Exhibit 10.24
AMENDMENT NO. 7 TO CREDIT AGREEMENT
AMENDMENT NO. 7 dated as of March 23, 1999 among PERINI CORPORATION (the
"Borrower"), the BANKS listed on the signature pages hereof (collectively, the
"Banks") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agent are parties to an Amended
and Restated Credit Agreement dated as of January 17, 1997 (as heretofore
amended, the "Credit Agreement");
WHEREAS, the Borrower has requested an extention of the Termination Date
for the Tranche A Commitments until the first Domestic Business Day of January,
2001, and certain other amendments to the Credit Agreement;
WHEREAS, the amount of each Bank's Tranche B commitment has previously
been reduced to zero, and shall remain at zero hereafter; and
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
shall have the meaning assigned to such term in the Credit Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Credit Agreement shall from and after the date hereof
refer to the Credit Agreement as amended hereby.
SECTION 2. Amendments to Definitions. Section 1.01 of the Credit
Agreement is amended as follows:
(a) The definition of "Applicable Base Rate Margin" is amended and
restated in its entirety to read as follows:
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Exhibit 10.24
"Applicable Base Rate Margin" means 1.75%.
(b) The definition of "Applicable Euro-Dollar Margin" is amended and
restated in its entirety to read as follows:
"Applicable Euro-Dollar Margin" means (i) prior to the
first Domestic Business Day of January, 2000, 2.75% and
(ii) thereafter, 3.00%
(c) The definition of "Asset Sale Letter" is amended and restated in
its entirety to read as follows:
"Asset Sale Letter" means (i) for purposes of any
Disposition of an asset from the Effective Date until
the Amendment No. 7 Effective Date, a letter from the
Borrower to the Banks and the Agent listing certain
potential asset sales, which letter shall be in form and
substance satisfactory to each Bank and which letter
shall have been delivered to the Banks and the Agent not
less than five Domestic Business Days prior to the
Effective Date; or (ii) for purposes of any Disposition
of an asset on or after the Amendment No. 7 Effective
Date, the chart identified as the "Revised 'Asset Sale
Letter'" distributed by the Borrower to the Banks and
the Agent on March 22, 1999.
(d) The definition of "Commitment Reduction Date" is amended by
deleting "and September 1999" and inserting in lieu thereof ",
September 1999, December 1999, March 2000, June 2000, September
2000 and December 2000".
(e) The definition of "Disposition" is amended and restated in its
entirety to read as follows:
"Disposition" means any sale, conveyance, lease,
granting of any Lien, exchange, assignment, Casualty,
Condemnation or other transfer and to "Dispose" means to
sell, convey, lease, exchange, assign, suffer a Casualty
or Condemnation or to otherwise transfer, in each case
(i) whether voluntary or involuntary, (ii) whether
direct or indirect and (iii) including any agreement
providing for a Disposition or granting any right or
option providing for a Disposition.
(f) The definition of "Net Proceeds" is amended by deleting the text
that follows the clause "and including all Awards (as defined in
any Mortgage) received in respect of any Condemnation," and
inserting in its place the following text:
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Exhibit 10.24
", less (without duplication) reasonable out-of-pocket
fees, commissions and other transaction expenses paid or
payable by the Borrower or such Subsidiary to
unaffiliated third parties in connection with such
Disposition, all senior mortgage debt owed to
unaffiliated third parties and required to be repaid at
the time of such Disposition and any property taxes paid
or payable (as estimated by a financial officer of the
Borrower in good faith) in respect thereof; provided
that with respect to any Disposition by a Subsidiary
that is not 100%-owned (directly or indirectly) by the
Borrower (a "Joint Venture"), the term "Net Proceeds"
shall be the product of the amount determined as set
forth above in this definition, multiplied by the
greater of (i) the aggregate percentage ownership
interest that the Borrower, directly or indirectly,
holds in such Joint Venture and (ii) the aggregate
percentage of such Net Proceeds that the Borrower and
its 100%-owned (directly or indirectly) Subsidiaries
would be entitled to receive if such Joint Venture were
to immediately distribute all of such Net Proceeds to
the partners, joint venturers or other holders of
interests in such Joint Venture, determined in
accordance with the applicable partnership agreement,
joint venture agreement or other governing document."
(g) The definition of "Perini International" is amended and restated
in its entirety to read as follows:
"Perini International" means Perini Management Services,
Inc., a Massachusetts corporation formerly named Perini
International Corporation.
(h) The definition of "Termination Date" is amended by deleting
"January, 2000" and inserting in lieu thereof "January, 2001".
(i) The definition of "Tranche B Commitment" is amended by adding
the following sentence at the end thereof:
"The aggregate amount of the Tranche B Commitment of
each Bank on and after the Amendment No. 7 Effective
Date shall be zero."
(j) The following new definitions are inserted, in appropriate
alphabetical order:
"Amendment No. 7 Effective Date" means the date when
Amendment No. 7 to Credit Agreement dated as of March
23, 1999 becomes effective in accordance with its terms.
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Exhibit 10.24
"Harris Bank LC" means the letter of credit listed on
Schedule 1.01 issued by Harris Trust & Savings Bank to
State Street Bank and Trust Company, as Trustee, as the
same may be amended from time to time.
"Rincon Restructuring" means the restructuring, with the
prior written consent of the Required Banks, of the
payment and other obligations under the Rincon
Agreements of the Borrower, Rincon Center Associates and
any other Subsidiaries of the Borrower party thereto,
substantially as contemplated by the "Rincon I
Deed-In-Lieu Term Sheet" dated October 23, 1998 and the
"Rincon II Term Sheet" dated October 23, 1998 or
pursuant to such other terms and conditions as shall be
acceptable to the parties thereto and the Required
Banks, with the result that any and all defaults and/or
events of default existing under any Rincon Agreement at
any time prior to such restructuring shall have been
waived or cured or otherwise ceased to exist.
SECTION 3. Amendment to Letters of Credit Provisions.
(a) Section 2.16(a) of the Credit Agreement is amended as follows:
(i) Clause (ii) is amended and restated in its entirety to
read as follows:
"(ii) the aggregate amount of the Letter of Credit
Liabilities for all Performance Letters of Credit shall
not exceed $5,000,000".
(ii) The following proviso is inserted at the end of the
third sentence:
", and provided further that no Letter of Credit shall
be issued to replace, in whole or in part, directly or
indirectly, the Harris Bank LC".
(b) Section 2.16(c) of the Credit Agreement is amended by amending
and restating the first sentence thereof in its entirety to read
as follows:
"The Borrower shall pay to the Agent a letter of credit
fee at a per annum rate equal to the Applicable
Euro-Dollar Margin multiplied by the aggregate amount
available for drawings under each Letter or Credit
issued from time to time, any such fee to be payable for
the account of the Banks ratably in proportion to their
respective Tranche A Commitment Percentages."
SECTION 4. Amendment to Scheduled Commitment Reductions. Section 2.10(b)
of the Credit Agreement is amended as follows:
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Exhibit 10.24
(a) The mandatory reductions of the Commitments in March, 1999,
June, 1999 and September, 1999 shown therein are deleted and the
following mandatory reductions of the Commitments are inserted
in lieu therof:
"March 1999 $0
June 1999 $2,500,000
September 1999 $5,000,000
December 1999 $12,500,000
March 2000 $0
June 2000 $2,500,000
September 2000 $5,000,000
December 2000 $7,500,000".
(b) The proviso therein is amended and restated in its entirety to
read as follows:
"provided that if the Commitments shall be reduced at any time
after the Amendment No. 7 Effective Date in accordance with
Section 2.09 or 2.10(c) such reductions shall be applied to
decrease the amounts set forth above, first for any such
reductions prior to the December, 1999 Commitment Reduction
Date, to decrease by a maximum of $5,000,000 the aggregate
amount of reduction in Commitments required on the December,
1999 Commitment Reduction Date, second to decrease the amount of
the reduction in Commitments required on the Termination Date,
and thereafter to decrease the required amount of reduction in
Commitment in reverse chronological order."
SECTION 5. Amendment to Mandatory Commitment Reductions From
Dispositions of Real Estate Investments and Other Property. Section 2.10(c) of
the Credit Agreement is amended as follows:
(a) Clause (i) is amended and restated in its entirety to read as
follows:
"(i) immediately upon receipt by the Borrower or any Subsidiary
at any time of any proceeds from any Disposition of any Real
Estate Investment or any other real property of the Borrower or
any Subsidiary (including without limitations any proceeds
received by the Borrower or any Subsidiary as consideration for
the granting of any right or option providing for a Disposition
but excluding operating receipts from Real Estate Investments),
by an amount equal to (x) 100% of the Net Proceeds realized by
the Borrower or any Subsidiary in respect thereof until the
aggregate amount of Net Proceeds realized by the Borrower and
its Subsidiaries in respect of all Dispositions of Real Estate
Investments and other real property after the Amendment No.7
Effective Date equals
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Exhibit 10.24
$5,000,000, (y) 50% of the Net Proceeds realized by the Borrower
or any Subsidiary in respect thereof to the extent that the
aggregate amount of Net Proceeds realized by the Borrower and
its Subsidiaries in respect of all Dispositions of Real Estate
Investments and other real property after the Amendment No. 7
Effective Date exceeds $5,000,000 but is less than $6,000,000,
and (z) 33-1/3% of the Net Proceeds realized by the Borrower or
any Subsidiary in respect thereof to the extent that the
aggregate amount of Net Proceeds realized by the Borrower and
its Subsidiaries in respect of all Dispositions of Real Estate
Investments and other real property after the Amendment No. 7
Effective Date is at least $6,000,000."
(b) Clause (ii) is amended by inserting at the beginning of the
parenthetical contained therin, immediately before the word
"excluding", the following phrase:
"including without limitation any proceeds received by the
Borrower or any Subsidiary as consideration for the granting of
any right or option providing for a Disposition but".
SECTION 6. Amendment to Permit Certain Derivatives Obligations. Section
5.02(b) of the Credit Agreement is amended and restated in its entirety to read
as follows:
"The Borrower will not, and will not permit any of its
Subsidiaries to, become a party to any Derivatives Obligation
other than interest rate swap, interest rate cap, interest rate
collar or other interest rate hedging transactions and/or any
foreign currency exchange or other currency hedging
transactions, but only if (x) each such transaction is with a
Bank or an Affiliate of a Bank, (y) each such transaction is
entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any of its Subsidiaries
is exposed in the conduct of its business or the management of
its liabilities, and (z) the aggregate notional amount of
obligations for which the interest rate or currency exposure is
hedged by all such transactions does not at any time exceed
$2,500,000."
SECTION 7. Amendment to Debt Covenant. Section 5.08(a)(vii) of the
Credit Agreement is amended by amending and restating subclause (x) in the
proviso thereof in its entirety to read as follows:
"(x) Modified Parent Company Debt shall not at any time exceed
$120,000,00".
SECTION 8. Amendment to Minimum Consolidated Adjusted Tangible Net Worth
Covenant. Section 5.09 of the Credit Agreement is amended by adding the
following at the end thereof:
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Exhibit 10.24
"March 31, 2000 $128,000,000
June 30, 2000 $132,000,000
September 30, 2000 $136,000,000
December 31, 2000 $140,000,000".
SECTION 9. Amendment to Minimum Operating Cash Flow Covenant. Section
5.10 is amended and restated in its entirety to read as follows:
"SECTION 5.10. Minimum Operating Cash Flow. The Borrower shall
not permit Operating Cash Flow to be less than $15,000,000 for
any of: (i) the period of four consecutive fiscal quarters
ending March 31, 1999, (ii) the period of five consecutive
fiscal quarters ending June 30, 1999 and (iii) the period of
four consecutive fiscal quarters endings September 30, 1999. The
Borrower shall not permit Operating Cash Flow to be less than
$20,000,000 for any period of four consecutive fiscal quarters,
beginning with the four consecutive fiscal quarters ending
December 31, 1999."
SECTION 10. Amendment to Asset Sale Covenant. Section 5.12(b) of the
Credit Agreement is amended as follows:
(a) The introductory phrase "The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise
dispose of any of its or their assets, other than:" is changed
to "The Borrower will not, and will not permit any of its
Subsidiaries to, Dispose of any of its or their assets, other
than:"; and
(b) Clause (iii) is amended by amending and restating subclause (A)
therein in its entirety to read as follows:
"(A) a Disposition of any asset if the aggregate amount of the
fair market value of all Dispositions for which consent is not
provided during any fiscal year is less than $500,000 and the
Borrower delivers to each of the Banks prompt written notice of
each such Disposition or".
SECTION 11. Amendment to Restricted Payments Covenant. Section 5.14(c)
of the Credit Agreement is amended by deleting "$90,000,000" in clause (ii) and
inserting in lieu thereof "$75,000,000".
SECTION 12. Amendment to Real Estate Investments Convenant. Section 5.15
of the Credit Agreement is amended by deleting the maximum amount of Real Estate
Investments permitted during the fiscal year ended December 31, 1999 shown
therein and inserting the following maximum amounts of Real Estate Investments
in lieu thereof:
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Exhibit 10.24
"December 31, 1999 $6,000,000
December 31, 2000 $3,900,000".
SECTION 13. Amendment to Events of Default. Section 6.01 of the Credit
Agreement is amended by (i) deleting the word "or" at the end of subsection (m)
thereof, (ii) adding the word "or" at the end of subsection (n) thereof and
(iii) inserting the following new subsection (o):
"(o) the Rincon Restructuring shall not have become effective on
or before April 30, 1999, or the Borrower shall fail to perform
any of its obligations under Section 15 of the Amendment No. 7
to Credit Agreement within ten days after written notice thereof
has been given to the Borrower by the Agent at the request of
the Required Banks;".
SECTION 14. Amendment Fee. In consideration for this Amendment, the
Borrower agrees to pay the Agent, for the account of each Bank in proportion to
its aggregate Commitments, a fee equal to 0.50% of such Bank's aggregate
Commitments, of which one-half shall be payable no later than the Amendment No.
7 Effective Date and one-half shall be payable on the last Domestic Business Day
of May, 2000; provided that the Borrower shall not be required to pay the
portion of such fee payable on the last Domestic Business Day of May 2000 if
prior to such date all principal, interest, fees and other amounts outstanding
or payable under the Credit Agreement and all other Financing Documents shall
have been paid and all Letters of Credit and Commitments shall have expired or
been terminated. It shall be an Event of Default pursuant to Section 6.01(a) of
the Credit Agreement if the Borrower shall fail to pay any such amount when due.
SECTION 15. Restructuring of the Rincon Agreements.
(a) The Borrower agrees to pay the Agent, for the account of each
Bank in proportion to its aggregate Commitments, a fee equal to
$150,000 on the date when the Rincon Restructuring shall become
effective. This fee shall be payable whether or not the fee
required by Section 15(b) shall have become payable or been
paid.
(b) The Borrower agrees to pay the Agent, for the account of each
Bank in proportion to its aggregate Commitments, a fee equal to
$50,000 if the Rincon Restructuring does not become effective on
or before April 30, 1999.
(c) The Borrower shall hold a meeting for representatives of the
Banks during each month from April 1999 until the completion of
the Rincon Restructuring, at a time and place to be determined
by the Agent (after consultation with the Banks) on ten Domestic
Business Days' notice to the Borrower and the Banks, for the
purpose of discussing the status of the Rincon Restructuring
with such of the Borrower's officers,
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Exhibit 10.24
employees and advisors as the Borrower shall designate or as the
Agent shall designate at the reasonable request of any Bank.
SECTION 16. Consent to Amendment of Management Agreement. Each Bank
consents to an amendment of the Management Agreement to (a) extend the specified
date for termination of the Management Agreement until December 31, 999 and (b)
increase the number of shares issuable upon exercise of the options granted
thereunder from 150,000 shares of common stock to 225,000 shares.
SECTION 17. Consents to Amendments of Financing Documents. Each Bank
(a) consents to the amendments to the Collateral Documents and
Subsidiary Guarantee Agreement set forth in the Global Amendment
to Collateral Documents and Subsidiary Guarantee dated as of
March 23, 1999, substantially in the form of Exhibit A hereto
(the "Global Amendment");
(b) consents to the amendments to the Mortgages, in each case
substantially in the form of Exhibit B hereto (collectively, the
"New Mortgage Amendments");
(c) agrees that the Agent is authorized to execute and deliver the
Global Amendment and New Mortgage Amendments upon its receipt of
duly executed counterparts hereof signed by each Bank (or, in
the case of any Bank as to which an executed counterpart shall
not have been received, the Agent shall have received
telgraphic, telex or other written confirmation from such party
of execution of a counterpart hereof by such party).
SECTION 18. Representations and Warranties Correct; No Default.
(a) The Borrower and each Subsidiary Guarantor represents and
warrants that on and as of the date hereof, after giving effect
to this Amendment, (a) the representations and warranties of
each Obligor contained in each Financing Document, as amended,
to which it is a party are true and (b) no Default under the
Credit Agreement exists, other than a Default that arises by
reason of the defaults and/or "Events of Default" described in
the July 2, 1998 or October 2, 1998 letter from Citicorp Real
Estate, Inc. to Rincon Center Associates.
(b) Except as set forth in Schedule 18(b), the Borrower and each
Subsidiary Guarantor represents and warrants that on and as of
the date hereof, all of the information set forth in the
Perfection Certificates (as defined in the Borrower Security
Agreement or Subsidiary Security Agreement, as the case may be)
of the Borrower and each Subsidiary Guarantor is correct and
complete.
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Exhibit 10.24
SECTION 19. Effect of Amendments. Except as expressly set forth herein,
the amendments contained herein shall not constitute an amendment or waiver of
any term or condition of the Credit Agreement or of any other Financing
Document, and all such terms and conditions shall remain in full force and
effect and are hereby ratified and confirmed in all respects.
SECTION 20. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 21. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 22. Consent by Subsidiary Guarantors. By signing this Amendment
below, each Subsidiary Guarantor affirms its obligations under the Subsidiary
Guarantee Agreement and acknowledges that this Amendment shall not alter,
release, discharge or otherwise affect any of such obligations, all of which
shall remain in full force and effect and are hereby ratified and confirmed in
all respects.
SECTION 23. Effectiveness. This Amendment shall become effective as of
the date hereof when the Agent shall have received:
(a) dully executed counterparts hereof signed by the Borrower, each
Bank, the Agent and each Subsidiary Guarantor (or, in the case
of any party as to which an executed counterpart shall not have
been received, the Agent shall have received telegraphic, telex
or other written confirmation from such party of execution of a
counterpart hereof by such party);
(b) duly executed counterparts of the Global Amendment and New
Mortgage Amendments, in each cash signed by the parties thereto;
(c) for the account of each Bank in proportion to its aggregate
Commitments, the one-half of the restructuring fee payable under
Section 14;
(d) evidence satisfactory to the Agent that arrangements
satisfactory to it have been made for recording of the New
Mortgage Amendments;
(e) an endorsement to each title insurance policy delivered to the
Agent pursuant to the Credit Agreement insuring that the
coverage under such policy is unaffected by this Amendment and
the New Mortgage Amendments; and
(f) opinion or opinions of counsel for the Borrower, in form and
substance satisfactory to the Administrative Agent, covering
such matters relating
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Exhibit 10.24
to this Amendment and the transaction contemplated hereby as the
Administrative Agent or the Required Banks may reasonably
request.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the date first above
written.
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