Exhibit 10.29
Execution Original
PERINI CORPORATION
FIRST AMENDMENT AND WAIVER
THIS FIRST AMENDMENT AND WAIVER
(this “ Amendment ”) is entered into as of
February 23, 2006 (the “Effective Date
”) by and among PERINI CORPORATION , a Massachusetts
corporation (the “ Borrower ”), with its chief
executive office at 73 Mt. Wayte Avenue, Framingham,
Massachusetts 01701, BANK OF AMERICA, N.A. , as
Administrative Agent (the “ Agent ”), and the
Lenders under the Credit Agreement, as defined below. Capitalized
terms not otherwise defined herein shall have the meanings ascribed
to them in the Credit Agreement, as defined below.
R E C I T A L S
WHEREAS, the Borrower, the Agent
and the Lenders have previously entered into an Amended and
Restated Credit Agreement dated as of October 14, 2005
(the “ Credit Agreement ”);
WHEREAS, the Borrower has
requested that a waiver of the Borrower’s compliance with
Section 5.07(a) (“Minimum Net Operating Profit”),
Section 5.07(b) (“Minimum Fixed Charge Coverage Ratio”)
and Section 5.07(c) (“Minimum Consolidated Net
Income”) of the Credit Agreement (the “ Specified
Financial Covenants ”) for the Borrower’s fiscal
period ending December 31, 2005 (the “ Fiscal
Period ”) be granted and that certain modifications be
made to the Credit Agreement, and the Lenders have agreed to grant
such waiver and permit such modifications to the Credit Agreement
on the terms and conditions set forth herein;
NOW THEREFORE, in consideration
of the foregoing premises and the mutual benefits to be derived by
the Borrower, the Agent and the Lenders from a continuing
relationship under the Credit Agreement and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged:
A.
Amendments to Credit Agreement . The parties hereto agree
that the Credit Agreement is hereby amended as follows:
1.
For the purposes of calculating the financial covenants set forth
in each of Section 5.07(a) ("Minimum Net Operating Profit"),
Section 5.07(b) ("Minimum Fixed Charge Coverage Ratio") and
Section 5.07(c) ("Minimum Consolidated Net Income") of the
Credit Agreement for the Borrower's fiscal quarters ending December
31, 2005, March 31, 2006, June 30, 2006 and September 30, 2006, any
amount up to $40,390,434.35 in the aggregate that would otherwise
be required to be included in such calculations as a result of the
adverse judgment entered against the Borrower by the U.S. District
Court for the District of Columbia on November 28, 2005 in the
matter of Mergentime Corporation, et. al. vs. Washington
Metropolitan Area Transit Authority shall be
disregarded.
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2.
Section 5.01(g) of the Credit Agreement is hereby amended by
inserting the phrase "If requested by the Agent," at the beginning
thereof.
B.
Representations and Warranties . The Borrower represents and
warrants to the Agent and the Lenders that: (a) the Borrower has
the full power and authority to execute, deliver and perform its
respective obligations under, the Credit Agreement, as amended by
this Amendment, (b) the execution and delivery of this Amendment
has been duly authorized by all necessary action of the Board of
Directors of the Borrower; (c) after giving effect to this
Amendment, the representations and warranties contained or referred
to in Article IV of the Credit Agreement are true and accurate in
all material respects as if such representations and warranties
were being made as of the date of this Amendment without giving
effect to any earlier date referenced therein with respect thereto;
and (d) other than the Borrower's failure to comply with the
Specified Financial Covenants for the Fiscal Period (the "
Covenant Def
