AMENDMENT NO. 8 TO CREDIT AGREEMENT AND WAIVERS
AMENDMENT and WAIVERS dated as of July 19, 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 Morgan Guaranty Trust Company of
New York, as Agent, are parties to an Amended and Restated Credit Agreement
dated as of January 17, 1997 (as heretofore amended, the "Credit Agreement");
WHEREAS, the parties have agreed to amend certain provisions of the
Credit Agreement as provided herein, and at the request of the Borrower the
Banks have agreed to grant the waivers provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. 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. Amendment to Application of Mandatory Commitment Reductions.
Section 2.10(b) of the Credit Agreement is amended by deleting the reference to
"$5,000,000" in the proviso therein and inserting "$7,500,000" in lieu thereof.
SECTION 3. 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
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Exhibit 10.25 Investment or any other real property of the
Borrower or any Subsidiary (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 excluding operating receipts from Real
Estate Investments), by an amount equal to 100% of the Net
Proceeds realized by the Borrower or any Subsidiary in respect
thereof."
(b) Clause (ii) is amended by:
(i) deleting in subclause (C) thereof "80%" and inserting "100%" in
lieu thereof; and
(ii) deleting the phrase "at which time the Commitments shall be
reduced by 80% of $125,000 (i.e., $100,000) or 80% of such
higher integral multiple of $125,000, as the case may be" and
inserting in its place the following phrase:
"at which time the Commitments shall be reduced by $125,000 or
such higher integral multiple of $125,000, as the case may be."
SECTION 4. Amendment to Eliminate Limitation on Fees and Expenses of
Independent Public Accountants, Financial Advisors and Other Experts. Section
9.03(a) of the Credit Agreement is amended by deleting the entire parenthetical
containing the proviso in clause (i) thereof.
SECTION 5. Bank Meeting. The Borrower agrees to hold a meeting prior to
September 10, 1999, and that its Chairman, the chairman of the special committee
of the Borrower's Board of Directors appointed to consider refinancing
alternatives, the other members of such special committee to the extent such
other members are available and other members of the Borrower's senior
management will be present at the meeting, to discuss the Borrower's cash flow
projections for the remainder of 1999 and 2000-2002, the status of the Rincon
Center project and a proposal for refinancing the Borrower's obligations under
the Financing Documents, including the proposed capital structure for the
Borrower. If requested by any Bank prior to such meeting, the Borrower will
ensure that any financial advisor retained by such special committee and Richard
C. Blum will be present at appropriate times during such meeting. Any failure by
the Borrower to comply with this Section 5 shall constitute an Event of Default.
SECTION 6. Waivers With Respect to the Rincon. Solely for the period
from the date hereof through and including the "Rincon Waivers Termination Date"
(as defined below), each Bank waives the Defaults (including notice thereof)
arising under the Credit Agreement solely as a result of the fact that:
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Exhibit 10.25
(i) the Rincon Restructuring shall not have become effective on or
before April 30, 1999;
(ii) the Borrower's shall have failed to comply with its obligations
under Section 5.02 of the Credit Agreement, but solely to the
extent such obligations would require the Borrower to cause
Perini Land and Development and Rincon Center Associates to pay
and discharge, at or before maturity, all of their respective
material obligations and liabilities relating to the Rincon
Center project;
(iii) Rincon Center Associates shall have failed to make any payment
in respect of Debt relating to the Rincon Center project; or
(iv) any event or condition shall occur which results in the
acceleration of the maturity of any Debt of Rincon Center
Associates relating to the Rincon Center project 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.
These waivers do not affect the Borrower's obligation to pay the
$300,000 fee that was to be payable if the Rincon Restructuring
did not become effective on or before July 16, 1999, as required
by Section 3(b) of Waiver No. 2 With Respect to the Rincon
Restructuring dated as of May 15, 1999.
As used herein, "Rincon Waivers Termination Date" means the earlier of
September 30, 1999 and the first date, if any, when any of the following events
shall occur:
(i) The Borrower or Perini Land and Development shall become a named
party in any proceeding relating to the Rincon Center project,
other than the proceeding commenced by Pacific Gateway
Properties, Inc., Case No. 301993 (the "PGP Lawsuit");
(ii) Any development occurs in the PGP Lawsuit that is adverse to the
Borrower or Perini Land and Development;
(iii) An Event of Default described in Section 6.01(i) shall occur
with respect to Rincon Center Associates, other than an Event of
Default arising solely from Rincon Center Associates' failure
generally to pay its debts as they become due; and
(iv) An involuntary case or other proceeding shall be commenced
against Rincon Center Associates seeking liquidation,
reorganization or other relief with
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Exhibit 10.25
respect to it or its debts under any bankruptcy, insolvency or
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 material part of its
property.
SECTION 7. Waiver of Minimum Consolidated Adjusted Tangible Net Worth
Covenant. The Banks hereby waive the Borrower's obligations to comply with
Section 5.09 of the Credit Agreement through and including the Rincon Waivers
Termination Date. This waiver shall not affect the Borrower's obligation to
comply with Section 5.09 of the Credit Agreement for any other period specified
therein.
SECTION 8. Waiver of Condition to Borrowings. Solely for Borrowings on
any date from the date hereof through and including the Rincon Waivers
Termination Date, the Banks hereby waive the condition to Borrowing contained in
Section 3.02(d) of the Credit Agreement, but only to the extent such condition
cannot be satisfied due solely to the inability of the Borrower to make the
representation and warranty contained in Section 4.04(c) of the Credit Agreement
as a result of the write-down of its investment in the Rincon Center project.
The Banks acknowledge that a Borrowing on any day from the date hereof through
and including the Rincon Waivers Termination Date shall not be deemed to be a
representation and warranty by the Borrower on such date as to the condition
specified in Section 3.02(d) to the extent that such condition is waived
hereunder.
SECTION 9. Representations and Warranties Correct; No Default. The
Borrower represents and warrants that on and as of the date hereof (a) the
representations and warranties of each Obligor contained in each Financing
Document, as amended, to which it is a party are true, other than the
representation and warranty contained in Section 4.04(c) of the Credit Agreement
to the extent that the Borrower cannot make such representation and warranty due
solely to the status of the Rincon Center project and (b) no Default under the
Credit Agreement exists.
SECTION 10. Effect of Amendments and Waivers. Except as expressly set
forth herein, the amendments and waivers contained herein shall not constitute
an amendment or waiver of any term or condition of the Credit Agreement or 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 11. Governing Law. This Amendment and Waiver shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 12. Counterparts. This Amendment and Waiver 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.
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Exhibit 10.25
SECTION 13. Consent by Subsidiary Guarantors. By signing this Amendment
and Waiver below, each Subsidiary Guarantor affirms its obligations under the
Subsidiary Guarantee Agreement and acknowledges that this Amendment and Waiver
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 14. Effectiveness. This Amendment and Waiver shall become
effective as of the date hereof when the Agent shall have received:
(a) duly executed counterparts hereof signed by the Borrower, each
Bank 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); and
(b) the $300,000 fee payable in accordance with Section 3(b) of
Waiver No. 2 With Respect to the Rincon Restructuring dated as
of May 15, 1999.
SECTION 15. Effect of Rincon Waivers Termination Date. The waivers
granted pursuant to Sections 6, 7 and 8 shall terminate and be of no further
force and effect on the Rincon Waivers Termination Date. The Banks shall retain,
and upon such termination the Banks shall be entitled to exercise, any and all
rights and remedies with respect to the Defaults waived pursuant thereto.
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Exhibit 10.25
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waivers to be duly executed by their respective authorized officers as of the
date first above written.