Exhibit 10.4(e)
REVOLVING CREDIT NOTE
$5,000,000.00 Pittsburgh, Pennsylvania
May 8, 2003
FOR VALUE RECEIVED, and intending to be legally bound hereby, 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 "Maker"
and collectively, the "Makers"), hereby promises to pay to the order of Citizens
Bank of Pennsylvania (the "Bank"), the lesser of (i) the principal sum of Five
Million and 00/100 Dollars ($5,000,000.00) or (ii) the aggregate unpaid
principal amount of all Revolving Credit Loans (as hereinafter defined) made by
the Bank to the Makers, pursuant to the terms hereof (as the same may be
amended, modified or supplemented from time to time, this "Note"), together with
interest thereon at the rate or rates specified herein, as follows:
1. 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 Note, the Bank
agrees to make loans (the "Revolving Credit Loans") to the Makers at any time or
from time to time on or after May 8, 2003 (the "Closing Date") and to and
including the Business Day (as hereinafter defined) immediately preceding the
Expiry Date (as hereinafter defined) in an aggregate principal amount which
shall not exceed at any one time outstanding Five Million and 00/100 Dollars
($5,000,000.00) (the "Revolving Credit Facility Commitment"). Within the limits
of time and amount set forth in this Section 1, and subject to the provisions of
this Note including, without limitation, the Bank's right to demand repayment of
the Revolving Credit Loans upon the occurrence of an Event of Default (as
hereinafter defined), the Makers may borrow, repay and reborrow under this
Section 1.
(i) Making of Revolving Credit Loans. Subject to the terms and
conditions set forth in this Note, and provided that the Makers have satisfied
all applicable conditions specified herein, the Bank shall make Revolving Credit
Loans to the Makers on such Business Day and in such amount as an Authorized
Representative (as hereinafter defined) of the Makers shall request by written
or telephonic notice (confirmed promptly, but in no event later than one
Business Day thereafter, in writing) received by the Bank no later than 10:00
a.m. (Pittsburgh, Pennsylvania time) on the date of requested disbursement,
which proceeds shall be available to the Makers at the Bank's Office (as
hereinafter defined) in immediately available funds not later than 2:00 p.m.
(Pittsburgh, Pennsylvania time) on such date.
(b) Maximum Principal Balance of Revolving Credit Loans. The sum of
the aggregate principal amount of all Revolving Credit Loans outstanding shall
not exceed the amount of the Revolving Credit Facility Commitment. The Makers
agree that if at any time the sum of the aggregate principal amount of all
Revolving Credit Loans outstanding exceeds the amount of the Revolving Credit
Facility Commitment (the "Excess Amount"), the Makers shall promptly, but in no
event later than one Business Day thereafter, pay to the Bank 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 Bank by the Makers pursuant to this Note,
shall be immediately due and payable on the Expiry Date, without notice,
presentment or demand of any kind.
2. Interest Rates.
(a) Interest on the Revolving Credit Loans. Subject to the terms and
conditions of this Note, the aggregate outstanding principal balance of the
Revolving Credit Loans shall be bear interest for each day at a fluctuating rate
per annum equal to the Prime Rate (as hereinafter defined).
(b) Calculation of Interest and Fees; Adjustment to Prime Rate.
Interest on the Revolving Credit 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 on the Revolving Credit Loans shall be
adjusted to immediately correspond with such change; provided, however, that any
interest rate charged hereunder shall not exceed the Maximum Rate (as
hereinafter defined).
(c) Interest After Maturity or Default; Interest Laws. Upon the
occurrence and during the continuance of an Event of Default, the unpaid
principal amount of the Revolving Credit 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 Prime Rate
plus two percent (2.00%). Notwithstanding any provisions to the contrary
contained in this Note, the Makers shall not be required to pay, and the Bank
shall not be permitted to collect, any amount of interest in excess of the
maximum amount of interest permitted by applicable Law (as hereinafter defined)
("Excess Interest"). If any Excess Interest is provided for or determined by a
court of competent jurisdiction to have been provided for in this Note, then, in
such event: (1) the provisions of this subsection shall govern and control; (2)
the Makers shall not be obligated to pay any Excess Interest; (3) any Excess
Interest that any Bank may have received hereunder shall be, at the Bank's
option, (A) applied as a credit against the outstanding principal balance of the
Indebtedness (as hereinafter defined) evidenced by this Note 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 Note shall be deemed to have been and shall be, reformed and
modified to reflect such reduction; and (5) the Makers shall have no action
against the Bank for any damages arising out of the payment or collection of any
Excess Interest.
3. Description of Payments.
(a) Interest Payments. The Makers shall pay to the Bank interest on
the aggregate outstanding balance of the Revolving Credit Loans in arrears, on
June 1, 2003 and on the first day of each calendar month thereafter through and
including the Expiry Date. After maturity of any part of the Revolving Credit
Loans (whether upon the occurrence of an Event of Default, by acceleration or
otherwise), interest on such part of the Revolving Credit Loans shall
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be immediately due and payable upon delivery by the Bank of an invoice for such
interest without further notice, presentment, or demand of any kind.
(b) Commitment Fee. The Makers shall pay to the Bank a commitment fee
on the unused portion of the amount of the Revolving Credit Facility Commitment
during the period from the date of this Note to the Expiry Date, payable in
arrears on (i) July 1, 2003 (the "First Payment Date") and (ii) the Expiry Date
(the "Second Payment Date"). The commitment fee payable on the First Payment
Date 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 during the period beginning on the date of
this Note and ending on June 30, 2003, multiplied by three-eighths of one
percent (0.375%), multiplied by a fraction, the numerator of which is 54 and the
denominator of which is 360. The commitment fee payable on the Second Payment
Date 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 during the period beginning on July 1,
2003 and ending on the Expiry Date, multiplied by three-eighths of one percent
(0.375%), multiplied by a fraction, the numerator of which is 39 and the
denominator of which is 360.
(c) Payments. All payments to be made with respect to principal,
interest, fees or other amounts due from the Makers under this Note 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 Bank 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 Bank may in its discretion deduct such
payments from the Makers' demand or deposit accounts with the Bank if the
payments if not paid within five (5) days after the due date. All such payments
shall be applied at the option of the Bank to accrued and unpaid interest,
outstanding principal and other sums due under this Note in such order as the
Bank, in its 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 Bank under the Laws of the United States or any
state or political subdivision thereof. If the Makers 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 Makers will pay to the Bank 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 Bank in respect of such Required Deductions.
(d) Additional Costs.
(i) 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, the Bank of making, funding or maintaining Revolving
Credit Loans (or commitments to make the Revolving Credit Loans), then the
Makers shall from time to time, upon demand by the Bank made within a reasonable
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time after the Bank's determination thereof, pay to the Bank additional amounts
sufficient to reimburse the Bank for any such additional costs or reduction in
income. All such additional amounts shall be determined by the Bank in good
faith using appropriate attribution and averaging methods ordinarily employed by
the Bank. A certificate of the Bank submitted to the Makers in good faith as to
the amount of such additional costs shall be conclusive and binding for all
purposes, absent manifest error.
(ii) 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 the
Bank or any corporation controlling the Bank and the Bank determines in good
faith that the amount of such capital is increased by or based upon the
existence of the Revolving Credit Loans (or commitment to make the Revolving
Credit Loans), then, within ten (10) Business Days of demand by the Bank, the
Makers shall pay to the Bank from time to time as specified by the Bank,
additional amounts sufficient to compensate the Bank in the light of such
circumstances, to the extent that the Bank determines in good faith such
increase in capital to be allocable to the existence of the Bank's Revolving
Credit Loans (or commitment to make the Revolving Credit Loans). Any such demand
by the Bank must be made within a reasonable time. A certificate of the Bank in
good faith submitted to the Makers as to such amounts shall be conclusive and
binding for all purposes, absent manifest error.
4. Loan Account. The Bank 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 Makers in which shall be recorded the date
and amount of each Revolving Credit Loan made by the Bank and the date and
amount of each payment and prepayment in respect thereof. The Bank shall record
in the Loan Account the principal amount of the Revolving Credit Loans owing to
the Bank from time to time. The Loan Account shall constitute presumptive
evidence, absent manifest error, of the accuracy of the information contained
therein. Any failure by the Bank to make any such notation or record shall not
affect the obligations of the Makers to the Bank with respect to the Revolving
Credit Loans.
5. Representations and Warranties. The Makers hereby acknowledge and agree
that the representations and warranties set forth in Article III of the Loan
Agreement shall be deemed to be set forth herein in their entirety, and the
Makers hereby represent and warrant to the Bank that each such representation
and warranty set forth in Article III of the Loan Agreement is true and correct
on the Closing Date; provided, however, that the Makers hereby represent and
warrant that the Makers will use the proceeds of the Revolving Credit Loans for
general corporate and working capital purposes. The Makers further represent and
warrant that the representations and warranties contained in Article III of the
Loan Agreement shall be true and correct on and as of the date of each Revolving
Credit Loan with the same effect as though made on and as of each such date. On
the date of each Revolving Credit Loan, no Event of Default and no Potential
Default (as hereinafter defined) shall have occurred and be continuing or exist
or shall occur or exist after giving effect to the Revolving Credit Loan to be
made on such date. Each request by the Makers for any Revolving Credit Loan
shall constitute a representation and warranty by the Makers that the conditions
set forth in this Section 5 have been satisfied as of the date of such request.
The failure of the Bank to receive notice from the Makers to the contrary before
such Revolving Credit Loan is made shall constitute a further
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representation and warranty by the Makers that the conditions referred to in
this Section 5 have been satisfied as of the date such Revolving Credit Loan
is made.
6. Affirmative Covenants. The Makers hereby acknowledge and agree that the
affirmative covenants set forth in Article V of the Loan Agreement shall be
deemed to be set forth herein in their entirety, and the Makers hereby covenant
to the Bank that they shall comply with the terms and conditions of each such
covenant set forth in Article V of the Loan Agreement.
7. Negative Covenants.
(a) The Makers hereby acknowledge and agree that the negative
covenants set forth in Article VI of the Loan Agreement shall be deemed to be
set forth herein in their entirety, and the Makers hereby covenant to the Bank
that they shall comply with the terms and conditions of each such covenant set
forth in Article VI of the Loan Agreement.
(b) The Makers shall not terminate the Loan Agreement and satisfy in
full their payment obligations thereunder without first satisfying in full their
payment obligations under this Note.
8. 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 Makers fail to pay principal on the Revolving Credit Loans on
the date due thereof; or
(b) the Makers shall fail to pay interest on the Revolving Credit
Loans or the commitment fee set forth in Section 3(b) hereof within five (5)
days of the date such interest or commitment fee is due; or
(c) the Makers fail to pay any other fee, or other amount payable
pursuant to this Note within ten (10) days after written notice to MBC by the
Bank; or
(d) the Makers shall default in the performance or observance of any
covenant, agreement or duty under this Note other than those described in
Sections 6 and 7(a) hereof and such default shall not have been cured within
thirty (30) days after written notice to MBC by the Bank; or
(e) an Event of Default (as defined in Section 7.01 of the Loan
Agreement) shall occur and such default shall not have been cured within any
grace period applicable thereto.
THEN, if an Event of Default specified in subsections (c) or (d) of Section 8 of
this Note or Sections 7.01 (c) through (n) of the Loan Agreement occurs, the
Bank will be under no further obligation to make Revolving Credit Loans and may,
at its option, demand the unpaid principal amount of this Note, interest accrued
on the unpaid principal amount and all other amounts owing by the Makers under
this Note to be immediately due and payable without presentment,
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demand, protest or further notice of any kind, all of which are hereby
expressly waived, and an action for any amounts due shall accrue immediately.
FURTHERMORE, if an Event of Default specified in Subsections (a) or (b) of
Section 8 of this Note or Sections 7.01 (a), (b), (o) or (p) of the Loan
Agreement occurs and continues or exists, the Bank will be under no further
obligation to make Revolving Credit Loans and the unpaid principal amount of
this Note, interest accrued on the unpaid principal amount and all other amounts
owing by the Makers under this Note 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.
9. Other Remedies. The remedies set forth in Section 8 of this Note are in
addition to, and not in limitation of, any other right, power, privilege, or
remedy, either in Law, in equity, or otherwise, to which the Bank may be
entitled.
10. Set-Off. If the unpaid principal amount of this Note, interest accrued
on the unpaid principal amount or other amount owing by the Makers under this
Note shall have become due and payable (at maturity, by acceleration or
otherwise), the Bank shall have the right, in addition to all other rights and
remedies available to it, without notice to the Makers, 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 Maker by the Bank
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 hereafter maintained by any Maker with the Bank. The Makers
consent to and confirm the foregoing arrangements and confirm the Bank's rights
of banker's lien and set-off. Nothing in this Note shall be deemed a waiver or
prohibition of or restriction on the Bank's rights of banker's lien or set-off.
11. Definitions. Capitalized terms used in this Note that are defined in
the Loan Agreement shall have the meaning assigned to them therein unless
otherwise defined below:
(a) "Authorized Representative" shall mean each person designated from
time to time, as appropriate, in writing by the Makers to the Bank for the
purposes of giving notices of borrowing of Revolving Credit Loans, which
designation shall continue in force and effect until terminated in writing by
the Makers to the Bank.
(b) "Bank" shall mean Citizens Bank of Pennsylvania, with an office at
525 William Penn Place, Suite 2910, Pittsburgh, Pennsylvania 15219-1729.
(c) "Business Day" shall mean a day of the year on which banks are not
required or authorized to close in Pittsburgh, Pennsylvania.
(d) "Closing Date" shall mean May 8, 2003.
(e) "Event of Default" shall mean any of the Events of Default
described in Section 8 hereof.
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(f) "Excess Amount" shall mean that as set forth in Section 1(b)
hereof.
(g) "Excess Interest" shall mean that as set forth in Section 2(c)
hereof.
(h) "Expiry Date" shall mean the earlier of (i) August 6, 2003, or
(ii) the date of termination of the Loan Agreement.
(i) "First Payment Date" shall mean that as set forth in Section 3(b)
hereof.
(j) "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.
(k) "Indemnified Liabilities" shall mean that as set forth in Section
14 hereof.
(l) "Indemnitees" shall mean that as set forth in Section 14 hereof.
(m) "Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body.
(n) "Loan Account" shall mean that as set forth in Section 4 hereof.
(o) "Loan Agreement" shall mean that certain Loan Agreement, dated
September 5, 2001, by and among the Makers, the Bank, National City Bank of
Pennsylvania, a national banking association, and Fifth Third Bank, a national
banking association (collectively, the "Banks"), and the Bank, as agent for the
other banks (the "Agent"), as amended by (i) the First Amendment to Loan
Agreement, dated February 20, 2002, by and among the Makers, the Banks and the
Agent, (ii) the Second Amendment to Loan Agreement, dated April 26, 2002, by and
among the Makers, the Banks and the Agent, (iii) the Third Amendment to Loan
Agreement, dated July 31, 2002, by and among the Makers, the Banks and the Agent
and (iv) the Fourth Amendment to Loan Agreement, dated March 24, 2003, by and
among the Makers, the Banks and the Agent, as may be further amended, modified
or supplemented from time to time.
(p) "Maker" or "Makers" shall mean that as set forth in the Preamble
of this Note.
(q) "Maximum Rate" shall mean that as set forth in Section 2(c)
hereof.
(r) "Note" shall mean this Revolving Credit Note, together will all
extensions, renewals, refinancing or refundings in whole or in part, as amended,
modified or supplemented from time to time.
(s) "Notice of Waiver" shall mean the Notice of Waiver of Rights
Regarding Warrants of Attorney, Execution Rights and Waiver of Rights to Prior
Notice and
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Judicial Hearing, dated of even date herewith, executed by the Makers in favor
of the Bank, as may be amended, modified or supplemented from time to time.
(t) "Notices" shall mean that as set forth in Section 17 (g) hereof.
(u) "Office", when used in connection with the Bank, shall mean its
designated office located at 525 William Penn Place, Suite 2910, Pittsburgh,
Pennsylvania 15219-1729 or such other office of the Bank as the Bank may
designate in writing from time to time.
(v) "Official Body" shall mean 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.
(w) "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.
(x) "Prime Rate" shall mean the interest rate per annum announced from
time to time by the Bank at its Office as its then prime rate, which rate may
not be the lowest rate then being charged other borrowers by the Bank.
(y) "Required Deductions" shall mean that as set forth in Section 3(c)
hereof.
(z) "Revolving Credit Facility Commitment" shall mean that as set
forth in Section 1(a) hereof.
(aa) "Revolving Credit Loans" shall mean that as set forth in Section
1(a) hereof.
(bb) "Second Payment Date" shall mean that as set forth in Section
3(b) hereof.
12. Construction and Interpretation.
(a) Obligations of and References to Makers. Each and every obligation
of the Makers contained in this Note, whether or not expressly stated, shall be
the joint and several obligations of the Makers. Any and all references to the
Makers contained in any representation or covenant of the Makers' hereunder
shall be a representation or covenant with respect to each and every Maker, both
individually and collectively.
(b) Construction. Unless the context of this Note 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 Note to "judgments" of the Bank include good
faith estimates by the Bank (in the case of quantitative judgments) and good
faith beliefs by the Bank (in the case of qualitative judgments). The definition
of any document or instrument includes all schedules, attachments, and exhibits
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thereto and all renewals, extensions, supplements, restatements and amendments
thereof. "Hereunder", "herein", "hereto", "hereof", "this Note" 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 the Makers is to be
taken promptly, unless the context clearly indicates to the contrary. Any
accounting term used in this Note and not specifically defined in Section 11
hereof shall have the meaning ascribed thereto by GAAP.
13. Duration; Survival. All representations and warranties of the Makers
contained in this Note shall survive the making of and will not be waived by the
execution and delivery of this Note, by any investigation by the Bank, or the
making of the Revolving Credit Loans. Notwithstanding termination of this Note
or an Event of Default, all covenants and agreements of the Makers will continue
in full force and effect from and after the date of this Note until payment in
full of this Note, interest thereon, and all fees and other obligations of the
Makers under this Note. Without limitation, it is understood that all
obligations of the Makers to make payments to or indemnify the Bank will survive
the payment in full of the Note and of all other obligations of the Makers under
this Note.
14. Indemnity. In addition to the payment of expenses pursuant to Section
17(h) hereof, the Makers agree to indemnify, pay and hold the Bank and its
officers, directors and attorneys (collectively called the "Indemnitees"),
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgment, 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 are
imposed on, incurred by, or asserted against that Indemnitee, in any manner
arising from the occurrence of an Event of Default hereunder, or the exercise of
any right or remedy hereunder (the "Indemnified Liabilities"); provided,
however, that the Makers shall have no obligation to an Indemnitee hereunder
with respect to Indemnified Liabilities arising from the gross negligence or
willful misconduct of that Indemnitee.
15. Limitation of Liability. To the fullest extent permitted by Law, no
claim may be made by the Makers against the Bank, or by the Bank against the
Makers, or by the Makers or the Bank against any affiliate, 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
relating to this Note 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 Makers and the Bank 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 is suspected to exist in its favor. This Section 15 shall not limit any
rights of the Makers or the Bank arising solely out of gross negligence or
willful misconduct as finally determined by a court of competent jurisdiction.
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16. WAIVER OF TRIAL BY JURY. THE MAKERS AND INITIALS:
THE BANK HEREBY EXPRESSLY, KNOWINGLY AND
VOLUNTARILY WAIVE ALL BENEFIT AND ADVANTAGE OF /s/ COS
ANY RIGHT TO A TRIAL BY JURY, AND NEITHER WILL AT ------------------
ANY TIME INSIST UPON, OR PLEAD OR IN ANY MANNER MBC
WHATSOEVER CLAIM OR TAKE THE BENEFIT OR ADVANTAGE
OF A TRIAL BY JURY IN ANY ACTION ARISING IN /s/ COS
CONNECTION WITH THIS NOTE. ------------------
MICHAEL BAKER JR.
/s/ COS
------------------
BAKER/MO
/s/ COS
------------------
BAKER/OTS
/s/ COS
------------------
BAKER NY
/s/ JJL
------------------
BANK
17. Miscellaneous.
(a) This Note evidences the Revolving Credit Loans and evidences all
other amounts payable by the Makers hereunder.
(b) Except as otherwise provided in this Note, whenever any payment or
action to be made or taken under this Note 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.
(c) The Makers hereby expressly waive presentment, demand, notice,
protest and all other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note, and an action for
amounts due hereunder or thereunder shall immediately accrue.
(d) The unpaid principal amount of this Note, the date and amount of
the Loan, the unpaid interest accrued hereon, the interest rate applicable to
such unpaid principal amount, the date and amount of each payment made hereunder
and the duration of such applicability shall at all times be ascertained from
the books and records of the Bank, which shall constitute presumptive evidence
absent manifest error, of the accuracy of the information contained therein.
(e) The Bank and the Makers may from time to time enter into
agreements amending, modifying or supplementing this Note or changing the rights
of the Bank or of the Makers under this Note and the Bank may from time to time
grant waivers or consent to a departure from the due performance of the
obligations of the Makers under this Note. Any such agreement, waiver or consent
must be in writing and will be effective only to the extent specifically set
forth in such writing. In the case of any such waiver or consent relating to any
provision of this Note, any Event of Default or Potential Default so waived or
consented to will be deemed to be cured and not 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 thereto.
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(f) No course of dealing and no delay or failure of Bank in exercising
any right, power or privilege under this Note shall effect any other or further
exercise thereof 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 thereof or of any other right, power or privilege. The rights
and remedies of the Bank under this Note are cumulative and not exclusive of any
rights or remedies that the Bank would otherwise have.
(g) All notices, requests, demands, directions and other
communications (collectively "Notices") under the provisions of this Note must
be in writing (including telexed or telecopied communication) unless otherwise
expressly permitted under this Note and must be sent by first-class or
first-class express mail, private overnight or next Business Day courier or by
telex or 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.
Makers: William P. Mooney
Executive Vice President and Chief Financial Officer
Michael Baker Corporation
Airside Business Park
100 Airside Drive
Moon Township, Pennsylvania 15108
and a copy to: H. James McKnight, Esquire
Secretary and General Counsel
Michael Baker Corporation
Airside Business Park
100 Airside Drive
Moon Township, Pennsylvania 15108
Lee van Egmond, Esquire
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, Pennsylvania 15219
Bank: Citizens Bank of Pennsylvania
525 William Penn Place
Suite 2910
Pittsburgh, Pennsylvania 15219
Attention: John J. Ligday, Jr.
-11-
and copy to: Thorp Reed & Armstrong, LLP
One Oxford Centre, 14th Floor
Pittsburgh, Pennsylvania 15219-1425
Attention: Jeffrey J. Conn, Esquire
(h) The Makers agree to pay or cause to be paid and to save the Bank
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 Bank, incurred by the Bank from time to time (i) arising
in connection with the preparation, execution, delivery and performance of this
Note, (ii) relating to any requested amendments, waivers or consents to this
Note and (iii) arising in connection with the Bank's enforcement or preservation
of rights under this Note including, but not limited to, such expenses as may be
incurred by the Bank in the collection of the outstanding principal amount of
the Revolving Credit Loans. The Makers agree to pay all stamp, document,
transfer, recording or filing taxes or fees and similar impositions now or in
the future determined in good faith by the Bank to be payable in connection with
this Note. The Makers agree to save the Bank 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 the Makers of any action at Law or
suit in equity in relation to this Note, the Makers will pay, in addition to all
other sums which the Makers may be required to pay, a reasonable sum for
attorneys' and paralegals' fees incurred by the Bank or the holder of this Note
in connection with such action or suit. All payments due from the Makers under
this Section will be added to and become part of the Revolving Credit Loans
until paid in full.
(i) The provisions of this Note are intended to be severable. If any
term or provision of this Note, or the application thereof to any Person or
circumstance, shall to any extent be invalid or unenforceable, the remainder of
this Note, or the application of such term or provision to Persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Note shall be valid
and enforceable to the fullest extent permitted by Law.
(j) This Note will be deemed to be a contract under the Laws of the
Commonwealth of Pennsylvania and for all purposes shall be governed by and
construed and enforced in accordance with the substantive Laws, and not the laws
of conflicts, of said Commonwealth. The Makers 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 Note or
any one or more of them.
(k) This Note supersedes all prior understandings and agreements,
whether written or oral, among the parties relating to the transactions provided
for in this Note.
(l) This obligation shall bind the Makers and their respective
successors and assigns, and the benefits hereof shall inure to the Bank and its
successors and assigns, except that the Makers may not assign or transfer any of
their respective rights under this Note.
-12-
WARRANT OF ATTORNEY TO CONFESS JUDGMENT. THE MAKERS HEREBY IRREVOCABLY
AUTHORIZE AND EMPOWER THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK OF ANY COURT
OF RECORD, WITH OR WITHOUT DEFAULT, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
THE MAKERS FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME DUE UNDER THIS NOTE, WITH
OR WITHOUT DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND WITH
AN AMOUNT EQUAL TO FIFTEEN PERCENT (15%) OF THE AMOUNT OF SUCH JUDGMENT, BUT NOT
LESS THAN TEN THOUSAND AND 00/100 DOLLARS ($10,000.00) ADDED FOR ATTORNEYS'
COLLECTION FEES. TO THE EXTENT PERMITTED BY LAW, THE MAKERS RELEASE ALL ERRORS
IN SUCH PROCEEDINGS. IF A COPY OF THIS NOTE, VERIFIED BY AFFIDAVIT BY OR ON
BEHALF OF THE HOLDER OF THIS NOTE SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL
NOT BE NECESSARY TO FILE THE ORIGINAL NOTE AS A WARRANT OF ATTORNEY. THE
AUTHORITY AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST THE MAKERS SHALL
NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN
AS THE HOLDER SHALL FIND IT NECESSARY AND DESIRABLE AND THIS NOTE, OR A COPY
THEREOF, SHALL BE A SUFFICIENT WARRANT THEREFOR. THE HOLDER HEREOF MAY CONFESS
ONE OR MORE JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART
OF THE AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS
THERETOFORE BEEN CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN THE
EVENT ANY JUDGMENT CONFESSED AGAINST THE MAKERS HEREUNDER IS STRICKEN OR OPENED
UPON APPLICATION BY OR ON THE MAKERS' BEHALF, FOR ANY REASON, HOLDER IS HEREBY
AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST THE
MAKERS FOR ANY PART OR ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR
HEREIN, IF DOING SO WILL CURE ANY ERRORS AND DEFECTS IN PRIOR PROCEEDINGS.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Makers have duly executed and
delivered this Note on the day and year first above written.
Attest: Michael Baker Corporation
By: /s/ Marcia S. Wolk By: /s/ Craig O. Stuver
----------------------------------------- -----------------------------------------
Title: Vice President & Assistant Secretary Title: Senior Vice President, Corporate
Controller & Treasurer
Attest: Michael Baker, Jr., Inc.
By: /s/ Marcia S. Wolk By: /s/ Craig O. Stuver
----------------------------------------- -----------------------------------------
Title: Vice President & Assistant Secretary Title: Senior Vice President, Corporate
Controller & Treasurer
Attest: Baker/MO Services, Inc.
By: /s/ Marcia S. Wolk By: /s/ Craig O. Stuver
----------------------------------------- -----------------------------------------
Title: Vice President & Assistant Secretary Title: Senior Vice President and Corporate
Controller
Attest: Baker/OTS, Inc.
By: /s/ Marcia S. Wolk By: /s/ Craig O. Stuver
----------------------------------------- -----------------------------------------
Title: Vice President & Assistant Secretary Title: Senior Vice President, Corporate
Controller & Treasurer
Attest: Baker Engineering NY, Inc.
By: /s/ Marcia S. Wolk By: /s/ Craig O. Stuver
----------------------------------------- -----------------------------------------
Title: Vice President & Assistant Secretary Title: Senior Vice President, Corporate
Controller & Treasurer
Acknowledged and agreed this
8th day of May, 2003:
Citizens Bank of Pennsylvania
By: /s/ John J. Lidgday, Jr.
-----------------------------------------
Title: Vice President
--------------------------------------