Exhibit 10.3
LOAN AGREEMENT
Agreement, dated the 5th day of September, 2001, by and among Michael Baker
Corporation, a Pennsylvania corporation ("MBC"), Michael Baker, Jr., Inc., a
Pennsylvania corporation ("Michael Baker Jr."), Baker/MO Services, Inc., a Texas
corporation ("Baker/MO"), Baker/OTS, Inc., a Delaware corporation ("Baker/OTS"),
Baker Engineering NY, Inc., a New York corporation ("Baker NY"), (each a
"Borrower" and collectively, the "Borrowers"), Mellon Bank, N.A., a national
banking association ("Mellon"), National City Bank of Pennsylvania, a national
banking association ("NCB"), and Fifth Third Bank, a national banking
association, ("Fifth Third") (each a "Bank" and collectively, the "Banks"), and
Mellon Bank, N.A., as agent for the Banks (in such capacity, the "Agent").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain First Amended and Restated Loan
Agreement, dated September 27, 2000, by and among the Borrowers, Baker
GeoResearch, Inc., a District of Columbia corporation ("Baker GeoResearch"),
Baker Environmental, Inc., a Pennsylvania corporation ("Baker Environmental"),
Baker Engineering, Inc., an Illinois corporation ("Baker Engineering"), Baker
Global Project Services, Inc., a Delaware corporation ("Baker Global"), and
Mellon, Mellon extended to the Borrowers, Baker GeoResearch, Baker
Environmental, Baker Engineering and Baker Global a revolving credit facility in
the original principal amount not to exceed Twenty Million and 00/100 Dollars
($20,000,000.00) (the "Prior Loan Agreement"); and
WHEREAS, the Borrowers have requested that the Banks extend credit to the
Borrowers pursuant to a revolving credit facility in an aggregate principal
amount not to exceed Forty Million and 00/100 Dollars ($40,000,000.00), the
proceeds of which will be used to pay to Mellon amounts due to Mellon under the
Prior Loan Agreement and for general corporate purposes, working capital and
Acquisitions (as hereinafter defined); and
WHEREAS, the Banks are willing to extend such credit to the Borrowers
pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained in this Agreement, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Definitions. In addition to other words and terms defined
elsewhere in this Agreement, the following words and terms have the following
meanings, respectively, unless the context otherwise clearly requires:
"Acquisition" shall mean any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the
assets of any Person, or any business or division of any Person, (b) the
acquisition of in excess of fifty percent (50%) of the capital stock (or other
equity interest) of any Person, or (c) the acquisition of another Person (other
than a Subsidiary) by a merger or consolidation or any other combination with
such Person.
"Advantage" shall mean any payment (whether made voluntarily or
involuntarily by offset of any deposit or other Indebtedness or otherwise)
received by any Bank in respect of the Indebtedness evidenced by the Notes, if
such payment results in that Bank having less than its Pro Rata Share of the
Indebtedness to the Banks pursuant to this Agreement than was the case
immediately before such payment.
"Affiliate" shall mean, with respect to any Borrower, any Person that
directly or indirectly controls, is controlled by or is under common control
with such Borrower. The term "control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" shall mean Mellon, in its capacity as agent for the Banks under the
Loan Documents and any successor appointed pursuant to the provisions of this
Agreement.
"Agreement" shall mean this Agreement, as amended, modified or supplemented
from time to time.
"Applicable L/C Margin" shall mean that as set forth in Section 2.06
hereof.
"Applicable Libor Margin" shall mean that as set forth in Section
2.02(a)(ii) hereof.
"Applicable Margin" shall mean the Applicable Libor Margin or the
Applicable Prime Margin, as the case may be.
"Applicable Prime Margin" shall mean that as set forth in Section
2.02(a)(ii) hereof.
"Applicable Rate" shall mean, as of the date of determination, the Prime
Rate plus the Applicable Prime Margin or the Libor Rate plus the Applicable
Libor Margin, as the case may be.
"Assignment Agreement" shall mean that as set forth in Section 8.17(A)(iv)
hereof.
"Authorized Representative" shall mean each Person designated from time to
time, as appropriate, in writing by the Borrowers to the Agent for the purposes
of giving notices of borrowing, conversion or continuation of Loans, which
designation shall continue in force and effect until terminated in writing by
the Borrowers to the Agent.
"Baker Environmental" shall mean that as set forth in the recitals hereto.
"Baker Engineering" shall mean that as set forth in the recitals hereto.
"Baker GeoResearch" shall mean that as set forth in the recitals hereto.
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"Baker Global" shall mean that as set forth in the recitals hereto.
"Baker NY" shall mean that as set forth in the preamble hereof.
"Baker/Mellon Stuart" shall mean Baker/Mellon Stuart Construction, Inc., a
Pennsylvania corporation.
"Baker/Mellon Stuart/ADF Judgment" shall mean the judgment obtained by ADF
International, Inc. against Baker/Mellon Stuart in ADF International, Inc.
("ADF") v. Baker Mellon Stuart Construction, Inc. ("BMS") and Travelers Casualty
and Surety Co. of America, No. 6:98-cv-1310-Orl-22B (M.D. Fla.).
"Baker/MO" shall mean that as set forth in the preamble hereof.
"Baker/OTS" shall mean that as set forth in the preamble hereof.
"Bank" or "Banks" shall mean, singularly or collectively as the context may
require, (i) Mellon Bank, N.A., a national banking association with an office
located at Two Mellon Bank Center, Pittsburgh, Pennsylvania 15259; (ii) National
City Bank of Pennsylvania with an office located at National City Center, 20
Stanwix Street, Pittsburgh, Pennsylvania 15222; (iii) Fifth Third Bank, a
national banking association with an office located at Eleven Parkway Center,
Suite 375, Pittsburgh, Pennsylvania 15220; and/or (iv) the financial
institutions listed on the signature page hereof and their respective successors
and Eligible Assignees.
"Borrower" or "Borrowers" shall mean, singularly or collectively as the
context may require, MBC, Michael Baker Jr., Baker/MO, Baker/OTS and Baker NY.
"Business Day" shall mean a day of the year on which banks are not required
or authorized to close in Pittsburgh, Pennsylvania and, if the applicable
Business Day relates to a Libor Rate Loan, on which dealings are carried on in
the London interbank eurodollar market.
"Capital Expenditure" shall mean any expenditure made or liability incurred
which is, in accordance with GAAP, treated as a capital expenditure and not as
an expense item for the year in which it was made or incurred, as the case may
be.
"Capital Lease" shall mean any lease of any tangible or intangible property
(whether real, personal or mixed), however denoted, which is required by GAAP to
be reflected as a liability on the balance sheet of the lessee.
"Capitalized Lease Obligation" shall mean, with respect to each Capital
Lease, the amount of the liability reflecting the aggregate discounted amount of
future payments under such Capital Lease calculated in accordance with GAAP,
statement of financial accounting standards No. 13 (as supplemented and modified
from time to time), and any corresponding future interpretations by the
Financial Accounting Standards Board or any successor thereto.
"Change of Control" shall mean that (i) any Person (other than the Michael
Baker Corporation Employee Stock Ownership Plan and Trust) or group within the
meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as amended, as
in effect on the date of this Agreement,
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has become the owner of, directly or indirectly, beneficially or of record,
shares representing more than fifty percent (50%) of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of MBC, or
(ii) during any period of twelve (12) consecutive calendar months, individuals
who were directors of MBC on the first day of such period, together with
individuals elected as directors by not less than a majority of the individuals
who were directors of MBC on the first day of such period, shall cease to hold
at least sixty percent (60%) of the total number of directors of MBC.
"Closing" shall mean the closing of the transactions provided for in this
Agreement on the Closing Date.
"Closing Date" shall mean September 5, 2001 or such other date upon which
the parties may agree.
"Code" shall mean the Internal Revenue Code of 1986 as amended, along with
the rules, regulations, decisions and other official interpretations in
connection therewith.
"Commitment" shall mean, with respect to each Bank, the amount set forth on
Schedule 1 attached hereto and made a part hereof as the amount of each Bank's
commitment to make Revolving Credit Loans and participate in the issuance of
Letters of Credit, as such amount may be modified from time to time pursuant to
Section 8.17(A) hereof. Schedule 1 shall be amended from time to time to reflect
modifications pursuant to Section 8.17(A) and any other changes to the
Commitment of the Banks.
"Commitment Percentage" shall mean, with respect to each Bank, the
percentage set forth on Schedule 1 attached hereto and made a part hereof as
such Bank's percentage of the aggregate Commitments of all of the Banks, as such
percentage may be changed from time to time in accordance with the terms and
conditions of this Agreement. Schedule 1 shall be amended from time to time to
reflect any changes to the Commitment Percentages.
"Consolidated" shall mean the resulted consolidation of the financial
statements of the Borrowers and their Subsidiaries in accordance with GAAP,
including principles of consolidation consistent with those applied in
preparation of the Consolidated financial statements referred to in Section 3.07
hereof.
"Costs in Excess of Billings" shall mean all items included as Cost of
Contracts in Progress and Estimated Earnings, Less Billings in the audited
financial statements of the Borrowers and their Subsidiaries submitted pursuant
to Section 5.01(a) hereof, in each case determined and Consolidated for the
Borrowers and their Subsidiaries in accordance with GAAP.
"Current Assets" shall mean, as of the date of determination, the
Consolidated current assets of the Borrowers and their Subsidiaries as
determined in accordance with GAAP.
"Current Liabilities" shall mean, as of the date of determination, the
Consolidated current liabilities of the Borrowers and their Subsidiaries
determined in accordance with GAAP, plus, without duplication, the Indebtedness
of the Borrowers incurred hereunder.
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"Current Ratio" shall mean, as of the date of determination, the ratio of
Current Assets to Current Liabilities.
"Distributions" shall mean, for the period of determination, (a) all
distributions of cash, securities or other property (other than capital stock)
on or in respect of any shares of any class of capital stock of any Borrower and
(b) all purchases, redemptions or other acquisitions by any Borrower of any
shares of any class of capital stock of such Borrower, in each case determined
and Consolidated for the Borrowers and their Subsidiaries in accordance with
GAAP, excepting specifically the conversion and/or exchange of any class of
capital stock of any Borrower into or for any other class of capital stock of
such Borrower.
"EBITDA" shall mean, for the period of determination, (i) Net Income, plus
(ii) Interest Expense, plus (iii) all income taxes included in Net Income, plus
(iv) depreciation, depletion, amortization, and all other non-cash expenses
included in Net Income, in each case determined and Consolidated for the
Borrowers in accordance with GAAP.
"EBITR" shall mean, for the period of determination, (i) Net Income, plus
(ii) Interest Expense, plus (iii) all income taxes included in Net Income, plus
(iv) all Rent Expense, in each case determined and Consolidated for the
Borrowers and their Subsidiaries in accordance with GAAP.
"Eligible Assignee" shall mean any commercial bank or non-bank financial
institution organized under the United States of America or any state thereof
including, without limitation, any insurance company, savings bank or savings
and loan association, having total assets in excess of One Billion Dollars
($1,000,000,000.00).
"Environmental Laws" shall mean that as set forth in Section 3.13(a)
hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
in effect as of the date of this Agreement and as amended from time to time in
the future.
"ERISA Affiliate" shall mean a Person which is under common control with a
Borrower within the meaning of Section 414(b) of the Code including, but not
limited to, a Subsidiary of such Borrower.
"Event of Default" shall mean any of the Events of Default described in
Section 7.01 of this Agreement.
"Excess Amount" shall mean that as set forth in Section 2.01(d) hereof.
"Excess Interest" shall mean that as set forth in Section 2.02(c) hereof.
"Existing Letters of Credit" shall mean that as set forth in Section 2.05
hereof.
"Expiry Date" shall mean September 30, 2003 or such earlier date on which
the Revolving Credit Facility Commitment shall have been terminated pursuant to
this Agreement.
"Fifth Third" shall mean that as set forth in the preamble hereof.
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"Fifth Third Revolving Credit Note" shall mean the Revolving Credit Note,
dated of even date herewith, made by the Borrowers to Fifth Third, as amended,
modified or supplemented from time to time, together with all extensions,
renewals, refinancings or refundings thereof in whole or in part.
"Fiscal Quarter(s)" shall mean the period(s) of January 1 through March 31,
April 1 through June 30, July 1 through September 30, and October 1 through
December 31 of each calendar year or such other quarterly fiscal period as may
be approved by the Securities and Exchange Commission at the request of any
Borrower.
"GAAP" shall mean generally accepted accounting principles (as such
principles may change from time to time), which shall include the official
interpretations thereof by the Financial Accounting Standards Board, applied on
a consistent basis.
"Incentive Pricing Effective Date" shall mean that as set forth in Section
2.02(a)(ii) hereof.
"Indebtedness" shall mean, for any Borrower or its Subsidiaries (i) all
obligations for borrowed money, direct or indirect, incurred, assumed, or
guaranteed (including, without limitation, all notes payable and drafts accepted
representing extensions of credit, all obligations evidenced by bonds,
debentures, notes or similar instruments, all obligations on which interest
charges are customarily paid, all obligations under conditional sale or other
title retention agreements, all obligations for the deferred purchase price of
capital assets and all obligations issued or assumed as full or partial payment
for property), (ii) all obligations secured by any Lien existing on property
owned or acquired subject thereto, whether or not the obligations secured
thereby shall have been assumed (excluding specifically all obligations under
Operating Leases), (iii) all reimbursement obligations (contingent or
otherwise), (iv) all indebtedness represented by obligations under a Capital
Lease and the amount of such indebtedness shall be the Capitalized Lease
Obligations with respect to such Capital Lease, (v) all obligations (contingent
or otherwise) under any letter of credit, banker's acceptance, guaranty,
indemnification agreement or interest rate protection agreement, (vi) all
obligations to advance funds to, or to purchase assets, property or services
from, any other Person in order to maintain the financial condition of such
Person and (vii) any other transaction (including forward sale or purchase
agreements) having the commercial effect of a borrowing of money entered into by
such Borrower to finance its operations or capital requirements; provided,
however, that the term "Indebtedness" shall not include any sums due and owing,
or that may become due and owing, from any Borrower or its Subsidiaries arising
out of or related to the Baker/Mellon Stuart/ADF Judgment or any appeal thereof.
"Indemnitees" shall mean that as set forth in Section 9.16 hereof.
"Indemnified Liabilities" shall mean that as set forth in Section 9.16
hereof.
"Interest and Rent Coverage Ratio" shall mean, as of the date of
determination, the ratio of (i) EBITR to (ii) the sum of all Interest Expense
and Rent Expense.
"Interest Expense" shall mean, for the period of determination, all
interest accruing during such period on Indebtedness, including, without
limitation, all interest required under GAAP
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to be capitalized during such period, in each case determined and Consolidated
for the Borrowers and their Subsidiaries in accordance with GAAP.
"Interest Period" shall mean, with respect to any Libor Rate Loan, the
period commencing on the date such Loan is made as, continued as or converted
into a Libor Rate Loan and ending on the last day of such period as selected by
the Borrowers pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of such period, as selected by the Borrowers pursuant
to the provisions below. The duration of each Interest Period for any Libor Rate
Loan shall be for any number of months selected by the Borrowers upon notice as
set forth in Section 2.01(c), provided that:
(i) the Interest Period for any Libor Rate Loan shall be one (1), two
(2), three (3) or six (6) months or such other period as may be agreed upon by
the Borrowers and the Banks;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest Period
shall occur on the next succeeding Business Day, provided that if such extension
of time would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the last Business Day immediately preceding the last day of such Interest
Period;
(iii) if the Borrowers continue any Libor Rate Loan for an additional
Interest Period, the first day of the new Interest Period shall be the last day
of the preceding Interest Period; however, interest shall only be charged once
for such day at the rate applicable to the Libor Rate Loan for the new Interest
Period;
(iv) if the Borrowers fail to so select the duration of any Interest
Period, the duration of such Interest Period shall be one (1) month; and
(v) the last day of any Interest Period shall not occur after the
Expiry Date.
"Law" shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of
any Official Body.
"Letter of Credit" or "Letters of Credit" shall mean, singularly or
collectively as the context may require, the letters of credit issued in
accordance with Section 2.05 hereof.
"Letter of Credit Commission" shall mean that as set forth in Section 2.06
hereof.
"Letter of Credit Face Amount" shall mean, for each Letter of Credit, the
face amount of such Letter of Credit.
"Letter of Credit Related Documents" shall mean any agreements or
instruments relating to a Letter of Credit.
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"Letter of Credit Reserve" shall mean, at any time, an amount equal to (a)
the aggregate Letter of Credit Undrawn Availability at such time plus, without
duplication, (b) the aggregate amount theretofore paid by the issuer under the
Letters of Credit and not debited to the Borrowers' account or otherwise
reimbursed by the Borrowers.
"Letter of Credit Undrawn Availability" shall mean, at any time, the
maximum amount available to be drawn at such time under all then outstanding
Letters of Credit, including any amounts drawn thereunder and not reimbursed,
regardless of the existence or satisfaction of any conditions or limitations on
drawing.
"Leverage Ratio" shall mean, as of the date of determination, the ratio of
(i) Indebtedness, as Consolidated for the Borrowers and their Subsidiaries in
accordance with GAAP, to (ii) EBITDA.
"Libor Rate" shall mean, for any Interest Period, a fixed rate per annum
(rounded upwards to the next higher whole multiple of 1/100% if such rate is not
such a multiple) equal at all times during such Interest Period to the quotient
of (a) the rate per annum determined in good faith by the Agent in accordance
with its customary procedures (which determination shall be conclusive absent
manifest error) to be the average of the rates per annum (rounded upwards to the
next higher whole multiple of 1/100% if such rate is not such a multiple) at
which deposits in immediately available United States Dollars are offered at
11:00 a.m. (London, England time) (or as soon thereafter as is reasonably
practicable) to major money center banks by prime banks in the London interbank
eurodollar market three (3) Business Days prior to the first day of such
Interest Period in an amount and maturity equal to the amount and maturity of
such Libor Rate Loan, divided by (b) a number equal to 1.00 minus the aggregate
(without duplication) of the rates (expressed as a decimal fraction) of the
Libor Reserve Requirements.
"Libor Rate Loan" shall mean any Loan that bears interest with reference to
the Libor Rate.
"Libor Reserve Requirements" shall mean, for any day of any Interest Period
for a Libor Rate Loan, the percentage (rounded upward to the next higher whole
multiple of 1/100% if such rate is not such a multiple) as determined in good
faith by the Agent in accordance with its customary procedures (which
determination shall be conclusive absent manifest error) as representing the
maximum reserves (whether basic, supplemental, marginal, emergency or otherwise)
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) with respect to liabilities or assets consisting of or including
"Eurocurrency Liabilities" (as defined in Regulation D of the Board of Governors
of the Federal Reserve System) in an amount and for a maturity equal to such
Libor Rate Loan and such Interest Period. The Libor Rate shall be adjusted
automatically as of the effective date of each change in the Libor Reserve
Requirements.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
including, but not limited to, any conditional sale or title retention
arrangement, and any assignment, deposit arrangement (other than escrow
deposits) or lease intended as, or having the effect of, security.
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"Loan" or "Loans" shall mean, singularly or collectively as the context may
require, the Revolving Credit Loans and any other credit to any Borrower
extended by any Bank in accordance with Article II hereof as evidenced by the
Notes, as the case may be.
"Loan Account" shall mean that as set forth in Section 2.14 hereof.
"Loan Document" or "Loan Documents" shall mean, singularly or collectively
as the context may require, (i) this Agreement, (ii) the Notes, (iii) the Notice
of Waiver of Rights, (iv) the Letters of Credit, (v) the Letter of Credit
Related Documents and (vi) any and all other documents, instruments,
certificates and agreements executed and delivered in connection with this
Agreement, as any of them may be amended, modified, extended or supplemented
from time to time.
"Majority Banks" shall mean the Banks whose Commitment Percentages
aggregate at least fifty-one percent (51%) of the Total Commitment Amount or, if
there is any borrowing hereunder, the holders of at least fifty-one percent
(51%) of the amount outstanding under the Notes.
"Material Adverse Change" shall mean a material adverse change in the (a)
business, operations or condition (financial or otherwise) of MBC and its
Subsidiaries taken as a whole; (b) the ability of the Borrowers, collectively,
to perform any of their payment or other material obligations under this
Agreement or any of the other Loan Documents to which they are a party; or (c)
the legality, validity, or enforceability of the obligations of any Borrower
under this Agreement or any of the other Loan Documents.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations or condition (financial or otherwise) of MBC and its
Subsidiaries taken as a whole; (b) the ability of the Borrowers, collectively,
to perform any of their payment or other material obligations under this
Agreement or any of the other Loan Documents to which they are a party; or (c)
the legality, validity, or enforceability of the obligations of any Borrower
under this Agreement or any of the other Loan Documents.
"Maximum Rate" shall mean that as set forth in Section 2.02(c) hereof.
"MBC" shall mean Michael Baker Corporation, a Pennsylvania corporation.
"Measurement Quarter" shall mean that as set forth in Section 2.02(a)(ii)
hereof.
"Mellon" shall mean that as set forth in the preamble hereof.
"Mellon Revolving Credit Note" shall mean the Revolving Credit Note, dated
of even date herewith, made by the Borrowers to Mellon, as amended, modified or
supplemented from time to time, together with all extensions, renewals,
refinancings or refundings thereof in whole or in part.
"Michael Baker, Jr." shall have the meaning assigned to such term in the
preamble hereof.
"NCB" shall mean that as set forth in the preamble hereof.
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"NCB Revolving Credit Note" shall mean the Revolving Credit Note, dated of
even date herewith, made by the Borrowers to NCB, as amended, modified or
supplemented from time to time, together with all extensions, renewals,
refinancings or refundings thereof in whole or in part.
"Net Income" shall mean, for the period of determination, net income (after
taxes), excluding, however, extraordinary gains, in each case determined and
Consolidated for the Borrowers and their Subsidiaries in accordance with GAAP.
"Note" or "Notes" shall mean, singularly or collectively as the context may
require, the Mellon Revolving Credit Note, the NCB Revolving Credit Note, the
Fifth Third Revolving Credit Note and any other note of the Borrowers executed
and delivered pursuant to this Agreement, as any such note may be amended,
modified or supplemented from time to time, together with all extensions,
renewals, refinancings or refundings in whole or in part.
"Notice of Waiver of Rights" shall mean the Notice of Waiver of Rights
Regarding Warrants of Attorney, Execution Rights and Waiver of Rights to Prior
Notice and Judicial Hearing, dated of even date herewith, made by the Borrowers
to the Agent, as amended, modified or supplemented from time to time.
"Notices" shall mean that as set forth in Section 9.04 hereof.
"Office", when used in connection with (i) Mellon or the Agent, shall mean
its designated office located at Two Mellon Bank Center, Pittsburgh,
Pennsylvania 15259 or such other office of Mellon or the Agent as Mellon or the
Agent may designate in writing from time to time, or (ii) any other Bank, shall
mean its designated office identified on Schedule 1 attached hereto and made a
part hereof with respect to such Bank or such other office of such Bank as such
Bank may designate in writing from time to time.
"Official Body" means any government or political subdivision or any
agency, authority, bureau, central bank, board, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Operating Leases" shall mean all leases other than Capital Leases.
"Owners Equity" means, as of the date of determination, net worth, in each
case determined and Consolidated for the Borrowers and their Subsidiaries in
accordance with GAAP.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Title IV of ERISA.
"Person" shall mean an individual, corporation, limited liability company,
partnership, joint venture, trust, or unincorporated organization or government
or agency or political subdivision thereof.
"Plan" shall mean any deferred compensation program, including both single
and multi-employer plans, subject to Title IV of ERISA and established and
maintained for employees, officers or directors of any Borrower or any
Subsidiary or any ERISA Affiliate.
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"Potential Default" shall mean any event or condition which with notice or
passage of time, or any combination of the foregoing, would constitute an Event
of Default.
"Preference" shall mean that as set forth in Section 8.13 hereof.
"Prime Rate" shall mean that rate of interest per annum announced by the
Agent from time to time as its Prime Rate, which may not represent the lowest
rate charged by the Agent to other borrowers at any time or from time to time.
"Prime Rate Loan" shall mean any Loan that bears interest with reference to
the Prime Rate.
"Prior Loan Agreement" shall mean that as set forth in the recitals hereto.
"Pro Rata Share" shall mean, with respect to each Bank, its Commitment
Percentage.
"Prohibited Transaction" shall mean any transaction which is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"Register" shall mean that as set forth in Section 8.17(A)(vii) hereof.
"Rent Expense" shall mean all items included as rent expense in the audited
financial statements of the Borrowers and their Subsidiaries submitted pursuant
to Section 5.01(a) hereof, in each case determined and Consolidated for the
Borrowers and their Subsidiaries in accordance with GAAP; provided, however, for
any period of determination for which Rent Expense must be estimated in good
faith by the Borrowers in accordance with the terms of this Agreement, Rent
Expense shall be determined and Consolidated for the Borrowers and their
Subsidiaries in accordance with sound accounting principles.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder, except any such event as to
which the provision for thirty (30) days notice to the PBGC is waived under
applicable regulations.
"Reporting Quarter" shall mean that as set forth in Section 2.02(a)(ii)
hereof.
"Required Deductions" shall mean that as set forth in Section 2.13 hereof.
"Revolving Credit Commitment" shall mean, with respect to each Bank, the
amount set forth on Schedule 1 attached hereto and made a part hereof as the
amount of such Bank's commitment to make Revolving Credit Loans.
"Revolving Credit Facility Commitment" shall mean that as set forth in
Section 2.01(a) hereof.
"Revolving Credit Loans" shall mean that as set forth in Section 2.01(a)
hereof.
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"Revolving Credit Notes" shall mean the Mellon Revolving Credit Note, the
NCB Revolving Credit Note, the Fifth Third Revolving Credit Note and any other
Note executed and delivered to a Bank under this Agreement.
"Subsidiary" or "Subsidiaries" of a Borrower shall mean, singularly or
collectively as the context may require, (i) any corporation more than fifty
percent (50%) of whose capital stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation is owned (directly or indirectly) by such Borrower and/or one or
more Subsidiaries of such Borrower and (ii) any partnership, association, joint
venture or other entity in which such Borrower and/or one or more Subsidiaries
of such Borrower has more than a fifty percent (50%) equity interest; provided,
however, that with respect to the representations and warranties set forth in
Article III hereof only, the terms "Subsidiary" and "Subsidiaries", as they
relate to MBC, shall mean Michael Baker Jr., Baker/MO, Baker/OTS and Baker NY.
"Termination Event" shall mean (i) a Reportable Event, (ii) the termination
of a single employer Plan or the treatment of a single employer Plan amendment
as the termination of such Plan under Section 4041 of ERISA, or the filing of a
notice of intent to terminate a single employer Plan, or (iii) the institution
of proceedings to terminate a single employer Plan by the PBGC under Section
4042 of ERISA, or (iv) the appointment of a trustee to administer any single
employer Plan.
"Total Commitment Amount" shall mean the obligation of the Banks hereunder
to make Revolving Credit Loans up to the maximum aggregate principal amount of
Forty Million and 00/100 Dollars ($40,000,000.00).
1.02 Construction and Interpretation.
(a) Obligations of and References to Borrowers. Each and every
obligation of the Borrowers contained in this Agreement or any Loan Document,
whether or not expressly stated, shall be the joint and several obligations of
the Borrowers. Any and all references to the Borrowers contained in any
representation or covenant of the Borrowers' hereunder shall be a representation
or covenant with respect to each and every Borrower, both individually and
collectively.
(b) Construction. Unless the context of this Agreement otherwise
clearly requires, references to the plural include the singular, the singular
the plural, the part the whole and "or" has the inclusive meaning represented by
the phrase "and/or". References in this Agreement to "judgments" of the Agent
and the Banks include good faith estimates by the Agent and the Banks (in the
case of quantitative judgments) and good faith beliefs by the Agent and the
Banks (in the case of qualitative judgments). The definition of any document or
instrument includes all schedules, attachments, and exhibits thereto and all
renewals, extensions, supplements, restatements and amendments thereof.
"Hereunder", "herein", "hereto", "hereof", "this Agreement" and words of similar
import refer to this entire document; "including" is used by way of illustration
and not by way of limitation, unless the context clearly indicates to the
contrary; and any action required to be taken by any Borrower or all of the
Borrowers is to be taken promptly, unless the context clearly indicates to the
contrary.
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(c) Accounting Terms. Any accounting term not specifically defined in
Section 1.01 hereof shall have the meaning ascribed thereto by GAAP.
ARTICLE II
THE CREDIT FACILITY
2.01 Revolving Credit Facility Commitment.
(a) Revolving Credit Loans. Subject to the terms and conditions and
relying upon the representations and warranties set forth in this Agreement, the
Notes and the other Loan Documents, the Banks severally (but not jointly) agree
to make loans (the "Revolving Credit Loans") to the Borrowers at any time or
from time to time on or after the Closing Date and to and including the Business
Day immediately preceding the Expiry Date in an aggregate principal amount, when
combined with the aggregate Letter of Credit Undrawn Availability, which shall
not exceed at any one time outstanding Forty Million and 00/100 Dollars
($40,000,000.00) (the "Revolving Credit Facility Commitment"); provided,
however, that no Bank shall be required to make Revolving Credit Loans (or
participate in the issuance of Letters of Credit) in an aggregate principal
amount outstanding at any one time exceeding such Bank's Commitment Percentage.
The Revolving Credit Loans shall be made pro rata in accordance with each Bank
Commitment Percentage. Within the limits of time and amount set forth in this
Section 2.01, and subject to the provisions of this Agreement including, without
limitation, the Banks' right to demand repayment of the Revolving Credit Loans
upon the occurrence of an Event of Default, the Borrowers may borrow, repay and
reborrow under this Section 2.01; provided, however, that if the Borrowers
prepay any Libor Rate Loan on a day other than the last day of the applicable
Interest Period for such Libor Rate Loan, then the Borrowers shall comply with
the terms and conditions of Section 2.11(c) with respect to such prepayment.
(b) Revolving Credit Note. The joint and several obligations of the
Borrowers to repay the unpaid principal amount of the Revolving Credit Loans
made to the Borrowers by each Bank and to pay interest on the unpaid principal
amount thereof is evidenced in part by the Revolving Credit Notes of the
Borrowers, dated the Closing Date, in substantially the form of Exhibit "A"
attached hereto and made a part hereof, with the blanks appropriately filled.
Each Revolving Credit Note shall be payable to the order of a Bank in a
principal amount equal to such Bank's Revolving Credit Commitment. The executed
Revolving Credit Notes will be delivered by the Borrowers to the Banks on the
Closing Date.
(c) Making, Continuing or Converting of Revolving Credit Loans.
Subject to the terms and conditions set forth in this Agreement and the other
Loan Documents, and provided that the Borrowers have satisfied all applicable
conditions specified in Article IV hereof, the Banks shall make Revolving Credit
Loans to the Borrowers which, as selected by the Borrowers pursuant to this
Section 2.01(c), shall be Prime Rate Loans or Libor Rate Loans. In addition,
subject to the terms and conditions set forth below, the Borrowers shall have
the opportunity to (i) convert Prime Rate Loans into Libor Rate Loans, (ii)
convert Libor Rate Loans into Prime Rate Loans or (iii) continue Libor Rate
Loans as Libor Rate Loans for additional Interest Periods.
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(i) Each Revolving Credit Loan that is made as or converted (from
a Libor Rate Loan) into a Prime Rate Loan shall be made or converted on such
Business Day and in such amount as an Authorized Representative of the Borrowers
shall request by written or telephonic notice (confirmed promptly, but in no
event later than one Business Day thereafter, in writing) received by the Agent
no later than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the date of
requested disbursement of or conversion into the requested Prime Rate Loan.
Subject to the terms and conditions of this Agreement, on each borrowing date,
the Agent shall make the proceeds of the Prime Rate Loan available to the
Borrowers at the Agent's Office in immediately available funds not later than
2:00 p.m. (Pittsburgh, Pennsylvania time). Unless an Authorized Representative
of the Borrowers shall provide the Agent with the required written notice to
convert a Prime Rate Loan into a Libor Rate Loan on or prior to the third (3rd)
Business Day prior to the date of requested conversion, such Prime Rate Loan
shall automatically continue as a Prime Rate Loan.
(ii) Each Revolving Credit Loan that is made as, continued as or
converted (from a Prime Rate Loan) into a Libor Rate Loan shall be made,
continued or converted, on such Business Day, in such amount (greater than or
equal to One Million and 00/100 Dollars ($1,000,000.00); provided, however, that
any amount in excess of One Million and 00/100 Dollars ($1,000,000.00) may only
be in increments of Five Hundred Thousand and 00/100 Dollars ($500,000.00)) and
with such an Interest Period as an Authorized Representative of the Borrowers
shall request by written or telephonic notice (confirmed promptly, but in no
event later than one Business Day thereafter, in writing) received by the Agent
no later than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the third (3rd)
Business Day prior to the requested date of disbursement of, continuation of or
conversion into the requested Libor Rate Loan. Subject to the terms and
conditions of this Agreement, on each borrowing date, the Agent shall make the
proceeds of the Libor Rate Loan available to the Borrowers at the Agent's Office
in immediately available funds, no later than 10:00 a.m. (Pittsburgh,
Pennsylvania time). In addition, in the event that the Borrowers desire to
continue a Libor Rate Loan for an additional Interest Period, an Authorized
Representative of the Borrowers shall provide the Agent with written notice
thereof on or prior to the third (3rd) Business Day prior to the expiration of
the applicable Interest Period. In the event that an Authorized Representative
of the Borrowers fails to provide the Agent with the required written or
telephonic notice (confirming promptly, but in no event later than one Business
Day thereafter, in writing) on or prior to the third (3rd) Business Day prior to
the expiration of the applicable Interest Period for a Libor Rate Loan, the
Borrowers shall be deemed to have given written notice that such Loan shall be
converted into a Prime Rate Loan on the last day of the applicable Interest
Period. Notwithstanding anything contained herein to the contrary, there shall
not be more than four (4) Revolving Credit Loans that are Libor Rate Loans
outstanding at any time. Each written notice of any Libor Rate Loan shall be
irrevocable and binding on the Borrowers and the Borrowers shall indemnify the
Agent and the Banks against any loss or expense incurred by the Banks as a
result of any failure by the Borrowers to consummate such transaction calculated
as set forth in Section 2.11(c) hereof.
(iii) Each Bank hereby authorizes the Agent to make all Loans
that are requested by the Borrowers on the proposed date of disbursement. Upon
receipt of a request to make, continue or convert a Revolving Credit Loan
hereunder, the Agent shall promptly, but in no event later than 12:00 noon
(Pittsburgh, Pennsylvania time) on the date of the receipt of such request,
advise each of the Banks of the proposed date of disbursement,
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continuation or conversion, the amount and type of each such Revolving Credit
Loan, the applicable Interest Period and the Bank's Commitment amount thereof.
Each Bank shall remit its Commitment Percentage of the principal amount of each
Revolving Credit Loan to the Agent at the Office of the Agent in immediately
available funds no later than 2:00 p.m. (Pittsburgh, Pennsylvania time) on the
applicable date of disbursement. If the amount of such Bank's Commitment
Percentage is not made available to the Agent by such Bank on the applicable
borrowing date, the Agent shall not be required to fund such Bank's Commitment
Percentage of the Revolving Credit Loans on the applicable borrowing date;
provided, however, the Agent may elect in its sole discretion to fund such
Bank's Commitment Percentage on the applicable borrowing date, and such Bank
shall be subject to the repayment obligations set forth below.
(iv) The Agent may assume that each Bank has made or will make
the proceeds of a Loan available to the Agent unless the Agent shall have been
notified by such Bank on or before the later of (a) the close of business on the
Business Day preceding the applicable borrowing date with respect to the Loan,
or (b) one (1) hour before the time on which the Agent actually funds the
proceeds of such Loan to the Borrowers (whether using its own funds pursuant to
this subsection or using proceeds deposited with the Agent by the Banks and
whether such funding occurs before or after the time on which the Banks are
required to deposit the proceeds of such Loan with the Agent). The Agent may, in
reliance upon such assumption (but shall not be required to), make available to
the Borrowers a corresponding amount. If such corresponding amount is not in
fact made available to the Agent by such Bank, the Agent shall be entitled to
recover such amount on demand from such Bank (or, if such Bank fails to pay such
amount, forthwith upon such demand from the Borrowers) together with interest
thereon, in respect of each day during the period commencing on the date such
amount was made available to the Borrowers and ending on the date the Agent
recovers such amount, at a rate per annum equal to (y) the Prime Rate during the
first three (3) days after such interest shall begin to accrue and (z) the
Applicable Rate in respect of such Loan after the end of such three (3) day
period.
(d) Maximum Principal Balance of Revolving Credit Loans and Letter of
Credit Undrawn Availability. The sum of the aggregate principal amount of all
Revolving Credit Loans outstanding and the aggregate Letter of Credit Undrawn
Availability shall not exceed the amount of the Revolving Credit Facility
Commitment. The Borrowers agree that if at any time the sum of the aggregate
principal amount of all Revolving Credit Loans outstanding and the aggregate
Letter of Credit Undrawn Availability exceeds the amount of the Revolving Credit
Facility Commitment (the "Excess Amount"), the Borrowers shall promptly, but in
no event later than one Business Day thereafter, pay to the Agent (for the
ratable benefit of the Banks) such Excess Amount. If not sooner paid, the entire
principal balance of all outstanding Revolving Credit Loans, together with all
unpaid accrued interest thereon, and all other sums and costs owed to the Agent
and the Banks by the Borrowers pursuant to this Agreement, shall be immediately
due and payable on the Expiry Date, without notice, presentment or demand of any
kind.
2.02 Interest Rates.
(a) Interest on the Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, the aggregate outstanding principal balance of the
Revolving
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Credit Loans shall be, at the option of the Borrowers as selected pursuant to
Section 2.01(c) hereof, (x) Prime Rate Loans which shall bear interest for each
day at the rates set forth below or (y) Libor Rate Loans which shall bear
interest during each applicable Interest Period at the rates set forth below:
(i) Subject to the terms and conditions of this Agreement, on the
Closing Date and through the day immediately preceding the first Incentive
Pricing Effective Date, (x) Revolving Credit Loans that are Prime Rate Loans
shall bear interest for each day at a rate per annum equal to the Prime Rate
plus the Applicable Prime Margin corresponding to Tier II as set forth below and
(y) Revolving Credit Loans that are Libor Rate Loans shall bear interest during
each applicable Interest Period at a rate per annum equal to the Libor Rate plus
the Applicable Libor Margin corresponding to Tier II as set forth below;
(ii) Subject to the terms and conditions of this Agreement,
during each Fiscal Quarter, in accordance with Section 5.01(b) hereof, the
Borrowers shall submit to the Agent and the Banks quarterly financial statements
(the Fiscal Quarter in which such financial statements are required to be
received by the Agent and the Banks is the "Reporting Quarter") as of the last
day of the Fiscal Quarter immediately preceding such Reporting Quarter (with
respect to any Reporting Quarter, the Fiscal Quarter immediately preceding such
Reporting Quarter is the "Measurement Quarter"). Upon receipt of such quarterly
financial statements by the Agent and the Banks in accordance with Section
5.01(b), the Borrowers' Leverage Ratio shall be calculated as of the last day of
the Measurement Quarter ending June 30, 2001 and as of the last day of each
Measurement Quarter thereafter. From the first day of the first full calendar
month following the Agent's and the Banks' receipt of such quarterly financial
statements (the "Incentive Pricing Effective Date") until the next Incentive
Pricing Effective Date, (x) Prime Rate Loans shall bear interest for each day at
a rate per annum equal to the Prime Rate plus the applicable margin determined
by reference to the Borrowers' Leverage Ratio as set forth below (the
"Applicable Prime Margin") and (y) Libor Rate Loans shall bear interest during
each applicable Interest Period at a rate per annum equal to the Libor Rate plus
the applicable margin determined by reference to the Borrowers' Leverage Ratio
as set forth below (the "Applicable Libor Margin"):
Tier Leverage Ratio Applicable Applicable Applicable
---- -------------- Libor Margin Prime Margin L/C Margin
------------ ------------ ----------
I Less than 0.75 1.25% 0.00% 1.25%
II Greater than 0.75 Less than 1.25 1.50% 0.00% 1.50%
III Greater than 1.25 Less than 1.75 1.75% 0.00% 1.75%
IV Greater than 1.75 Less than 2.25 2.00% 0.00% 2.00%
V Greater than 2.25 2.25% 0.25% 2.25%
(iii) Subject to the terms and conditions of this Agreement, in
the event that the Borrowers fail to timely deliver the financial statements
required by Section 5.01(b) hereof, the Applicable Margin shall be the amount
corresponding to Tier V until the delivery of such financial statements.
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(b) Calculation of Interest and Fees; Adjustment to Prime Rate.
Interest on the Loans, unpaid fees and other sums payable hereunder shall be
computed on the basis of a year of three hundred sixty (360) days and paid for
the actual number of days elapsed. In the event of any change in the Prime Rate,
the rate of interest applicable to each Prime Rate Loan shall be adjusted to
immediately correspond with such change; provided, however, that any interest
rate charged hereunder shall not exceed the Maximum Rate.
(c) Interest After Maturity or Default; Interest Laws. Upon the
occurrence and during the continuance of an Event of Default, (i) the unpaid
principal amount of the Loans or any portion thereof, accrued interest thereon,
any fees or any other sums payable hereunder shall thereafter until paid in full
bear interest at a rate per annum equal to the Applicable Rate plus two percent
(2.00%); (ii) each Libor Rate Loan shall automatically convert into a Prime Rate
Loan at the end of the applicable Interest Period; and (iii) no Loans may be
made as, continued as or converted into a Libor Rate Loan. Notwithstanding any
provisions to the contrary contained in this Agreement or any other Loan
Document, the Borrowers shall not be required to pay, and the Banks shall not be
permitted to collect, any amount of interest in excess of the maximum amount of
interest permitted by applicable Law ("Excess Interest"). If any Excess Interest
is provided for or determined by a court of competent jurisdiction to have been
provided for in this Agreement or in any other Loan Document, then, in such
event: (1) the provisions of this subsection shall govern and control; (2) the
Borrowers shall not be obligated to pay any Excess Interest; (3) any Excess
Interest that any Bank may have received hereunder shall be, at the Majority
Banks' option, (a) applied as a credit against the outstanding principal balance
of the Indebtedness evidenced by the Notes or accrued and unpaid interest
thereon (not to exceed the maximum amount permitted by Law), (b) refunded to the
payor thereof, or (c) any combination of the foregoing; (4) the interest rate(s)
provided for herein shall be automatically reduced to the maximum lawful rate
allowed from time to time under applicable Law (the "Maximum Rate"), and this
Agreement and the other Loan Documents shall be deemed to have been and shall
be, reformed and modified to reflect such reduction; and (5) the Borrowers shall
have no action against the Agent or the Banks for any damages arising out of the
payment or collection of any Excess Interest.
2.03 Interest Payments. The Borrowers shall pay to the Agent for the
ratable account of the Banks interest on the aggregate outstanding balance of
the Revolving Credit Loans which are Prime Rate Loans in arrears, on October 1,
2001 and on the first day of each calendar month thereafter through and
including the Expiry Date. The Borrowers shall pay to the Agent for the ratable
account of the Banks interest on the unpaid principal balance of the Revolving
Credit Loans that are Libor Rate Loans on the earlier of (i) the last day of the
applicable Interest Period for such Loan or (ii) for such Loans with an
applicable Interest Period exceeding three (3) months, on each and every three
(3) month anniversary of each such Loan during the period from the Closing Date
to and including the Expiry Date. After maturity of any part of the Loans
(whether upon the occurrence of an Event of Default, by acceleration or
otherwise), interest on such part of the Loans shall be immediately due and
payable upon delivery by the Agent of an invoice for such interest without
further notice, presentment, or demand of any kind.
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2.04 Fees.
(a) The Borrowers shall pay to the Agent for the ratable account of
the Banks
(i) A non-refundable up-front fee, on or before the Closing Date,
in the amount equal to One Hundred Thousand and 00/100 Dollars ($100,000.00);
(ii) A commitment fee on the unused portion of the amount of the
Revolving Credit Facility Commitment during the period from the date of this
Agreement to the Expiry Date, payable quarterly in arrears beginning on October
1, 2001 and continuing on the first (1st) day of each January, April, July and
October thereafter and on the Expiry Date. Such fee shall be equal to the amount
by which the amount of the Revolving Credit Facility Commitment has exceeded the
average daily closing principal balance of the sum of the Revolving Credit Loans
and the Letter of Credit Undrawn Availability during the preceding calendar
quarter, multiplied by three-eighths of one percent (0.375%), multiplied by a
fraction, the numerator of which is the actual number of days in such calendar
quarter and the denominator of which is 360; and
(iii) The Letter of Credit Commission pursuant to Section 2.06
hereof.
(b) The Borrowers shall pay to the Agent for its own account the fees
described in the first sentence of Section 2.06 hereof and in that certain fee
letter of even date herewith by and among the Borrowers and the Agent in the
amounts, and at the times, specified therein.
2.05 Agreement to Issue Letters of Credit. From time to time during the
period from the Closing Date to the thirtieth (30th) day preceding the Expiry
Date, subject to the further terms and conditions hereof, including those
required in connection with the making of Revolving Credit Loans, the Agent
shall issue standby or trade letters of credit (collectively with the Existing
Letters of Credit, the "Letters of Credit") for the account of the Borrowers in
an amount not to exceed Ten Million and 00/100 Dollars ($10,000,000.00) in the
aggregate as a subfacility of the Revolving Credit Facility Commitment;
provided, however, that on any date on which the Borrowers request a Letter of
Credit, and after giving effect to the Letter of Credit Face Amount of such
Letter of Credit, the sum of all Revolving Credit Loans outstanding and the
Letter of Credit Undrawn Availability shall not exceed the Revolving Credit
Facility Commitment. All such Letters of Credit shall be issued by the Agent in
accordance with its then current practice relating to the issuance of letters of
credit including, but not limited to, the execution and delivery to the Agent of
applications and agreements required by the Agent and the payment by the
Borrowers of all applicable fees with respect thereto. As of the date hereof,
those letters of credit set forth on Schedule 2.05 hereof (collectively, the
"Existing Letters of Credit"), which were issued under the Prior Loan Agreement
and are outstanding on the date hereof, will be deemed to be Letters of Credit
issued and outstanding hereunder.
Each request for a Letter of Credit shall be delivered to the Agent no
later than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the second (2nd)
Business Day, or such
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shorter period as may be agreed to by the Agent, prior to the proposed date of
issuance. Each such request shall be in a form acceptable to the Agent and
specify the Letter of Credit Face Amount thereof, the account party, the
beneficiary, the intended date of issuance, the expiry date thereof, and the
nature of the transaction to be supported thereby. All such Letters of Credit
shall be issued by the Agent in accordance with its then current practice
relating to the issuance of Letters of Credit including, but not limited to, the
execution and delivery to the Agent of applications and agreements required by
the Agent and the payment by the Borrowers of all applicable fees required by
Section 2.06 hereof. Immediately upon the issuance of each Letter of Credit,
each Bank shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Agent a participation in such Letter of Credit and each
drawing thereunder in an amount equal to such Bank's Pro Rata Share of the
Letter of Credit Face Amount of such Letter of Credit. The Agent shall promptly,
but in any event not later than the next Business Day, provide to each Bank
notice of each such request for a Letter of Credit by the Borrowers.
2.06 Letter of Credit Fees. The Borrowers shall pay to the Agent for its
own account (a) a fronting fee for each Letter of Credit issued hereunder, such
fee shall be equal to one-eighth of one percent (0.125%) of the daily average
Letter of Credit Undrawn Availability during the preceding calendar quarter,
payable quarterly in arrears beginning on October 1, 2001 and continuing on the
first (1st) day of each January, April, July and October thereafter and on the
Expiry Date, (b) the Agent's standard amendment fees for each Letter of Credit
issued hereunder, such fee to be paid on the date of the amendment of such
Letter of Credit and (c) any reasonable out-of-pocket expenses and costs
incurred by the Agent for the issuance of any Letter of Credit issued hereunder,
such fees to be paid on the day of issuance of such Letter of Credit. The
Borrowers shall also pay to the Agent for the ratable account of the Banks a fee
(the "Letter of Credit Commission") calculated daily equal to the Letter of
Credit Undrawn Availability on each day multiplied by the applicable margin for
such day determined by reference to the Borrowers' Leverage Ratio as set forth
in Section 2.02(a)(ii) hereof (the "Applicable L/C Margin"), such fee to be paid
quarterly in arrears beginning on October 1, 2001 and continuing on the first
(1st) day of each January, April, July and October thereafter and on the Expiry
Date. Notwithstanding the foregoing, after the occurrence and during the
continuance of an Event of Default, the Letter of Credit Commission shall be
increased by two percent (2.00%) per annum.
2.07 Payments Under Letters of Credit. Upon a draw under any Letter of
Credit, the Borrowers shall immediately, but in any event not later than the end
of such Business Day, reimburse the Agent for such drawing under a Letter of
Credit. If (i) the Borrowers shall not have reimbursed the Agent for such
drawing under such Letter of Credit by the end of such Business Day, (ii) the
Agent must for any reason return or disgorge such reimbursement, or (iii) the
Borrowers are required to make a payment under Section 7.02(a)(ii) hereof and
fail to make such payment, then the amount of each unreimbursed drawing under
such Letter of Credit and payment required to be made under Section 7.02(a)(ii)
hereof shall automatically be converted into a Revolving Credit Loan which shall
be a Prime Rate Loan made on the date of such drawing for all purposes of this
Agreement. The Borrowers' obligation to reimburse the Agent with respect to each
drawing under a Letter of Credit shall be absolute and unconditional.
2.08 Period of Issuance and Term of Letters of Credit. Letters of Credit
shall only be issued by the Agent for the account of the Borrowers for such
terms which expire at least ten (10) days prior to the Expiry Date.
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2.09 Booking of Libor Rate Loans. Each Bank may make, carry or transfer
Libor Rate Loans at, to or for the account of, any of its branch offices or the
office of an affiliate of such Bank; provided, however, that no such action
shall result in increased liability or cost to the Borrowers, including any
increased liability or cost pursuant to Section 2.11 or 2.12 hereof.
2.10 Assumptions Concerning Funding of Libor Rate Loans. Calculation of all
amounts payable to each Bank under Section 2.11(c) shall be made as though each
Bank had actually funded its relevant Libor Rate Loan through the purchase of a
Libor deposit bearing interest at the Libor Rate in an amount equal to the
amount of that Libor Rate Loan and having maturity comparable to the relevant
Interest Period and through the transfer of such Libor deposit from an offshore
office to a domestic office in the United States of America; provided, however,
that each Bank may fund each of its Libor Rate Loans in any manner it sees fit
and the foregoing assumption shall be utilized only for the calculation of
amounts payable under Section 2.11(c).
2.11 Additional Costs.
(a) If, due to either (i) the introduction of, or any change in, or in
the interpretation of, any Law or (ii) the compliance with any guideline or
request from any central bank or other Official Body (whether or not having the
force of Law), there shall be any increase in the cost to, or reduction in
income receivable by, a Bank of making, funding or maintaining Loans (or
commitments to make the Loans), then the Borrowers shall from time to time, upon
demand by such Bank made within a reasonable time after such Bank's
determination thereof, pay to the Agent for the account of such Bank additional
amounts sufficient to reimburse such Bank for any such additional costs or
reduction in income. All such additional amounts shall be determined by such
Bank in good faith using appropriate attribution and averaging methods
ordinarily employed by such Bank. A certificate of such Bank submitted to the
Borrowers in good faith as to the amount of such additional costs shall be
presumptive evidence of such amount. Within ten (10) Business Days after the
Agent or such Bank notifies the Borrowers in writing of any such additional
costs pursuant to this Section 2.11(a), the Borrowers may (A) repay in full all
Loans of any types so affected then outstanding, together with interest accrued
thereon to the date of such repayment, or (B) convert all Loans of any types so
affected then outstanding into Loans of any other type not so affected upon not
less than four (4) Business Days' notice to the Agent. If any such repayment or
conversion of any Libor Rate Loan occurs on any day other than the last day of
the applicable Interest Period for such Loan, the Borrowers also shall pay to
the Agent for the ratable account of the Banks such additional amounts as set
forth in Section 2.11(c).
(b) If either (i) the introduction of, or any change in, or in the
interpretation of, any Law or (ii) the compliance with any guideline or request
from any central bank or other Official Body (whether or not having the force of
Law), affects the amount of capital required to be maintained by any Bank or any
corporation controlling any Bank and such Bank reasonably determines in good
faith that the amount of such capital is increased by or based upon the
existence of the Loans (or commitment to make the Loans), then, within ten (10)
Business Days of demand by such Bank, the Borrowers shall pay to the Agent for
the account of such Bank from time to time as specified by such Bank, additional
amounts sufficient to compensate such Bank in the light of such circumstances,
to the extent that such Bank reasonably determines in good faith such increase
in capital to be allocable to the existence of
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such Bank's Loans (or commitment to make the Loans). Any such demand by a Bank
must be made by such Bank within a reasonable time. A certificate of such Bank
in good faith submitted to the Borrowers as to such amounts shall be presumptive
evidence of such amounts. Within ten (10) Business Days after the Agent or such
Bank notifies the Borrowers in writing of any such additional costs pursuant to
this Section 2.11(b), the Borrowers may (A) repay in full all Loans of any types
so affected then outstanding, together with interest accrued thereon to the date
of such prepayment, or (B) convert all Loans of any types so affected then
outstanding into Loans of any other type not so affected upon not less than four
(4) Business Days' notice to such Bank. If any such prepayment or conversion of
any Libor Rate Loan occurs on any day other than the last day of the applicable
Interest Period for such Loan, the Borrowers also shall pay to the Agent for the
ratable account of the Banks such additional amounts as set forth in Section
2.11(c).
(c) If the Borrowers shall repay any Libor Rate Loan on a day other
than the last day of the applicable Interest Period for such Loan (whether such
repayment is (i) permitted by this Section 2.11 or Section 2.12, (ii) permitted
as a result of the failure of the Borrowers to consummate a transaction after
providing notice as set forth in Section 2.01(c)(ii), (iii) otherwise permitted
by a Bank, or (iv) otherwise required under the terms of this Agreement), the
Borrowers shall within ten (10) Business Days of written demand pay to the Agent
for the ratable benefit of the Banks such additional amounts reasonably
determined by the Banks in good faith to be sufficient to indemnify the Banks
against any loss, cost, or expense incurred by the Banks as a result of such
prepayment including, without limitation, any loss (including loss of
anticipated profits), costs or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by the Banks to fund such Loan,
and a certificate as to the amount of any such loss, cost or expense submitted
by any Bank to the Borrowers in good faith shall be presumptive evidence of such
amount.
2.12 Illegality; Impracticability. Notwithstanding any other provision
contained in this Agreement, if: (a) it is unlawful, or any central bank or
other Official Body shall determine that it is unlawful, for the Agent or any
Bank to perform its obligations hereunder to make, continue, or convert Loans
hereunder; or (b) on any date on which a Libor Rate would otherwise be set, any
Bank shall have in good faith determined (which determination shall be
conclusive absent manifest error) that (i) adequate and reasonable means do not
exist for ascertaining a Libor Rate, (ii) a contingency has occurred which
materially and adversely affects the interbank markets, or (iii) the effective
cost to such Bank of funding a proposed Libor Rate Loan exceeds the Libor Rate
then (y) upon written notice thereof by the Agent or such Bank to the Borrowers,
the obligation of such Bank to make or continue a Loan of a type so affected or
to convert any type of Loan into a Loan of a type so affected shall terminate
and the Banks shall thereafter be obligated to make Prime Rate Loans whenever
any written notice requests any type of Loans so affected and (z) upon written
demand therefor by such Bank to the Borrowers, the Borrowers shall (i) forthwith
prepay in full all Loans of the type so affected then outstanding, together with
interest accrued thereon or (ii) request that such Bank, upon five (5) Business
Days' notice, convert all Loans of the type so affected then outstanding into
Loans of a type not so affected. If any such prepayment or conversion of any
Libor Rate Loan occurs on any day other than the last day of the applicable
Interest Period for such Loan, the Borrowers also shall pay to the Agent for the
ratable benefit of the Banks such additional amounts as set forth in Section
2.11(c).
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2.13 Payments. All payments to be made with respect to principal, interest,
fees or other amounts due from the Borrowers under this Agreement or under the
Notes are payable at 12:00 noon (Pittsburgh, Pennsylvania time), on the day when
due, without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived, and an action for the payments will accrue
immediately. All such payments must be made to the Agent at its Office in U.S.
Dollars and in funds immediately available at such Office, without setoff,
counterclaim or other deduction of any nature. The Agent may in its discretion
deduct such payments from the Borrowers' demand or deposit accounts with Agent
if not paid within five (5) days after the due date. All such payments shall be
applied at the option of the Agent and the Banks to accrued and unpaid interest,
outstanding principal and other sums due under this Agreement in such order as
the Agent and the Banks, in their sole discretion, shall elect. All such
payments shall be made absolutely net of, without deduction or offset, and
altogether free and clear of any and all present and future taxes, levies,
deductions, charges, and withholdings and all liabilities with respect thereto,
excluding income and franchise taxes imposed on the Banks under the Laws of the
United States or any state or political subdivision thereof. If the Borrowers
are compelled by Law to deduct any such taxes or levies (other than such
excluded taxes) or to make any such other deductions, charges, or withholdings
(collectively, the "Required Deductions"), the Borrowers will pay to the Agent
for the ratable benefit of the Banks an additional amount equal to the sum of
(i) the aggregate amount of all Required Deductions and (ii) the aggregate
amount of United States federal or state income taxes required to be paid by the
Banks in respect of such Required Deductions.
2.14 Loan Account. The Agent will open and maintain on its books and
records, including computer records, in accordance with its customary
procedures, a loan account (the "Loan Account") for the Borrowers in which shall
be recorded the date and amount of each Loan made by the Banks and the date and
amount of each payment and prepayment in respect thereof. The Agent shall record
in the Loan Account the principal amount of the Loans owing to each Bank from
time to time. The Loan Account for the Borrowers will be presumptive evidence as
to the information contained therein. Any failure by the Agent to make any such
notation or record shall not affect the obligations of the Borrowers to the
Banks with respect to the Loans.
2.15 Estoppel. As further consideration for the entry of the Banks into
this Agreement, the Borrowers hereby represent and warrant that they do not
presently have any claims or actions of any kind at Law or in equity against
Mellon arising out of or in any way relating to the Prior Loan Agreement or any
related documents with respect thereto, the transactions referenced in or
contemplated by this Agreement or any acts, transactions, or events that are or
were the subject matter of any other prior loans, agreements or guaranties
involving one or more of the Borrowers and a Bank.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Agent and the Banks that:
3.01 Organization and Qualification. The Borrowers and their Subsidiaries
are corporations duly organized, validly existing and in good standing under
their respective jurisdictions of incorporation. Except to the extent that the
failure to be so qualified or licensed would not have a Material Adverse Effect,
the Borrowers and their Subsidiaries are duly qualified or licensed to do
business as a foreign corporation or partnership and are in good standing in all
jurisdictions in which the ownership of their properties or the nature of their
activities or both makes such qualification or licensing necessary.
3.02 Power to Carry on Business; Licenses. Each Borrower and its
Subsidiaries have all requisite power and authority to own and operate its
properties and to carry on its business as now conducted and as presently
planned to be conducted. Except to the extent that the failure to have any such
license, permit, consent or approval would not have a Material Adverse Effect,
each Borrower and its Subsidiaries have all licenses, permits, consents and
governmental approvals or authorizations necessary to carry on its business as
now conducted and as presently planned to be conducted.
3.03 Execution and Binding Effect. This Agreement, the Notes, and the other
Loan Documents to which the Borrowers are a party have been duly authorized by
all appropriate corporate action of each Borrower, have been duly and validly
executed and delivered by each Borrower which is a party thereto, and each such
document or agreement constitutes a legal, valid and binding obligation of such
Borrowers, enforceable against each such Borrower in accordance with its terms.
3.04 Absence of Conflicts. Neither the execution and delivery of this
Agreement or the other Loan Documents, nor the consummation of the transactions
contemplated in any of them, nor the performance of or compliance with their
terms and conditions will (a) violate any Law, (b) conflict with or result in a
breach of or a default under the articles or certificate of incorporation or
by-laws of any Borrower, (c) conflict with or result in a breach or a default
under any material agreement or instrument to which any Borrower or its
Subsidiaries is a party or by which any of them or any of their properties (now
owned or acquired in the future) may be subject or bound or (d) result in the
creation or imposition of any material Lien upon any property (owned or leased)
of any Borrower or its Subsidiaries.
3.05 Authorizations and Filings. No authorization, consent, approval,
license, exemption or other action by, and no registration, qualification,
designation, declaration or filing with, any Official Body is or will be
necessary or advisable in connection with the execution and delivery of this
Agreement or the other Loan Documents, the consummation of the transactions
contemplated in any of them, or the performance of or compliance with the terms
and conditions of this Agreement or the other Loan Documents.
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3.06 Title to Property. Each Borrower and its Subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all other property purported to be owned by it, including that
reflected in the most recent balance sheet referred to in Section 3.07 of this
Agreement or submitted pursuant to Section 5.01(a) of this Agreement (except as
sold or otherwise disposed of in the ordinary course of business), subject only
to Liens not forbidden by Section 6.01 of this Agreement.
3.07 Financial Statements.
(a) The Borrowers have delivered to the Agent and the Banks a
Consolidated balance sheet and related statements of income, retained earnings
and cash flow of the Borrowers and their Subsidiaries for the fiscal year ending
December 31, 2000, as audited by PricewaterhouseCoopers LLP without
qualification. Such financial statements (including the notes) present fairly
the Consolidated financial condition of the Borrowers and their Subsidiaries as
of the end of such fiscal period and the results of their operations and the
changes in financial position for the fiscal period then ended, all in
accordance with GAAP applied consistently with that of the preceding fiscal
year.
(b) The Borrowers have delivered to the Agent and the Banks the
internally prepared Consolidated and consolidating balance sheets and related
statements of income and cash flow of the Borrowers and their Subsidiaries that
the Borrowers used to prepare the Borrowers' and their Subsidiaries' quarterly
financial results as of, and for the Fiscal Quarter ending, March 31, 2001, as
set forth in their 10-Q reports. Such financial statements provided by the
Borrowers present fairly the financial position of each Borrower and its
Subsidiaries as of the end of such period and the results of their operations
and their cash flow for the period then ended, all in conformity with sound
accounting principles, applied on a basis consistent with that of the preceding
fiscal periods.
3.08 Taxes. All tax returns required to be filed by each Borrower and its
Subsidiaries have been properly prepared, executed and filed. Except as may be
permitted under Section 5.05 hereof, all material taxes, assessments, fees and
other governmental charges upon each Borrower and its Subsidiaries or upon any
of their properties, income, sales or franchises which are due and payable have
been paid. The reserves and provisions for taxes on the books of the Borrowers
and their Subsidiaries are adequate for all open years and for the current
fiscal period. No Borrower knows of any proposed additional material assessment
or basis for any material assessment for additional taxes (whether or not
reserved against).
3.09 Litigation. Except as reflected in MBC's most recent periodic reports
filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, copies of which have been delivered to the Agent and the
Banks and, except as set forth on Schedule 3.09 hereto, there is no pending, or
to the best knowledge of MBC, contemplated or threatened, action, suit or
proceeding by or before any Official Body against or affecting any Borrower or
its Subsidiaries, at Law or equity, which, if adversely decided, would have a
Material Adverse Effect.
3.10 Compliance with Laws. To the best of MBC's knowledge, except as set
forth in Schedule 3.10 hereto, no Borrower nor any Subsidiary of a Borrower is
in violation of or
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subject to any material contingent liability on account of any Law which in the
aggregate would have a Material Adverse Effect.
3.11 Pension Plans. Except as described in Schedule 3.11 to this Agreement,
(a) each Plan has been and will be maintained and funded in all material
respects in accordance with its terms and with all provisions of ERISA and other
applicable Laws; (b) no Reportable Event which could have a Material Adverse
Effect, has occurred and is continuing with respect to any Plan; (c) no material
liability to the PBGC has been incurred and is outstanding with respect to any
Plan, other than for premiums due and payable; (d) no Plan has been terminated,
no proceedings have been instituted to terminate any Plan, and there exists no
intent to terminate or institute proceedings to terminate any Plan where such
termination would have a Material Adverse Effect; (e) no withdrawal, either
complete or partial, has occurred or commenced with respect to any
multi-employer Plan, and there exists no intent to withdraw either completely or
partially from any multi-employer Plan; and (f) there has been no cessation of,
and there is no intent to cease, operations at a facility or facilities where
such cessation could reasonably be expected to result in a separation from
employment of more than 20% of the total number of employees who are
participants under a Plan.
3.12 Patents, Licenses, Franchises. The Borrowers and their Subsidiaries
own or possess the right to use all of the material patents, trademarks, service
marks, trade names, copyrights, licenses, franchises and permits and rights with
respect to the foregoing necessary to own and operate their properties and to
carry on their businesses as presently conducted and presently planned to be
conducted without conflict with the rights of others. There are no currently
pending or, to the best knowledge of MBC, threatened claims with respect to
infringement by or against any Borrower or any Subsidiary of a Borrower of any
of the foregoing.
3.13 Environmental Matters. Except as set forth in Schedule 3.13 hereof,
(a) To the best knowledge of MBC, no Borrower nor any Subsidiary of a
Borrower is in violation of The Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, The Resource Conservation and Recovery Act of 1976,
as amended by the Hazardous and Solid Waste Amendments of 1984, The Clean Water
Act, The Toxic Substances Control Act and The Clean Air Act or any rule or
regulation promulgated pursuant to any of the foregoing statutes, or any other
federal, state or local environmental Law applicable to any Borrower, its
Subsidiaries, or their respective properties (all of the foregoing are sometimes
collectively referred to in this Section 3.13 as the "Environmental Laws")
except to the extent that such violations in the aggregate would not have a
Material Adverse Effect;
(b) To the best knowledge of MBC, neither the Borrowers, their
Subsidiaries nor any of their Affiliates, directors, officers, employees, agents
or independent contractors have arranged, by contract, agreement or otherwise,
(i) for the disposal or treatment of, or (ii) with a transporter for the
transport, disposal or treatment of, any Hazardous Substance (as defined by
CERCLA, as amended), owned, used or possessed by any Borrower or any Subsidiary
of a Borrower, whether or not to a location identified by the Environmental
Protection Agency (the "EPA") on the National Priorities List, 40 C.F.R. Part
300 (or proposed
-25-
by the EPA in the Federal Register for listing on such National Priorities List)
or identified under any corresponding state Law concerning cleanup of waste
disposal sites (a "State Superfund Law") except to the extent that the same has
been performed in compliance with all Environmental Laws, the non-compliance
with which in the aggregate would not have a Material Adverse Effect;
(c) To the best knowledge of MBC, no predecessor of a Borrower has
arranged by contract, agreement or otherwise, (i) for the disposal or treatment
of, or (ii) with a transporter for transport for the disposal or treatment of,
any Hazardous Substance, owned, used or possessed by the predecessor, except to
the extent that the same has been performed in compliance with all Environmental
Laws, the non-compliance with which in the aggregate would not have a Material
Adverse Effect;
(d) Neither the Borrowers, their Subsidiaries nor any of their
Affiliates "owned" or "operated" any "facility" at the time any Hazardous
Substances were disposed of at such facility within the meaning of CERCLA, as
amended, or any State Superfund Law in violation of any applicable Environmental
Laws except to the extent that such violations would not have a Material Adverse
Effect.
3.14 Proceeds. The Borrowers will use the proceeds of the Revolving Credit
Loans to repay Indebtedness of the Borrowers to Mellon under the Prior Loan
Agreement and for general corporate purposes, working capital and Acquisitions.
3.15 Margin Stock. The Borrowers will make no borrowing under this
Agreement for the purpose of buying or carrying any "margin stock", as such term
is used in Regulation U and related regulations of the Board of Governors of the
Federal Reserve System, as amended from time to time. No Borrower owns any
"margin stock". No Borrower is engaged in the business of extending credit to
others for such purpose, and no part of the proceeds of any borrowing under this
Agreement will be used to purchase or carry any "margin stock" or to extend
credit to others for the purpose of purchasing or carrying any "margin stock".
3.16 No Event of Default; Compliance with Material Agreements. No event has
occurred and is continuing and no condition exists which constitutes an Event of
Default or Potential Default. No Borrower nor any of its Subsidiaries is (i) in
violation of any term of any charter instrument or bylaw or (ii) in default
under any material agreement, lease or instrument to which it is a party or by
which it or any of its properties (owned or leased) may be subject or bound.
3.17 No Material Adverse Change. Except as otherwise disclosed herein,
since December 31, 2000, there has been no Material Adverse Change.
3.18 Subsidiaries. Schedule 3.18 to this Agreement sets forth each
Subsidiary of each Borrower, the authorized and outstanding capital stock (or
other equity interest) of such Subsidiary and the outstanding capital stock (or
other equity interest) of such Subsidiary which is owned by any Borrower or any
of its Subsidiaries.
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3.19 Labor Controversies. There are no labor controversies pending or, to
the best knowledge of the officers and directors of MBC, threatened, against any
Borrower or any of its Subsidiaries which, if adversely determined, would have a
Material Adverse Effect.
3.20 Solvency. After the making of the Loans, each Borrower (a) will be
able to pay its debts as they become due, (b) will have funds and capital
sufficient to carry on its business and all businesses in which it is about to
engage, and (c) will own property having a value at both fair valuation and at
fair saleable value in the ordinary course of its business greater than the
amount required to pay its debts as they become due. No Borrower was insolvent
immediately prior to the date of this Agreement and no Borrower will be rendered
insolvent by the execution and delivery of this Agreement, the borrowing
hereunder and/or the consummation of any transactions contemplated by this
Agreement.
3.21 Governmental Regulation. The Borrowers are not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940 or to any federal or state statute or
regulation limiting its ability to incur Indebtedness for borrowed money.
3.22 Accurate and Complete Disclosure. No representation or warranty made
by any Borrower under this Agreement, the other Loan Documents or the schedules
and exhibits attached thereto, and to the best knowledge of the officers and
directors of MBC, no statement made by any Borrower or its Subsidiaries in any
financial statement (furnished pursuant to Sections 3.07 or 5.01 or otherwise),
certificate, report, exhibit or document furnished by any Borrower or its
Subsidiaries to the Agent or any Bank pursuant to or in connection with this
Agreement is false or misleading (including by omission of information necessary
to make such representation, warranty or statement not misleading) in any manner
which would have a Material Adverse Effect.
ARTICLE IV
CONDITIONS OF LENDING
The obligation of the Banks to make any Loan is subject to the satisfaction
of the following conditions:
4.01 Representations and Warranties: Events of Default and Potential
Defaults. The representations and warranties contained in Article III shall be
true and correct on and as of the date of each Loan with the same effect as
though made on and as of each such date. On the date of each Loan, no Event of
Default and no Potential Default shall have occurred and be continuing or exist
or shall occur or exist after giving effect to the Loan to be made on such date.
Each request by the Borrowers for any Loan shall constitute a representation and
warranty by the Borrowers that the conditions set forth in this Section 4.01
have been satisfied as of the date of such request. The failure of the Agent to
receive notice from the Borrowers to the contrary before such Loan is made shall
constitute a further representation and warranty by the Borrowers that the
conditions referred to in this Section 4.01 have been satisfied as of the date
such Loan is made.
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4.02 Proceedings and Incumbency. As of the Closing Date, each Borrower
shall have delivered to the Agent a certificate, in form and substance
satisfactory to the Agent, dated as of the Closing Date and signed on behalf of
such Borrower by the Secretary of such Borrower certifying as to (a) true copies
of the articles of incorporation or certificate of incorporation, as the case
may be, and bylaws of such Borrower as in effect on such date, (b) true copies
of all corporate action taken by such Borrower relative to this Agreement, the
Notes and the other Loan Documents including, but not limited to, that described
in Section 3.03 of this Agreement, and (c) the names, true signatures and
incumbency of the officers of such Borrower authorized to execute and deliver
this Agreement, the Notes and the other Loan Documents. The Agent and the Banks
may conclusively rely on each such certificate unless and until a later
certificate revising the prior certificate has been furnished to the Agent.
4.03 Loan Documents. On or prior to the Closing Date, the Loan Documents,
satisfactory in terms, form and substance to the Agent and the Banks, shall have
been executed and delivered by the Borrowers to the Agent and the Banks.
4.04 Opinion of Counsel. On the Closing Date, there shall have been
delivered to the Agent a written opinion, dated the Closing Date, of counsel to
the Borrowers, in form and substance satisfactory to the Agent and the Banks.
4.05 Other Documents and Conditions. On or before the Closing Date, the
following documents and conditions shall have been delivered to the Agent or
satisfied by or on behalf of the Borrowers to the satisfaction of the Agent:
(a) Certified Copies of Organizational Documents. A copy of the
articles of incorporation or certificate of incorporation, as the case may be,
of each Borrower certified by the Secretary of State of its jurisdiction of
incorporation.
(b) Good Standing and Tax Lien Certificates. (i) A good standing
certificate of each of the Borrowers certifying as to the good standing and
corporate status of each such Borrower in its jurisdiction of incorporation;
(ii) good standing/foreign qualification certificates from each jurisdiction in
which such Borrower is qualified to do business; and (iii) a tax lien
certificate of each Borrower from its jurisdiction of incorporation and each
jurisdiction in which such Borrower is qualified to do business.
(c) Financial Statements. Financial statements in form and substance
satisfactory to the Banks, as described in Section 3.07 of this Agreement.
(d) [Reserved].
(e) Lien Searches. Copies of record searches (including UCC searches,
judgment, tax, bankruptcy and other lien searches) conducted for each Borrower
in the state of incorporation of such Borrower and in the Commonwealth of
Virginia for Michael Baker Jr., evidencing that no Liens exist against any
Borrower except those Liens permitted by Section 6.01 of this Agreement.
(f) Termination Statements and Other Releases. Evidence satisfactory
to the Agent that all necessary UCC-3 termination statements and other releases
necessary to
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terminate any and all Liens with respect to the Borrowers that are not permitted
pursuant to Section 6.01 hereof have been filed or satisfactory arrangements
have been made for such filing. Mellon hereby agrees that it will execute all
necessary UCC-3 termination statements and return all stock certificates in the
possession of Mellon in connection with the Prior Loan Agreement.
(g) No Material Adverse Change. No Material Adverse Change shall have
occurred with respect to any Borrower since December 31, 2000.
(h) Other Documents and Conditions. Such other documents and
conditions as may reasonably be requested to be submitted to the Agent or any
Bank by the terms of this Agreement or of any Loan Document or set forth on the
Closing Checklist with respect to the transaction contemplated by this
Agreement.
4.06 Details, Proceedings and Documents. All legal details and proceedings
in connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory to the Agent and the Banks and the Agent and the Banks
shall have received all such counterpart originals or certified or other copies
of such documents and proceedings in connection with such transactions, in form
and substance reasonably satisfactory to the Agent and the Banks, as the Agent
and the Banks may request from time to time.
4.07 Fees and Expenses. The Borrowers shall have paid all reasonable fees
and charges as required for the Closing and relating to the Closing, including
reasonable legal fees, closing costs, filing and notary fees and any other
similar matters pertinent to the Closing.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrowers covenant to the Agent and the Banks as follows:
5.01 Reporting and Information Requirements.
(a) Annual Audited Reports. As soon as practicable, and in any event
within ninety (90) days after the close of each fiscal year of the Borrowers,
the Borrowers will furnish to the Agent and each of the Banks Consolidated
audited statements of income, retained earnings and cash flow of the Borrowers
and their Subsidiaries for such fiscal year and a Consolidated audited balance
sheet of the Borrowers and their Subsidiaries as of the close of such fiscal
year, and notes to each, all in reasonable detail, setting forth in comparative
form the corresponding figures for the preceding fiscal year, prepared in
accordance with GAAP applied on a basis consistent with that of the preceding
fiscal year (except for changes in application in which such accountants concur)
with such statements and balance sheet to be certified by independent certified
public accountants of recognized standing selected by the Borrowers. The
certificate or report of such accountants shall be free of exception or
qualifications not reasonably acceptable to the Agent and the Banks and shall in
any event contain a written statement of such accountants substantially to the
effect that such accountants examined such statements and balance sheet in
accordance with generally accepted auditing standards.
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(b) Quarterly Reports. As soon as practicable, and in any event within
forty-five (45) days after the close of each Fiscal Quarter during the term of
this Agreement, the Borrowers will furnish to the Agent and each of the Banks
the Consolidated and consolidating statements of income and cash flow and the
Consolidated and consolidating balance sheet that the Borrowers use to prepare
the Borrowers' and their Subsidiaries' quarterly financial results set forth in
their 10-Q reports, all in reasonable detail. All such income statements,
statements of cash flow and balance sheets shall be prepared by the Borrowers
and certified by the President or Chief Financial Officer or Corporate
Controller of MBC as presenting fairly the Consolidated and consolidating
financial position of the Borrowers as of the end of such Fiscal Quarter and the
results of their operations for such periods, in conformity with sound
accounting principles (subject to normal and recurring year-end audit
adjustments) applied in a manner consistent with that of the most recent audited
financial statements furnished to the Banks.
(c) Quarterly Compliance Certificate. The income statements and
balance sheets as of and for the end of each Fiscal Quarter which are delivered
pursuant to Section 5.01(b) of this Agreement shall be accompanied by a
compliance certificate, substantially in the form of Exhibit "B" attached
hereto, executed by the President or Chief Financial Officer or Corporate
Controller of MBC, stating that no Event of Default or Potential Default exists
and that the Borrowers are in compliance with all applicable covenants contained
in this Agreement. Such certificate shall include all figures necessary to
calculate the Borrowers' compliance with all financial covenants set forth in
this Agreement. If an Event of Default or Potential Default has occurred and is
continuing or exists, such certificate shall specify in detail the nature and
period of existence of the Event of Default or Potential Default and any action
taken or contemplated to be taken by the Borrowers with respect thereto.
(d) Reports to Governmental Agencies and Other Creditors. As soon as
practicable, and in event within ten (10) days after the filing thereof, the
Borrowers shall furnish to the Agent and each of the Banks a copy of its 10-K
and 10-Q reports, each proxy statement, each registration statement and all
other reports which any Borrower is or may be required to file with the United
States Securities and Exchange Commission or any State Securities Commission.
(e) Audit Reports. Promptly upon receipt thereof, and in any event
within five (5) Business Days after receipt by any Borrower, the Borrowers will
deliver to the Agent and each of the Banks a copy of each other report submitted
to any Borrower by its independent accountants, including comment or management
letters, in connection with any annual, interim or special audit report made by
them of any Borrower or its books and records.
(f) Annual Plan. On or before January 31 of each calendar year, the
Borrowers shall submit to the Agent and each of the Banks projections for the
Borrowers and their Subsidiaries for such calendar year in form substantially
similar to the form of the projections provided to the Borrowers' boards of
directors for the fiscal year ending December 31, 2001.
(g) Visitation; Audits. The Borrowers will permit such Persons as the
Agent or any of the Banks may designate (i) to visit and inspect any of the
properties of the Borrowers and their Subsidiaries, (ii) to examine, and to make
copies and extracts from, the
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books and records of the Borrowers and their Subsidiaries and (iii) to discuss
their affairs with their officers during normal business hours; provided,
however, if the Bank retains Persons not affiliated with the Bank to conduct any
such audit, the Bank shall use its reasonable best efforts to ensure that such
Persons are subject to appropriate non-disclosure and confidentiality
requirements for the benefit of the Borrowers. Provided that no Event of Default
has occurred, the Agent or such Bank shall provide the Borrowers with reasonable
written notice of any such visitation or inspection. Upon the occurrence and
during the continuation of an Event of Default, the Borrowers will permit such
Persons as the Agent or any of the Banks may designate (i) to visit and inspect
any of the properties of the Borrowers and their Subsidiaries, (ii) to examine,
and to make copies and extracts from, the books and records of the Borrowers and
their Subsidiaries and (iii) to discuss their affairs with their officers and
independent accountants at any time and without notice; provided, however, if
the Bank retains Persons not affiliated with the Bank to conduct any such audit,
the Bank shall use its reasonable best efforts to ensure that such Persons are
subject to appropriate non-disclosure and confidentiality requirements for the
benefit of the Borrowers.
(h) Notice of Event of Default. Promptly, and in any event within five
(5) Business Days, after becoming aware of an Event of Default or Potential
Default, the Borrowers will give the Agent and each of the Banks notice of the
Event of Default or Potential Default, together with a written statement of the
Presidents or Chief Financial Officers of the Borrowers setting forth the
details of the Event of Default or Potential Default and any action taken or
contemplated to be taken by the Borrowers with respect thereto.
(i) Notice of Material Adverse Change. Promptly, and in any event
within five (5) Business Days after becoming aware thereof, the Borrowers will
give the Agent telephonic or telegraphic notice (with written confirmation sent
on the same or next Business Day) with respect to any Material Adverse Change or
any development or occurrence which would have a Material Adverse Effect.
(j) Notice of Proceedings. Promptly, and in any event within five (5)
Business Days, after becoming aware thereof, the Borrowers will give the Agent
and each of the Banks notice of the commencement, existence or threat of all
proceedings by or before any Official Body against or affecting any Borrower
which, if adversely decided, would have a Material Adverse Effect.
(k) Further Information. The Borrowers will promptly, but in any event
within fifteen (15) days, furnish to the Agent and each of the Banks such other
information, and in such form, as the Agent or the Majority Banks may reasonably
request from time to time.
5.02 Preservation of Existence and Franchises. Except as otherwise
permitted under this Agreement, the Borrowers will maintain their respective
corporate existences, rights and franchises in full force and effect in their
respective jurisdictions of incorporation. Except to the extent that the failure
to be so qualified would not have a Material Adverse Effect, the Borrowers and
their Subsidiaries will qualify and remain qualified as a foreign corporation in
each jurisdiction in which the ownership of their properties or the nature of
their activities or both makes such qualification necessary.
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5.03 Insurance. The Borrowers and their Subsidiaries will maintain with
financially sound and reputable insurers insurance with respect to their
properties and business and against such liabilities, casualties and
contingencies and of such types and in such amounts as is reasonably
satisfactory to the Agent and as is customary in the case of corporations or
other entities engaged in the same or similar business or having similar
properties similarly situated. The Borrowers agree to provide the Agent with
thirty (30) days advance notice of the termination of any such insurance
coverage.
5.04 Maintenance of Properties. Except to the extent that the failure to do
so would not have a Material Adverse Effect, the Borrowers and their
Subsidiaries will maintain or cause to be maintained in good repair, working
order and condition (ordinary wear and tear excepted), the properties now or in
the future owned, leased or otherwise possessed by each of them and shall make
or cause to be made all needful and proper repairs, renewals, replacements and
improvements to the properties so that the business carried on in connection
with the properties may be properly and advantageously conducted at all times.
5.05 Payment of Liabilities. The Borrowers and their Subsidiaries will pay
or discharge:
(a) on or prior to the date on which penalties attach, all taxes,
assessments, fees and other governmental charges or levies imposed upon them or
any of their respective properties, income, sales or franchises other than those
contested with due diligence, in good faith, without the incurrence of any Lien
which would have a Material Adverse Effect and for which the Borrowers and their
Subsidiaries have established sufficient reserves on their books;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like persons
which, if unpaid, might result in the creation of a Lien upon any of their
respective property other than those contested with due diligence, in good
faith, and for which the Borrowers or their Subsidiaries have established
adequate reserves on their books and for which the Borrowers and their
Subsidiaries have put in place adequate bonds or other security to cover the
amount of any such Lien; and
(c) on or prior to the date when due, all other lawful claims which,
if unpaid, might result in the creation of a Lien upon any of their property
other than those contested with due diligence, in good faith without the
occurrence of any Lien which would have a Material Adverse Effect and for which
the Borrowers and their Subsidiaries have established sufficient reserves on
their books.
5.06 Financial Accounting Practices. The Borrowers and their Subsidiaries
will make and keep books, records and accounts which, in reasonable detail,
accurately and fairly reflect their respective transactions and dispositions of
assets and maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (a) transactions are executed in accordance
with management's general or specific authorization, (b) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets, (c) access to
assets is permitted only in accordance with management's general or specific
authorization and (d) the recorded accountability for assets is
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compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
5.07 Compliance with Laws. The Borrowers and their Subsidiaries shall
comply with all applicable Laws, the non-compliance with which would have a
Material Adverse Effect.
5.08 Pension Plans. The Borrowers and their Subsidiaries shall (a) keep in
full force and effect any and all Plans which are presently in existence or may,
from time to time, come into existence under ERISA, unless such Plans can be
terminated without material liability to any Borrower or its Subsidiary in
connection with such termination; (b) make contributions to each of their Plans
in a timely manner and in a sufficient amount to comply in all material respects
with the requirements of ERISA; (c) comply with all material requirements of
ERISA which relate to such Plans so as to preclude the occurrence of any
Reportable Event, Prohibited Transaction (other than a Prohibited Transaction
subject to an exemption under ERISA) or material accumulated funding deficiency
as such term is defined in ERISA; and (d) notify the Agent immediately upon
receipt by any Borrower or its Subsidiaries of any notice of the institution of
any proceeding or other action which may result in the termination of any Plan.
The Borrowers shall deliver to the Agent and each of the Banks, promptly but in
any event within ten (10) Business Days after the filing or receipt thereof,
copies of all reports or notices which any Borrower or its Subsidiaries files or
receives under ERISA with or from the Internal Revenue Service, the PBGC, or the
U.S. Department of Labor, other than reports or notices which do not have a
Material Adverse Effect.
5.09 Use of Proceeds. The Borrowers shall use the proceeds of the Loans for
the purposes set forth in Section 3.14 hereof.
5.10 Continuation of and Change in Business. The Borrowers and their
Subsidiaries will continue to engage generally in business and activities
substantially similar to those described in MBC's Annual Report on Form 10-K for
the fiscal year ended December 31, 2000 (the "2000 Form 10-K") and the Borrowers
and their Subsidiaries will not engage in any other business or activity without
the prior written consent of the Banks.
5.11 Lien Searches. Upon an Event of Default, the Agent may, but shall not
be obligated to, conduct lien searches of the Borrowers, their Subsidiaries and
their assets and properties at any time. The Borrowers shall reimburse the Agent
for the Agent's reasonable out of pocket costs and expenses in connection with
such lien searches.
5.12 Further Assurances. The Borrowers, at their own cost and expense, will
cause to be promptly and duly taken, executed, acknowledged and delivered all
further acts, documents and assurances as the Agent may from time to time
reasonably request in order to more effectively carry out the intent and
purposes of this Agreement and the transactions contemplated by this Agreement.
5.13 Financial Covenants. The following financial covenants with respect to
the Borrowers shall apply:
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(a) Minimum Owner's Equity. The Borrowers shall maintain at all times
Owner's Equity in an amount not less than the sum of (i) Forty-Seven Million
Seven Hundred Thousand and 00/100 Dollars ($47,700,000.00) plus (ii)
seventy-five percent (75%) of Net Income of the Borrowers for the Fiscal Quarter
ending June 30, 2001 and each Fiscal Quarter thereafter (excluding any net loss
in any such Fiscal Quarter) at all times.
(b) Leverage Ratio. As of June 30, 2001 and on the last day of each
Fiscal Quarter thereafter, for the period equal to the four (4) consecutive
Fiscal Quarters then ending, the Borrowers shall maintain a Leverage Ratio in an
amount not to exceed 2.5 to 1.0. For purposes of this calculation only, the
definition of "EBITDA" shall exclude the Baker/Mellon Stuart/ADF Judgment.
(c) Interest and Rent Coverage Ratio. As of June 30, 2001 and as of
the last day of each Fiscal Quarter thereafter, for the period equal to the four
(4) consecutive Fiscal Quarters then ending, the Borrowers shall maintain an
Interest and Rent Coverage Ratio in an amount not less than 1.25 to 1.0;
provided, however, that, for purposes of this calculation, "Rent Expense" shall
be estimated by the Borrowers in good faith for each Fiscal Quarter ending June
30, September 30 and March 31 of each fiscal year of the Borrowers.
(d) Current Ratio. As of June 30, 2001 and as of the last day of each
Fiscal Quarter thereafter, the Borrowers shall maintain a Current Ratio of not
less than 1.1 to 1.0.
5.14 Amendment to Schedules. The Borrowers may amend any one or more of the
schedules referred to in this Agreement (subject to prior consent of the
Majority Banks) and any representation, warranty, or covenant contained herein
which refers to any such schedule shall from and after the date of any such
amendment refer to such schedule as so amended; provided, however, that in no
event shall the amendment of any such schedule constitute a waiver by the Banks
of any default or Event of Default that exists notwithstanding the amendment of
such schedule.
ARTICLE VI
NEGATIVE COVENANTS
The Borrowers covenant to the Agent and the Banks as follows:
6.01 Liens. No Borrower, nor any Subsidiary of a Borrower shall, at any
time, incur, create, assume or permit to exist, any Lien on any of its property
or assets, tangible or intangible, now or hereafter owned, or agree to become
liable to do so, except:
(a) such Liens existing on the Closing Date and set forth on Schedule
6.01 to this Agreement;
(b) Liens granted in favor of the Agent on behalf of the Banks;
(c) pledges or deposits under workers compensation, unemployment
insurance and social security laws, or to secure the performance of bids,
tenders, contracts (other
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than for the repayment of borrowed money) or leases or to secure statutory
obligations or surety or similar bonds used in the ordinary course of business;
(d) Liens arising from taxes, assessments, fees, charges, levies or
claims described in Section 5.05 of this Agreement;
(e) purchase money security interests to secure Indebtedness permitted
under Section 6.02(e); provided, however, that such security interest shall be
limited solely to the equipment purchased with the proceeds of such
Indebtedness;
(f) any unfiled materialmen's, mechanics, workmen's and repairmen's
Liens (provided, that if such a Lien shall be filed or perfected, it shall be
discharged of record immediately by payment, bond or otherwise);
(g) attachment, judgment and other similar Liens arising in connection
with court proceedings, so long as the existence of such Liens do not cause an
Event of Default under Section 7.01(i) or 7.01(j) hereof;
(h) reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other similar title exceptions
or encumbrances affecting real property, provided that they do not, individually
or in the aggregate, diminish the fair market value of the real property
affected thereby or the utility of such real property for the purposes for which
such property is presently devoted;
(i) Liens or deposits made in connection with contracts with or made
at the request of the United States of America or any department or agency
thereof resulting from progress payments or partial payments under any such
contracts, incurred in the ordinary course of business of the Borrowers or their
Subsidiaries; and
(j) Liens granted by Baker/Mellon Stuart to secure the loans permitted
pursuant to Section 6.04(f) hereof.
6.02 Indebtedness. No Borrower, nor any Subsidiary of a Borrower shall, at
any time, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under this Agreement, the Notes, the other Loan
Documents or under any other document, instrument or agreement between any
Borrower and Mellon;
(b) Indebtedness incurred pursuant to Section 6.04(c) hereof;
(c) Indebtedness existing on the Closing Date, and described in
Schedule 6.02 to this Agreement; provided, however, that such Indebtedness shall
not be extended, renewed, refinanced or materially modified without the prior
written consent of the Agent and the Majority Banks except for those renewals or
refinancings thereof which do not increase the interest rate charged thereon or
the principal amount thereof;
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(d) Current accounts payable, accrued expenses and other current items
arising out of transactions (other than borrowings) in the ordinary course of
business;
(e) Purchase money Indebtedness or Capitalized Lease Obligations for
purchases or leases of equipment in the ordinary course of business or
Indebtedness represented by unsecured promissory notes; provided, however, that
the amount of such Indebtedness, when combined with the amount guaranteed
pursuant to Section 6.03(d) hereof, shall not exceed Ten Million and 00/100
Dollars ($10,000,000.00) as to the aggregate, at any time, of all such purchase
money Indebtedness, Capitalized Lease Obligations, outstanding notes and
guarantees; and
(f) Indebtedness of Baker/Mellon Stuart to MBC in connection with the
loans permitted pursuant to Section 6.04(f) hereof.
6.03 Guarantees and Contingent Liabilities. No Borrower nor any Subsidiary
of a Borrower shall, at any time directly or indirectly assume, guarantee,
endorse or otherwise agree, become or remain directly or contingently liable
upon or with respect to any obligation or liability of any other Person other
than a Borrower or any Subsidiary of a Borrower, except:
(a) indemnities of directors and officers in their capacities as such,
as permitted by Law;
(b) endorsements on negotiable or other instruments in any amount for
deposit or collection or similar transactions in the ordinary course of their
businesses;
(c) those guarantees existing on the Closing Date and set forth on
Schedule 6.03 attached to this Agreement; and
(d) other guarantees with respect to obligations or liabilities in an
aggregate amount which, when combined with the aggregate outstanding amount of
the Indebtedness permitted pursuant to Section 6.02(e) hereof, shall not exceed
Ten Million and 00/100 Dollars ($10,000,000.00).
6.04 Loans and Investments. No Borrower nor any Subsidiary of a Borrower
shall purchase, own or invest in any stock or other securities of any Person, or
all or substantially all of the assets of any Person, or any business or
division of any Person (whether in a single or series of related transactions)
or make or permit to exist any investment or capital contribution to or acquire
any interest whatsoever in any other Person or permit to exist any loans or
advances to any Person except:
(a) equity investments in the Subsidiaries as set forth on Schedule
3.18 to this Agreement;
(b) Acquisitions permitted under Section 6.05 hereof;
(c) Loans to any Borrower from any Subsidiary of such Borrower;
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(d) other loans and investments existing on the Closing Date and set
forth on Schedule 6.04 attached to this Agreement;
(e) investments in (i) direct obligations of the United States of
America or any agency thereof, (ii) obligations guaranteed by the United States
of America, (iii) prime commercial paper (rated by Moody's Investors Service at
not less than a A-2 and by Standard & Poors at not less than P-2), (iv)
certificates of deposit or repurchase agreements issued by any Bank or any
commercial bank having capital and surplus in excess of One Hundred Million
Dollars ($100,000,000); (v) deposit accounts in and banker's acceptances of,
commercial banks, and (vi) investments (other than equity investments listed on
Schedule 3.18 attached hereto and the loans set forth in Section 6.04(f) below)
in any other Borrower or Subsidiary incurred in the ordinary course of business
and pursuant to usual and customary terms in the form of advances to such
Borrower or Subsidiary; provided, however, that (A) the total amount of all such
future advances made by the Borrowers to those Subsidiaries which are not
Borrowers, minus (B) the total amount of all such advances made by those
Subsidiaries which are not Borrowers to the Borrowers shall not, at any time,
exceed Fifteen Million and 00/100 Dollars ($15,000,000.00) and provided,
further, that the total amount of all such advances made by the Borrowers to any
single Subsidiary that is not a Borrower shall not exceed Ten Million and 00/100
Dollars ($10,000,000.00);
(f) loans made by a Borrower to (i) Baker/Mellon Stuart, (ii) Baker
Heavy & Highway, Inc., a Pennsylvania corporation and (iii) Baker GeoResearch;
provided, however, that the aggregate amount of all such loans shall not exceed
an amount equal to Forty-One Million and 00/100 Dollars ($41,000,000.00); and
(g) subject to Section 6.11 hereof, repurchases of outstanding common
stock of any Borrower as may be authorized by the board of directors of such
Borrower from time to time.
6.05 Acquisitions. No Borrower nor any Subsidiary of a Borrower shall make
an Acquisition or enter into any agreement with respect thereto, except
Acquisitions of Persons in businesses similar to those described in the 2000
Form 10-K so long as each of the following conditions are satisfied:
(a) the Agent shall be given at least thirty (30) days advance written
notice of any such Acquisition with a purchase price in excess of Two Million
Dollars ($2,000,000.00);
(b) the Agent and the Banks shall have received all documentation with
respect to such Acquisition including, but not limited to, the purchase
agreement and all related documentation and approvals as requested by the Agent
or any Bank;
(c) if requested by the Agent or any Bank, the Borrowers shall deliver
to the Agent and the Banks, pro forma financial statements of the Borrowers and
their Subsidiaries after giving affect to such Acquisition;
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(d) immediately before and after the closing and funding of such
Acquisition, the amount available under the Revolving Credit Facility Commitment
shall be greater than or equal to Ten Million and 00/100 Dollars
($10,000,000.00);
(e) no Event of Default or Potential Default shall exist prior to such
Acquisition and no Event of Default or Potential Default shall occur or exist as
a result of such Acquisition; and
(f) the aggregate purchase price of all such Acquisitions shall not
exceed (i) Fifteen Million and 00/100 Dollars ($15,000,000.00) in the aggregate
in any fiscal year and (ii) Twenty-Five Million and 00/100 Dollars
($25,000,000.00) in the aggregate during the term of this Agreement.
6.06 Partnerships, Combinations, Mergers or Consolidations. No Borrower nor
any Subsidiary of a Borrower shall form a partnership or merge or consolidate
with or into any other Person, or agree to do any of the foregoing, except:
(a) the Borrowers may permit any of their Subsidiaries to merge with
or consolidate into a Borrower if the Borrower is the surviving entity;
(b) the Borrowers may permit any of their Subsidiaries to merge with
or consolidate with another Subsidiary;
(c) any Borrower may merge with any other Borrower; and
(d) the Borrowers and their Subsidiaries may complete Acquisitions
permitted under Section 6.05 hereof.
6.07 Dispositions of Assets. No Borrower nor any Subsidiary of a Borrower
shall sell, convey, pledge, assign, lease, abandon or otherwise transfer or
dispose of, voluntarily or involuntarily (any of the foregoing being referred to
in this Section as a transaction and any series of related transactions
constituting but a single transaction), any of their respective properties or
assets, tangible or intangible (including stock of Subsidiaries) except:
(a) sales of inventory in the ordinary course of business;
(b) sales of assets which are no longer useful to the business of the
Borrowers or their Subsidiaries, made in the ordinary course of business;
(c) the release of funds held in the escrow account in connection with
the Baker/Mellon/Stuart/ADF Judgment; and
(d) so long as no Event of Default or Potential Default shall have
occurred, sales or dispositions of assets in the ordinary course of a Borrower's
business having a fair market value, at the time of sale or disposition, not in
excess of Two Million Five Hundred Thousand and 00/100 Dollars ($2,500,000.00)
in the aggregate for all such sales and dispositions in any fiscal year.
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6.08 Double Negative Pledge. No Borrower nor any Subsidiary of a Borrower
shall enter into or suffer to exist any agreement with any Person, other than in
connection with this Agreement, which prohibits or limits the ability of the
Borrowers or any Subsidiary to create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets of any kind (real or personal,
tangible or intangible) of the Borrowers or any Subsidiary, whether now owned or
hereafter acquired or created.
6.09 Self-Dealing. No Borrower nor any Subsidiary of a Borrower shall enter
into or carry out any loan, advance or other transaction (including, without
limitation, purchasing property or services, or selling property or services)
with any Affiliate, except that shareholders, directors, officers or partners of
a Borrower or a Subsidiary may render services to such Borrower or Subsidiary
for compensation at the same rates generally paid by corporations or
partnerships engaged in the same or similar businesses, and a Borrower or a
Subsidiary may enter into transactions with Affiliates if such transactions are
disclosed to the Agent and the Banks and made on terms comparable to those which
could be obtained in arms length transactions with a Person who is not an
Affiliate.
6.10 Capital Expenditures. The Borrowers will not, and will not permit any
Subsidiary to, make or commit to make, Capital Expenditures in any fiscal year
aggregating, for all Borrowers and Subsidiaries, more than Five Million and
00/100 Dollars ($5,000,000.00). For purposes of this Section 6.10, amounts paid
with respect to Acquisitions shall not constitute Capital Expenditures.
6.11 Distributions. No Borrower shall declare, make, pay, or agree, become
or remain liable to make or pay, any Distributions of any nature (whether in
cash, property, securities or otherwise) on account of or in respect of any
shares of the capital stock of such Borrower or on account of the purchase,
redemption, retirement or acquisition of any shares of the capital stock (or
warrants, options or rights for any shares of the capital stock of the Borrower)
other than (i) Distributions declared, made or paid by a Subsidiary of a
Borrower to such Borrower or (ii) Distributions in an aggregate amount not to
exceed Two Million Five Hundred Thousand and 00/100 Dollars ($2,500,000.00)
during the term of this Agreement.
6.12 Margin Stock. The Borrowers will not use the proceeds of any Loans
directly or indirectly to purchase or carry any "margin stock" (within the
meaning of Regulations U, G, T, or X of the Board of Governors of the Federal
Reserve System) or to extend credit to others for the purpose of purchasing or
carrying, directly or indirectly, any margin stock.
6.13 Fiscal Year; Tax Designation. No Borrower shall change its fiscal
year; or elect to be designated as an entity other than its current tax
designation without the prior written consent of the Agent and the Majority
Banks.
6.14 Costs in Excess of Billings. Beginning on the Closing Date through
September 30, 2002, the Borrowers' Costs in Excess of Billings shall not exceed
Twenty-Six Million and 00/100 Dollars ($26,000,000.00) as of any month-ending
financial statement date. Beginning on October 1, 2002 through the Expiry Date,
the Borrowers' Costs in Excess of Billings shall not exceed Twenty-Eight Million
and 00/100 Dollars ($28,000.000.00) as of any month-ending financial statement
date.
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ARTICLE VII
DEFAULTS
7.01 Events of Default. An Event of Default means the occurrence or
existence of one or more of the following events or conditions (whatever the
reason for such Event of Default and whether voluntary, involuntary or effected
by operation of Law):
(a) The Borrowers shall fail to pay principal on any of the Notes when
due; or
(b) The Borrowers shall fail to pay interest on the Loans or any fees
payable pursuant to Article II of this Agreement within five (5) days of the
date such interest or fees are due; or
(c) The Borrowers shall fail to pay any other fee, or other amount
payable pursuant to this Agreement, the Notes or any of the other Loan Documents
within ten (10) days after written notice to MBC by the Agent or any Bank; or
(d) Any representation or warranty made by any Borrower under this
Agreement, the Notes or any of the other Loan Documents or any statement made by
any Borrower in any financial statement, certificate, report, exhibit or
document furnished by the Borrowers to the Agent or any Bank pursuant to this
Agreement or the other Loan Documents shall prove to have been false or
misleading in any material respect as of the time when made; or
(e) Any Borrower shall be in default in the performance or observance
of any covenant contained in Sections 5.01(h); 5.01(i); 5.01(j); 5.01(k); 5.13
or any section in Article VI hereof (other than Section 6.14); or
(f) Any Borrower shall be in default in the performance or observance
of any covenant contained in Sections 5.01(a); 5.01(b); 5.01(c); 5.01(d);
5.01(e); 5.01(f); 5.01(g); 5.07 or 5.08 hereof and such default shall not have
been cured within fifteen (15) days of the occurrence of such default; or
(g) Any Borrower shall be in default in the performance or observance
of any covenant contained in Sections 5.02; 5.03; 5.05; 5.09; 5.10, 5.14 or 6.14
hereof and such default shall not have been cured within thirty (30) days of the
occurrence of such default; or
(h) Any Borrower shall be in default in the performance or observance
of any other covenant hereof and such default shall not have been cured within
thirty (30) days after written notice to MBC by the Agent; or
(i) Any Borrower or any Subsidiary shall (i) default (as principal or
guarantor or other surety) in any payment of principal of or interest on any
obligation (or set of related obligations) for borrowed money in excess of One
Million and 00/100 Dollars ($1,000,000.00), beyond any period of grace with
respect to the payment or, if such obligation (or set of related obligations) is
or are payable or repayable on demand, fails to pay or repay such obligation or
obligations when demanded, or (ii) default in the observance of any other
covenant,
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term or condition contained in any agreement or instrument by which an
obligation (or set of related obligations) is or are created, secured or
evidenced, if the effect of such default is to cause, or to permit the holder or
holders of such obligation or obligations (or a trustee or agent on behalf of
such holder or holders) to cause, all or part of such obligation or obligations
to become due before its or their otherwise stated maturity; or
(j) Except for the Baker/Mellon Stuart/ADF Judgment, one or more final
judgments for the payment of money in excess of One Million and 00/100 Dollars
($1,000,000.00) shall have been entered against any Borrower or any Subsidiary
and, in the case of any such judgment or judgments which in the aggregate are
less than Two Million and 00/100 Dollars ($2,000,000.00), such judgment or
judgments shall have remained undischarged and unstayed for a period of thirty
(30) consecutive days; or
(k) A writ or warrant of attachment, garnishment, execution, distraint
or similar process, exceeding in value the aggregate amount of One Hundred
Thousand and 00/100 Dollars ($100,000.00), shall have been issued against any
Borrower or any Subsidiary or any of their respective properties and, in the
event the value of such matters is in the aggregate less than One Million and
00/100 Dollars ($1,000,000.00), such shall remain undischarged and unstayed for
a period of thirty (30) consecutive days; or
(l) The Majority Banks have determined in their reasonable judgment
that a Material Adverse Change has occurred or that the prospect of payment or
performance of any covenant, agreement or duty under this Agreement, the Notes
or the other Loan Documents is impaired; or
(m) A Change of Control shall occur; or
(n) (i) A Termination Event with respect to a Plan shall occur, (ii)
any Person shall engage in any prohibited transaction involving any Plan, (iii)
an accumulated funding deficiency, whether or not waived, shall exist with
respect to any Plan, (iv) any Borrower or any ERISA Affiliate shall be in
"Default" (as defined in Section 4219(c)(5) of ERISA with respect to payments
due to a multi-employer Plan resulting from such Borrower's or any ERISA
affiliate's, complete or partial withdrawal (as described in Section 4203 or
4205 of ERISA) from such Plan, or (v) any other event or condition shall occur
or exist with respect to a single employer Plan, except that no such event or
condition shall constitute an Event of Default if it, together with all other
events or conditions at the time existing, would not have a Material Adverse
Effect; or
(o) A proceeding shall be instituted in respect of any Borrower or any
Subsidiary:
(i) seeking to have an order for relief entered in respect of
such Borrower or any Subsidiary or seeking a declaration or entailing a finding
that such Borrower or any Subsidiary is insolvent or a similar declaration or
finding, or seeking dissolution, winding-up, charter revocation or forfeiture,
liquidation, reorganization, arrangement, adjustment, composition or other
similar relief with respect to such Borrower or any Subsidiary, its assets or
debts under any Law relating to bankruptcy, insolvency, relief of
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debtors or protection of creditors, termination of legal entities or any other
similar Law now or in the future which shall not have been dismissed or stayed
within thirty (30) days after such proceedings were instituted; or
(ii) seeking appointment of a receiver, trustee, custodian,
liquidator, assignee, sequestrator or other similar official for any Borrower or
any Subsidiary or for all or any substantial part of its property which shall
not have been dismissed or stayed within thirty (30) days after such proceedings
were instituted; or
(p) Any Borrower shall voluntarily suspend transaction of its
business, any Borrower or any Subsidiary shall become insolvent, shall become
generally unable to pay its debts as they become due, shall make a general
assignment for the benefit of creditors, shall institute a proceeding described
in Section 7.01(o)(i) of this Agreement or shall consent to any order for
relief, declaration, finding or relief described in Section 7.01(o)(i) of this
Agreement, shall institute a proceeding described in Section 7.01(o)(ii) of this
Agreement or shall consent to the appointment or to the taking of possession by
any such official of all or any substantial part of its property whether or not
any proceeding is instituted, shall dissolve, wind-up or liquidate itself or any
substantial part of its property, or shall take any action in furtherance of any
of the foregoing.
7.02 Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (c) through (n) of
Section 7.01 of this Agreement occurs, the Agent and the Banks will be under no
further obligation to make Loans or issue Letters of Credit and may at the
option of the Majority Banks (i) demand the unpaid principal amount of the
Notes, interest accrued on the unpaid principal amount thereof and all other
amounts owing by the Borrowers under this Agreement, the Notes and the other
Loan Documents to be immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are expressly waived, and an
action for any amounts due shall accrue immediately; and (ii) require the
Borrowers to, and the Borrowers shall thereupon, deposit in a non-interest
bearing account with the Agent, as cash collateral for their obligations under
the Loan Documents, an amount equal to one hundred five percent (105%) of the
Letter of Credit Reserve, and the Borrowers hereby pledge to the Agent, and
grant to the Agent a security interest in, all such cash as security for such
obligations of the Borrowers.
(b) If an Event of Default specified in subsections (a), (b), (o) or
(p) of Section 7.01 of this Agreement occurs and continues or exists, the Agent
and the Banks will be under no further obligation to make Loans or issue Letters
of Credit and the unpaid principal amount of the Notes, interest accrued thereon
and all other amounts owing by the Borrowers under this Agreement, the Notes and
the other Loan Documents shall automatically become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
expressly waived, and an action for any amounts due shall accrue immediately.
7.03 Set-Off. If the unpaid principal amount of the Notes, interest accrued
on the unpaid principal amount of the Notes or other amount owing by the
Borrowers under this Agreement, the Notes or the other Loan Documents shall have
become due and payable (at maturity, by acceleration or otherwise), each of the
Banks, any assignee of the Banks and the
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holder of any participation in any Loan will each have the right, in addition to
all other rights and remedies available to it, without notice to the Borrowers,
to set-off against and to appropriate and apply to such due and payable amounts
any debt owing to, and any other funds held in any manner for the account of,
any Borrower by such Bank, by such assignee or by such holder including, without
limitation, all funds in all deposit accounts (whether time or demand, general
or special, provisionally credited or finally credited, or otherwise) now or in
the future maintained by any Borrower with such Bank, assignee or holder. The
Borrowers consent to and confirm the foregoing arrangements and confirm the
Banks' rights, such assignee's rights and such holder's rights of banker's lien
and set-off. Nothing in this Agreement will be deemed a waiver or prohibition of
or restriction on the Banks' rights, such assignee's rights or any such holder's
rights of banker's lien or set-off.
7.04 Equalization. Each Bank agrees with the other Banks that if, at any
time, it shall obtain any Advantage over the other Banks or any thereof in
respect of the Indebtedness of the Borrowers to the Banks, it shall purchase
from the other Banks, for cash and at par, such additional participation in the
Indebtedness of the Borrowers to the Banks as shall be necessary to nullify the
Advantage. If any such Advantage resulting in the purchase of an additional
participation as aforesaid shall be recovered in whole or in part from the Bank
receiving the Advantage, each such purchase shall be rescinded and the purchase
price restored (but without interest unless the Bank receiving the Advantage is
required to pay interest on the Advantage to the Person recovering the Advantage
from such Bank) ratably to the extent of the recovery. Each Bank agrees with the
other Banks that if it, at any time, shall receive any payment for or on behalf
of the Borrowers on any Indebtedness of the Borrowers to that Bank by reason of
offset of any deposit or other Indebtedness of the Borrowers to the Banks, it
will apply such payment first to any and all Indebtedness of the Borrowers to
the Banks pursuant to this Agreement (including, without limitation, any
participation purchased or to be purchased pursuant to this Section or any other
Section of this Agreement). The Borrowers agree that any Bank so purchasing a
participation from the other Banks or any thereof pursuant to this Section may
exercise all of its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Bank was a direct creditor of
the Borrowers in the amount of such participation.
7.05 Other Remedies. The remedies in this Article VII are in addition to,
not in limitation of, any other right, power, privilege, or remedy, either in
Law, in equity, or otherwise, to which the Banks may be entitled. The Agent
shall exercise the rights under this Article VII and all other collection
efforts on behalf of the Banks and no Bank shall act independently with respect
thereto, except as otherwise specifically set forth in this Agreement.
ARTICLE VIII
THE AGENT; ASSIGNMENTS; PARTICIPATIONS
8.01 Appointment and Authorization; No Liability. The Banks authorize
Mellon and Mellon hereby agrees to act as agent for the Banks in respect of this
Agreement and the other Loan Documents upon the terms and conditions set forth
in this Agreement. Each Bank hereby irrevocably appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
hereunder as are expressly delegated to the Agent by the
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terms of this Agreement and any of the other Loan Documents, together with such
powers as are reasonably incidental thereto; provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied to
have been assumed by the Agent. The relationship between the Agent and the Banks
is and shall be that of agent and principal only, and nothing contained in this
Agreement or any of the other Loan Documents shall be construed to constitute
the Agent as a trustee for any Bank. Neither the Agent nor any of its
shareholders, directors, officers, attorneys or employees nor any other Person
assisting them in their duties nor any agent or employee thereof, shall (a) be
liable for any waiver, consent or approval given or action taken or omitted to
be taken by it or them hereunder or under any of the Loan Documents or in
connection herewith or therewith or be responsible for the consequences of any
oversight or error of judgment whatsoever, or (b) be liable to the Borrowers for
consequential damages resulting from any breach of contract, tort or other wrong
in connection with the negotiation, documentation, administration or collection
of the Loans or any of the Loan Documents, except with respect to (a) and (b)
hereof, to the extent of its or their willful misconduct or gross negligence as
finally determined by a court of competent jurisdiction.
8.02 Employees and Agents. The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its rights
and duties under this Agreement and the other Loan Documents and shall not be
liable for action taken or suffered in good faith by it in accordance with the
opinion of such counsel. The Agent may utilize the services of such Persons as
the Agent in its sole discretion may determine, and all reasonable fees and
expenses of any such Persons shall be paid by the Borrowers and if not paid by
the Borrowers shall be paid by the Banks based upon their respective Commitment
Percentages.
8.03 No Representations; Each Bank's Independent Investigation. The Agent
shall not be responsible for (a) the execution, validity or enforceability of
this Agreement, the Notes, any of the other Loan Documents or any instrument at
any time constituting, or intended to constitute, collateral security for the
Notes, (b) the value of any such collateral security, (c) the validity,
enforceability or collectibility of any such amounts owing with respect to the
Notes, or (d) any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or instrument
hereafter furnished to it by or on behalf of the Borrowers. The Agent shall not
be bound (a) to ascertain or inquire as to the performance or observance of any
of the terms, conditions, covenants or agreements herein or in any instrument at
any time constituting, or intended to constitute, collateral security for the
Indebtedness evidenced by the Notes or (b) to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrowers or any holder of any
of the Notes shall have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it now make any representations or warranties,
express or implied, nor does it assume any liability to the Banks with respect
to the creditworthiness, financial condition or any other condition of the
Borrowers or with respect to the statements contained in any information
memorandum furnished in connection herewith or in any other oral or written
communication between the Agent and such Bank. Each Bank acknowledges that it
has, independently without reliance upon the Agent or any other Bank, and based
upon such information and documents as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and agrees that the
Agent has no duty or responsibility, either initially or on a continuing basis,
to provide any Bank with
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any credit or other information with respect thereto (other than such notices
as may be expressly required to be given by the Agent to the Banks hereunder).
8.04 Payments to Banks.
(a) As between the Agent and the Borrowers, a payment by the Borrowers
to the Agent hereunder or any of the other Loan Documents for the account of any
Bank shall constitute a payment to such Bank. The Agent agrees to promptly, but
in any event not later than the end of the following Business Day, distribute to
each Bank such Bank's Pro Rata Share of payments received by the Agent for the
account of the Banks in immediately available funds.
(b) If in the opinion of the Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under any of the
other Loan Documents, could reasonably be expected to involve it in liability,
it may refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received by the Agent for
the account of the Banks is to be distributed, the Agent shall distribute to
each Bank such Bank's Pro Rata Share of the amount so adjudged to be distributed
or in such manner as shall be determined by such court, together with interest
thereon, in respect of each day during the period commencing on the date such
amount was made available to the Agent and ending on the date the Agent
distributes such amount, at a rate per annum equal to the interest rate earned
by the Agent on such amount during such period. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the Agent
is to be repaid, each Person to whom any such distribution shall have been made
shall either repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Bank that fails (i) to make
available to the Agent its Pro Rata Share of any Loan that the Agent made on its
behalf or (ii) to comply with the provisions of Section 7.04 with respect to it
obtaining an Advantage, in each case as, when and to the full extent required by
the provisions of this Agreement, shall be deemed delinquent and shall not be
entitled to vote on any matters until such time as such delinquency is cured.
Such Bank shall be deemed to have assigned any and all payments due it from the
Borrowers, whether on account of outstanding Loans, interest, fees or otherwise,
to the remaining Banks for application to, and reduction of, their respective
Pro Rata Shares of all outstanding Loans. Such Bank hereby authorizes the Agent
to distribute such payments to the other Banks in proportion to their respective
Pro Rata Shares of all outstanding Loans. Such Bank shall be deemed to have
satisfied in full a delinquency when and if the Banks' respective Pro Rata
Shares of all outstanding Loans have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment causing
such delinquency.
8.05 Note Holders. The Agent may treat the payee of any Note as the holder
thereof until written notice of transfer shall have been filed with it signed by
such payee and in form satisfactory to the Agent.
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8.06 Documents. The Agent shall not be under any duty to examine into or
pass upon the validity, effectiveness, genuineness or value of any Loan
Documents or any other document furnished pursuant hereto or in connection
herewith or the value of any collateral obtained hereunder, and the Agent shall
be entitled to assume that the same are valid, effective and genuine and what
they purport to be.
8.07 Agents and Affiliates. With respect to the Loans, the Agent shall have
the same rights and powers hereunder as any other Bank and may exercise the same
as though it were not the agent, and the Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrowers or any of their Affiliates.
8.08 Indemnification of Agent. The Banks ratably agree to indemnify and
hold harmless the Agent from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in its capacity as agent in any way relating to
or arising out of this Agreement or any Loan Document or any action taken or
omitted by the Agent with respect to this Agreement or any Loan Document,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorney fees) or disbursements resulting from the Agent's
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction. The obligations of the Banks under this Section 8.08
shall survive the payment in full of all amounts due pursuant to this Agreement
or any other Loan Document and the termination of this Agreement.
8.09 Successor Agent. The Agent may resign as agent hereunder by giving not
fewer than thirty (30) days' prior written notice to the Borrowers and the
Banks. If the Agent shall resign under this Agreement, then either (a) the
Majority Banks shall appoint from among the Banks a successor agent for the
Banks or (b) if a successor agent shall not be so appointed and approved within
the thirty (30) day period following the Agent's notice to the Banks of its
resignation, then the Agent shall appoint a successor agent who shall serve as
agent until such time as the Majority Banks appoint a successor agent pursuant
to clause (a). Upon its appointment, such successor agent shall succeed to the
rights, powers and duties as agent, and the term "Agent" shall mean such
successor effective upon its appointment, and the former agent's rights, powers
and duties as agent shall be terminated without any other or further act or deed
on the part of such former agent or any of the parties to this Agreement.
8.10 Knowledge of Default. It is expressly understood and agreed that the
Agent shall be entitled to assume that no Event of Default or Potential Default
has occurred and is continuing unless the Agent has been notified by a Bank or
the Borrowers in writing that such Bank or the Borrowers consider that an Event
of Default or Potential Default has occurred and is continuing and specifying
the nature thereof.
8.11 Action by Agent. So long as the Agent shall be entitled, pursuant to
Section 8.10 hereof, to assume that no Event of Default or Potential Default
shall have occurred and be continuing, the Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights
which may be vested in it by, or with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect
of,
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this Agreement. The Agent shall incur no liability under or in respect of this
Agreement by acting upon any notice, certificate, warranty or other paper or
instrument believed by it to be genuine or authentic or to be signed by the
proper party or parties, or with respect to anything which it may do or refrain
from doing in the reasonable exercise of its judgment.
8.12 Notification of Potential Defaults and Events of Defaults. Each Bank
hereby agrees that, upon learning of the existence of a Potential Default or
Event of Default, it shall promptly notify the Agent thereof. In the event that
the Agent receives notice of an Event of Default or Potential Default, the Agent
shall promptly notify all of the Banks and shall take such action and assert
such rights under this Agreement as the Majority Banks shall direct and the
Agent shall promptly inform the Banks in writing of the action taken. The Agent
may take such action and assert such rights as it deems to be advisable, in its
discretion, for the protection of the interests of the holders of the Notes.
8.13 Declaration of Invalidation. Each Bank agrees that, to the extent that
any payments received by any Bank from the Borrowers or otherwise on account of
the Loans are subsequently invalidated, declared to be fraudulent or
preferential, set aside or judicially required to be repaid to a
debtor-in-possession, trustee, receiver, custodian or any other Person in
connection with any proceeding referred to in Section 7.01(o) hereof or any
similar cause of action ("Preference"), then, to the extent of such Preference,
each Bank shall, upon demand, reimburse the Bank subject to such Preference in
the amount necessary to cause each Bank to be affected by such Preference in
proportion to its Pro Rata Share of the Loans.
8.14 Pro Rata Portion, Pari Passu and Equal. The Pro Rata Share of each
Bank in the Loans and the Letters of Credit shall be pari passu and equal with
the Pro Rata Share of each other Bank and no Bank shall have priority over the
other.
8.15 Cooperation. Each Bank agrees that it shall cooperate in good faith
and in a commercially reasonable manner with each other Bank and take whatever
reasonable actions (at its own expense) are necessary to implement decisions
made in accordance with this Agreement and with each of the other Loan Documents
relating thereto.
8.16 Obligations Several. The obligations of the Banks hereunder are
several and not joint. Nothing contained in this Agreement, and no action taken
by the Agent or the Banks pursuant hereto, shall be deemed to constitute a
partnership, association, joint venture or other entity between any of the
Banks. No default by any Bank hereunder shall excuse any Bank from any
obligation under this Agreement, but no Bank shall have or acquire any
additional obligation of any kind by reason of such default. The relationship
among the Borrowers and the Banks with respect to the Loan Documents and any
other document executed in connection therewith is and shall be solely that of
debtor and creditors, respectively, and neither the Agent nor any Bank has any
fiduciary obligation toward the Borrowers with respect to any such documents or
the transactions contemplated thereby.
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8.17 Bank Assignments/Participations.
A. Assignment/Transfer of Commitments.
Each Bank shall have the right at any time or times to assign or transfer to
another Eligible Assignee, without recourse, all or a portion of (a) that Bank's
Commitment, (b) all Loans made by that Bank, (c) that Bank's Notes, and (d) that
Bank's participation purchased pursuant to Section 7.04; provided, however, in
each such case, that the transferor and the transferee shall have complied with
the following requirements:
(i) Prior Consent of Agent. No transfer may be consummated
pursuant to this Section 8.17(A) (including, without limitation, a transfer from
one Bank to another Bank) without the prior written consent of the Agent (other
than a transfer by any Bank to any affiliate of such Bank or a transfer
occurring during the existence of an Event of Default or Potential Default),
which consent of the Agent shall not be unreasonably withheld, delayed or
conditioned.
(ii) Prior Consent of Borrowers. No transfer may be consummated
pursuant to this Section 8.17 (including, without limitation, a transfer from
one Bank to another Bank) without the prior written consent of the Borrowers
(other than a transfer by any Bank to any affiliate of such Bank or a transfer
occurring during the existence of an Event of Default or Potential Default),
which consent of the Borrowers shall not be unreasonably withheld, delayed or
conditioned.
(iii) Minimum Amount. No transfer may be consummated pursuant to
this Section 8.17(A) (including, without limitation, a transfer from one Bank to
another Bank other than a transfer by any Bank to an affiliate of such Bank) in
an aggregate amount less than (a) Five Million and 00/100 Dollars
($5,000,000.00) or (b) if such Bank's Commitment is at any time less than Five
Million and 00/100 Dollars ($5,000,000.00), the entire amount of such Bank's
Commitment.
(iv) Agreement; Transfer Fee. Unless the transfer shall be to an
affiliate of the transferor or the transfer shall be due to merger of the
transferor or for regulatory purposes, the transferor (A) shall remit to the
Agent, for its own account, an administrative fee of Three Thousand Five Hundred
and 00/100 Dollars ($3,500.00) and (B) shall cause the transferee to execute and
deliver to the Borrowers, the Agent and each Bank (1) an Assignment Agreement,
in the form of Exhibit "C" attached hereto and made a part hereof (an
"Assignment Agreement') together with the consents and releases and the
Administrative Questionnaire referenced therein, and (2) such additional
amendments, assurances and other writings as the Agent may reasonably require.
(v) Notes. Upon its receipt of an Assignment Agreement executed
by the parties to such Assignment, together with each Note subject to such
Assignment Agreement, the Agent shall (a) record the information contained
therein in the Register, and (b) give prompt notice thereof to the Borrowers and
the other Banks. Within five (5) Business Days after receipt of such notice, the
Borrowers, at their own expense, shall execute and deliver (A) to the Agent, the
transferor and the transferee, any consent or release (of
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all or a portion of the obligations of the transferor) to be delivered in
connection with the Assignment Agreement, and (B) to the transferee and, if
applicable, the transferor, the appropriate Notes. Upon delivery of the new
Notes, the transferor's Notes shall be promptly returned to the Borrowers marked
"replaced".
(vi) Parties. Upon satisfaction of the requirements of this
Section 8.17, including the payment of the fee and the delivery of the documents
set forth in Section 8.17(A) (iv), (A) the transferee shall become and
thereafter be deemed to be a "Bank" for the purposes of this Agreement, (B) if
the transferor transfers all of its interest, the transferor shall cease to be
and thereafter shall no longer be deemed to be a "Bank" and shall have no
further rights or obligations under or in connection herewith, and (C) the
signature pages hereof and Schedule 1 hereto shall be automatically amended,
without further action, to reflect the result of any such transfer.
(vii) The Register. The Agent shall maintain a copy of each
Assignment Agreement delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Banks and the
Commitment Percentages of, and principal amount of the Loans owing to, each Bank
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, with respect to such information, and the Borrowers,
the Agent and the Banks may treat each financial institution whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(viii) Certain Representations and Warranties; Limitations;
Covenants. By executing and delivering an Assignment Agreement, the parties to
the Assignment thereunder confirm to and agree with each other and the other
parties hereto as follows:
(a) Other than the representation and warranty that it is
the legal and beneficial owner of the interest being assigned thereby free and
clear of any adverse claim, the assigning Bank makes no representation and
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto;
(b) The assigning Bank makes no representation or warranty
and assumes no responsibility of the financial condition of the Borrowers or any
other Person primarily or secondarily liable in respect of any of the
Indebtedness of the Borrowers to the Banks, or the performance or observance by
the Borrowers or any other Person primarily or secondarily liable in respect of
any of the Indebtedness of the Borrowers to the Banks or any of their
obligations under this Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) Such assignee confirms that it has received a copy of
this Agreement, together with copies of the most recent financial statements
referred to in
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Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the
Assignment Agreement;
(d) Such assignee will, independently and without reliance
upon the assigning Bank, the Agent or any other 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 action under this Agreement;
(e) Such assignee represents and warrants that it is an
Eligible Assignee;
(f) Such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto;
(g) Such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Bank; and
(h) Such assignee represents and warrants that it is legally
authorized to enter into such Assignment Agreement.
B. Participations.
Each Bank shall have the right at any time or times, without the consent of
any other party, to sell one or more participations or sub-participations to one
or more financial institutions, in all or any part of (a) that Bank's
Commitment, (b) that Bank's Commitment Percentage, (c) any Loan made by that
Bank, (d) any Note delivered to that Bank pursuant to this Agreement and (e)
that Bank's participations, if any, purchased pursuant to Section 7.04 or this
Section 8.17(B).
(i) Rights Reserved. In the event any Bank shall sell any
participation or sub-participation, that Bank shall, as between itself and the
purchaser, retain all of its rights (including, without limitation, rights to
enforce against the Borrowers the Loan Documents and any and all other documents
in connection therewith) and duties pursuant to the Loan Documents and any and
all other documents in connection therewith, including, without limitation, that
Bank's right to approve any waiver, consent or amendment pursuant to Section
9.02; provided, however, that (a) any such participation shall be in a minimum
amount of Five Million and 00/100 Dollars ($5,000,000.00) and (b) the holder of
any such participation shall not be entitled to require such Bank to take any
action hereunder except action directly affecting (i) any reduction in the
principal amount or an interest rate on any Loan in which such holder
participates; (ii) any extension of the Expiry Date or the date fixed for any
payment of interest or principal payable with respect to any Loan in which such
holder participates; and (iii) any reduction in the amount of any fees payable
hereunder with respect to any Loan in which such holder participates. The
Borrowers hereby acknowledge and agree that the participant under
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each participation shall for purposes of Sections 2.11(b), 2.12, 7.03 and 9.16
be considered to be a "Bank". Except as otherwise set forth herein, no
participant or sub-participant shall have any rights or obligations hereunder,
and the Borrowers and the Agent shall continue to deal with the Banks as if no
participation or sub-participation had occurred. The Agent shall continue to
distribute payments as if no participation or sub-participation had been sold.
(ii) No Delegation. No participation or sub-participation shall
operate as a delegation of any duty of the seller thereof. Under no
circumstances shall any participation or sub-participation be deemed a novation
in respect of all or any part of the seller's obligations pursuant to this
Agreement.
C. Pledge by Banks. Notwithstanding the provisions of this Section
8.17, any Bank may at any time pledge all or any portion of its interest and
rights under this Agreement (including all or any portion of its Notes) to any
of the federal reserve banks organized under Section 4 of the Federal Reserve
Act, 12 U.S.C. Section 341. No such pledge or the enforcement thereof shall
release the pledgor Bank from its obligations hereunder or under any of the
other Loan Documents.
ARTICLE IX
MISCELLANEOUS
9.01 Business Days. Except as otherwise provided in this Agreement,
whenever any payment or action to be made or taken under this Agreement, or
under the Notes or under any of the other Loan Documents is stated to be due on
a day which is not a Business Day, such payment or action will be made or taken
on the next following Business Day and such extension of time will be included
in computing interest or fees, if any, in connection with such payment or
action.
9.02 Amendments and Waivers. No amendment, modification, termination, or
waiver of any provision of this Agreement or any Loan Document, nor consent to
any variance therefrom, shall be effective unless the same shall be in writing
and signed by the Majority Banks and the Borrowers and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose given. Notwithstanding anything contained herein to the contrary,
unanimous consent of the Banks shall be required with respect to (a) any
increase in the Commitments hereunder, (b) the extension of the Expiry Date, the
payment date of interest or principal hereunder, or the payment of commitment or
other fees or amounts payable hereunder, (c) any reduction in the rate of
interest on the Notes, or in any amount of principal or interest due on any
Note, or the payment of commitment or other fees hereunder or any change in the
manner of pro rata application of any payments made by the Borrowers to the
Banks hereunder, (d) any change in any percentage voting requirement, voting
rights or the definition of Majority Banks in this Agreement, or (e) any
amendment to this Section 9.02, 9.11 or Section 7.04 hereof. Notice of
amendments or consents ratified by the Banks hereunder shall be immediately
forwarded by the Agent to all Banks. Each Bank or other holder of a Note shall
be bound by any amendment, waiver or consent obtained as authorized by this
Section, regardless of its failure to agree thereto. In the case of any such
waiver or consent relating to any provision of this Agreement, any Event of
Default or Potential Default so waived or consented to will be deemed to be
cured and not
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continuing, but no such waiver or consent will extend to any other or
subsequent Event of Default or Potential Default or impair any right consequent
to any other or subsequent Event of Default or Potential Default or impair any
right consequent thereto.
9.03 No Implied Waiver: Cumulative Remedies. No course of dealing and no
delay or failure of the Agent or the Banks in exercising any right, power or
privilege under this Agreement, the Notes or any other Loan Document will affect
any other or future exercise of any such right, power or privilege or exercise
of any other right, power or privilege except as and to the extent that the
assertion of any such right, power or privilege shall be barred by an applicable
statute of limitations; nor shall any single or partial exercise of any such
right, power or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further exercise of such
right, power or privilege or of any other right, power or privilege. The rights
and remedies of the Agent and the Banks under this Agreement, the Notes or any
other Loan Document are cumulative and not exclusive of any rights or remedies
which the Banks would otherwise have.
9.04 Notices. All notices, requests, demands, directions and other
communications (collectively, "Notices") under the provisions of this Agreement
or the Notes must be in writing (including telexed or telecopied communication)
unless otherwise expressly permitted under this Agreement and must be sent by
first-class or first-class express mail, private overnight or next Business Day
courier or by telecopy with confirmation in writing mailed first class, in all
cases with charges prepaid, and any such properly given Notice will be effective
when received. All Notices will be sent to the applicable party at the addresses
stated below or in accordance with the last unrevoked written direction from
such party to the other parties.
If to Borrowers: William P. Mooney
Executive Vice President and
Chief Financial Officer
Michael Baker Corporation
Airport Office Park, Building No. 3
420 Rouser Road
Coraopolis, PA 15108
and a copy to: H. James McKnight, Esquire
Secretary and General Counsel
Michael Baker Corporation
Airport Office Park, Building No. 3
420 Rouser Road
Coraopolis, PA 15108
Lee van Egmond, Esquire
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15230
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If to Agent: Mark T. Latterner
Vice President
Mellon Bank, N.A.
Two Mellon Bank Center, Room 152-0230
Pittsburgh, PA 15259-0001
and a copy to: Jeffrey J. Conn, Esquire
Thorp Reed & Armstrong, LLP
One Oxford Centre
Pittsburgh, PA 15219-1425
If to Banks: At such Bank's address set forth
on Schedule 1 attached hereto and
made a part hereof
9.05 Expenses; Taxes; Attorneys Fees. The Borrowers agree to pay or cause
to be paid and to save the Agent and the Banks harmless against liability for
the payment of all reasonable out-of-pocket expenses, including, but not limited
to reasonable fees and expenses of counsel and paralegals for the Agent and the
Banks, incurred by the Agent and the Banks from time to time (i) arising in
connection with the preparation, execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents, (ii) relating to any
requested amendments, waivers or consents to this Agreement, the Notes or any of
the other Loan Documents and (iii) arising in connection with the Agent's and
the Banks' enforcement or preservation of rights under this Agreement, the Notes
or any of the other Loan Documents including, but not limited to, such expenses
as may be incurred by the Agent and the Banks in the collection of the
outstanding principal amount of the Loans. The Borrowers agree to pay all stamp,
document, transfer, recording or filing taxes or fees and similar impositions
now or in the future determined by the Agent and the Banks to be payable in
connection with this Agreement, the Notes or any other Loan Document. The
Borrowers agree to save the Agent and the Banks harmless from and against any
and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions. In the event of a determination adverse to a Borrower of any action
at law or suit in equity in relation to this Agreement, the Notes or the other
Loan Documents, the Borrowers will pay, in addition to all other sums which the
Borrowers may be required to pay, a reasonable sum for attorneys and paralegals
fees incurred by the Agent and the Banks or the holder of the Notes in
connection with such action or suit. All payments due from the Borrowers under
this Section will be added to and become part of the Loans until paid in full.
9.06 Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement is held invalid or unenforceable
in whole or in part in any jurisdiction, the provision will, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
of the provision in any other jurisdiction or the remaining provisions of this
Agreement in any jurisdiction.
9.07 Governing Law: Consent to Jurisdiction. This Agreement will be deemed
to be a contract under the Laws of the Commonwealth of Pennsylvania and for all
purposes will
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be governed by and construed and enforced in accordance with the substantive
Laws, and not the laws of conflicts, of said Commonwealth. The Borrowers consent
to the exclusive jurisdiction and venue of the federal and state courts located
in Allegheny County, Pennsylvania, in any action on, relating to or mentioning
this Agreement, the Notes, the other Loan Documents, or any one or more of them.
9.08 Prior Understandings. This Agreement, the Notes and the other Loan
Documents supersede all prior understandings and agreements, whether written or
oral, among the parties relating to the transactions provided for in this
Agreement, the Notes and the other Loan Documents.
9.09 Duration: Survival. All representations and warranties of the
Borrowers contained in this Agreement or made in connection with this Agreement
or any of the other Loan Documents shall survive the making of and will not be
waived by the execution and delivery of this Agreement, the Notes or the other
Loan Documents, by any investigation by the Agent or any Bank, or the making of
any Loan. Notwithstanding termination of this Agreement or an Event of Default,
all covenants and agreements of the Borrowers will continue in full force and
effect from and after the date of this Agreement so long as the Borrowers may
borrow under this Agreement and until payment in full of the Notes, interest
thereon, and all fees and other obligations of the Borrowers under this
Agreement or the Notes. Without limitation, it is understood that all
obligations of the Borrowers to make payments to or indemnify the Agent and the
Banks will survive the payment in full of the Notes and of all other obligations
of the Borrowers under this Agreement, the Notes and the other Loan Documents.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties to this Agreement on separate
counterparts each of which, when so executed, will be deemed an original, but
all such counterparts will constitute but one and the same instrument.
9.11 Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the Agent, the Banks, the Borrowers and their successors and
assigns, except that the Borrowers may not assign or transfer any of its rights
under this Agreement without the prior written consent of the Banks.
9.12 No Third Party Beneficiaries. The rights and benefits of this
Agreement and the other Loan Documents are not intended to, and shall not, inure
to the benefit of any third party.
9.13 Exhibits. All exhibits and schedules attached to this Agreement are
incorporated and made a part of this Agreement.
9.14 Headings. The section headings contained in this Agreement are for
convenience only and do not limit or define or affect the construction or
interpretation of this Agreement in any respect.
9.15 Limitation of Liability. To the fullest extent permitted by Law, no
claim may be made by the Borrowers against the Agent or the Banks, or by the
Agent or the Banks against the Borrowers, or by the Borrowers, the Agent or the
Banks against any affiliate,
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director, officer, employee, attorney or agent of the other for any special,
incidental, indirect, consequential or punitive damages in respect of any claim
arising from or related to this Agreement or any other Loan Document or any
statement, course of conduct, act, omission or event occurring in connection
herewith or therewith (whether for breach of contract, tort or any other theory
of liability). The Borrowers, the Agent and the Banks hereby waive, release and
agree not to sue upon any claim for any such damages, whether such claim
presently exists or arises hereafter and whether or not such claim is known or
suspected to exist in its favor. This Section 9.15 shall not limit any rights of
the Borrowers, the Agent or the Banks arising solely out of gross negligence or
willful misconduct.
9.16 Indemnities. In addition to the payment of expenses pursuant to
Section 9.05 hereof, the Borrowers agree to indemnify, pay and hold the Agent
and each Bank and their officers, directors and attorneys (collectively, called
the "Indemnitees"), harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto) that may be imposed on, incurred by or asserted against that
Indemnitee, in any matter arising from the occurrence of an Event of Default
hereunder or under the other Loan Documents, or the exercise of any right or
remedy hereunder or under the other Loan Documents (the "Indemnified
Liabilities"); provided, however, that the Borrowers shall have no obligation to
an Indemnitee hereunder with respect to Indemnified Liabilities arising from the
gross negligence or willful misconduct of that Indemnitee.
[INTENTIONALLY LEFT BLANK]
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9.17 WAIVER OF TRIAL BY JURY. THE BORROWERS, THE AGENT AND THE BANKS
EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVE ALL BENEFIT AND ADVANTAGE OF ANY
RIGHT TO A TRIAL BY JURY, AND NO PARTY HERETO WILL AT ANY TIME INSIST UPON, OR
PLEAD OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE BENEFIT OR ADVANTAGE OF A
TRIAL BY JURY IN ANY ACTION ARISING IN CONNECTION WITH THIS AGREEMENT, THE NOTES
OR ANY OF THE OTHER LOAN DOCUMENTS.
INITIALS:
/S/ WPM
------------------
MBC
/S/ WPM
------------------
MICHAEL BAKER JR.
/S/ WPM
------------------
BAKER/MO
/S/ WPM
------------------
BAKER/OTS
/S/ WPM
------------------
BAKER NY
/S/ ML
------------------
MELLON, AS AGENT
AND FOR ITSELF
/S/ SJD
------------------
NCB
/S/ CSH
------------------
FIFTH THIRD
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IN WITNESS WHEREOF, and intending to be legally bound, the parties, by
their duly authorized officers, have executed and delivered this Agreement on
the date set forth at the beginning of this Agreement.
Attest: Michael Baker Corporation
By: /s/ Marcia S. Wolk By: /s/ William P. Mooney
----------------------------- --------------------------------
Title: Assistant Secretary Title: Executive Vice President & CFO
------------------------- ------------------------------
Attest: Michael Baker, Jr., Inc.
By: /s/ Marcia S. Wolk By: /s/ William P. Mooney
----------------------------- --------------------------------
Title: Assistant Secretary Title: Executive Vice President & CFO
------------------------- ------------------------------
Attest: Baker/MO Services, Inc.
By:/s/ Marcia S. Wolk By: /s/ William P. Mooney
----------------------------- -------------------------------
Title: Assistant Secretary Title: Executive Vice President & CFO
------------------------- ------------------------------
Attest: Baker/OTS, Inc.
By: /s/ Marcia S. Wolk By: /s/ William P. Mooney
---------------------------- --------------------------------
Title: Assistant Secretary Title: Executive Vice President & CFO
------------------------- -------------------------------
Attest: Baker Engineering NY, Inc.
By: /s/ Marcia S. Wolk By: /s/ William P. Mooney
----------------------------- --------------------------------
Title: Assistant Secretary Title: Executive Vice President & CFO
------------------------- ------------------------------
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Mellon Bank, N.A., as Agent and
for itself as a Bank
By: /s/ Mark Latterner
-----------------------------------
Title: VP
--------------------------------
National City Bank of Pennsylvania
By: /s/ Susan J. Dimmick
-----------------------------------
Title: VP
--------------------------------
Fifth Third Bank
By: /s/ C S Helmeci
-----------------------------------
Title: VP
--------------------------------
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