Section, repay, or to the extent permitted by Section 2.10 or
Section 2.11, prepay Tranche A Loans and reborrow at any time prior to the
Termination Date under this Section. Each Tranche A Loan shall be a Base Rate
Loan or, subject to Article VIII, a Euro-Dollar Loan if specified as such in the
applicable Notice Of Borrowing.
(c) Tranche B Loans. From time to time prior to the
Termination Date, each Bank severally agrees, on the terms and conditions set
forth in this Agreement, to make loans to the Borrower from time to time in
amounts such that the aggregate principal amount of all Tranche B Loans
outstanding for such Bank does not exceed, in the aggregate at any time, the
amount of such Bank's Tranche B Commitment. Each Borrowing under this Section
shall be in an aggregate principal amount of $500,000 or any larger multiple
thereof (except that any such Borrowing may be in the aggregate amount of the
unused Tranche B Commitments) and shall be made from the several Banks ratably
in proportion to their respective Tranche B Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, repay, or to the extent
permitted by Section 2.10 or Section 2.11, prepay Tranche B Loans and reborrow
at any time prior to the Termination Date under this Section. Each Tranche B
Loan shall be a Base Rate Loan.
SECTION 2.02. Method of Borrowing; Method of Electing Interest
Rates.
(a) The Borrower shall give the Agent notice (a "Notice of
Borrowing") not later than 11:30 A.M. (New York City time) on the date of each
Base Rate Borrowing and at least three Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day
in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
23
(iii) whether the Loans comprising such Borrowing shall be
Tranche A Loans or Tranche B Loans;
(iv) whether the Tranche A Loans comprising such Borrowing
shall be a Base Rate Loans or Euro-Dollar Loans; and
(v) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(c) Not later than 1:30 P.M. (New York City time) on the date
of each Borrowing, each Bank shall (except as provided in subsection (d) of this
Section) make available its ratable share of such Borrowing, in Federal or other
funds immediately available in New York City, to the Agent at its address
referred to in Section 9.01. Unless the Agent determines that any applicable
condition specified in Article III has not been satisfied, the Agent will make
the funds so received from the Banks available to the Borrower at the Agent's
aforesaid address.
(d) If any Bank makes a new Loan hereunder on a day on which
the Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Bank to the
Agent as provided in subsection (c) of this Section, or remitted by the Borrower
to the Agent as provided in Section 2.12, as the case may be.
(e) Unless the Agent shall have received notice from a Bank
prior to the date of any borrowing (or, in the case of a Base Rate Borrowing,
prior to noon (New York City time) on the date of such Borrowing) that such Bank
will not make available to the Agent such Bank's share of such Borrowing, the
Agent may assume that such Bank has made such share available to the Agent on
the date of such Borrowing in accordance with subsections (c) and (d) of this
Section 2.02 and the Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent that
such Bank shall not have so made such share available to the Agent, such Bank
and the Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, a rate per annum equal
to the higher of the Federal Funds Rate and the
24
interest rate applicable thereto pursuant to Section 2.05 and (ii) in the case
of such Bank, the Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
(f) The Loans included in each Borrowing shall bear interest
initially at the type of rate specified by the Borrower in the applicable Notice
of Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or elect to continue such Loans
as Euro-Dollar Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent at least three Euro-Dollar Business Days before the
conversion or continuation selected in such notice is to be effective. A Notice
of Interest Rate Election may, if it so specifies, apply to only a portion of
the aggregate principal amount of the relevant Group of Loans; provided that (i)
such portion is allocated ratably among the Loans comprising such Group and (ii)
the portion to which such Notice applies, and the remaining portion to which it
does not apply, are each $500,000 or any larger multiple thereof.
(g) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the applicable clause
of subsection (f) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if such new Loans are Euro-Dollar Loans, the duration
of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans
for an additional Interest Period, the duration of such additional Interest
Period.
25
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(h) Upon receipt of a Notice of Interest Rate Election from
the Borrower pursuant to subsection (a) above, the Agent shall promptly notify
each Bank of the contents thereof and such notice shall not thereafter be
revocable by the Borrower. If the Borrower fails to deliver a timely Notice of
Interest Rate Election to the Agent for any Group of Euro-Dollar Loans, such
Loans shall be converted into Base Rate Loans on the last day of the then
current Interest Period applicable thereto.
SECTION 2.03. Notes.
(a) In connection with the effectiveness of the Original
Credit Agreement, the Borrower delivered to the Agent, for the account of each
Bank, duly executed "Notes" substantially in the form of Exhibit A to the
Original Credit Agreement (collectively, the "Original Notes") to evidence the
"Loans" of each Bank under the Original Credit Agreement and in connection with
the effectiveness of the Bridge Credit Agreement, the Borrower delivered to the
Agent, for the account of each Bank, duly executed "Bridge Notes" substantially
in the form of Exhibit A to the Bridge Credit Agreement (collectively, the
"Bridge Notes") to evidence the "Bridge Loans" of each Bank under the Bridge
Credit Agreement. On or prior to the Effective Date, (i) the Borrower shall
deliver to the Agent, for the account of each Bank, duly executed Notes,
substantially in the form of Exhibit A hereto and (ii) each Bank shall deliver
to the Agent, for cancellation and delivery to the Borrower promptly after the
Effective Date, its Original Note and its Bridge Note (or in the case of loss
thereof, a written agreement of indemnity by such Bank for such loss in
customary form and executed by such Bank). On the Effective Date, each Bank's
Original Note and Bridge Note shall be amended and restated by such duly
executed new Note, and each Bank's Original Note and Bridge Note shall be
canceled. From and after the Effective Date, the Loans of each Bank (whether
made under the Original Credit Agreement, the Bridge Credit Agreement or this
Agreement) shall be evidenced by a single Note payable to the order of such Bank
for the account of its Applicable Lending Office.
(b) Each Bank may, by notice to the Borrower and the Agent,
request that its Loans of a particular Class or type be evidenced by a separate
Note in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit A, with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
Class or type. Each reference in this Agreement to the "Note" of such Bank shall
be deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Note pursuant to Section
2.03(a) or Section 2.03(b), the Agent shall forward such Note to such Bank. Each
Bank shall
26
record the date, amount and maturity of each Loan made by it and the date and
amount of each payment of principal made by the Borrower with respect thereto,
and may, if such Bank so elects in connection with any transfer or enforcement
of its Note, endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding; provided that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.04. Maturity of Loans. Unless payable earlier
pursuant to Section 2.10 or Section 6.01, each Loan shall mature, and the
principal amount thereof shall be due and payable, on the Termination Date.
SECTION 2.05. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Base Rate Loan is made
until it becomes due, at a rate per annum equal to the sum of the Applicable
Base Rate Margin plus the Base Rate for such day. Such interest shall be payable
on the last Domestic Business Day of each month. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to such Base Rate Loan for such day.
(b) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Euro-Dollar
Margin plus the applicable Adjusted Euro-Dollar Rate. Such interest shall be
payable for each Interest Period on the last day thereof.
(c) Any overdue principal of or interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day from and including the
date payment thereof was due to but excluding the date of actual payment, at a
rate per annum equal to the sum of 2% plus the higher of (i) the sum of the
Applicable Euro-Dollar Margin plus the Adjusted Euro-Dollar Rate applicable to
such Loan and (ii) the Applicable Euro-Dollar Margin plus the quotient obtained
(rounded upward, if necessary, to the next higher 1/100 of 1%) by dividing (x)
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other period of
time not longer than three months as the Agent may elect) deposits in dollars in
an amount approximately equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered
27
to such Euro-Dollar Reference Bank in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the Euro-Dollar
Reserve Percentage (or, if the circumstances described in clause (a) or (b) of
Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus the
rate applicable to Base Rate Loans for such day).
(d) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(e) Each Euro-Dollar Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated hereby. If any
Euro-Dollar Reference Bank does not furnish a timely quotation, the Agent shall
determine the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Euro-Dollar Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.06. Commitment Fees. The Borrower shall pay to the
Agent, for the account of each Bank, a commitment fee at the rate of 0.60% per
annum on the daily average unused portion of such Bank's aggregate Commitments.
Such commitment fees shall accrue from and including the Effective Date to but
excluding the Termination Date. Such commitment fees shall be payable on the
last day of each fiscal quarter of the Borrower prior to the Termination Date
and on the Termination Date.
SECTION 2.07. Restructuring Fee. The Borrower shall pay to the
Agent, for the account of each Bank, a restructuring fee in an amount equal to
0.25% of such Bank's aggregate Commitments, with one-half of such restructuring
fee payable on the Effective Date and one-half of such restructuring fee payable
on the second anniversary of the Effective Date.
SECTION 2.08. Agency Fee. The Borrower shall pay to the Agent
as compensation for its services hereunder and under the Collateral Documents
agency fees payable in the amounts and at the times heretofore agreed between
the Borrower and the Agent.
SECTION 2.09. Optional Termination or Reduction of
Commitments. The Borrower may, upon three Domestic Business Days' notice to the
Agent, terminate at any time, or proportionately permanently reduce from time to
time by an aggregate amount of $100,000 or any larger multiple thereof, the
unused portions of the Commitments. If the Commitments are terminated in their
entirety, all accrued commitment fees shall be payable on the effective date of
such termination.
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SECTION 2.10. Mandatory Termination or Reduction of
Commitments.
(a) The Commitments shall terminate on the Termination Date,
and all Loans then outstanding and all Letter of Credit Liabilities (in each
case, together with accrued interest thereon) shall be due and payable on such
date.
(b) On each Commitment Reduction Date, the Commitments of all
Banks shall be permanently, automatically and ratably reduced by an aggregate
amount as set forth below:
Commitment Reduction Aggregate Amount of
Date Occurring in Reduction in Commitments
December 1997 $15,000,000
December 1998 $15,000,000
March 1999 $ 2,500,000
June 1999 $ 5,000,000
September 1999 $ 5,000,000
provided that if the Commitments shall be reduced at any time in accordance with
Section 2.09 or 2.10(c), such reductions shall be applied to decrease the
amounts set forth above, first to decrease the aggregate amount of reduction in
Commitments required on the first Commitment Reduction Date, then to decrease
the aggregate amount of reduction in Commitments required on the second
Commitment Reduction Date and thereafter to decrease subsequent amounts in
chronological order.
(c) The Commitments of all Banks shall be permanently,
automatically and ratably reduced as follows:
(i) immediately upon receipt by the Borrower or any Subsidiary
at any time of any proceeds from any Disposition of any Real Estate Investment
or any other real property of the Borrower or any Subsidiary (excluding
operating receipts from Real Estate Investments), by an amount equal to 50% of
the Net Proceeds realized by the Borrower or any Subsidiary in respect thereof;
provided that no such reduction shall be required unless and until, and then
only to the extent that, the aggregate amount of Net Proceeds realized by the
Borrower and its Subsidiaries in respect of all Dispositions of Real Estate
Investments and other real property after the Effective Date exceeds
$20,000,000; and
(ii) immediately upon receipt by the Borrower or any
Subsidiary of any proceeds from any Disposition of any Other Assets (excluding
(A) payments in the ordinary course on construction contracts, (B) operating
29
receipts from Real Estate Investments, (C) liability insurance proceeds and (D)
income of not more than $100,000 earned from Temporary Cash Investments during
any fiscal year) by an amount equal to 80% of the Net Proceeds realized by the
Borrower or any Subsidiary in respect thereof; provided that no such reduction
shall be required unless and until the aggregate amount of Net Proceeds from all
Dispositions of Other Assets after the Effective Date and not previously applied
to reduce the Commitments pursuant to this clause (ii) shall equal or exceed
$125,000 or any higher integral multiple of $125,000, at which time the
Commitments shall be reduced by 80% of $125,000 (i.e., $100,000) or 80% of such
higher integral multiple of $125,000, as the case may be.
(d) On each day on which the Commitments are reduced pursuant
to this Section 2.10, the Borrower shall repay the principal amount (together
with accrued interest thereon) of each Bank's outstanding Loans as may be
necessary so that after such repayment, (i) the aggregate unpaid principal
amount of each Bank's Tranche A Loans plus such Bank's LC Exposure does not
exceed the amount of such Bank's Tranche A Commitment after giving effect to
such reduction and (ii) the aggregate principal amount of such Bank's Tranche B
Loans does not exceed the amount of such Bank's Tranche B Commitment after
giving effect to such reduction. In the event that the aggregate amount of the
Tranche A Commitments is reduced to an amount less than the aggregate amount of
Letter of Credit Liabilities at such time in respect of all Letters of Credit,
the Borrower hereby agrees that it shall forthwith, without any demand or taking
of any other action by the Required Banks or the Agent, pay to the Agent an
amount in immediately available funds equal to the difference to be held as
security for the Letter of Credit Liabilities for the benefit of all Banks
pursuant to arrangements satisfactory to the Agent and the Banks.
(e) Any reduction of the Commitments described in Section
2.10(a), 2.10(b) or 2.10(c) shall be applied first to reduce the Tranche B
Commitments of the Banks ratably in proportion to their respective Tranche B
Commitments and, once the Tranche B Commitments are reduced to zero, then to
reduce the Tranche A Commitments of the Banks ratably in proportion to their
respective Tranche A Commitments.
SECTION 2.11. Optional Prepayments.
(a) The Borrower may, upon notice to the Agent not later than
11:30 A.M. (New York City time) on any Domestic Business Day, prepay on such
Domestic Business Day the Group of Base Rate Loans in whole at any time, or from
time to time in part in amounts aggregating $100,000 or any larger multiple
thereof, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Loans of the several Banks included in such
Borrowing.
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(b) Subject to Section 2.13, the Borrower may, upon notice to
the Agent not later than 11:30 A.M. (New York City time) on any Euro-Dollar
Business Day, prepay on such Euro-Dollar Business Day the Loans comprising a
Group of Euro-Dollar Loans in whole at any time, or from time to time in part in
amounts aggregating $100,000 or any larger multiple thereof, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Group.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than 1:30 P.M. (New York
City time) on the date when due, in Federal or other funds immediately available
in New York City, to the Agent at its address referred to in Section 9.01. The
Agent will promptly distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the Banks. Whenever any payment
of principal of, or interest on, the Base Rate Loans or of fees shall be due on
a day which is not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent that the Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
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SECTION 2.13. Funding Losses. If the Borrower makes any
payment of principal with respect to any Euro-Dollar Loan or any Euro-Dollar
Loan is converted to a Base Rate Loan (pursuant to Article II, Section VI or
VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to
Section 2.05(c), or if the Borrower fails to borrow or prepay any Euro-Dollar
Loans after notice has been given to any Bank in accordance with Section 2.02(b)
or 2.11(c), the Borrower shall reimburse each Bank on demand for any resulting
loss or expense incurred by it (or by any existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion or failure to
borrow, provided that such Bank shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based
on the Prime Rate shall be computed on the basis of a year of 365 days (or 366
days in a leap year) and paid for the actual number of days elapsed (including
the first day but excluding the last day). All other interest and commitment
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.15. Maximum Interest Rate.
(a) Nothing contained in this Agreement or the Notes shall
require the Borrower to pay interest at a rate exceeding the maximum rate
permitted by applicable law. Neither this Section 2.15 nor Section 9.08 is
intended to limit the rate of interest payable for the account of any Bank to
the maximum rate permitted by the laws of the State of New York if a higher rate
is permitted with respect to such Bank by supervening provisions of U.S. federal
law.
(b) If the amount of interest payable for the account of any
Bank on any interest payment date in respect of the immediately preceding
interest computation period, computed pursuant to Section 2.05, would exceed the
maximum amount permitted by applicable law to be charged by such Bank, the
amount of interest payable for its account on such interest payment date shall
be automatically reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of any
Bank in respect of any interest computation period is reduced pursuant to
Section 2.15(b) and the amount of interest payable for its account in respect of
any subsequent interest computation period, computed pursuant to Section 2.05,
would be less than the maximum amount permitted by applicable law to be charged
by such Bank, then the amount of interest payable for its account in respect of
such subsequent interest
32
computation period shall be automatically increased to such maximum permissible
amount; provided that at no time shall the aggregate amount by which interest
paid for the account of any Bank has been increased pursuant to this Section
2.15(c) exceed the aggregate amount by which interest paid for its account has
theretofore been reduced pursuant to Section 2.15(b).
SECTION 2.16. Letters of Credit.
(a) Prior to the Effective Date, upon the request of the
Borrower, the LC Bank has issued "Letters of Credit" pursuant to the Original
Credit Agreement and "Bridge Letters of Credit" pursuant to the Bridge Credit
Agreement. On the Effective Date, all of such "Letters of Credit" and "Bridge
Letters of Credit" shall be deemed to be Letters of Credit hereunder. Subject to
the terms and conditions hereof, the LC Bank agrees to issue letters of credit
hereunder from time to time before the Termination Date upon the request of the
Borrower (such letters of credit issued, collectively with the "Letters of
Credit" issued pursuant to the Original Credit Agreement and the "Bridge Letters
of Credit" issued pursuant to the Bridge Credit Agreement, the "Letters of
Credit"); provided that, immediately after each such Letter of Credit is issued,
(i) the aggregate amount of the Letter of Credit Liabilities for all Letters of
Credit shall not exceed the Available LC Amount and (ii) the aggregate amount of
the Letter of Credit Liabilities for all Performance Letters of Credit shall not
exceed the greater of (x) $5,000,000 and (y) the sum of $3,000,000 plus the
amount of Letter of Credit Liabilities (not to exceed $4,650,000) in respect of
the Xxxxxx'x XX. Upon the date of issuance by the LC Bank of a Letter of Credit
in accordance with this Section 2.16, the LC Bank shall be deemed, without
further action by any party hereto, to have sold to each Bank, and each Bank
shall be deemed, without further action by any party hereto, to have purchased
from the LC Bank, a participation in such Letter of Credit and the related
Letter of Credit Liabilities in proportion to its Tranche A Commitment
Percentage.
(b) The Borrower shall give the LC Bank at least three
Domestic Business Days' prior notice (effective upon receipt) specifying the
date each Letter of Credit is to be issued, and describing the proposed terms of
such Letter of Credit and the nature of the transactions proposed to be
supported thereby. Upon receipt of such notice the LC Bank shall promptly notify
the Agent, and the Agent shall promptly notify each Bank, of the contents
thereof and of the amount of such Bank's participation in such proposed Letter
of Credit. The issuance by the LC Bank of any Letter of Credit shall, in
addition to the conditions precedent set forth in Article III (the satisfaction
of which the LC Bank shall have no duty to ascertain), be subject to the
conditions precedent that such Letter of Credit shall be satisfactory to the LC
Bank and that the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as the LC Bank
shall have reasonably requested. Each Letter of Credit shall have an expiry date
not later than one year after its date of issue; provided that no Letter of
Credit shall have a term extending
33
beyond the Termination Date; and provided further that any such Letter of Credit
may include an evergreen or renewal option, pursuant to which the expiry date of
such Letter of Credit will be automatically extended unless notice of
non-renewal is given by the LC Bank (provided that such Letter of Credit has an
absolute expiry date not later than the Termination Date); and provided further
that the LC Bank shall deliver notice of non-renewal at the time such notice is
required to be given unless requested not to by the Borrower, which request will
be treated in the same manner as a request for issuance of a new Letter of
Credit on the same terms (any such Letter of Credit, an "Evergreen Letter of
Credit").
(c) The Borrower shall pay to the Agent a letter of credit fee
at a rate equal to 2.75% per annum on the aggregate amount available for
drawings under each Letter of Credit issued from time to time, any such fee to
be payable for the account of the Banks ratably in proportion to their Tranche A
Commitment Percentages. Such fee shall be payable in arrears on the last day of
each fiscal quarter of the Borrower for so long as such Letter of Credit is
outstanding and on the date of termination thereof. The Borrower shall pay to
the LC Bank additional fees and expenses in the amounts and at the times as
agreed between the Borrower and the LC Bank.
(d) Upon receipt from the beneficiary of any Letter of Credit
of any demand for payment or other drawing under such Letter of Credit, the LC
Bank shall notify the Agent and the Agent shall promptly notify the Borrower and
each other Bank as to the amount to be paid as a result of such demand or
drawing and the respective payment date. The responsibility of the LC Bank to
the Borrower and each Bank shall be only to determine that the documents
(including each demand for payment or other drawing) delivered under each Letter
of Credit issued by it in connection with such presentment shall be in
conformity in all material respects with such Letter of Credit. The LC Bank
shall endeavor to exercise the same care in the issuance and administration of
the Letters of Credit as it does with respect to letters of credit in which no
participations are granted, it being understood that in the absence of any gross
negligence or willful misconduct by the LC Bank, each Bank severally agrees that
it shall be unconditionally and irrevocably liable without regard to the
occurrence of any Event of Default or any condition precedent whatsoever, pro
rata to the extent of such Bank's Tranche A Commitment Percentage, to reimburse
the LC Bank on demand for the amount of each payment made by the LC Bank under
each Letter of Credit issued by the LC Bank to the extent such amount is not
reimbursed by the Borrower pursuant to clause (e) below together with interest
on such amount for each day from the date of the LC Bank's demand for such
payment (or, if such demand is made after 11:00 A.M. (New York City time) on
such date, from the next succeeding Domestic Business Day) to the date of
payment by such Bank of such amount at a rate of interest per annum equal to the
Federal Funds Rate for such day.
34
(e) The Borrower shall be irrevocably and unconditionally
obligated forthwith to reimburse the LC Bank for any amounts paid by the LC Bank
upon any drawing under any Letter of Credit, without presentment, demand,
protest or other formalities of any kind; provided that neither the Borrower nor
any Bank shall hereby be precluded from asserting any claim for direct (but not
consequential) damages suffered by the Borrower or such Bank to the extent, but
only to the extent, caused by (i) the willful misconduct or gross negligence of
the LC Bank in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (ii) such Bank's
failure to pay under any Letter of Credit after the presentation to it of a
request strictly complying with the terms and conditions of the Letter of
Credit. All such amounts paid by the LC Bank and remaining unpaid by the
Borrower shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 2% plus the rate applicable to Tranche A Base
Rate Loans for such day. The LC Bank will pay to each Bank, ratably in
accordance with its Tranche A Commitment Percentage, all amounts received from
the Borrower for application in payment, in whole or in part, of the
Reimbursement Obligation in respect of any Letter of Credit, but only to the
extent such Bank has made payment to the LC Bank in respect of such Letter of
Credit pursuant to Section 2.16(d).
(f) If after the date hereof, the adoption of any applicable
law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any tax, reserve, special deposit or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder or participations therein, and the result shall be to increase
the cost to any Bank of issuing or maintaining any Letter of Credit or any
participation therein, or reduce any amount receivable by any Bank hereunder in
respect of any Letter of Credit (which increase in cost, or reduction in amount
receivable, shall be the result of such Bank's reasonable allocation of the
aggregate of such increases or reductions resulting from such event), then, upon
demand by such Bank (which demand shall not be unreasonably delayed, provided
that a demand within six months of the accrual of such increased cost or
reduction in amount receivable will not be deemed to be unreasonably delayed),
the Borrower agrees to pay to such Bank, from time to time as specified by such
Bank, such additional amounts as shall be sufficient to compensate such Bank for
such increased costs or reductions in amount incurred by such Bank. A
certificate of such Bank submitted by such Bank to the Borrower shall be
conclusive as to the amount thereof in the absence of manifest error.
(g) The Borrower's obligations under this Section 2.16 shall
be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment which the Borrower may have or
have had
35
against the LC Bank, any Bank or any beneficiary of a Letter of Credit. The
Borrower further agrees with the LC Bank and the Banks that the LC Bank and the
Banks shall not be responsible for, and the Borrower's Reimbursement Obligation
in respect of any Letter of Credit shall not be affected by, among other things,
the validity or genuineness of documents or of any endorsements thereon, even if
such documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower, any of its
Subsidiaries, the beneficiary of any Letter of Credit or any financing
institution or other party to whom any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower or any of its Subsidiaries
against the beneficiary of any Letter of Credit or any such transferee. The LC
Bank shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit issued, extended or renewed
by it. The Borrower agrees that any action taken or omitted by the LC Bank or
any Bank under or in connection with each Letter of Credit and the related
drafts and documents, if done in good faith and without gross negligence, shall
be binding upon the Borrower and shall not put the LC Bank or any Bank under any
liability to the Borrower.
(h) To the extent not inconsistent with clause (g) above, the
LC Bank shall be entitled to rely, and shall be fully protected in relying upon,
any Letter of Credit, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by the LC Bank. The LC Bank shall be fully justified in failing
or refusing to take any action under this Agreement unless it shall first have
received such advice or concurrence of the Required Banks as it reasonably deems
appropriate or it shall first be indemnified to its reasonable satisfaction by
the Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. Notwithstanding any
other provision of this Section 2.16, the LC Bank shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Banks, and such request and any action
taken or failure to act pursuant thereto shall be binding upon the Banks and all
future holders of participations in any Letters of Credit.
(i) The Borrower hereby indemnifies and holds harmless each
Bank and the Agent from and against any and all claims and damages, losses,
liabilities, costs or expenses which such Bank or the Agent may incur (or which
may be claimed against such Bank or the Agent by any Person whatsoever) by
reason of or in connection with the execution and delivery or transfer of or
payment or failure to pay under any Letter of Credit, including, without
limitation, any claims, damages, losses, liabilities, costs or expenses which
the LC Bank may incur by reason of or in
36
connection with the failure of any other Bank to fulfill or comply with its
obligations to the LC Bank hereunder (but nothing herein contained shall affect
any rights the Borrower may have against such defaulting Bank); provided that
the Borrower shall not be required to indemnify any Bank or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (i) the willful misconduct or gross negligence of the
LC Bank in determining whether a request presented under any Letter of Credit
complied with the terms of such Letter of Credit or (ii) the LC Bank's failure
to pay under any Letter of Credit after the presentation to it of a request
strictly complying with the terms and conditions of the Letter of Credit.
Nothing in this Section 2.16(i) is intended to limit the obligations of the
Borrower under any other provision of this Agreement.
(j) Each Bank shall, ratably in accordance with its Tranche A
Commitment Percentage, indemnify the LC Bank, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or the LC Bank's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of the Letter of Credit) that such indemnitees may suffer or incur in connection
with this Section 2.16 or any action taken or omitted by such indemnitees
hereunder.
(k) In its capacity as a Bank the LC Bank shall have the same
rights and obligations as any other Bank.
SECTION 2.17. Taxes.
(a) For purposes of this Section, the following terms have the
following meanings:
"Taxes" means any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings with
respect to any payment by the Borrower pursuant to this Agreement or
under any Note, and all liabilities with respect thereto, excluding (i)
in the case of each Bank and the Agent, taxes imposed on its income,
and franchise or similar taxes imposed on it, by a jurisdiction under
the laws of which such Bank or the Agent (as the case may be) is
organized or in which its principal executive office is located or, in
the case of each Bank, in which its Applicable Lending Office is
located and (ii) in the case of each Bank, any United States
withholding tax imposed on such payments but only to the extent that
such Bank is subject to United States withholding tax at the time such
Bank first becomes a party to this Agreement.
37
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or levies,
which arise from any payment made pursuant to this Agreement or under any Note
or from the execution or delivery of, or otherwise with respect to, this
Agreement or any Note.
(b) Any and all payments by the Borrower to or for the account
of any Bank or the Agent hereunder or under any Note shall be made without
deduction for any Taxes or Other Taxes; provided that, if the Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payments, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.17) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the Agent,
at its address referred to in Section 9.01, the original or a certified copy of
a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 2.17) paid by such Bank or the Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. This indemnification shall be paid within 15 days after
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Bank remains lawfully able to do so), shall provide
the Borrower and the Agent with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Bank is entitled to benefits under an income tax treaty to
which the United States is a party which exempts the Bank from United States
withholding tax or reduces the rate of withholding tax on payments of interest
for the account of such Bank or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct of a trade or
business in the United States. If the form provided by a Bank at the time such
Bank first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from "Taxes" as defined in subsection (a) of this Section.
38
(e) For any period with respect to which a Bank has failed to
provide the Borrower or the Agent with the appropriate form pursuant to Section
2.17(d) (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which such form originally was required to
be provided), such Bank shall not be entitled to indemnification under Section
2.17(b) or (c) with respect to Taxes imposed by the United States; provided that
if a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Bank pursuant to this Section 2.17, then such Bank
will change the jurisdiction of its Applicable Lending Office if, in the
judgment of such Bank, such change (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Bank.
SECTION 2.18. Warrants. In consideration for the Banks'
agreements to amend the Original Credit Agreement and the Bridge Credit
Agreement as set forth herein and in consideration for the Banks' agreements to
make available the Loans and Letters of Credit hereunder, subject to the terms
and conditions set forth herein, the Borrower on the Effective Date shall issue
to the Banks warrants (collectively, the "Warrants") initially exercisable for
420,000 shares of the Borrower's common stock, par value $1.00 per share. Each
of the Warrants shall be in substantially the form of Exhibit N, shall be issued
on the Effective Date to each of the Banks ratably in accordance with their
respective aggregate Commitments, and shall be duly executed and registered in
the name of each Bank or such other name or names as such Bank shall have
notified the Agent and the Borrower not less than two Domestic Business Days
before the Effective Date.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become
effective on the date that each of the following conditions shall have been
satisfied (or waived in accordance with Section 9.05), but only if each of such
conditions shall have been satisfied (or waived) on or before January 31, 1997:
(a) receipt by the Agent of counterparts of this Agreement
signed by each of the parties hereto (or, in the case of any party as to which
an executed counterpart shall not have been received, receipt by the Agent in
form satisfactory to it of telegraphic, facsimile, telex or other written
39
confirmation from such party of execution of a counterpart hereof by such
party);
(b) receipt by the Agent of duly executed Notes for the
account of each Bank, dated on or before the Effective Date and complying with
the provisions of Section 2.03, and of certificates representing the Warrants
for the account of each Bank, all duly executed and registered in accordance
with Section 2.18;
(c) receipt by the Agent of counterparts of the following,
each dated as of the date hereof and duly executed by each of the parties
thereto:
(1) the Borrower Pledge Agreement,
(2) the Borrower Security Agreement,
(3) the Subsidiary Security Agreement,
(4) the Subsidiary Pledge Agreement,
(5) the Subsidiary Guarantee Agreement,
(6) the Release of Claims,
(7) the Warrantholders Rights Agreement,
(8) the Securityholders Agreement, and
(9) the Exercise Price Letter;
(d) receipt by the Agent of all documents and certificates
required to be delivered pursuant to any Financing Document on or prior to the
Effective Date (including appropriately completed and duly executed Uniform
Commercial Code financing statements);
(e) receipt by the Agent of all Pledged Securities;
(f) receipt by the Agent of copies of file search reports from
the Uniform Commercial Code filing officer in each jurisdiction (i) in which any
Mortgaged Facility is located or (ii) which is identified in the Perfection
Certificate (as defined in the Borrower Security Agreement or Subsidiary
Security Agreement, as the case may be), setting forth the results of Uniform
Commercial Code, tax lien and judgment lien searches conducted in the name of
the Borrower and each Subsidiary Guarantor, as the case may be;
40
(g) receipt by the Agent of evidence satisfactory to the Agent
that arrangements satisfactory to it shall have been made for recording the
Mortgage Amendments;
(h) receipt by the Agent of an endorsement to each title
insurance policy delivered to the Agent pursuant to the Bridge Credit Agreement
insuring that the coverage under such policy is unaffected by this Agreement and
the Mortgage Amendments;
(i) receipt by the Agent of evidence satisfactory to the Agent
of the insurance coverage required by Section 5.03;
(j) receipt by the Agent of evidence satisfactory to the Agent
that (i) prior to or simultaneously with the transactions hereunder contemplated
to take place on the Effective Date, the Investor, The Common Fund and Separate
Account P shall purchase an aggregate 150,150 shares of Series B Preferred Stock
in accordance with the Stock Purchase Agreement (with the Investor purchasing
not less than 85,150 of such shares), (ii) on the Effective Date, the Borrower
shall receive aggregate cash proceeds from the Investor, The Common Fund and
Separate Account P of not less than $30,030,000 in respect thereof (with not
less than $17,030,000 of such cash proceeds received from the Investor), and
(iii) all transactions contemplated by the Stock Purchase Agreement to be
consummated on or before the closing date for such purchase will take place
prior to or simultaneously with the transactions hereunder contemplated to take
place on the Effective Date;
(k) receipt by the Agent of (i) an opinion of the Vice
President, Counsel and Corporate Secretary of the Borrower and (ii) an opinion
of Xxxxxxx, Procter & Xxxx LLP, special counsel for the Borrower, covering the
matters set forth on Exhibits G and H, respectively, or with such changes as
shall be acceptable to the Agent and the Required Banks and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(l) receipt by the Agent of (i) an opinion of Xxxxx Xxxx &
Xxxxxxxx, special New York counsel for the Agent, covering the matters set forth
on Exhibit I, or with such changes as shall be acceptable to the Agent and the
Required Banks and (ii) an opinion of each of: (w) Xxxxxx Xxxxxxx, special
Arizona counsel for the Agent, (x) Greenberg, Traurig, Hoffman, Lipoff, Xxxxx &
Xxxxxxx, P.A., special Florida counsel for the Agent, (y) McLane, Graf,
Xxxxxxxxx & Middleton, special New Hampshire counsel to the Agent and (z) Miro &
Weiner, P.C., special Michigan counsel to the Agent, in each case substantially
in the form of the opinion delivered by such counsel as a condition to the
occurrence of the "Bridge Effective Date" under the
41
Bridge Credit Agreement, except that (I) each such opinion will be dated the
Effective Date, (II) each reference therein to the Original Credit Agreement or
the Bridge Credit Agreement shall be to this Credit Agreement, (III) each
reference to any of any other Financing Documents will include such Financing
Documents as amended to and including the Effective Date and (IV) each such
opinion shall contain other appropriate changes (including to cause each such
opinion to be current to the Effective Date) as shall be acceptable to the Agent
and the Required Banks and shall cover such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request;
(m) receipt by the Agent, on behalf of the Banks and on behalf
of itself in its capacity as Agent, of all interest, fees and other amounts
(other than principal, subject to Section 3.01(t) below) due and payable under
the Original Credit Agreement, the Bridge Credit Agreement or hereunder
(including fees and expenses payable pursuant to Section 9.03 hereunder) of
which the Borrower has received notice;
(n) each Bank's satisfaction in its sole good faith discretion
as to the absence of any material adverse change in any aspect of the business,
operations, properties, prospects or condition (financial or otherwise) of the
Borrower and its Subsidiaries, or any event or condition that is reasonably
likely to result in such a material adverse change;
(o) receipt by the Agent of a certificate signed by the chief
financial officer or treasurer of the Borrower to the effect that, both before
and immediately after the making of the Loans, the issuance of the Warrants and
the consummation of the Stock Purchase and the other transactions contemplated
to take place on the Closing Date, (i) no Default shall have occurred and be
continuing and (ii) the representations and warranties of the Borrower and any
Subsidiaries made in or pursuant to any Financing Documents are true;
(p) receipt by the Agent of a Cash Management Letter, in form
and substance satisfactory to the Banks;
(q) receipt by each of the Banks, at least two weeks prior to
the Effective Date, of (i) a business plan for the Borrower and its Subsidiaries
prepared by the Borrower and the Investor in accordance with GAAP, in a form and
containing such detail as may be reasonably satisfactory to the Banks, (ii) any
other information it may reasonably request concerning the financial condition,
results of operations, liabilities (contingent or otherwise, including with
respect to environmental liabilities and employee and retiree benefits) and
prospects of, and the financial reporting and accounting systems
42
and the management information systems of, the Borrower and satisfaction by each
Bank in its sole good faith discretion with all such information;
(r) receipt by each of the Banks of copies of the Management
Agreement and any other agreements between the Borrower or any of its
Subsidiaries and any members of the Investor Group (other than agreements
between the Borrower or any of its Subsidiaries and Xxxxx-Xxxxxx Corp. which
shall have been entered into in the ordinary course of the Construction
Business), all of which shall be in form and substance satisfactory to the
Banks;
(s) receipt by the Agent of all documents it may reasonably
request relating to the existence of the Obligors, the corporate authority for
and the validity of the Financing Documents and any other matters relevant
hereto, all in form and substance satisfactory to the Agent;
(t) receipt by the Agent of evidence satisfactory to it that
prior to or simultaneously with the transactions hereunder contemplated to take
place on the Effective Date, that all "Bridge Term Loans" outstanding under the
Bridge Credit Agreement shall be repaid in full (with accrued interest thereon)
on the Effective Date and that upon the effectiveness of this Agreement, (i) the
sum of the aggregate outstanding principal amount of the Tranche A Loans plus
the aggregate amount of all Letter of Credit Liabilities shall not exceed the
aggregate amount of the Tranche A Commitments and (ii) the aggregate outstanding
principal amount of the Tranche B Loans shall not exceed the aggregate amount of
the Tranche B Commitments;
(u) receipt by the Agent of each Bank's Original Note and
Bridge Note (or any agreements of indemnity, if applicable, in accordance with
Section 2.03(a));
(v) receipt by the Agent and the Banks of the Asset Sale
Letter, in form and substance satisfactory to each Bank;
(w) receipt by the Agent and the Banks of the information
described in Sections 5.01(e), 5.01(f), 5.01(g) and 5.01(h) for the most recent
date prior to the Effective Date when such information would have been
deliverable pursuant to such sections, which information shall be provided in a
format that is acceptable to the Banks; and
(x) receipt by the Agent of evidence satisfactory to it that
all approvals, consents and other actions by or in respect of, or filings with
any governmental body, agency, official, authority or any other Person required
in connection with the Stock Purchase or the transactions contemplated by the
43
Stock Purchase Agreement or any Financing Documents shall have been obtained,
taken or made.
This Agreement shall not become effective or be binding on any party hereto
unless all of the foregoing conditions are satisfied not later than January 31,
1997. Prior to the effectiveness of this Agreement in accordance with this
Section 3.01, none of the terms and conditions of the Original Credit Agreement,
the Bridge Credit Agreement or any Financing Document (as defined in the
Original Credit Agreement or the Bridge Credit Agreement) shall be amended,
waived or otherwise modified by this Agreement and all of such terms and
conditions shall remain in full force and effect and are hereby ratified and
confirmed in all respects. The Agent shall promptly notify the Borrower and the
Banks of the Effective Date, and such notice shall be conclusive and binding on
all parties hereto.
SECTION 3.02. Credit Events. The obligation of any Bank to
make a Loan on the occasion of any Borrowing and of the LC Bank to issue a
Letter of Credit (or to permit the extension of an Evergreen Letter of Credit)
on the occasion of a request therefor by the Borrower is subject to the
satisfaction of the following conditions:
(a) receipt (i) by the Agent of a Notice of Borrowing as
required by Section 2.02, in the case of a Borrowing or (ii) by the LC Bank of
notice as required by Section 2.16, in the case of a Letter of Credit;
(b) the fact that, after giving effect to such Credit Event,
the Usage shall not exceed the aggregate amount of the Commitments;
(c) the fact that, immediately after such Credit Event, no
Default shall have occurred and be continuing;
(d) the fact that the representations and warranties of each
Obligor contained in each Financing Document to which it is a party (except, in
the case of a Refunding Borrowing, the representation and warranty set forth in
Section 4.04(c) hereof as to any material adverse change which has theretofore
been disclosed in writing by the Borrower to the Banks) shall be true on and as
of the date of such Borrowing;
(e) the ability of the Borrower to obtain bonding for new
construction projects shall not be less than or more limited than on the
Effective Date; and
(f) the payment by the Borrower of all amounts theretofore
payable pursuant to Section 9.03 within seven days of demand.
44
Each Borrowing shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing as to the facts specified in clauses (b),
(c), (d), (e) and (f) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of Massachusetts, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by each Obligor of the
Financing Documents to which it is a party are within its corporate powers, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of such Obligor
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon such Obligor or any of its Subsidiaries or result in the creation
or imposition of any Lien, except Liens created by the Collateral Documents, on
any asset of such Obligor or any of its Subsidiaries.
SECTION 4.03. Binding Effect; Liens of Collateral Documents.
(a) Each of the Financing Documents (other than the Notes and
the Warrants) to which the Borrower is a party constitutes a valid and binding
agreement of the Borrower and the Notes and the Warrants, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower, in each case enforceable in accordance with their
respective terms. Each of the Financing Documents to which any Subsidiary
Guarantor is a party, when executed and delivered in accordance with this
Agreement, will constitute valid and binding agreements of each Subsidiary
Guarantor party thereto, in each case enforceable against each such Subsidiary
Guarantor in accordance with their respective terms.
(b) The Borrower has reserved and will keep available for
issuance upon exercise of the Warrants the total number of shares of common
stock of the
45
Borrower that shall be deliverable upon exercise of all Warrants from time to
time outstanding. The issuance of the Warrants has been duly and validly
authorized and the shares of common stock issuable upon exercise of the
Warrants, when issued and sold in accordance with the Warrants, will be duly and
validly issued, fully paid and nonassessable and free of preemptive rights.
(c) All real property in which the Borrower or any of its
Subsidiaries has an interest, directly or indirectly (whether through an
interest in a joint venture or partnership or otherwise) as of the date hereof
is listed in Part I of Schedule 4.03(c) hereto. The list of personal property of
the Borrower and each of its Subsidiaries set forth in Part II of Schedule
4.03(c), security interests in which are governed by Article 9 of the UCC as in
effect in the relevant jurisdictions, is complete in all material respects. The
location, ownership status and lien information provided in Schedule 4.03(c) for
each item of real property and each type of personal property are complete and
correct.
(d) The Collateral Documents create valid security interests
in, and first mortgage Liens on, the Collateral purported to be covered thereby,
which security interests and mortgage Liens are and will remain perfected
(except in the case of inventory located at construction sites) security
interests and duly recorded mortgage Liens, prior to all other Liens except
Liens permitted by the Collateral Documents.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1995 and the related consolidated
statements of income, stockholders' equity and cash flows for the fiscal year
then ended, reported on by Xxxxxx Xxxxxxxx LLP and set forth in the Borrower's
1995 Form 10-K, a copy of which has been delivered to each of the Banks, fairly
present, in conformity with GAAP, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of September 30, 1996 and the related
unaudited consolidated statements of income, stockholders' equity and cash flows
for the nine months then ended, set forth in the Borrower's quarterly report for
the fiscal quarter ended September 30, 1996 as filed with the Securities and
Exchange Commission on Form 10-Q, a copy of which has been delivered to each of
the Banks, fairly present, in conformity with GAAP applied on a basis consistent
with the financial statements referred to in subsection (a) of this Section, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated
46
results of operations and cash flows for such nine month period (subject to
normal year-end adjustments).
(c) Since June 30, 1996 there has been no material adverse
change in the business, financial position, results of operations or prospects
of the Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. Except as disclosed in the
Borrower's 1995 Form 10-K and the Form 10-Q referred to in Section 4.04(b)
above, there is no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Borrower and its
Consolidated Subsidiaries or which in any manner draws into question the
validity of any Financing Document.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of ERISA
and the Internal Revenue Code with respect to each Plan and is in compliance in
all material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability to the PBGC or any other Person under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters.
(a) In the ordinary course of its business, the Borrower
conducts periodic reviews of the effect of Environmental Laws on the business,
operations and properties of the Borrower and its Subsidiaries and compliance
therewith. The Borrower and its Subsidiaries also attempt, whenever possible, to
negotiate specific provisions in contracts for construction services that
allocate to the contracting governmental agency or private owner, the entire
risk and responsibility for Hazardous Substances encountered during the course
of construction. On the basis of such reviews and contract provisions and
procedures, the Borrower has reasonably concluded that the costs and associated
liabilities of compliance with Environmental Laws are unlikely to have a
material adverse effect on the business, financial
47
condition, results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
(b) Without limiting the foregoing, as of the Effective Date:
(i) no notice, notification, demand, request for information,
citation, summons, complaint or order has been issued, no complaint has
been filed, no penalty has been assessed and no investigation or review
is pending or, to the knowledge of the Obligors, threatened by any
governmental or other entity with respect to any (A) alleged violation
by the Borrower or any of its Subsidiaries of any Environmental Law
involving any Mortgaged Facility, (B) alleged failure by the Borrower
or any of its Subsidiaries to have any environmental permit,
certificate, license, approval, registration or authorization required
in connection with the conduct of its business at any Mortgaged
Facility, (C) Regulated Activity conducted at any Mortgaged Facility or
(D) Release of Hazardous Substances at or in connection with any
Mortgaged Facility;
(ii) other than generation of Hazardous Substances in
compliance with all applicable Environmental Laws, no Regulated Activity has
occurred at or on any Mortgaged Facility;
(iii) no polychlorinated biphenyls, radioactive material, urea
formaldehyde, lead, asbestos, asbestos-containing material or underground
storage tank (active or abandoned) is or has been present at any Mortgaged
Facility;
(iv) no Hazardous Substance has been Released (and no written
notification of such Release has been filed) or is present (whether or not in a
reportable or threshold planning quantity) at, on or under any Mortgaged
Facility;
(v) no Mortgaged Facility is listed or, to the knowledge of
the Obligors, proposed for listing, on the National Priorities List promulgated
pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal,
state or foreign list of sites requiring investigation or clean-up; and
(vi) there are no Liens under Environmental Laws on any
Mortgaged Facility, no government actions have been taken or are in process
which could subject any Mortgaged Property to such Liens and neither the
Borrower nor any of its Subsidiaries would be required to place any notice or
restriction relating to Hazardous Substances in any deed to any Mortgaged
Facility.
48
(c) No environmental investigation, study, audit, test, review
or other analysis has been conducted of which the Obligors have knowledge in
relation to any Mortgaged Facility which has not been delivered to the Banks.
SECTION 4.08. Taxes. United States Federal income tax returns
of the Borrower and its Subsidiaries have been examined and closed through the
fiscal year ended December 31, 1989. The Borrower and its Subsidiaries have
filed all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower
or any Subsidiary. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate.
SECTION 4.09. Subsidiaries. All of the Borrower's Subsidiaries
and all joint ventures and partnerships in which the Borrower or any of its
Subsidiaries has an interest as of the date hereof are listed in Schedule 4.09
hereto and the state of incorporation or organization and the ownership interest
of each Subsidiary, joint venture and partnership specified therein are complete
and correct. Each of the Borrower's corporate Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION 4.10. Not an Investment Company. The Borrower is not
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
SECTION 4.11. No Burdensome Restrictions; No Derivatives
Obligations; Certain Existing Agreements.
(a) No contract, lease, agreement or other instrument to which
the Borrower or any of its Subsidiaries is a party or by which any of its
property is bound or affected, no charge, corporate restriction, judgment,
decree or order and no provision of applicable law or governmental regulation
has or is reasonably expected to materially and adversely affect the business,
operations or financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or the ability of the Borrower to perform its
obligations under this Agreement.
(b) Neither the Borrower nor any of its Subsidiaries is party
to any Derivatives Obligation except the Xxxxxx Swap.
49
(c) All agreements to which the Borrower or any Subsidiary
Guarantor is a party or by which it is bound (other than the Financing
Documents) containing a negative pledge or limitations on its incurrence of Debt
or sale of assets are listed on Schedule 4.11 hereto.
SECTION 4.12. Full Disclosure. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Agent or any
Bank will be, true and accurate in all material respects (or in the case of
projections and similar information based on reasonable estimates) on the date
as of which such information is stated or certified. The Borrower has disclosed
to the Banks in writing any and all facts which materially and adversely affect
or may reasonably be expected to materially and adversely affect (to the extent
the Borrower can now reasonably foresee), the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries, taken as a whole,
or the ability of the Borrower to perform its obligations under this Agreement.
SECTION 4.13. Ownership of Property; Liens. The Borrower and
its Subsidiaries have good and marketable title to and are in lawful possession
of, or have valid leasehold interests in, or have the right to use pursuant to
valid and enforceable agreements or arrangements, all of their respective
properties and other assets (real or personal, tangible, intangible or mixed),
except where the failure to have or possess the same with respect to such
properties or other assets could not, in the aggregate, have a material adverse
effect on the business, financial condition, results of operations or prospects
of the Borrower and its Consolidated Subsidiaries, considered as a whole. None
of such properties or other assets is subject to any Lien except Permitted
Liens.
SECTION 4.14. Representations and Warranties Incorporated from
Other Financing Documents. As of the Effective Date, each of the representations
and warranties made in this Agreement, the Subsidiary Guarantee Agreement, the
Collateral Documents, the Warrants and the Warrantholders Rights Agreement by
any of the parties thereto is true and correct in all material respects, and
such representations and warranties are hereby incorporated herein by reference
with the same effect as though set forth in their entirety herein, as qualified
therein.
SECTION 4.15. Bank Accounts and Cash Management System. All
deposit, checking, operating or other bank accounts maintained by the Borrower
or any Subsidiary Guarantor (other than payroll and xxxxx cash accounts opened
in the ordinary course of business with imprest balances not to exceed $7,500
for each such account) and, for each such account, the name of the account
party, the name of the bank, the account number and the type of account, are
listed on Schedule 4.15. The
50
Cash Management Letter provides a complete and accurate description of the cash
management system of the Borrower and its Subsidiaries.
SECTION 4.16. Representations in Perfection Certificates. All
of the information set forth in each Perfection Certificate (as defined in the
Borrower Security Agreement or the Guarantor Security Agreement) delivered to
the Agent prior to the Effective Date is correct and complete as of the
Effective Date.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid or any
Letter of Credit remains outstanding or any Reimbursement Obligation with
respect thereto remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each
of the Banks:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, consolidated and
consolidating balance sheets of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated and consolidating statements of income, stockholders'
equity and cash flows for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all
reported on in a manner acceptable to the Securities and Exchange
Commission by Xxxxxx Xxxxxxxx LLP or other independent public
accountants of nationally recognized standing;
(b) (1) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statement of income and cash flows for such quarter and for the portion of the
Borrower's fiscal year ended at the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation, GAAP
and consistency by the chief financial officer or the chief accounting officer
of the Borrower;
51
(2) as soon as available and in any event within 45 days after
the end of each quarter of each fiscal year of Perini Land and Development, a
cash flow statement for Perini Land and Development for such quarter in a format
consistent with the format of the cash flow statement for Perini Land and
Development for the quarter ended December 31, 1995 and previously delivered to
the Banks;
(c) simultaneously with the delivery of each set of financial
statements referred to in clause (a) or (b) above:
(1) a certificate of the chief financial officer or the chief
accounting officer of the Borrower (x) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance with
the requirements of Sections 5.07 to 5.10, inclusive, 5.12, 5.14, 5.15 and 5.17
on the date of such financial statements and (y) stating whether there exists on
the date of such certificate any Default and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto; and
(2) a report prepared by management of the Borrower, in
sufficient detail as may be reasonably acceptable to the Required Banks,
providing a description of and an explanation for any material variances between
such financial statements and the Business Plan;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) whether
anything has come to their attention to cause them to believe that there existed
on the date of such statements any Default and (ii) confirming the calculations
set forth in the officer's certificate delivered simultaneously therewith
pursuant to clause (c) above;
(e) as soon as available and in any event within 45 days after
the end of each quarter of each fiscal year of the Borrower, a copy of the most
recent "retainage report", "new work potential report" and "new work acquisition
report" (including a description of new work and a comparison of such new work
to the new work projected in the Business Plan) prepared by management of the
Borrower, substantially in the format for such information delivered pursuant to
Section 3.01(w);
(f) as soon as available and in any event within 45 days after
the end of each quarter of each fiscal year of the Borrower (subject to the
proviso at the end of this Section 5.01(f)), a schedule in substantially the
format for
52
such information delivered pursuant to Section 3.01(w), dated as of the last day
of such quarter (or month, as the case may be) listing each construction
contract which provides for aggregate total payments in excess of $2,500,000 and
with respect to which the Borrower or a Consolidated Subsidiary of the Borrower
is a party or participates through a joint venture, and setting forth as of the
date of such schedule for each such contract the Borrower's original estimate of
revenue and profit, the Borrower's current estimate of revenue and profit,
cumulative realized and estimated remaining revenue and profit, "cash ahead/cash
behind" information, the percentage of completion and anticipated completion
date of each such contract and a forecast by quarter of the remaining cash flows
for each such contract, certified as to consistency, accuracy and reasonableness
of estimates by the chief financial officer or the chief accounting officer of
the Borrower; provided that if the Borrower shall fail to comply with its
obligations under Section 5.01(g) or 5.01(h) due to extenuating circumstances
for five Domestic Business Days after the due date thereof or such later date as
the Required Banks may approve, the Borrower shall thereafter be required to
provide the information described in this Section 5.01(f) on a monthly basis,
within twenty Domestic Business Days after the end of each month;
(g) as soon as available and in any event within three
Domestic Business Days after the end of each period of two calendar weeks, a
copy of the weekly and monthly cash flow projections which management of the
Borrower has customarily prepared every two weeks by project, by division and on
a consolidated basis, prepared in a manner and format easily comparable to the
financial information provided under Section 5.01(f), substantially in the
format for such information delivered pursuant to Section 3.01(w), with a
variance analysis comparing the current projections to the most recent prior
projections;
(h) as soon as available and in any event within two Domestic
Business Days after the last day of each calendar week, a weekly "flash report,"
substantially in the format for such information delivered pursuant to Section
3.01(w), providing information regarding:
(i) the Borrower's approximate consolidated aggregate cash
receipts and cash disbursements for such week and for the most recent three
prior weeks;
(ii) the Borrower's cash balances as of the close of business
on the last day of such week and as of the close of business on the last day of
the most recent three prior weeks;
53
(iii) the aggregate principal amount of all Borrowings and
outstanding Letters of Credit as of the close of business on the last day of
such week and as of the close of business on the last day of the most recent
three prior weeks;
(iv) the estimated amounts of outstanding checks, net
borrowings from joint ventures (including a listing of the major net borrowings
by project) and overdue obligations, including held checks, as of the close of
business on the last day of such week and as of the close of business on the
last day of the most recent three prior weeks; and
(v) any material developments of which the chief financial
officer of the Borrower is aware relating to, or any changes in, any
construction contracts, including any profit write-downs and/or any loss of
float in an amount which exceeds $100,000 for any individual construction
contract and "significant" cash flow timing variances (relative to the most
recent information provided pursuant to the Business Plan or Section 5.01(f))
that are not expected to be reversed within ninety days of the date when such
timing variance is expected to occur (or has occurred), with "significant" for
purposes of this Section 5.01(h) meaning a cash flow variance of $500,000 or
more for any individual construction contract;
(i) by March 31 of each fiscal year, the annual projected
consolidated and consolidating balance sheets and income statements, operating
and capital expenditure budgets and cash flow forecasts, prepared on a quarterly
basis and in accordance with GAAP, for the Borrower and its Consolidated
Subsidiaries for the next succeeding three fiscal years, presented on a
quarterly basis and in a format reasonably acceptable to the Required Banks, and
certified by the chief financial officer of the Borrower as containing
reasonable assumptions to the best of his knowledge;
(j) forthwith upon the occurrence of any Default, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(k) prompt notice of the occurrence of any "Special Default"
as defined in clause (ii) of Section 7(b) of the "Certificate of Vote of
Directors Establishing Series B Cumulative Convertible Preferred Stock of Perini
Corporation," or of any other circumstance causing the "Cash Dividend Rate" in
respect of the Series B Preferred Stock to increase from 7% or the "In-Kind
54
Dividend Rate" in respect of the Series B Preferred Stock to increase from 10%;
(l) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(m) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Borrower shall have filed with the Securities and Exchange
Commission;
(n) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 407 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA Group is required or
proposes to take;
(o) prompt notice of the receipt of any complaint, order,
citation, notice or other written communication from any Person with respect to
(i) the existence or alleged existence of a violation of any applicable
Environmental Law at or on, or of any Environmental Liability arising with
respect to, any Mortgaged Facility, (ii) any Release on any Mortgaged Facility
or any part thereof in a quantity that is reportable under any applicable
Environmental
55
Law, and
(iii) any pending or threatened proceeding for the
termination, suspension or non-renewal of any permit required under any
applicable Environmental Law with respect to any Mortgaged Facility;
(p) prompt notice of any change in the Borrower's ability to
obtain bonding for new construction projects (including without limitation a
reduction in the amount of bonding commitments of any bonding company to the
Borrower and any restrictions on use of such commitments);
(q) prompt notice of any decision by the Borrower, any of its
Subsidiaries or any joint venture partner not to meet a capital call by any
joint venture in which the Borrower or any such Subsidiary is participating;
(r) prompt notice of the Borrower or any Subsidiary obtaining
or increasing an interest in a joint venture or partnership which, in the case
of any construction joint venture, need not be given until reasonably promptly
after a bid by such joint venture for a construction contract shall have been
accepted; and
(s) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations; No Derivatives
Obligations.
(a) The Borrower will pay and discharge, and will cause each
Subsidiary to pay and discharge, at or before maturity, all their respective
material obligations and liabilities, including, without limitation, tax
liabilities, except where the same may be contested in good faith by appropriate
proceedings, and will maintain, and will cause each Subsidiary to maintain, in
accordance with GAAP, appropriate reserves for the accrual of any of the same.
(b) The Borrower will not, nor will it permit any of its
Subsidiaries to, become a party to any Derivatives Obligation except the Xxxxxx
Swap.
SECTION 5.03. Maintenance of Property; Insurance. The Borrower
will keep, and will cause each Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted; will maintain, and will cause each Subsidiary to maintain (either
in the name of the Borrower or in such Subsidiary's own name) with financially
sound and reputable insurance companies, insurance on all their property in at
least such amounts and against at least such risks as are usually insured
against in the same general area by companies of established repute engaged in
the same or a similar
56
business; and will furnish to the Banks, upon written request from the Agent,
full information as to the insurance carried.
SECTION 5.04. Conduct of Business and Maintenance of
Existence. The Borrower will continue, and will cause each Subsidiary Guarantor
to continue, to engage in business of the same general type as now conducted by
the Borrower and its Subsidiaries, and will preserve, renew and keep in full
force and effect, and will cause each Subsidiary Guarantor to preserve, renew
and keep in full force and effect their respective corporate existence and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business.
SECTION 5.05. Compliance with Laws. The Borrower will comply,
and cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder) except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and Records.
(a) The Borrower will keep, and will cause each Subsidiary to
keep, proper books of record and account in which full, true and correct entries
in conformity with GAAP shall be made of all dealings and transactions in
relation to its business and activities; and will permit, and will cause each
Subsidiary to permit, representatives of any Bank at such Bank's expense
(subject to Section 9.03(a)(ii)) to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
(b) The Borrower shall hold a meeting for representatives of
the Banks at least once each fiscal quarter, at a time and place to be
determined by the Agent (after consultation with the Banks) on ten Domestic
Business Days' notice to the Borrower and the Banks, for purposes of holding
such discussions with the chief executive officer, chief operating officer and
chief financial officer of the Borrower (each of whom shall attend each such
meeting) and such other of the Borrower's officers, employees and independent
public accountants as the Borrower shall designate or as the Agent shall
designate at the reasonable request of any Bank.
SECTION 5.07. Minimum Working Capital Ratio. The Borrower will
not permit the ratio of (i) the consolidated current assets (excluding cash and
cash equivalents) of the Borrower and its Consolidated Subsidiaries at any time
to (ii) the consolidated current liabilities (excluding Debt under this
Agreement) of the Borrower and its Consolidated Subsidiaries at such time to be
less than 1:1.
57
SECTION 5.08. Debt.
(a) After the date hereof, the Borrower will not incur or
suffer to exist any Debt other than:
(i) Debt existing on September 30, 1996 and listed on Schedule
5.08 hereof;
(ii) Debt under this Agreement;
(iii) Debt owing to joint ventures in which the Borrower is
participating;
(iv) Debt incurred to finance insurance premiums, in an
aggregate principal amount not to exceed $3,000,000 at any time;
(v) Debt owed by the Borrower to a Subsidiary and evidenced by
an intercompany note pledged to the Agent under the Subsidiary Pledge Agreement;
(vi) Debt incurred or assumed by the Borrower for the purpose
of financing all or any part of the cost of acquiring any fixed assets of the
Borrower (including through capital leases), provided that the aggregate amount
of all such Debt incurred or assumed by the Borrower and its Consolidated
Subsidiaries during any period of twelve consecutive calendar months shall not
exceed an aggregate principal amount of $3,000,000; and
(vii) any refinancing, extension, renewal or refunding of the
Debt referred to in clauses (i) through (vi) above; provided that (x) Modified
Parent Company Debt shall not at any time exceed $150,000,000 and (y) any
refinancing, extension, renewal or refunding of any such Debt shall not increase
the principal amount of such Debt.
(b) After the date hereof, the Borrower will not permit any
Subsidiary to incur or suffer to exist any Debt other than
(i) Debt existing on September 30, 1996 and listed on Schedule
5.08 hereof;
(ii) Debt under the Subsidiary Guarantee Agreement;
(iii) Debt owing to joint ventures in which such Subsidiary is
participating;
58
(iv) Debt owing by a Subsidiary to the Borrower and evidenced
by an intercompany note pledged to the Agent under the Borrower Security
Agreement; and
(v) Debt incurred or assumed by a Subsidiary for the purpose
of financing all or any part of the cost of acquiring any fixed assets of such
Subsidiary (including through capital leases), provided that the aggregate
amount of all such Debt incurred or assumed by the Borrower and its Consolidated
Subsidiaries during any period of twelve consecutive calendar months shall not
exceed an aggregate principal amount of $3,000,000; and
(vi) any refinancing, extension, renewal or refunding of the
Debt referred to in clauses (i) through (v) above; provided that any extension,
renewal or refunding on any such Debt shall not increase the principal amount of
such Debt.
SECTION 5.09. Minimum Consolidated Adjusted Tangible Net
Worth. The Borrower will not permit Consolidated Adjusted Tangible Net Worth
during any fiscal quarter set forth below to be less than the amount set forth
below opposite such fiscal quarter:
Minimum Consolidated
Fiscal Quarter Ending Adjusted Tangible Net Worth
December 31, 1996 $109,244,000
March 31, 1997 $109,661,000
June 30, 1997 $110,078,000
September 30, 1997 $110,495,000
December 31, 1997 $112,899,000
March 31, 1998 $113,275,000
June 30, 1998 $115,651,000
September 30, 1998 $115,977,000
December 31, 1998 $119,303,000
March 31, 1999 $119,629,000
June 30, 1999 $121,955,000
September 30, 1999 $122,281,000
December 31, 1999 $126,611,000
SECTION 5.10. Minimum Operating Cash Flow. The Borrower shall
not permit Operating Cash Flow for any period specified below to be less than
the amount set forth below opposite such period:
59
Minimum
Period Operating Cash Flow
January 1, 1997 through March 31, 1997 ($20,000,000)
January 1, 1997 through June 30, 1997 ($10,000,000)
January 1, 1997 through September 30, 1997 $0
January 1, 1997 through December 31, 1997 $10,000,000
Each four consecutive fiscal quarters
ending March 31, 1998 and thereafter $15,000,000
SECTION 5.11. Negative Pledge. Neither the Borrower nor any
Consolidated Subsidiary of the Borrower will create, assume or suffer to exist
any Lien on any asset (including, without limitation, capital stock of
Subsidiaries) now owned or hereafter acquired by it, except:
(a) Liens existing on September 30, 1996 securing Debt
outstanding on September 30, 1996 as described in Schedule 5.11;
(b) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof and such Lien secures only such
Debt;
(c) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not increased and
is not secured by any additional assets;
(d) Permitted Encumbrances;
(e) Liens granted to the Bonding Company to secure amounts
owing by the Borrower or any of its Subsidiaries in connection with surety
bonds, undertakings and instruments of guarantee issued by the Bonding Company
on behalf of the Borrower or any of its Subsidiaries in the ordinary course of
their respective businesses; and
(f) Liens created by the Collateral Documents.
SECTION 5.12. Consolidations, Mergers and Sales of Assets.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, consolidate or merge with or into any other Person, other than
a Subsidiary into a Subsidiary Guarantor or into the Borrower.
60
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise dispose of any of its or their assets,
other than:
(i) Sales of inventory in the ordinary course of their
respective businesses;
(ii) Dispositions of Temporary Cash Investments;
(iii) Dispositions of other assets if (x) each of the Banks
shall have given its prior written consent thereto and (y) the consideration
therefor shall consist of cash payable at closing in an amount at least equal to
the fair market value of such assets (as determined in good faith by a financial
officer of the Borrower or, if such value exceeds $15,000,000, by the board of
directors of the Borrower or a duly constituted committee thereof); provided
that the prior written consent of the Banks shall not be required for either (A)
a Disposition of any asset having a fair market value less than $100,000 if the
aggregate amount of the fair market value of all such Dispositions during any
fiscal year is less than $500,000 and the Borrower delivers to each of the Banks
prompt written notice of each such Disposition or (B) a Disposition of any asset
listed on the Asset Sale Letter if the consideration therefor equals or exceeds
the amount set forth thereon;
(iv) operating leases at market rentals of residential and
commercial space held by the Borrower or any of its Subsidiaries in connection
with their real estate investment and development activities, but only to the
extent that such leases are entered into in the ordinary course of their
respective businesses, consistent with past practices as in effect prior to the
Effective Date; and
(v) operating leases at market rentals of portions of office
space not then utilized by the Borrower or any of its Subsidiaries in the
Borrower's headquarters office building in Framingham, Massachusetts.
SECTION 5.13. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Borrower for general corporate
purposes. None of such proceeds will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any "margin stock" within the meaning of Regulation U.
SECTION 5.14. Restricted Payments. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, declare, order, pay,
make or set apart any sum for any Restricted Payment; provided that the
foregoing shall not restrict or prohibit:
61
(a) cash payments in the ordinary course of business in full
or partial settlement of employee stock options or in full or partial settlement
of similar incentive compensation arrangements providing employees options,
warrants or other rights to acquire shares of the Borrower's capital stock to
employees, up to an aggregate amount not to exceed $100,000 during any period of
twelve consecutive calendar months;
(b) the redemption, for an aggregate redemption price not
exceeding $200,000, of the "Rights" issued pursuant to the Shareholder Rights
Agreement dated as of September 23, 1988, as amended to the Effective Date; and
(c) other Restricted Payments (other than any purchase or
redemption of any shares of Series B Preferred Stock) made after September 30,
1998, but only if and to the extent that, before and after giving effect
thereto: (i) no Default shall have occurred and be continuing; (ii) the
aggregate amount of the Commitments shall be less than $90,000,000; (iii) the
aggregate amount of all Restricted Payments during any fiscal quarter, when
added to the aggregate amount of all Restricted Payments during the three
immediately preceding fiscal quarters, shall not exceed 50% of Net Income from
Continuing Operations for the four immediately preceding fiscal quarters; (iv)
Consolidated Tangible Net Worth shall be at least $60,000,000; and (v)
Consolidated Adjusted Tangible Net Worth during each period set forth below
shall be at least: Minimum Consolidated Adjusted Period Tangible Net Worth
October 1, 1998 - December 30, 1998 $161,977,000
December 31, 1998 - March 31, 1999 $167,303,000
April 1, 1999 - June 30, 1999 $170,129,000
July 1, 1999 - September 30, 1999 $172,955,000
Thereafter $175,781,000
and provided further, that neither the Borrower nor or any of its Subsidiaries
shall, directly or indirectly, at any time purchase or redeem any shares of
Series B Preferred Stock until all of the obligations under this Agreement shall
be repaid in full and all Commitments hereunder terminated.
SECTION 5.15. Real Estate Investments. The Borrower will not,
and will not permit any Consolidated Subsidiary to, make any Real Estate
Investment if, after giving effect thereto, the aggregate amount of all Real
Estate Investments (determined on a gross basis and not, for example, net of any
proceeds received in respect of any Real Estate Investments) made by the
Borrower or any of its
62
Consolidated Subsidiaries during any fiscal year set forth below shall exceed
the amount set forth below opposite such fiscal year:
Maximum Amount of
Real Estate Investments
Fiscal Year Ending During Fiscal Year
December 31, 1996 $12,000,000
December 31, 1997 $12,500,000
December 31, 1998 $8,600,000
December 31, 1999 $3,000,000
SECTION 5.16. Purchase of Assets; Investments. Neither the
Borrower nor any Consolidated Subsidiary will acquire any assets other than in
the ordinary course of business. Neither the Borrower nor any Consolidated
Subsidiary will make or acquire any Investment in any Person other than:
(a) Real Estate Investments permitted by Section 5.15;
(b) Investments in Subsidiaries or joint ventures principally
engaged in the Construction Business; and
(c) Temporary Cash Investments;
provided that no Real Estate Investments may be made pursuant to clause (b) or
(c) above. Without limiting the generality of the foregoing, the Borrower will
not, and will not permit any Subsidiary to, acquire or create any Subsidiary
without the consent of the Required Banks and arrangements satisfactory to the
Required Banks for (x) a pledge of the stock of such Subsidiary to the Agent for
the benefit of the Banks, (y) a guaranty by such Subsidiary of the obligations
of the Borrower hereunder and (z) a grant of a Lien on the assets of such
Subsidiary to the Agent for the benefit of the Banks to secure such guaranty.
SECTION 5.17. Capital Expenditures.
(a) The Borrower will not permit the aggregate amount of
Consolidated Capital Expenditures during any fiscal year, commencing with the
fiscal year ending December 31, 1996, to exceed $3,000,000.
(b) All Consolidated Capital Expenditures by the Borrower or
any Consolidated Subsidiaries shall be in connection with the Construction
Business.
63
SECTION 5.18. Transactions with Affiliates. Neither the
Borrower nor any Subsidiary will, directly or indirectly, enter into or permit
to exist any transaction (including the Disposition of any asset or property or
the rendering of any service) with any member of the Investor Group or any other
Affiliate of the Borrower on terms that are less favorable to the Borrower or
such Subsidiary, as the case may be, than those which might be obtained by the
Borrower at the time from a Person which is not an Affiliate of the Borrower.
Neither the Borrower nor any Subsidiary shall, directly or indirectly, pay or
become obligated to pay any fees or other amounts to or for the account of any
member of the Investor Group other than (i) dividends payable in respect of the
Investor's shares of Series B Preferred Stock in accordance with the terms
thereof as in effect on the Effective Date, (ii) the amounts set forth in
Section 10.3 of the Stock Purchase Agreement, (iii) the participation fee equal
to 4% of the amount of the "Bridge Term Loans" under the Bridge Credit
Agreement, payable in shares of common stock of the Borrower in accordance with
the letter agreement between the Investor and the Borrower entered into in
connection with the Investor's purchase of a participation in such "Bridge Term
Loans" and (iv) fees payable to Xxxxx-Xxxxxx Corp. in accordance with the terms
and conditions of the Management Agreement.
SECTION 5.19. Amendments or Waivers. Without the prior written
consent of the Required Banks, neither the Borrower nor any Subsidiary will
agree to any amendment or waiver to the Stock Purchase Agreement, the terms of
the Series B Preferred Stock, the Management Agreement, any other agreements
with any members of the Investor Group (other than agreements between the
Borrower or any of its Subsidiaries and Xxxxx-Xxxxxx Corp. which shall have been
entered into in the ordinary course of the Construction Business) or any Xxxxxx
Agreements or to any amendment or waiver of any material provision of any other
material partnership or joint venture agreements.
SECTION 5.20. Debt Payments. Other than any refinancing or
refunding of Debt permitted by Section 5.08, neither the Borrower nor any
Subsidiary will prepay, redeem, defease (whether actually or in substance),
purchase in any manner or make any payment in respect of principal, interest or
premium in respect of any Debt (or deposit or set aside funds for the purpose of
any of the foregoing) other than regularly scheduled repayments of principal and
payments of interest required in accordance with the terms of the instruments
governing such Debt to the extent set forth on Schedule 5.20.
SECTION 5.21. Cash Management System. Without the prior
written consent of the Required Banks, the Borrower will not modify the cash
management system of the Borrower and its Subsidiaries from that described in
the Cash Management Letter. Neither the Borrower nor any Subsidiary Guarantor
shall maintain any deposit, checking, operating or other bank accounts other
than the Permitted Accounts.
64
SECTION 5.22. Further Assurances.
(a) The Borrower will, and will cause each of its Subsidiaries
to, at its sole cost and expense, do, execute, acknowledge and deliver all such
further acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers and assurances as the Agent shall from time to time request, which may
be necessary or desirable in the reasonable judgment of the Agent from time to
time to assure, perfect, convey, assign, transfer and confirm unto the Agent the
property and rights conveyed or assigned pursuant to the Collateral Documents,
or which the Borrower or such Subsidiaries may be or may hereafter become bound
to convey or assign to the Agent or which may facilitate the performance of the
terms of the Collateral Documents or the filing, registering or recording of the
Collateral Documents.
(b) All costs and expenses in connection with the security
interests and Liens created by the Collateral Documents, including reasonable
legal fees and other reasonable costs and expenses in connection with the
granting, perfecting and maintenance of such security interests and Liens, the
preparation, execution, delivery, recordation or filing of documents and any
other acts in connection with the grant of such security interests and Liens as
the Agent may reasonably request, shall be paid by the Borrower promptly when
due.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan, any Reimbursement Obligation, any fees or any other amount payable
hereunder;
(b) the Borrower shall fail to pay any interest on any Loan
within five Domestic Business Days after the due date thereof;
(c) the Borrower or any Subsidiary Guarantor shall fail to
observe or perform any covenant contained in Sections 5.07 to 5.22, inclusive,
or in Section 3.01 of the Subsidiary Guarantee Agreement;
(d) any Obligor shall fail to observe or perform any covenant
or agreement contained in any Financing Document (other than those covered by
clauses (a), (b) and (c) above) for 10 days after written notice thereof has
been given to such Obligor by the Agent at the request of any Bank;
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(e) any representation, warranty, certification or statement
made by any Obligor in any Financing Document or in any certificate, financial
statement or other document delivered pursuant thereto shall prove to have been
incorrect in any material respect when made (or deemed made);
(f) the Borrower shall fail to make any payment in respect of
any Debt (other than the Notes or Reimbursement Obligations) when due or within
any applicable grace period;
(g) any Subsidiary shall fail to make any payment in respect
of any Debt the aggregate principal amount of which is $250,000 or more when due
or within any applicable grace period;
(h) any event or condition shall occur which results in the
acceleration of the maturity of any Debt of the Borrower or any Subsidiary or
enables (or, with the giving of notice or lapse of time or both, would enable)
the holder of such Debt or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(i) the Borrower or any Subsidiary shall commence a voluntary
Bankruptcy Proceeding or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary Bankruptcy
Proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
(j) an involuntary Bankruptcy Proceeding shall be commenced
against the Borrower or any Subsidiary and such involuntary Bankruptcy
Proceeding shall remain undismissed and unstayed for a period of 60 days; or an
order for relief shall be entered against the Borrower or any Subsidiary under
the federal bankruptcy laws as now or hereafter in effect;
(k) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay to the PBGC or any other Person under Title IV of ERISA; or
notice of intent to terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a
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complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $5,000,000;
(l) a judgment or order for the payment of money in excess of
$5,000,000 shall be rendered against the Borrower or any Subsidiary and such
judgment or order shall continue unsatisfied, unstayed and unbonded for a period
of 10 days;
(m) any of the following: (i) any person or group or persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) (other than the Exempt Group) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of 25% or more of the outstanding shares of
common stock of the Borrower; (ii) the Borrower shall cease to own 100% of the
capital stock of any Subsidiary Guarantor; (iii) members of the Investor Group,
collectively, shall cease to own collectively at least 75,075 shares of Series B
Preferred Stock or shall cease to be the beneficial owners of at least 20% of
the outstanding shares of common stock of the Borrower or the beneficial owners
of shares of Series B Preferred Stock convertible into at least 20% of the
outstanding shares of common stock of the Borrower; (iv) individuals designated
by members of the Investor Group to serve on the executive committee of the
Board of Directors of the Borrower shall cease to constitute a majority of the
members of such executive committee; (v) the powers of the executive committee
of the Board of Directors of the Borrower shall be diminished in any material
respect; or (vi) RCBA shall cease to be the general partner of the Investor; or
(n) any Financing Document shall cease to be in full force and
effect or shall be declared null and void, or the validity or enforceability
thereof shall be contested by any Obligor, or the Agent on behalf of the Banks
shall at any time fail to have a valid and perfected Lien on all of the
Collateral purported to be subject to such Lien, subject to no prior or equal
Lien except Liens permitted by the Collateral Documents, or any Obligor shall so
assert in writing;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Borrower declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are
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hereby waived by the Obligors; provided that in the case of any of the Events of
Default specified in clause (i) or (j) above with respect to any Obligor,
without any notice to the Borrower or any other act by the Agent or the Banks,
the Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Obligors.
SECTION 6.02. Cash Cover. The Borrower hereby agrees, in
addition to the provisions of Section 6.01 hereof, that upon the occurrence and
during the continuance of any Event of Default, it shall, if requested by the
Agent upon instructions from Banks having more than 50% in aggregate amount of
the Commitments, pay (and, in the case of any of the Events of Default specified
in clause (i) or (j) above with respect to any Obligor, forthwith, without any
demand or the taking of any other action by the Agent or any Bank, it shall pay)
to the Agent an amount in immediately available funds equal to the then
aggregate Letter of Credit Liabilities for all Letters of Credit to be held as
security therefor for the benefit of all Banks pursuant to arrangements
satisfactory to the Agent and the Banks.
SECTION 6.03. Notice of Default. The Agent shall give notice
to the Borrower under Section 6.01(d) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under the Financing Documents as are
delegated to the Agent by the terms thereof, together with all such powers as
are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Xxxxxx Guaranty Trust
Company of New York shall have the same rights and powers under the Financing
Documents as any other Bank and may exercise or refrain from exercising the same
as though it were not the Agent, and Xxxxxx Guaranty Trust Company of New York
and its affiliates may accept deposits from, lend money to, and generally engage
in any kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not the Agent hereunder.
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SECTION 7.03. Action by Agent. The obligations of the Agent
under the Financing Documents are only those expressly set forth herein. Without
limiting the generality of the foregoing, the Agent shall not be required to
take any action with respect to any Default, except as expressly provided in
Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult
with legal counsel (who may be counsel for an Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts; provided that no Bank shall be
required to reimburse the Agent (to the extent not paid by the Borrower) for the
fees and expenses of any experts (other than any legal counsel and Ernst & Young
LLP) who shall not have been approved by the Required Banks.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of
its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Banks or (ii) in
the absence of its own gross negligence or willful misconduct. Neither the Agent
nor any of its affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with the Financing Documents or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower;
(iii) the satisfaction of any condition specified in Article III, except receipt
of items required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of any Financing Document or any other instrument
or writing furnished in connection herewith. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents, advisors and employees (to the extent
not reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder. Each
Bank agrees that the indemnity set forth in this Section 7.06 shall require each
Bank to pay (to the extent not reimbursed by the Borrower) the reasonable fees
and disbursements of counsel retained by the Agent in connection with this
Agreement and the reasonable fees and disbursements of Ernst & Young LLP and
other experts approved by the Required Banks retained by the Agent in connection
with this Agreement, but no Bank shall be required to indemnify any
69
advisor retained by the Agent, and no Bank shall hereby indemnify the Agent for
any indemnity given by the Agent to any advisor (other than an indemnity for
reasonable fees and disbursements in accordance with the agreement to pay
reasonable fees and disbursements set forth in this sentence), unless such Bank
shall have separately given its express written consent to give such indemnity.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any
time by giving notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $150,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Collateral Documents.
(a) As to any matters not expressly provided for in the
Collateral Documents (including the timing and methods of realization upon the
Collateral), and which do not otherwise require the signature of all Banks
pursuant to Section 9.05, the Agent shall act or refrain from acting in
accordance with written instructions from the Required Banks or, in the absence
of such instructions, in accordance with its discretion; provided that the Agent
shall not be obligated to take any action if the Agent believes that such action
is or may be contrary to any applicable law or might cause the Agent to incur
any loss or liability for which it has not been indemnified to its satisfaction.
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(b) The Agent shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection,
priority or enforceability of the security interests in any of the Collateral,
whether impaired by operation of law or by reason of any action or omission to
act on its part under the Collateral Documents. The Agent shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms of
the Collateral Documents by any Obligor.
ARTICLE VIII
CHANGE IN CIRCUMSTANCE
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period for any
Euro-Dollar Loan:
(a) the Agent is advised by the Reference Banks that deposits
in dollars (in the applicable amounts) are not being offered to the Reference
Banks in the relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the
Commitments advise the Agent that the Adjusted Euro-Dollar Rate, as determined
by the Agent will not adequately and fairly reflect the cost to such Banks of
funding their Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower
and the Banks, whereupon until the Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Euro-Dollar Loans or to convert Base Rate Loans
into Euro-Dollars Loans shall be suspended and (ii) each outstanding Euro-Dollar
Loan shall be converted into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto. Unless the Borrower notifies the
Agent at least two Domestic Business Days before the date of any Euro-Dollar
Borrowing for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, such Borrowing shall instead be made as a
Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it
71
unlawful or impossible for any Bank (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans and such Bank shall so notify the Agent,
the Agent shall forthwith give notice thereof to the other Banks and the
Borrower, whereupon until such Bank notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans, or to convert outstanding Loans into
Euro-Dollar Loans, shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Euro-Dollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully continue to maintain
and fund any of its outstanding Euro-Dollar Loans to maturity and shall so
specify in such notice, each Euro-Dollar Loan of such Bank then outstanding
shall be converted to a Base Rate Loan (and the Borrower shall contemporaneously
pay accrued interest on such Euro-Dollar Loan to the date of conversion) either
(a) on the last day of the then current Interest Period applicable to such
Euro-Dollar Loan if such Bank may lawfully continue to maintain and fund such
Loan to such day or (b) immediately if such Bank shall determine that it may not
lawfully continue to maintain and fund such Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If after the date hereof, the adoption of any applicable
law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office)
to any tax, duty or other charge with respect to its Euro-Dollar Loans, its Note
or its obligation to make Euro-Dollar Loans, or shall change the basis of
taxation of payments to any Bank (or its Applicable Lending Office) of the
principal of or interest on its Euro-Dollar Loans or any other amounts due under
this Agreement in respect of its Euro-Dollar Loans or its obligation to make
Euro- Dollar Loans (except for changes in the rate of tax on the overall net
income of such Bank or its Applicable Lending Office imposed by the jurisdiction
in which such Bank's principal executive office or Applicable Lending Office is
located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve
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Percentage), special deposit, insurance assessment or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the United States market for certificates of
deposit or the London interbank market any other condition affecting its
Euro-Dollar Loans, its Note or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Agent), the Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
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SECTION 8.04. Base Rate Loans Substituted for Affected Euro-
Dollar Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar
Loans has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03(a) and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as
(or continued as or converted into) Euro-Dollar Loans shall be made instead as
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid (or
converted to a Base Rate Loan), all payments of principal which would otherwise
be applied to repay such Euro-Dollar Loans shall be applied to repay its Base
Rate Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower or the Agent, at its address or telex or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Bank, at its address or telex or facsimile number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other address
or telex or facsimile number as such party may hereafter specify for the purpose
by notice to the Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when such
facsimile is transmitted to the facsimile number specified in this Section and
receipt of such facsimile is confirmed, either orally or in writing, by the
party receiving such transmission, (iii) if given by certified mail, 72 hours
after such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iv) if given by any other means, when
delivered at the address specified in this Section; provided that notices to the
Agent under Article II shall not be effective until received.
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SECTION 9.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege under any Financing
Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies therein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of
the Agent, including fees and disbursements of special counsel for the Agent,
any firm of independent public accountants, financial advisors and other experts
retained by the Agent in connection with the preparation of the Financing
Documents, any waiver or consent under any Financing Document, any amendment of
any Financing Document or any Default or alleged Default or otherwise in
connection with this Agreement or any other Financing Documents (provided that,
except in the case of fees and disbursements incurred in connection with the
preparation of the Financing Documents, any waiver or consent under any
Financing Document, any amendment of any Financing Document or any Default or
alleged Default, all of which shall be paid by the Borrower, the Borrower shall
not be required to pay the fees and disbursements of any firm of independent
public accounts, financial advisors and other experts retained by the Agent
(other than special counsel for the Agent, whose fees and expenses shall not be
limited by this parenthetical) to the extent such fees and disbursements exceed,
in the aggregate: (i) $60,000 during the period from the Effective Date until
the first anniversary of the Effective Date or (ii) $50,000 during any period of
twelve consecutive calendar months after the first anniversary of the Effective
Date); and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by the Agent and each Bank, including fees and disbursements of counsel
(including allocated costs of internal counsel and disbursements of internal
counsel), in connection with such Event of Default and any collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
The Borrower shall indemnify each Bank against any transfer taxes, documentary
taxes, assessments or charges made by any governmental authority by reason of
the execution and delivery of any Financing Document.
(b) The Borrower agrees to indemnify the Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (including allocated costs of internal counsel and
disbursements of internal counsel), which may be incurred by any Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of any
75
Financing Document or any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be indemnified hereunder for
such Indemnitee's own gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
(c) The Borrower agrees to indemnify each Indemnitee and hold
each Indemnitee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind (including without limitation reasonable
expenses of investigation by engineers, environmental consultants and similar
technical personnel and reasonable fees and disbursements of counsel including
allocated costs of internal counsel and disbursements of internal counsel) of
any Indemnitee arising out of, in respect of or in connection with any and all
Environmental Liabilities. Without limiting the generality of the foregoing, the
Borrower hereby waives all rights for contribution or any other rights of
recovery with respect to liabilities, losses, damages, costs or expenses arising
under or related to Environmental Laws that it might have by statute or
otherwise against any Indemnitee.
SECTION 9.04. Sharing of Setoffs. Each Bank agrees that if it
shall, by exercising any right of setoff or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount due with respect to any Loan or
Reimbursement Obligation owed to it which is greater than the proportion
received by any other Bank in respect of the aggregate amount due with respect
to any Loan or Reimbursement Obligation owed to such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Loans and Reimbursement Obligations owed to the other
Banks, and such other adjustments shall be made, as may be required so that all
such payments with respect to the Loans and Reimbursement Obligations owed to
the Banks shall be shared by the Banks pro rata; provided that (i) nothing in
this Section shall impair the right of any Bank to exercise any right of setoff
or counterclaim it may have and to apply the amount subject to such exercise to
the payment of indebtedness of the Borrower other than its indebtedness
hereunder and (ii) nothing in any Financing Documents shall require any Bank to
share any payments and distributions received by such Bank if such payments and
distributions were made in respect of any obligations (including without
limitation Other Reimbursement Obligations and Other Mortgage/Lease Obligations)
not constituting Loans or Reimbursement Obligations. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder of
a participation in a Loan or Reimbursement Obligation, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of setoff or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
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SECTION 9.05. Amendments and Waivers. (a) Any provision of
this Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Required
Banks (and, if the rights or duties of the Agent or the LC Bank are affected
thereby, by the Agent or the LC Bank, as the case may be); provided that no such
amendment or waiver shall, unless signed by all the Banks, (i) increase or
decrease the Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks), (ii) amend Section 2.10 or 5.12(b)(iii), (iii)
subject any Bank to any additional obligation, (iv) reduce the principal of or
rate of interest on any Loan or any fees hereunder, (v) postpone the date fixed
for any payment of principal of or interest on any Loan, any Reimbursement
Obligation or any fees hereunder or for termination or reduction of any
Commitment, (vi) reinstate the Commitments or cause the Notes to be no longer
immediately due and payable after the Commitments shall have been terminated and
the Notes shall have become immediately due and payable pursuant to Section
6.01, (vii) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or change the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section 9.05
or any other provision of any Financing Documents, (viii) release any Subsidiary
Guarantor from the Subsidiary Guarantee Agreement, (ix) amend Section 9.04, 9.05
or 9.06 hereof or (x) notwithstanding any provision of any Collateral Document
to the contrary, modify any definition of Collateral in any Financing Document
or release any item of Collateral from any Lien provided by any Collateral
Document except for the sale or other disposition of such item by the Agent in
the exercise of its rights as provided therein as in effect on the Effective
Date (provided that unless an Event of Default has occurred and is continuing or
the Agent has received written notice from the Borrower or any Bank of the
existence of any Default, the Agent may release any item of Collateral at the
request of the Borrower, without the consent of any Banks if (A) such release is
required in connection with any Disposition of such Collateral, (B) such
Collateral is listed on the Asset Sale Letter and the consideration therefor is
cash in an amount at least equal to the minimum cash price shown on the Asset
Sale Letter and (C) such Disposition is in accordance with and permitted by the
terms hereof (including without limitation Sections 2.10(c) and 5.12(b)).
(b) Without limiting the effect of Section 9.05(a), the
Borrower may, at any time prior to commencement of a voluntary Bankruptcy
Proceeding by Perini Land and Development or any Subsidiary of Perini Land and
Development (an "Affected Subsidiary"), request from the Banks a waiver of any
resulting Event of Default. Such request shall be by written notice accompanied
by such relevant information as shall enable the Banks and the Agent to evaluate
such request. Upon receipt of such request and such information, the Banks and
the Agent will promptly evaluate the potential consequences of such Bankruptcy
Proceeding. If, based on their evaluation, the Required Banks and the Agent
conclude that commencement and continuation of such voluntary Bankruptcy
Proceeding will not have an adverse impact
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on the Banks' interests, the Banks shall promptly so notify the Borrower in
writing. Upon receipt of such notification, the Event of Default which would
otherwise result from the commencement of such voluntary Bankruptcy Proceeding
by such Affected Subsidiary shall be deemed waived, provided that such voluntary
Bankruptcy Proceeding has not been commenced prior to such notification and is
commenced within 30 days after such notification. If for any reason such
voluntary Bankruptcy Proceeding is not commenced with respect to such Affected
Subsidiary during such 30-day period, the Borrower may thereafter at any time
again request from the Banks a waiver with respect to such Affected Subsidiary
or any other Affected Subsidiary pursuant to the foregoing procedures.
The effect of delivery by the Banks of any such notification
shall be limited as set forth above and shall not be deemed a waiver of any
other right, remedy or event of default under any Financing Documents. The
Borrower will reimburse the Banks and the Agent for any out-of-pocket expenses
they may incur in connection with conducting any evaluation referred to above
(including, without limitation, fees and expenses of counsel and financial
professionals) and will, at its own expense, provide to the Banks and the Agent
such information as the Agent may request in order to facilitate such evaluation
(including, without limitation, satisfactory opinions of counsel to the
Borrower).
SECTION 9.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one bank or other
institution (a "Participant") a participating interest in its Commitment and its
Loans in the full amount of its Commitment. In the event of any such grant by a
Bank of a participating interest to a Participant, whether or not upon notice to
the Borrower and the Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement described in
clause (i), (ii) or (iii) of Section 9.05 without the consent of the
Participant. An assignment or other transfer which is not permitted by
subsection
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(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may assign to one or more banks, financial
institutions or "accredited investors" (as defined in Regulation D of the
Securities Act of 1933, as amended as of the Effective Date) (each an
"Assignee") all or any part (subject to the proviso below) of its rights and
obligations under this Agreement and the Notes and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit M, executed by such Assignee and such
transferor Bank with the subscribed consent of the Agent, which consent shall
not be unreasonably withheld or delayed; provided that (i) if an Assignee is an
affiliate of such transferor Bank or another Bank, no such consent shall be
required, (ii) unless the Assignee is an affiliate of such transferor Bank, the
Assignee is another Bank or the assignment shall be for all of the transferor
Bank's rights and obligations under the Credit Agreement, the assignment must be
of at least an aggregate $5,000,000 of the transferor Bank's Commitments and
(iii) any assignment of part of any Bank's rights and obligations shall include
equally proportionate parts of such Bank's Tranche A Commitment and Tranche B
Commitment. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Borrower shall make appropriate
arrangements so that, if required or requested by the Assignee, a new Note is
issued to the Assignee. In connection with any such assignment, the transferor
Bank or the Assignee, as agreed between them, shall pay to the Agent an
administrative fee for processing such assignment in the amount of $2,500.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank (i.e., an
agency of the Federal government known as a "Federal Reserve Bank"). No such
assignment shall release the transferor Bank from its obligations hereunder.
SECTION 9.07. Certain Collateral. Each of the Banks represents
to the Agent and each of the other Banks that it in good faith is not relying
upon any "margin stock" (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for in this Agreement.
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SECTION 9.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be construed in accordance with and governed by
the law of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
SECTION 9.09. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE
OBLIGORS, THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Other Reimbursement Obligations. The execution
of this Agreement and any other documents, agreements or instruments in
connection herewith does not constitute a waiver or amendment of any term or
condition of any documents, agreements or instruments evidencing or otherwise
delivered in connection with the Other Reimbursement Obligations or the Other
Mortgage/Lease Obligations. No Bank shall have any rights or obligations under
any such documents, agreements or instruments unless party thereto and as set
forth therein. Nothing in any Financing Documents requires any Bank to obtain
any consent from any other Bank in taking actions permitted to be taken in
accordance with the terms and conditions of any documents, agreements or
instruments evidencing or otherwise delivered in connection with the Other
Reimbursement Obligations or Other Mortgage/Lease Obligations to which it is a
party, or in omitting to take any such actions.
SECTION 9.12. Consent to Subordinate Mortgage. Xxxxxx Trust
and Savings Bank hereby consents to the execution, delivery and recordation of
the Mortgage Amendment relating to the Mortgaged Facility described as Item 12
in Part I of Schedule 4.03(c).
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SECTION 9.13. Consent to Execution and Delivery of Certain
Financing Documents. Each of the Banks consents to, and authorizes the Agent to
execute and deliver, the Subsidiary Guarantee Agreement, the Borrower Pledge
Agreement, the Borrower Security Agreement, the Subsidiary Pledge Agreement, the
Subsidiary Security Agreement and the Mortgage Amendments.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
PERINI CORPORATION
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Executice Vice President,
Finance & Administration
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Treasurer
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile number: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By: /s/ D. Xxxxx Xxxxxxxxxx
Name: D. Xxxxx Xxxxxxxxxx
Title: Vice President
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Tranche A Tranche B
Commitments Commitments BANKS
$22,704,000 $4,032,230 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ D. Xxxxx Xxxxxxxxxx
Name: D. Xxxxx Xxxxxxxxxx
Title: Vice President
$38,720,000 $6,876,672 FLEET NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Vice President
$16,016,000 $2,844,442 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
$10,560,000 $1,875,456 BAYBANK, N.A., as Bank and as LC Bank
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Authorized Officer
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$8,800,000 $1,562,880 COMERICA BANK
By: /s/ Xxxxxxx X. XxXxxxxxxx
Name: Xxxxxxx X. XxXxxxxxxx
Title: Vice President
$8,800,000 $1,562,880 XXXXXX TRUST & SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
$4,400,000 $781,440 STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
------------ -----------
$110,000,000 $19,536,000 TOTAL COMMITMENTS
83
EACH OF THE UNDERSIGNED SUBSIDIARY
GUARANTORS CONSENTS TO THE AMENDMENT
AND RESTATEMENT OF THE CREDIT
AGREEMENT AND THE BRIDGE CREDIT
AGREEMENT AS SET FORTH HEREIN:
PERINI BUILDING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President & Controller
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Treasurer
PERINI INTERNATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
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PERINI LAND AND DEVELOPMENT
COMPANY, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chief Accountant & Treasurer
R. E. XXXXXX & CO.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
PARAMOUNT DEVELOPMENT
ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chief Accountant & Treasurer
85
