PERINI CORPORATION FIRST AMENDMENT AND WAIVER
Exhibit 10.29
Execution Original
PERINI CORPORATION
FIRST AMENDMENT AND WAIVER
THIS FIRST AMENDMENT AND WAIVER (this “Amendment”) is entered into as of February 23, 2006 (the “Effective Date”) by and among PERINI CORPORATION, a Massachusetts corporation (the “Borrower”), with its chief executive office at 00 Xx. Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, BANK OF AMERICA, N.A., as Administrative Agent (the “Agent”), and the Lenders under the Credit Agreement, as defined below. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement, as defined below.
R E C I T A L S
WHEREAS, the Borrower, the Agent and the Lenders have previously entered into an Amended and Restated Credit Agreement dated as of October 14, 2005 (the “Credit Agreement”);
WHEREAS, the Borrower has requested that a waiver of the Borrower’s compliance with Section 5.07(a) (“Minimum Net Operating Profit”), Section 5.07(b) (“Minimum Fixed Charge Coverage Ratio”) and Section 5.07(c) (“Minimum Consolidated Net Income”) of the Credit Agreement (the “Specified Financial Covenants”) for the Borrower’s fiscal period ending December 31, 2005 (the “Fiscal Period”) be granted and that certain modifications be made to the Credit Agreement, and the Lenders have agreed to grant such waiver and permit such modifications to the Credit Agreement on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing premises and the mutual benefits to be derived by the Borrower, the Agent and the Lenders from a continuing relationship under the Credit Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged:
A. Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement is hereby amended as follows:
1. For the purposes of calculating the financial covenants set forth in each of Section 5.07(a) ("Minimum Net Operating Profit"), Section 5.07(b) ("Minimum Fixed Charge Coverage Ratio") and Section 5.07(c) ("Minimum Consolidated Net Income") of the Credit Agreement for the Borrower's fiscal quarters ending December 31, 2005, March 31, 2006, June 30, 2006 and September 30, 2006, any amount up to $40,390,434.35 in the aggregate that would otherwise be required to be included in such calculations as a result of the adverse judgment entered against the Borrower by the U.S. District Court for the District of Columbia on November 28, 2005 in the matter of Mergentime Corporation, et. al. vs. Washington Metropolitan Area Transit Authority shall be disregarded.
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2. Section 5.01(g) of the Credit Agreement is hereby amended by inserting the phrase "If requested by the Agent," at the beginning thereof.
B. Representations and Warranties. The Borrower represents and warrants to the Agent and the Lenders that: (a) the Borrower has the full power and authority to execute, deliver and perform its respective obligations under, the Credit Agreement, as amended by this Amendment, (b) the execution and delivery of this Amendment has been duly authorized by all necessary action of the Board of Directors of the Borrower; (c) after giving effect to this Amendment, the representations and warranties contained or referred to in Article IV of the Credit Agreement are true and accurate in all material respects as if such representations and warranties were being made as of the date of this Amendment without giving effect to any earlier date referenced therein with respect thereto; and (d) other than the Borrower's failure to comply with the Specified Financial Covenants for the Fiscal Period (the "Covenant Defaults"), no Default or Event of Default has occurred and is continuing.
C. Waiver. In reliance upon the representations of the Borrower to the Agent and the Lenders that no Default or Event of Default exists under the Credit Agreement other than the Covenant Defaults, the Lenders hereby waive the Covenant Defaults for the Fiscal Period. This waiver is limited to the Covenant Defaults for the Fiscal Period only and is not, nor shall it be construed as, a waiver of any other Default or Event of Default under the Credit Agreement, now existing or hereafter occurring, nor shall anything herein or the Lenders' actions hereunder be construed so as to imply that the Lenders have agreed, or are obligated, to grant any future waivers under the Credit Agreement. Except as expressly provided herein, nothing in this Amendment shall be construed to be an amendment of any provision of the Credit Agreement, and all of the provisions of the Credit Agreement not expressly amended hereby shall remain in full force and
D. Other.
1. This Amendment shall take effect upon receipt by the Agent of:
| (i) this Amendment duly executed and delivered by the Borrower; |
| (ii) a Clerk's Certificate executed by the Clerk of the Borrower with regard to resolutions, organizational matters and officer incumbencies; |
| (iii) payment to the Agent, for the pro rata accounts of the Lenders, of an amendment fee in the amount of $50,000 to be debited to account number [#0236422481] with Bank of America, N.A.; |
| (iv) a proforma Covenant Compliance Certificate signed by the treasurer or chief accounting officer of the Borrower evidencing compliance with the requirements of Section 5.07 for the fiscal period ended December 31, 2005, after giving effect to this Amendment; and, |
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| (v) all costs and expenses (including, without limitation, the reasonable costs and expenses of the Agent’s counsel) incurred by the Agent in connection with this Amendment. |
2. This Amendment is executed as an instrument under seal and shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to its conflicts of law rules. All parts of the Credit Agreement, the Financing Documents and the Fee Letter not affected by this Amendment are hereby ratified and affirmed in all respects, provided that if any provision of the Credit Agreement shall conflict or be inconsistent with this Amendment, the terms of this Amendment shall supersede and prevail. Upon the execution of this Amendment, all references to the Credit Agreement in that document, or in any related document, shall mean the Credit Agreement as amended by this Amendment. Except as expressly provided in this Amendment, the execution and delivery of this Amendment does not and will not amend, modify or supplement any provision of, or constitute a consent to or a waiver of any noncompliance with the provisions of the Credit Agreement, and, except as specifically provided in this Amendment, the Credit Agreement shall remain in full force and effect. This Amendment may be executed in one or more counterparts with the same effect as if the signatures hereto and thereto were upon the same instrument.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each of the Borrower, the Agent and the Lenders in accordance with Section 9.05 of the Credit Agreement, has caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date set forth in the preamble on page one of this Amendment.
BORROWER: WITNESSED: PERINI CORPORATION /s/Xxxxx X. Xxxx By: /s/Xxxxx X. Xxxxxxx Xxxxx X. Xxxx Xxxxx X. Xxxxxxx Print Name Treasurer
ADMINISTRATIVE AGENT:
WITNESSED: BANK OF AMERICA, N.A., as Administrative Agent
/s/Xxxxxxx X. Xxxxxxx, Xx. By: /s/Xxxxxxxx X. Ferrari
Xxxxxxx X. Xxxxxxx, Xx. Title: Vice President
Xxxxxxxx X. Ferrari
LENDERS:
WITNESSED: BANK OF AMERICA, N.A.
/s/Xxxxx X. Xxxxxxx By: /s/Xxxxx X. Xxxxxxx
Print Name Xxxxx X. Xxxxxxx
Vice President
WITNESSED: TD BANKNORTH, N.A.
/s/X. Xxxx Xxxxxx By: /s/Xxxxxxx X. Xxxxxxxx
Print Name Xxxxxxx X. Xxxxxxxx
Senior Vice President
ACKNOWLEDGED AND AGREED TO AS A GUARANTOR UNDER THAT CERTAIN SUBSIDIARY GUARANTEE AGREEMENT DATED AS OF JANUARY 23, 2002, AS AMENDED:
WITNESSED AS TO ALL SIGNATURES: PERINI BUILDING COMPANY, INC.
By: /s/Xxxxx X. Xxxxxxx
/s/Xxxxx X. Xxxx Name: Xxxxx X. Xxxxxxx
Xxxxx X. Xxxx Title: Treasurer
Print/Type Full Name
PERINI ENVIRONMENTAL SERVICES, INC.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
INTERNATIONAL CONSTRUCTION MANAGEMENT SERVICES, INC.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
PERINI MANAGEMENT SERVICES, INC.
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
BOW EQUIPMENT LEASING COMPANY, INC.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
R.E. XXXXXX & CO.
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: VP & Controller
PERINI LAND AND DEVELOPMENT COMPANY, INC.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
PERCON CONSTRUCTORS, INC.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
PERLAND CONSTRUCTION, INC.
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
XXXXX X. XXXXXXXX, INC.
By: /s/Xxxxxx Band
Name: Xxxxxx Band
Title: Director
CHERRY HILL CONSTRUCTION, INC.
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Director
XXXXXXX AND XXXXXXX, INC.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
