$15,000,000
BRIDGE CREDIT AGREEMENT
dated as of
February 26, 1996
among
Perini Corporation
The Bridge Banks Listed Herein
Morgan Guaranty Trust Company of New York,
as Agent
Fleet National Bank of Massachusetts
(f/k/a Shawmut Bank, N.A.), as Co-Agent
1
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions...................................... 1
SECTION 1.02. Accounting Terms and
Determinations....................... 16
ARTICLE II
THE CREDITS
SECTION 2.01. The Bridge Loans. ............................... 16
SECTION 2.02. Method of Bridge Borrowing....................... 16
SECTION 2.03. Bridge Notes..................................... 18
SECTION 2.04. Maturity of Bridge Loans......................... 18
SECTION 2.05. Interest Rates. ................................. 18
SECTION 2.06. Bridge Commitment Fees........................... 18
SECTION 2.07. Participation Fee................................ 19
SECTION 2.08. Agency Fee. ..................................... 19
SECTION 2.09. Optional Termination or
Reduction of Bridge
Commitments.......................... 19
SECTION 2.10. Mandatory Termination or
Reduction of Bridge
Commitments.......................... 19
SECTION 2.11. Optional Prepayments............................. 20
SECTION 2.12. General Provisions as to
Payments............................. 21
SECTION 2.13. Computation of Interest and
Fees................................. 21
SECTION 2.14. Maximum Interest Rate............................ 21
SECTION 2.15. Bridge Letters of Credit......................... 22
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The Table of Contents is not a part of this Agreement.
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ARTICLE III
CONDITIONS
SECTION 3.01. Bridge Effectiveness........................................ 30
SECTION 3.02. Credit Events............................................... 32
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power.
............................................... 34
SECTION 4.02. Corporate and Governmental
Authorization; No
Contravention................................... 34
SECTION 4.03. Binding Effect; Liens of
Collateral Documents............................ 35
SECTION 4.04. Financial Information....................................... 35
SECTION 4.05. Litigation. ................................................ 36
SECTION 4.06. Compliance with ERISA....................................... 36
SECTION 4.07. Environmental Matters....................................... 37
SECTION 4.08. Taxes. ................................................ 38
SECTION 4.09. Subsidiaries................................................ 39
SECTION 4.10. Not an Investment Company................................... 39
SECTION 4.11. No Burdensome Restrictions; No
Derivatives Obligations;
Certain Existing Agreements..................... 39
SECTION 4.12. Full Disclosure............................................. 39
SECTION 4.13. Ownership of Property; Liens................................ 40
ARTICLE V
COVENANTS
SECTION 5.01. Information................................................. 40
SECTION 5.02. Payment of Obligations; No
Derivatives Obligations......................... 44
SECTION 5.03. Maintenance of Property;
Insurance....................................... 44
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SECTION 5.04. Conduct of Business and
Maintenance of Existence....... 44
SECTION 5.05. Compliance with Laws....................... 45
SECTION 5.06. Inspection of Property, Books
and Records.................... 45
SECTION 5.07. Current Ratio.............................. 45
SECTION 5.08. Debt. ............................... 45
SECTION 5.09. Minimum Consolidated Tangible
Net Worth...................... 46
SECTION 5.10. Interest Coverage.......................... 46
SECTION 5.11. Negative Pledge............................ 47
SECTION 5.12. Consolidations, Mergers and
Sales of Assets................ 48
SECTION 5.13. Use of Proceeds............................ 49
SECTION 5.14. Restricted Payments........................ 49
SECTION 5.15. Real Estate Investments.................... 50
SECTION 5.16. Other Investments.......................... 50
SECTION 5.17. Further Assurances......................... 50
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default............. 51
SECTION 6.02. Cash Cover .................. 54
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization.
........................ 55
SECTION 7.02. Agent and Affiliates................. 55
SECTION 7.03. Action by Agent...................... 55
SECTION 7.04. Consultation with Experts............ 55
SECTION 7.05. Liability of Agent................... 55
SECTION 7.06. Indemnification...................... 56
SECTION 7.07. Credit Decision...................... 56
SECTION 7.08. Successor Agent...................... 56
SECTION 7.09. Collateral Documents................. 57
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices. ......................... 57
SECTION 8.02. No Waivers. ......................... 58
SECTION 8.03. Expenses; Documentary Taxes;
Indemnification.......... 58
SECTION 8.04. Sharing of Setoffs................... 59
SECTION 8.05. Amendments and Waivers............... 60
SECTION 8.06. Successors and Assigns............... 60
SECTION 8.07. Certain Collateral................... 62
SECTION 8.08. Governing Law; Submission to
Jurisdiction............. 62
SECTION 8.09. Counterparts; Integration............ 62
SECTION 8.10. WAIVER OF JURY TRIAL................. 62
Schedule I - Existing Debt
Schedule II - Existing Liens
Schedule III - Real and Personal Property Interests Owned
by the Borrower and Its Subsidiaries
Schedule IV - Certain Existing Agreements
Schedule V - Other Reimbursement Obligations
Schedule VI - Subsidiaries of the Borrower
Schedule VII - Projected Net Cash from Claims, JV Capital
Calls/Distributions and Sales of Certain
Real Estate in 1996
Exhibit A - Bridge Note
Exhibit B-1 - Opinion of Assistant General Counsel of
the Borrower
Exhibit B-2 - Opinion of New York Counsel for the
Borrower
Exhibit C-1 - Opinion of Special New York Counsel for
the Agent
Exhibit C-2 - Opinion of Special Arizona Counsel for
the Agent
Exhibit C-3 - Opinion of Special Massachusetts Counsel
for the Agent
Exhibit C-4 - Opinion of Special Florida Counsel for
the Agent
Exhibit D - Borrower Security Agreement
Exhibit E - Borrower Pledge Agreement
Exhibit F-1 - Subsidiary Guarantee Agreement
Exhibit F-2 - Amendment No. 1 to the Subsidiary
Guarantee Agreement
Exhibit G - Subsidiary Security Agreement
Exhibit H-1 - Deed of Trust
Exhibit H-2 - Deed of Trust
Exhibit I-1 - Form of Mortgage (Palm Beach County,
Florida)
Exhibit I-2 - Form of Mortgage (Plymouth County,
Massachusetts)
Exhibit I-3 - Form of Mortgage (First; Bristol County
Massachusetts)
Exhibit I-4 - Form of Mortgage (Second; Bristol County
Massachusetts)
Exhibit I-5 - Form of Mortgage (Middlesex County,
Massachusetts)
Exhibit I-6 - Form of Mortgage (Merrimack County, New
Hampshire)
Exhibit I-7 - Form of Mortgage (Wayne County,
Michigan)
Exhibit J - Subsidiary Pledge Agreement
Exhibit K - Form of Assignment and Assumption
Agreement
Exhibit L - Bonding Company Letter
BRIDGE CREDIT AGREEMENT
-----------------------
AGREEMENT dated as of February 26, 1996 among PERINI
CORPORATION, the BRIDGE BANKS listed on the signature pages hereof and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms,
as used herein, have the following meanings:
"Administrative Questionnaire" means, with respect to each
Bridge Bank, the administrative questionnaire in the form submitted to such
Bridge Bank by the Agent and submitted to the Agent (with a copy to the
Borrower) duly completed by such Bridge Bank.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Bridge Banks under the Financing Documents, and its
successors in such capacity.
"Assignee" has the meaning set forth in Section 8.06(c).
"Available Bridge LC Amount" means at any time an amount equal
to the excess, if any, of (i) the aggregate amount of the Bridge Commitments
over (ii) the aggregate outstanding principal amount of the Bridge Loans.
"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.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Bonding Company" means Fidelity and Deposit Company of
Maryland.
"Borrower" means Perini Corporation, a Massachusetts
corporation, and its successors.
"Borrower Pledge Agreement" means the Borrower Pledge
Agreement dated as of December 6, 1994 between the Borrower and the Agent, as
amended and restated as of February 26, 1996 in substantially the form of
Exhibit E hereto, and as the same may be amended from time to time as permitted
herein and in accordance with the terms thereof.
"Borrower Security Agreement" means the Borrower Security
Agreement dated as of February 26, 1996 in substantially the form of Exhibit D
hereto between the Borrower and the Agent and as the same may be amended from
time to time as permitted herein and in accordance with the terms thereof (the
Borrower Security Agreement dated as of December 6, 1994 executed and delivered
in connection with the execution and delivery of the Credit Agreement having
terminated upon collection by the Borrower of all the Collateral pledged
thereunder).
"Borrower's 1994 Form 10-K" means the Borrower's amended
annual report on Form 10-K for 1994, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
"Bridge Bank" means each bank listed on the signature pages
hereof, each Assignee which becomes a Bridge Bank pursuant to Section 8.06(c),
and their respective successors.
"Bridge Borrowing" means a borrowing hereunder consisting of
Bridge Loans made to the Borrower at the same time by of one or more Bridge
Banks on a single date and for a single Interest Period.
"Bridge Commitment" means, with respect to each Bridge Bank,
the amount set forth opposite the name of such Bridge Bank on the signature
pages hereof as its Bridge Commitment, as such amount may be reduced from time
to time pursuant to Section 2.09 and Section 2.10.
"Bridge Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.01.
"Bridge LC Bank" means BayBank, N.A. or such other Bridge Bank
as the Borrower may designate from time to time (with the consent of such other
Bridge Bank).
"Bridge LC Exposure" means, at any time and for any Bridge
Bank, an amount equal to such Bridge Bank's Percentage of the aggregate amount
of Bridge Letter of Credit Liabilities in respect of all Bridge Letters of
Credit at such time.
"Bridge Letter of Credit" has the meaning set forth in Section
2.15(a).
"Bridge Letter of Credit Liabilities" means, at any time and
in respect of any Bridge Letter of Credit, the sum, without duplication, of (i)
the amount available for drawing under such Bridge Letter of Credit plus (ii)
the aggregate unpaid amount of all Bridge Reimbursement Obligations in respect
of previous drawings made under such Bridge Letter of Credit.
"Bridge Loan" means a loan made by a Bridge Bank pursuant to
Section 2.02.
"Bridge Loan Commitment" means for any Bridge Bank at any time
an amount equal to the excess, if any, of such Bridge Bank's Bridge Commitment
at such time over such Bridge Bank's Bridge LC Exposure at such time.
"Bridge Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay the Bridge Loans, and "Bridge Note" means any one of such
promissory notes issued hereunder.
"Bridge Reimbursement Obligations" means at any date the
obligations of the Borrower then outstanding under Section 2.15 to reimburse any
Bridge Bank for the amount paid by such Bridge Bank in respect of a drawing
under a Bridge Letter of Credit.
"Bridge Termination Date" means July 31, 1996.
"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.
"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.
"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 Security Agreement, the
Subsidiary Pledge Agreement, the Deeds of Trust, the Mortgages and all other
supplemental or additional security agreements, pledge agreements, mortgages or
similar instruments delivered pursuant hereto or thereto.
"Consolidated Capital Base" means, at any date, the
Consolidated Tangible Net Worth of the Borrower at such date plus 75% of the
principal amount of any Special Subordinated Debt outstanding at such date.
"Consolidated Current Assets" means at any date the
consolidated current assets of the Borrower and its Consolidated Subsidiaries
excluding costs related to Claims, all determined as of such date. For purposes
of this definition, "Claims" mean the amount (to the extent reflected in
determining such consolidated current assets) of disputed or unapproved change
orders in regards to scope and/or price that, in the Borrower's project
management's opinion (and approved by the Borrower's senior management), will
not be resolved in the normal course of business (i.e. through the change order
process and without resort to litigation or arbitration) and which have not been
previously reflected in the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of September 30, 1995.
"Consolidated Current Liabilities" means at any date the
consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries, determined as of such date.
"Consolidated Earnings Before Interest and Taxes" means for
any period Consolidated Net Income for such period (x) less (i) the Borrower's
equity share of income (or plus the Borrower's equity share of loss) of
unconsolidated joint ventures for such period and (ii) capitalized real estate
taxes for such period, to the extent not permitted to be capitalized in
accordance with generally accepted accounting principles as in effect on the
date hereof, and (y) plus (i) cash distributions of earnings from unconsolidated
joint ventures for such period and (ii) the aggregate amount deducted in
determining such Consolidated Net Income in respect of Consolidated Interest
Charges and income taxes.
"Consolidated Interest Charges" means for any period the
aggregate interest expense of the Borrower and its Consolidated Subsidiaries for
such period including, without limitation, (i) the portion of any obligation
under capital leases allocable to interest expense in accordance with generally
accepted accounting principles, (ii) the portion of any debt discount that shall
be amortized in such period and (iii) any interest accrued during such period
which is capitalized in accordance with generally accepted accounting
principles, and without any reduction on account of interest income.
"Consolidated Net Income" means for any period the
consolidated net income (or loss) of the Borrower and its Consolidated
Subsidiaries for such period.
"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" of any Person means at any
date the consolidated stockholders' equity of such Person and its Consolidated
Subsidiaries less their consolidated Intangible Assets, all determined as of
such date. For purposes of this definition "Intangible Assets" means the amount
(to the extent reflected in determining such consolidated stockholders' equity)
of (i) all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern business 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.
"Credit Agreement" means the $125,000,000 Credit Agreement
dated as of December 6, 1994 among the Borrower, the banks listed therein and
Morgan Guaranty Trust Company of New York, as agent for such banks, as amended
to the Bridge Effective Date.
"Credit Event" means the making of a Bridge Loan or the
issuance of a Bridge Letter of Credit or the extension of an Evergreen Bridge
Letter of Credit.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all non-contingent obligations of such Person as lessee
which are capitalized in accordance with generally accepted accounting
principles, (v) all obligations of such Person to reimburse issuers of letters
of credit for drawings under such letters of credit (other than the Other
Reimbursement Obligations and the obligation to reimburse Hong Kong and Shanghai
Bank for $1,800,000 of letters of credit issued by it and outstanding on the
date hereof), (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.
"Deeds of Trust" means the Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement dated as of December 6,
1994 for each of the properties described as Items 1 and 2 on Schedule III
hereto, each substantially in the form of Exhibits H-1 and H-2 to the Credit
Agreement.
"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.
"Environmental Laws" means any and all federal state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
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.
"Event of Default" has the meaning set forth in Section 6.01.
"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 or (iii) The Perini
Memorial Foundation, Inc., The Joseph Perini Memorial Foundation, or any of the
various trusts established under the wills of Lewis R. Perini, Senior, Joseph R.
Perini, Senior or Charles B. Perini, Senior.
"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 Business Day
next succeeding such day, provided that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to
Morgan Guaranty Trust Company of New York on such day on such transactions as
determined by the Agent.
"Financial Bridge Letter of Credit" means any Bridge 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 Credit
Agreement, the Subsidiary Guarantee Agreement, the Notes (as defined in the
Credit Agreement), the Bridge Notes and the Collateral Documents.
"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.
"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 8.03(b).
"Interest Period" means with respect to each Bridge Borrowing
the period commencing on the date of such Bridge Borrowing and ending 30 days
thereafter; provided that any Interest Period which would otherwise end after
the Bridge Termination Date shall end on the Bridge 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.
"Lending Office" means, as to each Bridge Bank, its office
located at its address set forth in its Administrative Questionnaire or such
other office as such Bridge Bank may hereafter designate as its Lending Office
by notice to the Borrower and the Agent.
"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.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $10,000,000.
"Material Subsidiary" means at any time a Subsidiary which as
of such time meets the definition of a "significant subsidiary" contained as of
the date hereof in Regulation S-X of the Securities and Exchange Commission.
"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, less 75% of
the principal amount of any Special Subordinated Debt
outstanding on such date.
"Mortgage Banks" means (i) Comerica Bank, as successor to
Manufacturers National Bank of Detroit, in its capacity as holder of a
Promissory Note of the Borrower dated April 4, 1991, in the original principal
amount of $1,200,000, and the mortgagee pursuant to a mortgage on the property
described as Item 15 in Part I of Schedule III hereto which secures such
Promissory Note, and its successors and assigns, (ii) Harris Trust and Savings
Bank, as successor to Barclays Bank PLC, Boston Branch, in its capacity as the
issuer of a letter of credit for the account of the Borrower in the initial
stated amount of $4,106,850, the maker of a commitment to lend up to $4,106,850
to the Borrower pursuant to the Letter of Credit and Reimbursement Agreement
dated as of October 1, 1985 and the "Bank" described in the mortgage on the
property described as Item 12 in Part I of Schedule III hereto which secured the
obligations of the under such Letter of Credit and Reimbursement Agreement and
(iii) Fleet Credit Corporation, as the lessor of computer equipment and other
personal property to the Borrower and certain of its Subsidiaries and joint
ventures pursuant to the Master Equipment Lease No. 1100641700 dated December
30, 1988 (including the Addendum thereto dated December 30, 1988), and the
schedules executed thereunder prior to February 26, 1996.
"Mortgaged Facilities" means the properties described as Items
1, 2, 3, 4, 5, 6, 8, 9, 12, 13 and 15 in Part I of Schedule III hereto.
"Mortgages" means the Mortgage, Assignment of Leases and
Rents, Security Agreement and Financing Statement dated as of February 26, 1996
for each of the Mortgaged Facilities described as Items 3, 4, 5, 6, 8, 9, 12, 13
and 15 in Part I of Schedule III hereto, each substantially in
the form of Exhibits I-1 through I-7 hereto.
"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.
"Notice of Bridge Borrowing" has the meaning set forth in
Section 2.02.
"Obligor" means each of the Borrower and the Subsidiary
Guarantors, and "Obligors" means all of the foregoing.
"Other LC Bank" means each Bank listed on Schedule V attached
hereto and its successors and assigns.
"Other Letters of Credit" means the letters of credit
described on Schedule V attached hereto.
"Other Mortgage/Lease Obligations" means the obligations of
the Borrower to any Mortgage Banks under the documents, agreements and
instruments described in the definition of Mortgage Banks, and all other
supplemental or additional documents, agreements and instruments delivered in
connection therewith prior to February 26, 1996.
"Other Reimbursement Obligations" means at any date the
obligations of the Borrower, whether or not contingent at such time and whether
direct or as a guarantee, to reimburse any Other LC Banks 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 Bridge Bank, any Person
controlling such Bridge Bank.
"Participant" has the meaning set forth in Section 8.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Bridge Bank, the
percentage that such Bridge Bank's Bridge Commitment constitutes of the
aggregate amount of the Bridge Commitments.
"Performance Bridge Letter of Credit" means a Bridge Letter of
Credit which constitutes a performance standby letter of credit within the
meaning of Appendix A to Regulation H of the Board of Governors of the Federal
Reserve system or other applicable capital adequacy guidelines promulgated by
bank regulatory authorities.
"Perini Building Company" means Perini Building Company, Inc.,
an Arizona corporation.
"Perini International" means Perini International Corporation,
a Massachusetts corporation.
"Perini Land and Development" means Perini Land and
Development Company, a Delaware corporation, and its successor by merger, Perini
Land and Development Company, Inc., a Massachusetts corporation, upon its
reincorporation in Massachusetts on December 30, 1994.
"Permitted Encumbrances" means, with respect to any real
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 generally accepted accounting principles;
(b) carriers', warehousemen's, mechanics', materialmens',
repairmens' 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
generally accepted accounting principles; and
(c) other Liens or 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 real 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.
"Prime Rate" means the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York in New York City from time to time as
its Prime Rate.
"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; provided that the Debt contemplated by Section
5.08(b)(ii) shall not constitute Real Estate Investments.
"R. E. Dailey & Co." means R. E. Dailey & Co., a
Michigan corporation.
"Refunding Bridge Borrowing" means a Bridge Borrowing which,
after application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Bridge Loans made by any Bridge 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.
"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.
"Required Bridge Banks" means at any time Bridge Banks having
at least 60% of the aggregate amount of the Bridge Commitments or, if the Bridge
Commitments shall have been terminated, holding Bridge Notes evidencing at least
60% of the aggregate unpaid principal amount of the Bridge Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock (except dividends
payable solely in shares of its capital stock) or (ii) any payment on account of
the purchase, redemption, retirement or acquisition of (a) any shares of the
Borrower's capital stock or (b) any option, warrant or other right to acquire
shares of the Borrower's capital stock; provided that none of the following
shall constitute Restricted Payments: (i) the declaration and payment of
dividends on preferred stock of the Borrower in an aggregate amount with respect
to any four consecutive fiscal quarters not exceeding $5,125,000, (ii) the
exchange of Special Subordinated Debt for the Borrower's $21.25 Convertible
Exchangeable Preferred Shares, (iii) 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, between the
Borrower and State Street Bank and Trust Company, as Rights Agent or (iv) cash
payments in the ordinary course of business in full or partial settlement of
employee stock options or similar incentive compensation arrangements.
"Rincon Swap" means the interest rate exchange transaction
between Rincon 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.
"Special Subordinated Debt" means the 8 1/2% Convertible
Subordinated Debentures due 2012 of the Borrower issuable in exchange for the
Borrower's $21.25 Convertible Exchangeable Preferred Shares in accordance with
the terms of the Certificate of Vote of Directors Establishing a Series of a
Class of Stock fixing the relative rights and preferences of such Shares as
originally filed with the Secretary of the Commonwealth of Massachusetts.
"Subsidiary" of any Person means any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person.
"Subsidiary Guarantee Agreement" means the Subsidiary
Guarantee Agreement dated as of December 6, 1994 between the Borrower, the
Subsidiary Guarantors party thereto and the Agent, as executed and delivered
pursuant to Section 3.01(c) of the Credit Agreement and attached hereto as
Exhibit F-1, as amended by Amendment No. 1 dated as of February 26, 1996 in
substantially the form of Exhibit F-2 hereto, and as the same may be amended
from time to time as permitted herein and in accordance with the terms thereof.
"Subsidiary Guarantor" means each of Perini Building Company,
Perini International, Perini Land and Development, R. E. Dailey & Co., Paramount
Development Associates, Pioneer Construction, Inc., a West Virginia corporation,
Perini Environmental Services, Inc., a Delaware corporation, Perini Resorts,
Inc., a California corporation and each other Subsidiary of the Borrower which
becomes a party to the Subsidiary Guarantee Agreement, and their respective
successors.
"Subsidiary Pledge Agreement" means the Subsidiary Pledge
Agreement dated as of February 26, 1996 in substantially the form of Exhibit J
hereto among the Subsidiary Guarantors party thereto and the Agent, as executed
and delivered pursuant to Section 3.01(c) hereof and as the same may be amended
from time to time as permitted herein and in accordance with the terms thereof.
"Subsidiary Security Agreement" means the Subsidiary Security
Agreement dated as of December 6, 1994 among the Subsidiary Guarantors party
thereto and the Agent, as amended and restated as of February 26, 1996 in
substantially the form of Exhibit G hereto, and as the same may be amended from
time to time as permitted herein and in accordance with the terms thereof.
"Temporary Cash Investment" means investment of cash balances
in United States Government securities or other short-term money market
investments.
"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 Bridge Loans at such date plus the aggregate
amount of Bridge Letter of Credit Liabilities at such date with respect to all
Bridge Letters of Credit.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary of the Borrower all of the shares of capital stock or other ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Borrower.
SECTION 1.02. 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 generally accepted accounting principles as in effect from time
to time, 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 Bridge Banks.
ARTICLE II
THE CREDITS
SECTION 2.01. The Bridge Loans. From time to time prior to the
Bridge Termination Date, each Bridge Bank severally agrees, on the terms and
conditions set forth in this Agreement, to lend to the Borrower from time to
time amounts not to exceed in the aggregate at any one time outstanding the
amount of its Bridge Loan Commitment. Each Bridge Borrowing under this Section
shall be in an aggregate principal amount of $1,000,000 or any larger multiple
of $500,000 (except that any such Bridge Borrowing may be in the aggregate
amount of the unused Bridge Commitments) and shall be made from the several
Bridge Banks ratably in proportion to their respective Bridge 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 Bridge Loans
and reborrow at any time prior to the Bridge Termination Date under this
Section.
SECTION 2.02. Method of Bridge Borrowing. (a) The Borrower
shall give the Agent notice (a "Notice of Bridge Borrowing") not later than
11:30 A.M. (New York City time) on the date of each Bridge Borrowing specifying
the date (which shall be a Business Day) and amount of such Bridge Borrowing.
(b) Upon receipt of a Notice of Bridge Borrowing, the Agent
shall promptly notify each Bridge Bank of the contents thereof and of such
Bridge Bank's ratable share of such Bridge Borrowing and such Notice of Bridge
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 Bridge Borrowing, each Bridge Bank shall (except as provided in
subsection (d) of this Section) make available its ratable share of such Bridge
Borrowing, in Federal or other funds immediately available in New York City, to
the Agent at its address referred to in Section 8.01. 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 Bridge Banks
available to the Borrower at the Agent's aforesaid address.
(d) If any Bridge Bank makes a new Bridge Loan hereunder on a
day on which the Borrower is to repay all or any part of an outstanding Bridge
Loan from such Bridge Bank, such Bridge Bank shall apply the proceeds of its new
Bridge 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 Bridge 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 Bridge
Bank prior to noon (New York City time) on the date of such Bridge Borrowing
that such Bridge Bank will not make available to the Agent such Bridge Bank's
share of such Bridge Borrowing, the Agent may assume that such Bridge Bank has
made such share available to the Agent on the date of such Bridge 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 Bridge Bank shall not have
so made such share available to the Agent, such Bridge Bank and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, a rate per annum equal to the higher
of the Federal Funds Rate and the interest rate applicable thereto pursuant to
Section 2.05 and (ii) in the case of such Bridge Bank, the Federal Funds Rate.
If such Bridge Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bridge Bank's Bridge Loan included in
such Bridge Borrowing for purposes of this Agreement.
SECTION 2.03. Bridge Notes. (a) The Bridge Loans of each
Bridge Bank shall be evidenced by a single Bridge Note payable to the order of
such Bridge Bank for the account of its Lending Office.
(b) Upon receipt of each Bridge Bank's Bridge Note pursuant to
Section 3.01(c), the Agent shall forward such Bridge Note to such Bridge Bank.
Each Bridge Bank shall record the date, amount and maturity of each Bridge 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 Bridge Bank so elects in
connection with any transfer or enforcement of its Bridge Note, endorse on the
schedule forming a part thereof appropriate notations to evidence the foregoing
information with respect to each such Bridge Loan then outstanding; provided
that the failure of any Bridge Bank to make any such recordation or endorsement
shall not affect the obligations of the Borrower hereunder or under the Bridge
Notes. Each Bridge Bank is hereby irrevocably authorized by the Borrower so to
endorse its Bridge Note and to attach to and make a part of its Bridge Note a
continuation of any such schedule as and when required.
SECTION 2.04. Maturity of Bridge Loans. Each Bridge Loan
included in any Bridge Borrowing shall mature, and the principal amount thereof
shall be due and payable, on the last day of the Interest Period applicable to
such Bridge Borrowing.
SECTION 2.05. Interest Rates. Each Bridge Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Bridge Loan is made until it becomes due, at a rate per annum equal to the
sum of 2% plus the Base Rate for such day. Such interest shall be payable for
each Interest Period on the last day thereof. Any overdue principal of or
interest on any Base Rate 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 Bridge Loans for such day.
SECTION 2.06. Bridge Commitment Fees. The Borrower shall pay
to the Agent for the account of each Bridge Bank a commitment fee at the rate of
0.6% per annum on the daily average unused portion of such Bridge Bank's Bridge
Commitments. Such commitment fees shall accrue from and including the Bridge
Effective Date to but excluding the Bridge Termination Date. Such commitment
fees shall be payable on the last day of each fiscal quarter of the Borrower
prior to the Bridge Termination Date and on the Bridge Termination Date. SECTION
2.07. Participation Fee. The Borrower shall pay to the Agent for the account of
each Bridge Bank on the Bridge Effective Date a participation fee in an amount
equal to 2.0% of such Bridge Bank's Bridge Commitment.
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 Bridge
Commitments. The Borrower may, upon 3 Business Days' notice to the Agent,
terminate at any time, or proportionately permanently reduce from time to time
by an aggregate amount of $1,000,000 or any larger multiple of $1,000,000, the
unused portions of the Bridge Commitments. If the Bridge Commitments are
terminated in their entirety, all accrued commitment fees shall be payable on
the effective date of such termination.
SECTION 2.10. Mandatory Termination or Reduction of Bridge
Commitments. (a) The Bridge Commitments shall terminate on the Bridge
Termination Date, and any Bridge Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such date.
(b) The Bridge Commitments of all Bridge Banks shall be
permanently, automatically and ratably reduced:
(i) immediately upon receipt by the Borrower or any Subsidiary
of the proceeds from the collection, sale or other disposition of any
Collateral (excluding (A) payments in the ordinary course on
construction contracts, (B) operating receipts from Real Estate
Investments, (C) liability insurance proceeds and (D) income of not
more than $35,000 earned from Temporary Cash Investments) by an amount
equal to 100% of such proceeds net of all out-of-pocket costs, all
senior mortgage debt, fees, commissions and other expenses reasonably
incurred in respect of such collection, sale or disposition and any
taxes paid or payable (as estimated by a financial officer of the
Borrower in good faith) in respect thereof; provided that no such
reduction shall be required unless and until, and then only to the
extent that, the aggregate amount of such net proceeds received by the
Borrower and its Subsidiaries exceeds, in the case of an item of
Collateral specified in Schedule VII hereto, the amount set forth
opposite such item or, in the case of other Collateral, $2,000,000 in
the aggregate for all such other Collateral; and
(ii) by $15,000,000 upon the completion of an issuance by the
Borrower of convertible preferred stock or other equity issue; provided
that in the event that the proceeds of such issuance net of all
out-of-pocket expenses reasonably incurred in respect of such issuance
and any taxes paid or payable (as estimated by a financial officer of
the Borrower in good faith) in respect thereof exceeds $30,000,000, the
aggregate amount of the Commitments shall be reduced by an amount not
less than the sum of $15,000,000 plus 50% of the excess over
$30,000,000 of such proceeds.
(c) On each day on which any Bridge Commitment is reduced
pursuant to this Section, the Borrower shall repay such principal amount
(together with accrued interest thereon) of each Bridge Bank's outstanding
Bridge Loans as may be necessary so that after such repayment the aggregate
unpaid principal amount of such Bridge Bank's Bridge Loans, together with such
Bridge Bank's Percentage of the aggregate amount of Bridge Letter of Credit
Liabilities, does not exceed the amount of such Bridge Bank's Bridge Commitment
after giving effect to such reduction. In the event that the aggregate amount of
the Bridge Commitments is reduced to an amount less than the aggregate amount of
Bridge Letter of Credit Liabilities at such time in respect of all Bridge
Letters of Credit, the Borrower hereby agrees that it shall forthwith, without
any demand or taking of any other action by the Required Bridge 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 Bridge Letter of Credit Liabilities
for the benefit of all Bridge Banks.
(d) Any reduction of the Bridge Commitments described in
clauses (a) and (b) above shall be applied to reduce the Bridge Commitments pro
rata.
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
Business Day, prepay on such Business Day any Base Rate Bridge Borrowing in
whole at any time, or from time to time in part in amounts aggregating
$1,000,000 or any larger multiple of $500,000, 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 Bridge
Loans of the several Bridge Banks included in such Bridge Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bridge Bank of the contents
thereof and of such Bridge 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 Bridge
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 8.01. The Agent will
promptly distribute to each Bridge Bank its ratable share of each such payment
received by the Agent for the account of the Bridge Banks. Whenever any payment
of principal of, or interest on, the Bridge Loans or of fees shall be due on a
day which is not a Business Day, the date for payment thereof shall be extended
to the next succeeding 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 Bridge 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 Bridge Bank on such due date an amount equal to the amount then due such
Bridge Bank. If and to the extent that the Borrower shall not have so made such
payment, each Bridge Bank shall repay to the Agent forthwith on demand such
amount distributed to such Bridge Bank together with interest thereon, for each
day from the date such amount is distributed to such Bridge Bank until the date
such Bridge Bank repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. 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 2.14. Maximum Interest Rate. (a) Nothing contained in
this Agreement or the Bridge Notes shall require the Borrower to pay interest at
a rate exceeding the maximum rate permitted by applicable law. Neither this
Section nor Section 8.08 is intended to limit the rate of interest payable for
the account of any Bridge 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 Bridge Bank
by supervening provisions of U.S. federal law.
(b) If the amount of interest payable for the account of any
Bridge 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 Bridge 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
Bridge Bank in respect of any interest computation period is reduced pursuant to
clause (b) of this Section 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 Bridge Bank, then the amount of interest payable for its
account in respect of such subsequent interest computation period shall be
automatically increased to such maximum permissible amount; provided that at no
time shall the aggregate amount by which interest paid for the account of any
Bridge Bank has been increased pursuant to this clause (c) exceed the aggregate
amount by which interest paid for its account has theretofore been reduced
pursuant to clause (b) of this Section.
SECTION 2.15. Bridge Letters of Credit. (a) Subject to the
terms and conditions hereof, the Bridge LC Bank agrees to issue letters of
credit hereunder from time to time before the Bridge Termination Date upon the
request of the Borrower (such letters of credit issued, the "Bridge Letters of
Credit"); provided that, immediately after each such Bridge Letter of Credit is
issued, the aggregate amount of the Bridge Letter of Credit Liabilities for all
Bridge Letters of Credit shall not exceed the Available Bridge LC Amount. Upon
the date of issuance by the Bridge LC Bank of a Bridge Letter of Credit in
accordance with this Section 2.15, the Bridge LC Bank shall be deemed, without
further action by any party hereto, to have sold to each Bridge Bank, and each
Bridge Bank shall be deemed, without further action by any party hereto, to have
purchased from the Bridge LC Bank, a participation in such Bridge Letter of
Credit and the related Bridge Letter of Credit Liabilities in proportion to its
Percentage.
(b) The Borrower shall give the Bridge LC Bank at least three
Business Days' prior notice (effective upon receipt) specifying the date each
Bridge Letter of Credit is to be issued, and describing the proposed terms of
such Bridge Letter of Credit and the nature of the transactions proposed to be
supported thereby. Upon receipt of such notice the Bridge LC Bank shall promptly
notify the Agent, and the Agent shall promptly notify each Bridge Bank of the
contents thereof and of the amount of such Bridge Bank's participation in such
proposed Bridge Letter of Credit. The issuance by the Bridge LC Bank of any
Bridge Letter of Credit shall, in addition to the conditions precedent set forth
in Article III (the satisfaction of which the Bridge LC Bank shall have no duty
to ascertain), be subject to the conditions precedent that such Bridge Letter of
Credit shall be satisfactory to the Bridge LC Bank and that the Borrower shall
have executed and delivered such other instruments and agreements relating to
such Bridge Letter of Credit as the Bridge LC Bank shall have reasonably
requested. Each Bridge Letter of Credit shall have an expiry date not later than
the Bridge Termination Date.
(c) The Borrower shall pay to the Agent a letter of credit fee
at a rate equal to (i) 1.75% per annum on the aggregate amount available for
drawings under each Performance Bridge Letter of Credit issued from time to time
and (ii) 2.75% per annum on the aggregate amount available for drawings under
each Financial Bridge Letter of Credit issued from time to time, any such fee to
be payable for the account of the Bridge Banks ratably in proportion to their
Percentages. Such fee shall be payable in arrears on the last day of each fiscal
quarter of the Borrower for so long as such Bridge Letter of Credit is
outstanding and on the date of termination thereof. The Borrower shall pay to
the Bridge LC Bank additional fees and expenses in the amounts and at the times
as agreed between the Borrower and the Bridge LC Bank.
(d) Upon receipt from the beneficiary of any Bridge Letter of
Credit of any demand for payment or other drawing under such Bridge Letter of
Credit, the Bridge LC Bank shall notify the Agent and the Agent shall promptly
notify the Borrower and each other Bridge 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 Bridge LC Bank to the Borrower and each Bridge Bank shall
be only to determine that the documents (including each demand for payment or
other drawing) delivered under each Bridge Letter of Credit issued by it in
connection with such presentment shall be in conformity in all material respects
with such Bridge Letter of Credit. The Bridge LC Bank shall endeavor to exercise
the same care in the issuance and administration of the Bridge 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 Bridge LC Bank, each Bridge 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 Bridge Bank's Percentage, to reimburse the Bridge LC
Bank on demand for the amount of each payment made by the Bridge LC Bank under
each Bridge Letter of Credit issued by the Bridge 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 Bridge 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 Business Day) to the date of
payment by such Bridge Bank of such amount at a rate of interest per annum equal
to the Federal Funds Rate for such day.
(e) The Borrower shall be irrevocably and unconditionally
obligated forthwith to reimburse the Bridge LC Bank for any amounts paid by the
Bridge LC Bank upon any drawing under any Bridge Letter of Credit, without
presentment, demand, protest or other formalities of any kind; provided that
neither the Borrower nor any Bridge Bank shall hereby be precluded from
asserting any claim for direct (but not consequential) damages suffered by the
Borrower or such Bridge Bank to the extent, but only to the extent, caused by
(i) the willful misconduct or gross negligence of the Bridge LC Bank in
determining whether a request presented under any Bridge Letter of Credit
complied with the terms of such Bridge Letter of Credit or (ii) such Bridge
Bank's failure to pay under any Bridge Letter of Credit after the presentation
to it of a request strictly complying with the terms and conditions of the
Bridge Letter of Credit. All such amounts paid by the Bridge 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 Bridge Loans for such day. The Bridge LC Bank will pay to each
Bridge Bank ratably in accordance with its Percentage all amounts received from
the Borrower for application in payment, in whole or in part, of the Bridge
Reimbursement Obligation in respect of any Bridge Letter of Credit, but only to
the extent such Bridge Bank has made payment to the Bridge LC Bank in respect of
such Bridge Letter of Credit pursuant to Section 2.15(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 Bridge 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 Bridge Letters of Credit issued or
to be issued hereunder or participations therein, and the result shall be to
increase the cost to any Bridge Bank of issuing or maintaining any Bridge Letter
of Credit or any participation therein, or reduce any amount receivable by any
Bridge Bank hereunder in respect of any Bridge Letter of Credit (which increase
in cost, or reduction in amount receivable, shall be the result of such Bridge
Bank's reasonable allocation of the aggregate of such increases or reductions
resulting from such event), then, upon demand by such Bridge 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 Bridge
Bank, from time to time as specified by such Bridge Bank, such additional
amounts as shall be sufficient to compensate such Bridge Bank for such increased
costs or reductions in amount incurred by such Bridge Bank. A certificate of
such Bridge Bank submitted by such Bridge 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 2.15 shall
be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment which the Borrower may have or
have had against the Bridge LC Bank, any Bridge Bank or any beneficiary of a
Bridge Letter of Credit. The Borrower further agrees with the Bridge LC Bank and
the Bridge Banks that the Bridge LC Bank and the Bridge Banks shall not be
responsible for, and the Borrower's Bridge Reimbursement Obligation in respect
of any Bridge 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 Bridge Letter of Credit or any financing
institution or other party to whom any Bridge 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 Bridge Letter of Credit or any such
transferee. The Bridge 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 Bridge Letter of Credit
issued, extended or renewed by it. The Borrower agrees that any action taken or
omitted by the Bridge LC Bank or any Bridge Bank under or in connection with
each Bridge 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 Bridge LC Bank or any Bridge Bank under any liability to the
Borrower.
(h) To the extent not inconsistent with clause (g) above, the
Bridge LC Bank shall be entitled to rely, and shall be fully protected in
relying upon, any Bridge 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 Bridge LC Bank. The Bridge 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 Bridge Banks as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Bridge 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 2.15, the Bridge 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 Bridge Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the Bridge Banks and all
future holders of participations in any Bridge Letters of Credit.
(i) The Borrower hereby indemnifies and holds harmless each
Bridge Bank and the Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Bridge Bank or the Agent may
incur (or which may be claimed against such Bridge 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 Bridge Letter of Credit,
including, without limitation, any claims, damages, losses, liabilities, costs
or expenses which the Bridge LC Bank may incur by reason of or in connection
with the failure of any other Bridge Bank to fulfill or comply with its
obligations to the Bridge LC Bank hereunder (but nothing herein contained shall
affect any rights the Borrower may have against such defaulting Bridge Bank);
provided that the Borrower shall not be required to indemnify any Bridge 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 Bridge LC Bank in determining whether a request presented
under any Bridge Letter of Credit complied with the terms of such Bridge Letter
of Credit or (ii) the Bridge LC Bank's failure to pay under any Bridge Letter of
Credit after the presentation to it of a request strictly complying with the
terms and conditions of the Bridge Letter of Credit. Nothing in this Section
2.15(i) is intended to limit the obligations of the Borrower under any other
provision of this Agreement.
(j) Each Bridge Bank shall, ratably in accordance with its
Percentage, indemnify the Bridge 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 Bridge LC
Bank's failure to pay under any Bridge Letter of Credit after the presentation
to it of a request strictly complying with the terms and conditions of the
Bridge Letter of Credit) that such indemnitees may suffer or incur in connection
with this Section 2.15 or any action taken or omitted by such indemnitees
hereunder.
(k) In its capacity as a Bridge Bank the Bridge LC Bank shall
have the same rights and obligations as any other Bridge Bank.
SECTION 2.16. 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 Bridge Note, and all
liabilities with respect thereto, excluding (i) in the case of each Bridge 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 Bridge 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 Bridge Bank, in which its Lending
Office is located and (ii) in the case of each Bridge Bank, any United States
withholding tax imposed on such payments but only to the extent that such Bridge
Bank is subject to United States withholding tax at the time such Bridge Bank
first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or levies,
which arise from any payment made pursuant to this Agreement or under any Bridge
Note or from the execution or delivery of, or otherwise with respect to, this
Agreement or any Bridge Note.
(b) Any and all payments by the Borrower to or for the account
of any Bridge Bank or the Agent hereunder or under any Bridge Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, the sum payable hereunder or under any Bridge Note to any Bridge Bank
or the Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) such Bridge Bank or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent, at its address referred to in Section 8.01, the original
or a certified copy of a receipt evidencing payment thereof.
(c) In addition, the Borrower agrees to pay all Other Taxes.
(d) The Borrower agrees to indemnify each Bridge Bank and the
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by such Bridge 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 Bridge Bank or the Agent (as the case may be) makes
demand therefor.
(e) Each Bridge 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 Bridge Bank listed on the
signature pages hereof and on or prior to the date on which it becomes a Bridge
Bank in the case of each other Bridge Bank, and from time to time thereafter if
requested in writing by the Borrower (but only so long as such Bridge 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 Bridge
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts the Bridge Bank from United States withholding
tax or reduces the rate of withholding tax on payments of interest for the
account of such Bridge 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 Bridge Bank at the time such
Bridge Bank first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from "Taxes" as defined in subsection (a) of this
Section.
(f) For any period with respect to which a Bridge Bank has
failed to provide the Borrower or the Agent with the appropriate form pursuant
to subsection (d) of this Section (unless such failure is due to a change in
treaty, law or regulation occurring subsequent to the date on which such form
originally was required to be provided), such Bridge Bank shall not be entitled
to indemnification under subsection (b) or (c) of this Section with respect to
Taxes imposed by the United States; provided that if a Bridge 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 Bridge Bank shall reasonably request
to assist such Bridge Bank to recover such Taxes.
(g) If the Borrower is required to pay additional amounts to
or for the account of any Bridge Bank pursuant to this Section, then such Bridge
Bank will change the jurisdiction of its Lending Office if, in the judgment of
such Bridge Bank, such change (i) will eliminate or reduce any such additional
payment which may thereafter accrue and (ii) if such change, in the judgment of
such Bridge Bank, is not otherwise disadvantageous to such Bridge Bank.
ARTICLE III
CONDITIONS
SECTION 3.01. Bridge 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 8.05):
(a) receipt by the Agent of counterparts of this Agreement
signed by each of the parties hereto (or, in the case of any party as
to which an executed counterpart shall not have been received, receipt
by the Agent in form satisfactory to it of telegraphic, facsimile,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party);
(b) receipt by the Agent of counterparts of Amendment No. 1 to
the Subsidiary Guarantee Agreement duly executed by each of the
Obligors listed on the signature pages thereof;
(c) receipt by the Agent of (i) counterparts of the following,
each dated the date hereof and duly executed by the parties specified
below:
(1) the Borrower Pledge Agreement between the Agent and the
Borrower,
(2) the Borrower Security Agreement between the Agent and the
Borrower,
(3) the Subsidiary Security Agreement among the Agent and the
Subsidiary Guarantors,
(4) the Subsidiary Pledge Agreement among the Agent and the
Subsidiary Guarantors and
(ii) and all other documents and certificates to be delivered
pursuant to the foregoing on the Bridge Effective Date (including
appropriately completed and duly executed Uniform Commercial Code
financing statements required thereby);
(d) receipt by the Agent of evidence satisfactory to the Agent
that arrangements satisfactory to it shall have been made for recording
the Mortgages on the Mortgaged Facilities described in Items 3, 4, 5,
6, 8, 9 and 12 in Part I of Schedule III and filing the Uniform
Commercial Code financing statements referred to in paragraph (c) above
on or promptly after the Bridge Effective Date;
(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) in which the chief
executive office of the Borrower and each Subsidiary Guarantor is
located, setting forth the results of Uniform Commercial Code file
searches conducted in the name of the Borrower and each Subsidiary
Guarantor, as the case may be;
(g) receipt by the Agent of evidence satisfactory to the Agent
of the insurance coverage required by Section 5.03;
(h) with respect to the Mortgaged Facilities described in
Items 3 and 4 in Part I of Schedule III, receipt by the Agent of title
reports with respect thereto issued by a title insurance company
reasonably acceptable to the Agent and dated no more than 45 days prior
to the Bridge Effective Date showing no Liens except Permitted Liens
with respect thereto;
(i) receipt by the Agent of duly executed Bridge Notes for the
account of each Bridge Bank dated on or before the Bridge Effective
Date complying with the provisions of Section 2.03;
(j) receipt by the Agent of (i) an opinion of the Assistant
General Counsel of the Borrower and (ii) an opinion of Jacobs Persinger
& Parker, New York counsel for the Borrower, substantially in the forms
of Exhibits B-1 and B-2, respectively, and covering such additional
matters relating to the transactions contemplated hereby as the
Required Bridge Banks may reasonably request;
(k) receipt by the Agent of (i) an opinion of Davis Polk &
Wardwell, special New York counsel for the Agent, (ii) an opinion of
Meyer, Hendricks, Victor, Ruffner & Bivens, special Arizona counsel for
the Agent, (iii) an opinion of Goodwin, Proctor & Hoar, Massachusetts
counsel for the Borrower and (iv) Greenberg, Traurig, Hoffman, Lipoff,
Rosen & Quentel, P.A., special Florida counsel for the Agent,
substantially in the forms of Exhibits C-1, C-2, C-3 and C-4,
respectively, hereto and covering such additional matters relating to
the transactions contemplated hereby as the Required Bridge Banks may
reasonably request;
(l) receipt by the Agent of counterparts of Amendment No. 1 to
the Credit Agreement dated the date hereof duly executed by the
Borrower, the Banks and the Agent;
(m) receipt by the Agent of a Bonding Company Letter
substantially in the form of Exhibit L hereto dated not later than the
Bridge Effective Date and duly executed by the Borrower and the Bonding
Company; and
(n) 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; provided that this Agreement shall not become effective or be
binding on any party hereto unless all of the foregoing conditions are
satisfied not later than February 29, 1996. The Agent shall promptly
notify the Borrower and the Bridge Banks of the Bridge Effective Date,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. Credit Events. The obligation of any Bridge Bank
to make a Bridge Loan on the occasion of any Bridge Borrowing and of the Bridge
LC Bank to issue a Bridge Letter of Credit (or to permit the extension of an
Evergreen Bridge 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 Bridge Borrowing
as required by Section 2.02, in the case of a Bridge Borrowing or (ii)
by the Bridge LC Bank of notice as required by Section 2.15, in the
case of a Bridge Letter of Credit;
(b) the fact that, after giving effect to such Credit Event,
the Usage shall not exceed the aggregate amount of the Bridge
Commitments and the fact that the Commitments (as defined in the Credit
Agreement) shall be fully utilized;
(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 Bridge 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 Bridge Banks) shall be true on and as of
the date of such Bridge Borrowing;
(e) the ability of the Borrower to obtain bonding for new
construction projects shall not be less than or more limited than at
the date hereof;
(f) the payment by the Borrower of all amounts theretofore
payable pursuant to Section 8.03 within seven days of demand;
(g) at any time on or after March 8, 1996, receipt by the
Agent of (i) evidence of recording of the Mortgages on the Mortgaged
Facilities described in Items 13 and 15 in Part I of Schedule III and
(ii) opinions of counsel in each jurisdiction in which the foregoing
Mortgages are recorded in form and substance satisfactory to the Agent
covering such matters relating thereto as the Required Bridge Banks may
reasonably request;
(h) at any time on or after March 28, 1996, receipt by the
Agent of a policy of title insurance with respect to each Mortgage and
Deed of Trust relating to the Mortgaged Facilities described as Items
1, 2, 3, 4, 5, 6, 9 and 13 in Part I of Schedule III, insuring the
perfection, enforceability and first priority of the Lien created under
such Mortgage or Deed of Trust, as the case may be, as a valid first
mortgage or deed of trust Lien, as the case may be, on the Mortgaged
Facilities described therein, in form and substance reasonably
satisfactory to the Agent and in the respective amounts specified in
Part I of Schedule III (with all premiums, expenses and fees paid or
caused to be paid by the Borrower), each of which policies shall (i) be
issued by a title company reasonably satisfactory to the Agent, (ii)
have been supplemented by such endorsements as shall be reasonably
requested by the Agent (including, without limitation, endorsements
relating to usury, revolving credit, doing business and restrictions)
and (iii) contain only such exceptions to title as shall be reasonably
satisfactory to the Agent, provided that the parties hereto agree that
the Permitted Liens constitute satisfactory exceptions to title.
Each Bridge Borrowing shall be deemed to be a representation and warranty by the
Borrower on the date of such Bridge 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. (a) 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.
(b) The execution, delivery and performance by each Obligor of
the amendments to the Financing Documents to which it is a party and the
performance by each Obligor of the Financing Documents as so amended are within
its corporate powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of such Obligor or of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Obligor or any
of its Subsidiaries or result in the creation or imposition of any Lien, except
Liens created by the Collateral Documents as so amended, on any asset of such
Obligor or any of its Subsidiaries.
SECTION 4.03. Binding Effect; Liens of Collateral Documents.
(a) This Agreement constitutes a valid and binding agreement of the Borrower and
the Bridge Notes, 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. The Borrower Security
Agreement and the Subsidiary Pledge Agreement, when executed and delivered in
accordance with this Agreement, will constitute valid and binding agreements of
each Obligor party thereto enforceable against each such Obligor in accordance
with their respective terms. Each amendment to each Financing Document, when
executed and delivered in accordance with this Agreement, and each Financing
Document as so amended will constitute a valid and binding agreement of the
Obligor party thereto in each case enforceable in accordance with its terms.
(b) All real property in which the Borrower or any of its
Subsidiaries has an interest, directly or indirectly (whether through an
interest in a joint venture or partnership or otherwise) as of the date hereof
is listed in Part 1 of Schedule III hereto. The list of property of the Borrower
and each of its Subsidiaries, security interests in which are governed by
Article IX of the UCC as in effect in the relevant jurisdictions, set forth in
Part 2 of Schedule III hereto is complete in all material respects. The
location, ownership, status and lien information provided in Schedule III for
each item of real property and each type of personal property are complete and
correct.
(c) The 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, 1994 and the related consolidated
statements of income, stockholders' equity and cash flows for the fiscal year
then ended, reported on by Arthur Andersen & Co. and set forth in the Borrower's
1994 Form 10-K, a copy of which has been delivered to each of the Bridge Banks,
fairly present, in conformity with generally accepted accounting principles, 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, 1995 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, 1995 as filed with the Securities and
Exchange Commission on Form 10-Q, a copy of which has been delivered to each of
the Bridge Banks, fairly present, in conformity with generally accepted
accounting principles 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 results of operations and cash flows for such nine
month period (subject to normal year-end adjustments).
(c) Since September 30, 1995 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 1994 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 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 Bridge 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 Addtional Mortgaged
Facility or (D) Release of Hazardous Substances at or in connection
with any Mortgaged Facility;
(ii) other than generation of Hazardous Substances in
compliance with all applicable Environmental Laws, no Regulated
Activity has occurred at or on any Mortgaged Facility;
(iii) no polychlorinated biphenyls, radioactive material, urea
formaldehyde, lead, asbestos, asbestos- containing material or
underground storage tank (active or abandoned) is or has been present
at any Mortgaged Facility;
(iv) no Hazardous Substance has been Released (and no written
notification of such Release has been filed) or is present (whether or
not in a reportable or threshold planning quantity) at, on or under any
Mortgaged Facility;
(v) no Mortgaged Facility is listed or, to the knowledge of
the Obligors, proposed for listing, on the National Priorities List
promulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on
any similar federal, state or foreign list of sites requiring
investigation or clean-up; and
(vi) there are no Liens under Environmental Laws on any
Mortgaged Facility, no government actions have been taken or are in
process which could subject any Mortgaged Property to such Liens and
neither the Borrower nor any of its Subsidiaries would be required to
place any notice or restriction relating to Hazardous Substances in any
deed to any Mortgaged Facility.
(c) No environmental investigation, study, audit, test, review
or other analysis has been conducted of which the Obligors have knowledge in
relation to any Mortgaged Facility which has not been delivered to the Bridge
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 have an interest as of the date hereof are listed in Schedule VI
hereto and the state of incorporation or organization and the ownership interest
of each 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 Rincon Swap.
(c) All agreements to which the Borrower or any Subsidiary
Guarantor is a party or by which it is bound (other than the Financing
Documents) containing a negative pledge or limitations on its incurrence of Debt
or sale of assets are listed on Schedule IV hereto.
SECTION 4.12. Full Disclosure. All information heretofore
furnished by the Borrower to the Agent or any Bridge 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
Bridge 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 Bridge 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.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bridge Bank has any
Bridge Commitment hereunder or any amount payable under any Bridge Note remains
unpaid or any Bridge Letter of Credit remains outstanding or any Bridge
Reimbursement Obligation with respect thereto remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each
of the Bridge 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 Arthur Andersen & Co. 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 and consolidating condensed balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such quarter and the related consolidated and consolidating
condensed statements 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, generally
accepted accounting principles and consistency by the chief financial
officer or the chief accounting officer of the Borrower;
(2) as soon as available and in any event within 45 days after
the end of each quarter of each fiscal year of Perini Land and
Development, a cash flow statement for Perini Land and Development for
such quarter in a format consistent with the format of the cash flow
statement for Perini Land and Development for the quarter ended
December 31, 1995 previously delivered to the Bridge Banks;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of the
Borrower (i) 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 and 5.15
on the date of such financial statements and (ii) 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;
(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) simultaneously with the delivery of each set of financial
statements set forth above, a schedule, dated as of the date of such
financial statements, 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, and the percentage of completion and
anticipated completion date of 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;
(f) 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;
(g) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(h) 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;
(i) 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;
(j) 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 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;
(k) prompt notice of any change in the Borrower's ability to
obtain bonding for new construction projects (including without
limitation a reduction in the amount of bonding commitments of any
bonding company to the Borrower and any restrictions on use of such
commitments);
(l) prompt notice of any decision by the Borrower or any of
its Subsidiaries not to meet a capital call by any joint venture in
which the Borrower or any such Subsidiary is participating;
(m) prompt notice of the Borrower 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
(n) 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 Bridge 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 generally accepted accounting principles, 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 Rincon
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 business; and will furnish to the Bridge 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. 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
generally accepted accounting principles 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 Bridge Bank at such
Bridge Bank's expense (subject to Section 8.03(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; provided that in any event the Borrower shall hold a meeting for
representatives of the Bridge Banks at least once each fiscal quarter, at a time
and place in Framingham, Boston or New York City to be determined by the Agent
on 10 Business Days' notice, for purposes of holding such discussions with such
of the Borrower's officers, employees and independent public accountants as the
Agent shall designate at the reasonable request of any Bridge Bank.
SECTION 5.07. Current Ratio. Consolidated Current Assets will
at no time be less than 100% of Consolidated Current Liabilities.
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
December 31, 1995 and listed on Schedule I hereof, (ii) Debt under this
Agreement, (iii) Debt under the Credit Agreement, (iv) Debt owing to joint
ventures in which the Borrower is participating, (v) up to $3,000,000 of Debt to
finance insurance premiums, (vi) Debt owing by the Borrower to a Subsidiary and
evidenced by an intercompany note pledged to the Agent under the Subsidiary
Pledge Agreement and (vii) any refinancing, extension, renewal or refunding of
the Debt referred to in clauses (i) through (v) above; provided that in any
event at no time shall Modified Parent Company Debt exceed $150,000,000 and at
no time shall the aggregate outstanding amount of Debt to finance insurance
premiums and any refinancing, extension, renewal or refunding thereof exceed
$3,000,000.
(b) After the date hereof, the Borrower will not permit any
Subsidiary to incur or suffer to exist any Debt other than (i) Debt existing on
December 31, 1995 and listed on Schedule I hereof, (ii) Debt under the
Subsidiary Guarantee Agreement, (iii) Debt owing to joint ventures in which such
Subsidiary is participating, (iv) Debt owing by a Subsidiary to the Borrower and
evidenced by an intercompany note pledged to the Agent under the Borrower
Security Agreement and (v) any refinancing, extension, renewal or refunding of
the Debt referred to in clauses (i) through (iv) above.
SECTION 5.09. Minimum Consolidated Tangible Net Worth.
Consolidated Tangible Net Worth of the Borrower will at no time be less than the
Minimum Compliance Level, determined as set forth below. The "Minimum Compliance
Level" is an amount equal to the Base Compliance Amount subject to increase (but
in no case subject to decrease) from time to time as follows: (i) at the end of
each fiscal year commencing after December 31, 1996 for which Consolidated Net
Income is a positive number, the Minimum Compliance Level shall be increased
effective at the last day of such fiscal year by an amount equal to 50% of such
Consolidated Net Income; and (ii) on the date of each issuance by the Borrower
subsequent to December 31, 1996 of any capital stock or other equity interest,
the Minimum Compliance Level shall be increased by an amount equal to 75% of the
amount of the net proceeds received by the Borrower on account of such issuance.
For purposes of this Section, "Base Compliance Amount" means (i) for any date
during the period from and including December 31, 1995 to but excluding June 30,
1996, $100,000,000 and (ii) for any date during the period from and including
June 30, 1996 to the Bridge Termination Date, $105,000,000.
SECTION 5.10. Interest Coverage. Consolidated Earnings Before
Interest and Taxes for each fiscal period specified below shall be not less than
the percentage specified below of Consolidated Interest Charges for such fiscal
period:
quarter ending March 31, 1996 300%
two quarters ending June 30, 1996 300%
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 December 31, 1995 securing Debt
outstanding on December 31, 1995 as described in Schedule II;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary of the Borrower
and not created in contemplation of such event;
(c) 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;
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the
Borrower or a Consolidated Subsidiary of the Borrower and not created
in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Consolidated Subsidiary of the Borrower
and not created in contemplation of such acquisition;
(f) 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;
(g) Liens incidental to conduct of its business or the
ownership of its assets which (i) do not secure Debt and (ii) do not in
the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;
(h) Permitted Encumbrances;
(i) Liens (whether statutory, by contract or at common law and
whether in the nature of a security interest or constructive trust or
otherwise) of subcontractors, architects, engineers, surveyors,
laborers, materialmen, bonding companies and other Persons performing
labor or services or providing material for construction projects in
and under construction contracts to which the Borrower or any of its
Subsidiaries is a party as general or prime contractor, subcontractor
or construction manager;
(j) Liens granted to 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
(k) Liens created by the Collateral Documents.
SECTION 5.12. Consolidations, Mergers and Sales of Assets. (a)
The Borrower will not (i) consolidate or merge with or into any other Person or
sell, lease or otherwise transfer all or any substantial part of its assets to
any other Person or (ii) permit any Material Subsidiary (other than a Subsidiary
Guarantor) to consolidate or merge with or into, or transfer all or any
substantial part of its assets to, any Person other than the Borrower or a
Wholly-Owned Consolidated Subsidiary; provided that the Borrower or a Material
Subsidiary other than Perini Land and Development may sell or otherwise transfer
assets if Aggregate Asset Sale Proceeds after such sale less Aggregate
Reinvested Proceeds does not at any time exceed $15,000,000. "Aggregate Asset
Sale Proceeds" means the sum of the proceeds of each sale in a single
transaction or series of related transactions by the Borrower or any Subsidiary,
on or after the Bridge Effective Date, of fixed assets yielding proceeds in
excess of 5% of the Consolidated Tangible Net Worth of the Borrower. "Aggregate
Reinvested Proceeds" means the amount of Aggregate Asset Sale Proceeds used to
purchase fixed assets for use in the same general business presently conducted
by the Borrower or the Subsidiary that realized such proceeds, as the case may
be, provided such proceeds are so used within 18 months of receipt thereof. The
Borrower will not permit any Subsidiary Guarantor to consolidate or merge with
or into, or transfer all or any substantial part of its assets to, any Person;
provided that the foregoing shall not prohibit (i) any Subsidiary Guarantor from
selling, leasing or otherwise transferring assets in the ordinary course of its
business or (ii) R. E. Dailey & Co. from transferring all of its assets to
Perini Building Company.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise dispose of any item of Collateral
(except Accounts, Inventory and items listed in Schedule VII hereto up to the
amounts specified therein) unless (i) each of the Bridge Banks shall have given
its prior written consent thereto and (ii) the consideration therefor (x) shall
be at least equal to the fair market value of such asset (as determined in good
faith by a financial officer of the Borrower or, if such value exceeds
$15,000,000, by the board of directors of the Borrower or a duly constituted
committee thereof) and (y) in the case of any agreement entered into on or after
the Bridge Effective Date for the sale, lease or other disposition of such
Collateral shall consist of cash payable at closing; provided that the prior
written consent of the Bridge Banks shall not be required for any sale, lease or
other disposition of any item of Collateral having a fair market value not
exceeding $100,000 if the aggregate amount of the fair market value of all such
items of Collateral sold, leased or otherwise disposed of during any fiscal year
does not exceed $500,000 and the Borrower delivers to each of the Bridge Banks
prompt written notice of each such sale, lease or other disposition.
SECTION 5.13. Use of Proceeds. The proceeds of the Bridge
Loans made under this Agreement will be used by the Borrower for general
corporate purposes other than for making or carrying Real Estate Investments.
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 aggregate amount of all
dividends which constitute Restricted Payments declared and other Restricted
Payments made during any period of four consecutive fiscal quarters will not
exceed an amount equal to 50% of the excess, if any, of (x) Consolidated Net
Income for such period over (y) the aggregate amount of preferred stock
dividends not constituting Restricted Payments paid during such period. The
Borrower will not declare any dividend payable more than 120 days after the date
of declaration thereof; provided that the Borrower will not declare or pay any
preferred stock dividend until the Bridge Credit Agreement is repaid in full and
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 cumulative amount of Net Real
Estate Investments made (i) at any time during the period beginning January 1,
1996 and ending December 31, 1996 shall exceed $4,000,000 or (ii) during any
fiscal year thereafter shall exceed $4,000,000 plus 25% of the amount, if any,
by which the Net Real Estate Investments made during the preceding period were
less than the applicable limitation specified above for such period. For
purposes of this Section, the cumulative amount of "Net Real Estate Investments"
made during any period, as measured at any date during such period, is the
aggregate amount of Real Estate Investments made by the Borrower and its
Consolidated Subsidiaries from and including the first day of such period to and
including such date, less the sum of all cash or cash equivalent payments
received by the Borrower or one of its Consolidated Subsidiaries, as the case
may be, in respect of Real Estate Investments from and including the first day
of such period to and including such date.
SECTION 5.16. Other Investments. 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;
(c) Temporary Cash Investments; and
(d) any Investment not otherwise permitted by the foregoing
clauses of this Section if, immediately after such Investment is made
or acquired, the aggregate net book value of all Investments permitted
by this clause (d) does not exceed 5% of Consolidated Tangible Net
Worth;
provided that no Real Estate Investment may be made pursuant to clause (b), (c)
or (d) above.
SECTION 5.17. 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 Bridge Loan, any Bridge Reimbursement Obligation, any fees or any
other amount payable hereunder;
(b) the Borrower shall fail to pay when due or within five
Business Days thereof any interest on any Bridge Loan;
(c) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.17, 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 Bridge Bank;
(e) any representation, warranty, certification or statement
made by any Obligor in any Financing Document or in any certificate,
financial statement or other document delivered pursuant thereto shall
prove to have been incorrect in any material respect when made (or
deemed made);
(f) the Borrower shall fail to make any payment in respect of
any Debt (other than the Bridge Notes or Bridge 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
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself 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 it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
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 case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it 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 it or any substantial part of
its property, and such involuntary case or other 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 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) fewer
than two of the following people shall be members of the Board of
Directors of the Borrower: David Perini, Joseph Perini and Bart Perini;
or (iii) the Borrower shall cease to own 100% of the capital stock of
any Subsidiary Guarantor; 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 Bridge 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 Bridge Banks
having more than 50% in aggregate amount of the Bridge Commitments, by notice to
the Borrower terminate the Bridge Commitments and they shall thereupon
terminate, and (ii) if requested by Bridge Banks holding Bridge Notes evidencing
more than 50% in aggregate principal amount of the Bridge Loans, by notice to
the Borrower declare the Bridge Notes (together with accrued interest thereon)
to be, and the Bridge Notes shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Obligors; provided that in the case of any of the
Events of Default specified in clause (i) or (j) above with respect to any
Obligor, without any notice to the Borrower or any other act by the Agent or the
Bridge Banks, the Bridge Commitments shall thereupon terminate and the Bridge
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 Bridge Banks having more than 50% in aggregate
amount of the Bridge 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 Bridge Bank, it shall pay) to the Agent an amount in immediately available
funds equal to the then aggregate Bridge Letter of Credit Liabilities for all
Bridge Letters of Credit to be held as security therefor for the benefit of all
Bridge 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 Bridge Bank and shall thereupon notify all the Bridge Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bridge 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. Morgan Guaranty Trust
Company of New York shall have the same rights and powers under the Financing
Documents as any other Bridge Bank and may exercise or refrain from exercising
the same as though it were not the Agent, and Morgan Guaranty Trust Company of
New York and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
affiliate of the Borrower as if it were not the Agent hereunder.
SECTION 7.03. 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.
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 Bridge 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 Bridge Bank shall, ratably
in accordance with its Bridge Commitment, indemnify the Agent, 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) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bridge Bank acknowledges
that it has, independently and without reliance upon the Agent or any other
Bridge 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 Bridge Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bridge 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 Bridge Banks and the Borrower. Upon any
such resignation, the Required Bridge Banks shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Bridge 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 Bridge 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), the Agent shall act or refrain from
acting in accordance with written instructions from the Required Bridge Banks
or, in the absence of such instructions, in accordance with its discretion;
provided that the Agent shall not be obligated to take any action if the Agent
believes that such action is or may be contrary to any applicable law or might
cause the Agent to incur any loss or liability for which it has not been
indemnified to its satisfaction.
(b) The Agent shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection,
priority or enforceability of the security interests in any of the Collateral,
whether impaired by operation of law or by reason of any action or omission to
act on its part under the Collateral Documents. The Agent shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms of
the Collateral Documents by any Obligor.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. 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
Bridge 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.
SECTION 8.02. No Waivers. No failure or delay by the Agent or
any Bridge 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 8.03. 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, in connection
with the preparation of the Financing Documents, any waiver or consent under any
Financing Document, or any amendment of any Financing Document or any Default or
alleged Default and (ii) if an Event of Default occurs, all out-of-pocket
expenses incurred by the Agent and each Bridge 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
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. The Borrower shall indemnify each Bridge 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 Bridge
Bank, their respective affiliates and the respective directors, officers, agents
and employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (including allocated costs of internal counsel and
disbursements of internal counsel), which may be incurred by any Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of any Financing Document or any actual or
proposed use of proceeds of Bridge 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 8.04. Sharing of Setoffs. Each Bridge 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
Bridge Loan or Bridge Reimbursement Obligation owed to it which is greater than
the proportion received by any other Bridge Bank in respect of the aggregate
amount due with respect to any Bridge Loan or Bridge Reimbursement Obligation
owed to such other Bridge Bank, the Bridge Bank receiving such proportionately
greater payment shall purchase such participations in the Bridge Loans and
Bridge Reimbursement Obligations owed to the other Bridge Banks, and such other
adjustments shall be made, as may be required so that all such payments with
respect to the Bridge Loans and Bridge Reimbursement Obligations owed to the
Bridge Banks shall be shared by the Bridge Banks pro rata; provided that (i)
nothing in this Section shall impair the right of any Bridge 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 or under the Credit Agreement and (ii) nothing in any
Financing Documents shall require any Bridge Bank to share any payments received
by such Bridge Bank if such payments were made in respect of any obligations
(including without limitation Other Reimbursement Obligations and Other
Mortgage/Lease Obligations) not constituting Bridge Loans or Bridge
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
Bridge Loan or Bridge Reimbursement Obligation, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of setoff or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 8.05. Amendments and Waivers. Any provision of this
Agreement or the Bridge 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
Bridge Banks (and, if the rights or duties of the Agent are affected thereby, by
it); provided that no such amendment or waiver shall, unless signed by all the
Bridge Banks, (i) increase or decrease the Bridge Commitment of any Bridge Bank
(except for a ratable decrease in the Bridge Commitments of all Bridge Banks),
amend Section 2.10(d) hereof or subject any Bridge Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Bridge Loan
or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Bridge Loan, any Bridge Reimbursement Obligation
or any fees hereunder or for termination of any Bridge Commitment (provided that
the Required Banks may extend the Bridge Termination Date from time to time up
to but no later than September 30, 1996), (iv) change the percentage of the
Bridge Commitments or of the aggregate unpaid principal amount of the Bridge
Notes, or the number of Bridge Banks, which shall be required for the Bridge
Banks or any of them to take any action under this Section or any other
provision of the Financing Documents, (v) release any Subsidiary Guarantor from
the Subsidiary Guarantee Agreement, (vi) amend Section 8.04 or 8.06 hereof or
(vii) notwithstanding any provision of any Collateral Document to the contrary,
release any item of Collateral from the Lien provided by the Collateral
Documents except for the sale or other disposition of such item by the Agent in
the exercise of its rights as provided therein (provided that unless an Event of
Default has occurred and is continuing, the Agent may release any Collateral at
the request of the Borrower, without the consent of each of the Bridge Banks, if
(i) such release is required in connection with any sale, lease or other
disposition of such Collateral and (ii) such sale, lease or other disposition is
in accordance with and permitted by the terms hereof (including without
limitation Sections 2.10(b)(i) and 5.12(b)) and of the Credit Agreement).
SECTION 8.06. 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 Bridge Banks.
(b) Any Bridge Bank may at any time grant to one bank or other
institution (a "Participant") a participating interest in its Bridge Commitment
and its Bridge Loans in the full amount of its Bridge Commitment. In the event
of any such grant by a Bridge Bank of a participating interest to a Participant,
whether or not upon notice to the Borrower and the Agent, such Bridge 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
Bridge Bank in connection with such Bridge Bank's rights and obligations under
this Agreement. Any agreement pursuant to which any Bridge Bank may grant such a
participating interest shall provide that such Bridge 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 Bridge Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii) or (iii) of
Section 8.05 without the consent of the Participant. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Any Bridge Bank may assign to one bank or other
institution (each an "Assignee") all of its rights and obligations under this
Agreement and the Bridge Notes and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit K hereto executed by such Assignee and such transferor
Bridge Bank, with (and subject to) the subscribed consent of the Borrower (which
shall not be unreasonably withheld) and the Agent; provided that if an Assignee
is an affiliate of such transferor Bridge Bank or another Bridge Bank, no such
consent shall be required. Upon execution and delivery of such instrument and
payment by such Assignee to such transferor Bridge Bank of an amount equal to
the purchase price agreed between such transferor ... Bridge Bank and such
Assignee, such Assignee shall be a Bridge Bank party to this Agreement and shall
have all the rights and obligations of a Bridge Bank with a Bridge Commitment as
set forth in such instrument of assumption, and the transferor Bridge 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 Bridge Bank,
the Agent and the Borrower shall make appropriate arrangements so that, if
required, a new Bridge Note is issued to the Assignee. In connection with any
such assignment, the transferor Bridge Bank shall pay to the Agent an
administrative fee for processing such assignment in the amount of $2,500.
(d) Any Bridge Bank may at any time assign all or any portion
of its rights under this Agreement and its Bridge Note to a Federal Reserve
Bank. No such assignment shall release the transferor Bridge Bank from its
obligations hereunder.
SECTION 8.07. Certain Collateral. Each of the Bridge Banks
represents to the Agent and each of the other Bridge Banks that it in good faith
is not relying upon any "margin stock" (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided for in this
Agreement.
SECTION 8.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Bridge 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 8.09. 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 8.10. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE
AGENT AND THE BRIDGE 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 8.11. Reduced Return. If any Bridge 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 Bridge Bank (or its Parent) as a consequence
of such Bridge Bank's obligations hereunder to a level below that which such
Bridge 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 Bridge Bank to be material, then
from time to time, within 15 days after demand by such Bridge Bank (with a copy
to the Agent), the Borrower shall pay to such Bridge Bank such additional amount
or amounts as will compensate such Bridge Bank (or its Parent) for such
reduction. Each Bridge 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 Bridge Bank to compensation pursuant to this Section. A certificate
of any Bridge 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 Bridge Bank
may use any reasonable averaging and attribution methods.
SECTION 8.12. 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 Bridge Bank or Bank (as defined in the Credit
Agreement) 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 Bridge Bank or Bank to obtain any
consent from any other Bridge Bank or 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 8.13. Subordinate Mortgages. (a) Harris Trust and
Savings Bank hereby consent to the execution, delivery and recordation of the
Mortgage relating to the Mortgaged Facility described as Item 12 in Part I of
Schedule III.
(b) Comerica Bank hereby consents to the execution, delivery
and recordation of the Mortgage relating to the Mortgaged Facility described as
Item 15 in Part I of Schedule III.
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/ David B. Perini
Title: President & CEO
By /s/ John H. Schwarz
Title: Executive Vice President
73 Mount Wayte Avenue
Framingham, MA 01701
Facsimile number: (508) 628-2960
Bridge Commitments
- ------------------
Bridge Commitment: MORGAN GUARANTY TRUST COMPANY
$ 3,096,000.00 OF NEW YORK
By /s/ D. Linda Scheuplein
Title: Vice President
Bridge Commitment: FLEET NATIONAL BANK OF
$ 5,280,000.00 MASSACHUSETTS
f/k/a SHAWMUT BANK, N.A.
By /s/ Lisa S. Coney
Title: Vice President
Bridge Commitment: BANK OF AMERICA NATIONAL TRUST AND
$ 2,184,000.00 SAVINGS ASSOCIATION
By /s/ Donald J. Chin
Title: Vice President
Bridge Commitment: BAYBANK, N.A.,
$ 1,440,00.00 as Bridge Bank and
as Bridge LC Bank
By /s/ Timothy M. Laurion
Title: Vice President
Bridge Commitment: COMERICA BANK
$ 1,200,000.00
By /s/ Angela B. Petersen
Title: First Vice President
Bridge Commitment: HARRIS TRUST & SAVINGS BANK
$ 1,200,000.00
By /s/ Sandra J. Sanders
Title: Vice President
Bridge Commitment: STATE STREET BANK AND TRUST COMPANY
$ 600,000.00
By /s/ Linda A. Moulton
Title: Vice President
- -----------------
Total Bridge Commitments
$15,000,000
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ D. Linda Scheuplein
Title: Vice President
60 Wall Street
New York, New York 10260
Attn: Robert Bottamedi
Telex number: 177615 MGT UT
Facsimile number: (212) 648-5023