EXHIBIT 10.4(b)
SECOND AMENDMENT TO LOAN AGREEMENT
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This Second Amendment to Loan Agreement, dated this 25th day of April,
2002, 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"), Citizens Bank of Pennsylvania (assignee of Mellon Bank, N.A.), a
Pennsylvania banking institution ("Citizens"), 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 Citizens Bank of Pennsylvania, as agent for the Banks (in such
capacity, the "Agent") ("Second Amendment").
W I T N E S S E T H:
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WHEREAS, the Borrowers, the Banks and the Agent entered into that
certain Loan Agreement, dated September 5, 2001, as amended by that certain
First Amendment to Loan Agreement, dated February 20, 2002 (the "Loan
Agreement"), pursuant to which, among other things, the Banks agreed to 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); and
WHEREAS, the Borrowers desire to amend certain provisions of the Loan
Agreement and the Banks and the Agent shall permit such amendments pursuant to
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. All capitalized terms used herein which are defined in the Loan
Agreement shall have the same meaning herein as in the Loan Agreement unless the
context clearly indicates otherwise.
2. Section 1.01 of the Loan Agreement is hereby amended by deleting the
definition of "Owner's Equity" and inserting the following in its stead:
"Owner's Equity" means, as of the date of determination, (i) net
worth minus (ii) the aggregate amount of all investments made
pursuant to Section 6.04(h) hereof, in each case determined and
Consolidated for the Borrowers and their Subsidiaries in accordance
with GAAP.
3. Section 6.04 of the Loan Agreement is hereby amended to include the
following Section 6.04(h):
(h) other investments in an aggregate amount not to exceed Two
Million and 00/100 Dollars ($2,000,000.00) at any time.
4. The provisions of Section 2 and 3 of this Second Amendment shall not
become effective until the Agent has received this Second Amendment, duly
executed by the Borrowers and each Bank.
5. Each Borrower hereby reconfirms and reaffirms all representations
and warranties, agreements and covenants made by it pursuant to the terms and
conditions of the Loan Agreement, except as such representations and warranties,
agreements and covenants may have heretofore been amended, modified or waived in
writing in accordance with the Loan Agreement.
6. Each Borrower hereby represents and warrants to the Banks and the
Agent that (i) such Borrower has the legal power and authority to execute and
deliver this Second Amendment, (ii) the officers of such Borrower executing this
Second Amendment have been duly authorized to execute and deliver the same and
bind such Borrower with respect to the provisions hereof, (iii) the execution
and delivery hereof by such Borrower and the performance and observance by such
Borrower of the provisions hereof and of the Loan Agreement and all documents
executed or to be executed therewith, do not violate or conflict with the
organizational agreements of such Borrower or any Law applicable to such
Borrower or result in a breach of any provision of or constitute a default under
any other agreement, instrument or document binding upon or enforceable against
such Borrower, and (iv) this Second Amendment, the Loan Agreement and the
documents executed or to be executed by such Borrower in connection herewith or
therewith constitute valid and binding obligations of such Borrower in every
respect, enforceable in accordance with their respective terms.
7. Each Borrower represents and warrants that (i) no Event of Default
exists under the Loan Agreement, nor will any occur as a result of the execution
and delivery of this Second Amendment or the performance or observance of any
provision hereof, (ii) the Schedules attached to and made a part of the Loan
Agreement, as amended by this Second Amendment, are true and correct in all
material respects as of the date hereof, and (iii) it presently has no known
claims or actions of any kind at Law or in equity against the Banks or the Agent
arising out of or in any way relating to the Loan Documents.
8. Each reference to the Loan Agreement that is made in the Loan
Agreement or any other document executed or to be executed in connection
therewith shall hereafter be construed as a reference to the Loan Agreement as
amended hereby.
9. The agreements contained in this Second Amendment are limited to the
specific agreements made herein. Except as amended hereby, all of the terms and
conditions of the Loan Agreement shall remain in full force and effect. This
Second Amendment amends the Loan Agreement and is not a novation thereof.
10. This Second Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts each of which, when
so executed, shall be deemed to be an original, but all such counterparts shall
constitute but one and the same instrument.
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11. This Second Amendment shall be governed by, and shall be construed
and enforced in accordance with, the Laws of the Commonwealth of Pennsylvania
without regard to the principles of the conflicts of law thereof. Each Borrower
hereby consents to the jurisdiction and venue of the Court of Common Pleas of
Allegheny County, Pennsylvania and the United States District Court for the
Western District of Pennsylvania with respect to any suit arising out of or
mentioning this Second Amendment.
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IN WITNESS WHEREOF, and intending to be legally bound, the
parties hereto have caused this Second Amendment to be duly executed by their
duly authorized officers as of the date above written.
Attest: Michael Baker Corporation
By: /s/ H. James McKnight By: /s/ William P. Mooney
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Name: H. James McKnight Name: William P. Mooney
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Title: Executive Vice President, General Title: EVP & CFO
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Counsel & Secretary
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Attest: Michael Baker, Jr., Inc.
By: /s/ H. James McKnight By: /s/ William P. Mooney
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Name: H. James McKnight Name: William P. Mooney
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Title: Executive Vice President, General Title: EVP & CFO
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Counsel & Secretary
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Attest: Baker/MO Services, Inc.
By: /s/ H. James McKnight By: /s/ William P. Mooney
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Name: H. James McKnight Name: William P. Mooney
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Title: Executive Vice President, General Title: EVP & CFO
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Counsel & Secretary
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Attest: Baker/OTS, Inc.
By: /s/ H. James McKnight By: /s/ William P. Mooney
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Name: H. James McKnight Name: William P. Mooney
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Title: Executive Vice President, General Title: EVP & CFO
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Counsel & Secretary
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Attest: Baker Engineering NY, Inc.
By: /s/ H. James McKnight By: /s/ William P. Mooney
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Name: H. James McKnight Name: William P. Mooney
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Title: Executive Vice President, General Title: EVP & CFO
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Counsel & Secretary
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Citizens Bank of Pennsylvania, as Agent and
for itself as a Bank
By: /s/ Mark Latterner
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Name: Mark Latterner
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Title: V.P.
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National City Bank of Pennsylvania
By: /s/ Susan J. Dimmick
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Name: Susan J. Dimmick
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Title: Vice President
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Fifth Third Bank
By: /s/ Christopher S. Helmeci
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Name: Christopher S. Helmeci
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Title: Vice President
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