<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
Commission file number 1-6627
<TABLE>
<CAPTION>
MICHAEL BAKER CORPORATION
-------------------------
(Exact name of registrant as specified in its charter)
<S> <C>
PENNSYLVANIA 25-0927646
------------ ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Airport Office Park, Building 3, 420 Rouser Road, Coraopolis, PA 15108
- ---------------------------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
(412) 269-6300
--------------
(Registrant's telephone number,
including area code)
</TABLE>
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
------- -------
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
<TABLE>
<CAPTION>
As of June 30, 1997:
--------------------
<S> <C>
Common Stock 6,856,719 shares
Series B Common Stock 1,344,737 shares
</TABLE>
<PAGE>
FORM 10-Q
PART I
PAGE 1
MICHAEL BAKER CORPORATION
PART I. FINANCIAL INFORMATION
The condensed consolidated financial statements included herein have been
prepared by the Company, without audit, pursuant to the rules and regulations
of the Securities and Exchange Commission. Although certain information and
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed
or omitted pursuant to such rules and regulations, the Company believes that
the disclosures are adequate to make the information presented not misleading.
The statements reflect all adjustments which are, in the opinion of
management, necessary for a fair presentation of the results for the periods
presented. These condensed consolidated financial statements should be read
in conjunction with the consolidated financial statements and the notes
thereto included in the Company's latest annual report and Form 10-K.
<PAGE>
FORM 10-Q
PART I
PAGE 2
<TABLE>
MICHAEL BAKER CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
<CAPTION>
For the three months ended
-------------------------------
JUNE 30, 1997 June 30, 1996
- ------------------------------------------------------------------------------
(In thousands, except per share amounts)
<S> <C> <C>
Total contract revenues $105,477 $102,996
Cost of work performed 92,563 90,782
- ------------------------------------------------------------------------------
Gross profit 12,914 12,214
General and administrative expenses 10,486 10,049
- ------------------------------------------------------------------------------
Income from operations 2,428 2,165
Other income/(expense):
Interest expense (16) (15)
Interest income 137 85
Other, net 85 158
- ------------------------------------------------------------------------------
Income before income taxes 2,634 2,393
Provision for income taxes 1,265 1,101
- ------------------------------------------------------------------------------
NET INCOME $1,369 $1,292
==============================================================================
NET INCOME PER SHARE $0.17 $0.15
==============================================================================
<FN>
The accompanying notes are an integral part of this financial statement.
</TABLE>
<PAGE>
FORM 10-Q
PART I
PAGE 3
<TABLE>
MICHAEL BAKER CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
<CAPTION>
For the six months ended
-------------------------------
JUNE 30, 1997 June 30, 1996
- -----------------------------------------------------------------------------
(In thousands, except per share amounts)
<S> <C> <C>
Total contract revenues $199,569 $187,015
Cost of work performed 175,779 164,395
- -----------------------------------------------------------------------------
Gross profit 23,790 22,620
General and administrative expenses 20,883 19,627
- -----------------------------------------------------------------------------
Income from operations 2,907 2,993
Other income/(expense):
Interest expense (34) (46)
Interest income 267 216
Other, net 603 178
- -----------------------------------------------------------------------------
Income before income taxes 3,743 3,341
Provision for income taxes 1,797 1,537
- -----------------------------------------------------------------------------
NET INCOME $1,946 $1,804
=============================================================================
NET INCOME PER SHARE $0.24 $0.21
=============================================================================
<FN>
The accompanying notes are an integral part of this financial statement.
</TABLE>
<PAGE>
FORM 10-Q
PART I
PAGE 4
<TABLE>
MICHAEL BAKER CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
(Unaudited)
<CAPTION>
ASSETS JUNE 30, 1997 Dec. 31, 1996
- ------------------------------------------------------------------------------
(In thousands)
<S> <C> <C>
CURRENT ASSETS
Cash $9,417 $10,480
Receivables 71,432 69,621
Cost of contracts in progress and
estimated earnings, less billings 18,360 16,276
Prepaid expenses and other 5,836 6,370
- ------------------------------------------------------------------------------
Total current assets 105,045 102,747
- ------------------------------------------------------------------------------
PROPERTY, PLANT AND EQUIPMENT, NET 11,302 12,265
OTHER ASSETS
Goodwill and other intangible assets, net 7,017 7,242
Other assets 4,039 3,828
- ------------------------------------------------------------------------------
Total other assets 11,056 11,070
- ------------------------------------------------------------------------------
TOTAL ASSETS $127,403 $126,082
==============================================================================
LIABILITIES AND SHAREHOLDERS' INVESTMENT
- ------------------------------------------------------------------------------
CURRENT LIABILITIES
Accounts payable $34,293 $34,960
Accrued employee compensation 7,471 6,596
Accrued insurance 5,865 5,425
Other accrued expenses 17,586 19,045
Excess of billings on contracts in progress
over cost and estimated earnings 9,459 9,304
- ------------------------------------------------------------------------------
Total current liabilities 74,674 75,330
- ------------------------------------------------------------------------------
SHAREHOLDERS' INVESTMENT
Common Stock, par value $1, authorized 44,000,000
shares, issued 7,064,179 and 7,055,784 shares at
June 30, 1997 and Dec. 31, 1996, respectively 7,064 7,056
Series B Common Stock, par value $1, authorized
6,000,000 shares,issued 1,344,737 and 1,348,632
shares at June 30, 1997 and Dec. 31, 1996, respectively 1,345 1,349
Additional paid-in capital 36,720 36,694
Retained earnings 8,859 6,913
Less 207,460 and 207,560 shares of Common Stock in treas,
at cost, at June 30, 1997 and Dec. 31, 1996, resp. (1,259) (1,260)
- ------------------------------------------------------------------------------
Total shareholders' investment 52,729 50,752
- ------------------------------------------------------------------------------
TOTAL LIABILITIES AND SHAREHOLDERS' INVESTMENT $127,403 $126,082
==============================================================================
<FN>
The accompanying notes are an integral part of this financial statement.
</TABLE>
<PAGE>
FORM 10-Q
PART I
PAGE 5
<TABLE>
MICHAEL BAKER CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
<CAPTION>
For the six months ended
------------------------------
JUNE 30, 1997 June 30, 1996
- ------------------------------------------------------------------------------
(In thousands)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $1,946 $1,804
Adjustments to reconcile net income to net cash
used in operating activities:
Depreciation and amortization 2,147 2,392
Deferred income taxes 1,031 461
Changes in assets and liabilities:
Increase in receivables and contracts
in progress (3,739) (13,506)
(Decrease)/increase in accounts payable
and accrued expenses (812) 3,018
Increase in other net assets (840) (2,670)
- ------------------------------------------------------------------------------
Total adjustments (2,213) (10,305)
- ------------------------------------------------------------------------------
Net cash used in operating activities (267) (8,501)
- ------------------------------------------------------------------------------
CASH FLOWS FROM INVESTING ACTIVITIES
Additions to property, plant and equipment (796) (1,317)
- ------------------------------------------------------------------------------
Net cash used in investing activities (796) (1,317)
- ------------------------------------------------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES
Repayments of long-term debt 0 (12)
- ------------------------------------------------------------------------------
Net cash used in financing activities 0 (12)
- ------------------------------------------------------------------------------
Net decrease in cash (1,063) (9,830)
Cash at beginning of year 10,480 14,303
- ------------------------------------------------------------------------------
CASH AT END OF PERIOD $9,417 $4,473
==============================================================================
SUPPLEMENTAL DISCLOSURE OF CASH FLOW DATA
Interest paid $31 $33
Income taxes paid $89 $204
==============================================================================
<FN>
The accompanying notes are an integral part of this financial statement.
</TABLE>
<PAGE>
FORM 10-Q
PART I
PAGE 6
MICHAEL BAKER CORPORATION
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE PERIODS ENDED JUNE 30, 1997
(UNAUDITED)
NOTE 1 - LONG-TERM DEBT AND BORROWING ARRANGEMENTS
In June 1997, the Company entered into an unsecured credit agreement (the
"Agreement") with Mellon Bank, N.A. (the "Bank"). The Agreement provides for
a commitment of $25 million through May 31, 2000. The commitment includes the
sum of the principal amount of revolving credit loans outstanding and the
aggregate face value of outstanding letters of credit. Significant changes in
terms from the previous agreement with the Bank include the release of all
security in Company assets previously held, a reduction in the borrowing rate
to the Bank's prime rate or other indexed rates that may be lower, and a
reduction in the commitment fees to 3/8% per year based on the unused portion
of the commitment.
As of June 30, 1997, no loans were outstanding; however, letters of credit
totaling $6,254,000 were outstanding under the Agreement.
NOTE 2 - EARNINGS PER SHARE
Earnings per share computations are based upon weighted averages of 8,257,297
and 8,410,851 shares outstanding for the three-month periods, and 8,256,304
and 8,404,064 for the six-month periods, ended June 30, 1997 and 1996,
respectively.
NOTE 3 - CONTINGENCIES
The Company has been named as a defendant or co-defendant in legal proceedings
wherein substantial damages are claimed. Such proceedings are not uncommon to
the Company's business. After consultations with counsel, management believes
that the Company has recognized adequate provisions for these proceedings and
their ultimate resolutions will not have a material adverse effect on the
consolidated financial position or annual results of operations of the
Company.
<PAGE>
FORM 10-Q
PART I
PAGE 7
MICHAEL BAKER CORPORATION
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE PERIODS ENDED JUNE 30, 1997
(UNAUDITED)
NOTE 3 - CONTINGENCIES (Cont.)
In the Company's ordinary course of business, many of its public contracts are
subject to recurring audits by the Defense Contract Audit Agency ("DCAA") and
other governmental entities. DCAA has commenced an audit of certain contracts
for the years 1992 through 1995. DCAA has not yet issued its preliminary
audit report and, at this time, management is unable to determine the
significance, if any, of this matter.
The only significant legal proceeding relates to a lawsuit brought in 1987 in
the Supreme Court of the State of New York, Bronx County, by the Dormitory
Authority of the State of New York against a number of parties, including the
Company and one of its wholly-owned subsidiaries, that asserts breach of
contract and alleges damages of $13,000,000. The Company, which was not a
party to the contract underlying the lawsuit, contends that there is no
jurisdiction with respect to the Company and that it cannot be held liable for
any conduct of the subsidiary. Both the Company and the subsidiary are
contesting liability issues and have filed cross-claims and third-party claims
against other entities involved in the project.
<PAGE>
FORM 10-Q
PART I
PAGE 8
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
TOTAL CONTRACT REVENUES
Total contract revenues were $105.5 million for the second quarter of 1997,
compared to $103.0 million for the same period in 1996. With the exception of
the Environmental unit, total contract revenues for the second quarter of 1997
increased in all business units over the second quarter of 1996. The Civil
unit had the greatest increase of $2.1 million as a result of higher 1997
revenues from new operations & maintenance ("O&M") contracts on which work
commenced during the fourth quarter of 1996 and from an increase in revenues
on an existing O&M contract.
Total contract revenues were $199.6 million for the first six months of 1997,
compared to $187.0 million for the same period in 1996. All units except
Environmental posted increases in total contract revenues for the first six
months of 1997. The Civil and Energy units had the largest increases of $7.6
million and $5.0 million, respectively. Civil's increase resulted primarily
from the previously mentioned new O&M contracts. Energy's improvement is
attributable to new O&M contracts which were added during the second and third
quarters of 1996.
GROSS PROFIT
The Company's gross profit of $12.9 million for the second quarter of 1997
represents a 6% improvement over the gross profit of $12.2 million from its
1996 second quarter. As a percentage of total contract revenues, gross profit
increased to 12.2% in the second quarter of 1997 from 11.9% in the second
quarter of 1996. The most significant component of these overall improvements
resulted from the Transportation unit, wherein a construction project
completed in the second quarter of 1997 realized higher than expected
profitability, and in 1996 a significant construction project reported certain
revenues equal to costs, thereby resulting in minimal profit being recognized.
Gross profit for the first six months of 1997 increased by 5% to $23.8 million
from $22.6 million in the first six months of 1996. As a percentage of total
contract revenues, gross profit decreased slightly to 11.9% for the first half
of 1997 from 12.1% for the comparable 1996 period. The Transportation unit's
percentage increase for the first six months of 1997 is attributable to the
situations described in the preceding paragraph. Despite higher 1997 revenues
on its engineering project in Mexico and on its O&M contracts, the Civil
unit's profit percentage decreased due to lower margins realized on its
remaining mix of engineering work. The Energy unit's profit percentage
decreased due to slightly lower profitability associated with its new O&M
contracts added in 1996.
<PAGE>
FORM 10-Q
PART I
PAGE 9
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL AND ADMINISTRATIVE EXPENSES
General and administrative ("G&A") expenses increased to $10.5 million for the
second quarter of 1997 from $10.0 million in the second quarter of 1996.
Expressed as a percentage of total contract revenues, G&A expenses remained
relatively constant at just under 10% for the second quarter of both years.
G&A expenses increased to $20.9 million for the first six months of 1997 from
$19.6 million for the same period in 1996. G&A expenses were 10.5% of total
contract revenues in both years' six-month periods.
OTHER INCOME
Other income for the first six months of 1997 included a first-quarter gain of
$0.5 million from the sale of an investment in preferred stock.
INCOME TAXES
The Company had provisions for income taxes of 48% for the first six months of
1997 and 46% for the comparable period in 1996. The higher 1997 provision
rate reflects increases in foreign income and withholding taxes.
NEW ACCOUNTING STANDARD
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings Per Share" ("SFAS 128"),
which changes the computation and presentation of earnings per share ("EPS").
SFAS 128 must be adopted for interim and annual periods ending after December
15, 1997. Early adoption is prohibited, although previously reported EPS
amounts will have to be restated upon adoption.
The Company will adopt SFAS 128 in the fourth quarter of 1997. Based upon
management's computations, adoption of the new standard will not have a
material effect on previously reported EPS amounts for the second quarter or
six months of 1997 and all of 1996.
CONTRACT BACKLOG
The funded backlog of work to be performed was $317 million as of June 30,
1997, compared to funded backlog of $333 million at December 31, 1996. Funded
backlog represents that portion of work supported by signed contracts and for
which the procuring agency has appropriated and allocated the funds to pay for
the work.
Total backlog, which incrementally includes that portion of contract value for
which options are still to be exercised reached a record high of $604 million
for the Company as of June 30, 1997, as compared to $544 million as of
<PAGE>
FORM 10-Q
PART I
PAGE 10
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
CONTRACT BACKLOG (Cont.)
December 31, 1996. During the second quarter of 1997, all of the Company's
business units added to their total backlog and thereby contributed to the
record high.
LIQUIDITY AND CAPITAL RESOURCES
Net cash used in operating activities was $0.3 million for the first six
months of 1997, compared to $8.5 million for the same period in 1996. The
1997 decrease in cash used resulted from the collection of retention amounts
totaling $2.3 million on a significant construction project during the first
six months of 1997 and from slower collections in the first six months of 1996
related to the Civil unit's significant engineering project in Mexico.
Net cash used in investing activities approximated $0.8 million for the first
six months of 1997 compared to $1.3 million for the first six months of 1996.
These amounts solely comprise purchases of property, plant and equipment for
both periods.
Working capital increased during the first six months of 1997 to $30.4 million
at June 30, 1997, from $27.4 million at December 31, 1996. The current ratio
was 1.41:1 at the end of the first six months of 1997, compared to 1.36:1 at
year-end 1996.
In June 1997, the Company entered into an unsecured credit agreement with
Mellon Bank, N.A. The agreement provides for a commitment of $25 million,
which covers borrowings and letters of credit, through May 31, 2000. As of
June 30, 1997, no loans were outstanding; however, letters of credit totaling
$6.3 million were outstanding under the agreement.
The Company is required to provide bid and performance bonding on certain
construction contracts, and has a $350 million bonding line available through
Aetna Casualty and Surety Company of America. Management believes that its
bonding line will be sufficient to meet its bid and performance needs for at
least the next year.
Short and long-term liquidity is dependent upon appropriations of public funds
for infrastructure and other government-funded projects, capital spending
levels in the private sector, and the demand for the Company's services in the
oil and gas markets. Additional external factors such as price fluctuations
in the energy industry and the effects of interest rates on private
construction projects could affect the Company. At this time, management
believes that its funds generated from operations and its existing credit
facility will be sufficient to meet its operating and capital expenditure
requirements for at least the next year.
<PAGE>
FORM 10-Q
PART II
PAGE 11
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
---------------------------------------------------
(a) The Company's annual meeting of shareholders was held on May 14,
1997.
(b) Each of management's nominees to the board of directors, as
listed in the Company's proxy statement, was elected. There was
no solicitation in opposition to management's nominees.
(c) The only matter voted upon at the meeting was the election of
the Company's directors to one-year terms or until their
respective successors have been elected. The votes cast by
holders of the Company's Common Stock and Series B Common Stock
in approving the following directors were:
<TABLE>
<CAPTION>
Name of Director Votes for Votes withheld
--------------- --------- --------------
<S> <C> <C>
Robert N. Bontempo 18,946,280 341,479
Charles I. Homan 19,222,502 65,257
Thomas D. Larson 19,171,854 115,905
John E. Murray 19,074,520 213,239
Richard L. Shaw 19,089,419 198,340
Konrad M. Weis 19,156,844 130,915
J. Robert White 18,996,735 291,024
William A. Wulf 19,143,795 143,964
The votes cast by holders of the Company's Common Stock in
approving the following directors were:
Name of Director Votes for Votes withheld
---------------- --------- --------------
William J. Copeland 6,604,756 70,333
Roy V. Gavert, Jr. 6,625,428 49,661
Jack B. Hoey 6,625,508 49,581
</TABLE>
<PAGE>
FORM 10-Q
PART II
PAGE 12
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) The following exhibits are included herewith as a part of this
Report:
10.1 Credit Agreement by and among Michael Baker Corporation
and Subsidiaries and Mellon Bank, N.A. dated as of
June 12, 1997, filed herewith.
(b) Reports on Form 8-K
During the quarter ended June 30, 1997, the Company filed no
reports on Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
<TABLE>
<S> <C>
MICHAEL BAKER CORPORATION
Dated: August 13, 1997 By: /s/ J. Robert White
-----------------------
J. Robert White
Executive Vice President,
Chief Financial Officer
and Treasurer
</TABLE>
<PAGE>
<PAGE>
LOAN AGREEMENT
--------------
Agreement, dated as of the 12th day of June, 1997, by and among the
Borrowers (as hereinafter defined) and Mellon Bank, N.A., a national banking
association (the "Bank") ("Agreement").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers, certain of their Subsidiaries and the Bank have
entered into that certain Second Amended and Restated Credit Agreement, dated
as of April 13, 1995, by and among the Borrowers, certain of their Subsidiaries
and the Bank, as amended by that certain First Amendment to Second Amended and
Restated Credit Agreement, dated as of March 22, 1996, by and among the
Borrowers, certain of their Subsidiaries and the Bank (such Agreement, as
amended, being herein referred to as the "Prior Loan Agreement"); and
WHEREAS, pursuant to the Prior Loan Agreement, the Bank has, among other
things, extended credit to the Borrowers and certain of their Subsidiaries in
the form of a revolving credit loan facility in an aggregate principal amount
not to exceed Twenty-Five Million and 00/100 Dollars ($25,000,000.00); and
WHEREAS, the Borrowers have requested that the Bank (i) provide a new
revolving credit facility to the Borrowers in an aggregate principal amount not
to exceed Twenty Five Million and 00/100 Dollars ($25,000,000.00) and (ii)
release all security granted to the Bank pursuant to the terms of the Prior
Loan Agreement and related loan documents; and
WHEREAS, the Bank is willing to extend such new credit facility to the
Borrowers and release such security 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, 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:
"ABS Rate" shall mean the interest rate per annum equal to the rate of
interest determined by Bank, in its sole and absolute discretion, from time to
time, to be its ABS Rate which may not represent the lowest rate charged by
Bank to other borrowers at any time or from time to time and is not solely
based or dependent upon the interest rate which Bank may charge any particular
borrower or class of borrowers.
"ABS Rate Loan" shall mean any Loan which bears interest with reference
to the ABS Rate.
"Affiliate" shall mean, as the date hereof or any time during the term
of this Agreement, any Person which directly or indirectly controls, is
controlled by or is under common control with any 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.
"Agreement" shall mean this Loan Agreement as amended, modified or
supplemented from time to time.
"As Offered Rate" shall mean, for any Interest Period for any As
Offered Rate Loan, the fixed interest rate per annum offered by the Bank to the
Borrowers in Bank's sole discretion.
"As Offered Rate Loan" shall mean any Loan that bears interest with
reference to the As Offered Rate.
"Authorized Representative" shall mean each Person designated from time
to time, as appropriate, in writing by each Borrower to the Bank 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 such Borrower to the Bank.
"Bank" means Mellon Bank, N.A., a national banking association with its
main office located at Two Mellon Bank Center, Pittsburgh, Pennsylvania 15259.
"Borrowed Debt" shall mean, as of the date of determination, all
Indebtedness representing borrowed money, including both the current and
long-term portion thereof, and including the Letter of Credit Face Amount of
all outstanding Letters of Credit and other letters of credit issued for the
benefit of any Borrower or its Subsidiaries, in each case determined and
consolidated for the Borrowers and their Subsidiaries in accordance with GAAP.
"Borrowed Debt Ratio" shall mean, as of the date of determination, the
ratio of (i) Borrowed Debt to (ii) EBIT.
"Borrower" or "Borrowers" shall mean singularly or collectively, as the
context may require, MBC, Michael Baker Jr., Inc., a Pennsylvania corporation,
Baker Environmental, Inc., a Pennsylvania corporation, Baker/MO Services, Inc.,
a Texas corporation, Baker Support Services, Inc., a Texas corporation,
Baker/Mellon Stuart Construction, Inc., a Pennsylvania corporation, Baker Heavy
& Highway, Inc., a Pennsylvania corporation, and Baker/OTS, Inc., a Delaware
corporation.
"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 any Libor Rate Loan, a day 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.
"Capitalized 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
Capitalized Lease, the amount of the liability reflecting the aggregate
discounted amount of future payments under such Capitalized Lease calculated in
accordance with GAAP and 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).
"Cash Flow" shall mean, for the period of determination, (i) Net
Income, (ii) plus all depreciation, depletion and amortization included in Net
Income, in each case determined and Consolidated for the Borrowers and their
Subsidiaries in accordance with GAAP.
"Cash Flow Coverage Ratio" shall mean, for the period of determination,
the ratio of Cash Flow to Fixed Charges.
"Change of Control" shall mean (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, 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 or 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 the Borrower 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 June 12, 1997 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.
"Consolidated" shall mean the resulted consolidation of the financial
statements of the Borrowers and their Subsidiaries in accordance with GAAP,
including principals of consolidation consistent with those applied in
preparation of the Consolidated financial statements referred to in Section
3.08 hereof.
"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.
"EBIT" shall mean, for the period of determination, (i) Net Income,
(ii) plus Interest Expense, (iii) plus all income taxes included in Net Income,
in each case determined and Consolidated for the Borrowers and their
Subsidiaries in accordance with GAAP.
"Effective Date" shall mean May 1, 1997.
"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" means any of the Events of Default described in
Section 7.01 of this Agreement.
"Expiry Date" shall mean May 31, 2000 or such earlier date on which the
Revolving Credit Facility Commitment shall have been terminated pursuant to
this Agreement.
"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.
"Fixed Charges" shall mean, for the period of determination, the sum of
(i) Capital Expenditures, (ii) plus Distributions, (iii) plus the current
maturities of all long-term Indebtedness, in each case determined and
Consolidated for the Borrowers and their Subsidiaries in accordance with GAAP.
"GAAP" means 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.
"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 whether or not any such notes, drafts or obligations are
obligations for borrowed money), (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, (iii) all reimbursement
obligations (contingent or otherwise), (iv) 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 and (v)
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.
"Interest Coverage Ratio" shall mean, for the period of determination,
the ratio of EBIT to Interest 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 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 or As
Offered Rate Loan, the period commencing on the date such Loan is made,
continued or converted and ending on the last day of such period as selected by
a Borrower 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 a Borrower pursuant to
the provisions below. The duration of each Interest Period for any Libor Rate
Loan or As Offered Rate Loan shall be for any number of months selected by
Borrower 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 Borrower and Bank;
(ii) the Interest Period for any As Offered Rate Loan shall be for
any number of days between and including one (1) and three hundred sixty five
(365) or such other period as may be agreed upon by Borrower and Bank;
(iii) 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 next preceding Business Day;
(iv) if the Borrower fails to so select the duration of any Interest
Period, the duration of such Interest Period shall be one (1) month in the case
of a Libor Rate Loan and One (1) day in the case of an As Offered Rate Loan;
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.
"Lease Obligation" means an obligation of a lessee under a lease of any
tangible or intangible property (whether real, personal or mixed) including,
without limitation, with respect to any period under any such lease, the
aggregate amounts payable by such lessee to or on behalf of the lessor for such
period including, without limitation, property taxes, insurance, interest and
amortized charges which such lessee is required to pay pursuant to such lease.
Whenever it is necessary to determine the amount of Lease Obligations for any
period with respect to which any of the rentals under the relevant lease are
not definitely determinable by the terms of the lease, all such rentals will be
estimated in a reasonable amount for such period.
"Letters of Credit" shall mean as set forth in Section 2.08 hereof.
"Letter of Credit Face Amount" shall mean, for each Letter of Credit,
the face amount of such Letter of Credit.
"Leverage Ratio" shall mean, as of the date of determination, the ratio
of (i) Borrowed Debt to (ii) the sum of Borrowed Debt and Owners Equity.
"Libor Rate" shall mean, for any Interest Period for any Libor Rate
Loan, a fixed rate per annum (rounded upwards to the next higher whole multiple
of 1/16% 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 Bank in accordance with its usual 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) by prime banks in the London interbank
eurodollar market two (2) 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 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 Bank (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 Requirement.
"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 or lease intended as, or
having the effect of, security.
"Loan" or "Loans" shall mean the Revolving Credit Loans (whether made
as, continued as or converted to Prime Rate Loans, ABS Rate Loans, Libor Rate
Loans or As Offered Rate Loans) and any other credit to any Borrower extended
by the Bank in accordance with Article II hereof as evidenced by the Notes, as
the case may be.
"Loan Document" or "Loan Documents" mean, singularly or collectively as
the context may require, this Agreement, the Notes and 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.
"Material Adverse Change" shall mean a material adverse change in the
business, operations or condition (financial or otherwise) of MBC and its
Subsidiaries taken as a whole.
"Material Adverse Effect" shall mean a material adverse effect on the
business, operations or condition (financial or otherwise) of MBC and its
Subsidiaries taken as a whole.
"MBC" shall mean Michael Baker Corporation, a Pennsylvania corporation.
"Net Income" means, 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.
"Notes" shall collectively mean the Revolving Credit Note and any other
note of the Borrowers executed and delivered pursuant to this Agreement,
together with all extensions, renewals, refinancings or refundings in whole or
in part.
"Office", when used in connection with the Bank, means its designated
office located at Two Mellon Bank Center, Pittsburgh, Pennsylvania 15259 or
such other office of the Bank as the Bank may designate in writing from time to
time.
"Official Body" means any government or political subdivision or any
agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Operating Lease" shall mean any lease other than a Capitalized Lease.
"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, partnership, joint
venture, trust, or unincorporated organization or government or agency or
political subdivision thereof.
"Plan" means any deferred compensation program, including both single
and multi-employer plans, subject to Title IV of ERISA and established and
maintained for employees of any Borrower or any Subsidiary or any ERISA
Affiliate.
"Potential Default" shall mean any event or condition which with
notice, passage of time or determination by Bank, or any combination of the
foregoing, would constitute an Event of Default.
"Prime Rate" shall mean that rate of interest per annum announced by
Bank from time to time as its Prime Rate which may not represent the lowest
rate charged by Bank 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 have the meaning assigned to such term in
the preamble hereof.
"Prior Security Documents" shall have the meaning assigned to such term
in Section 2.17 hereof.
"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.
"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.
"Revolving Credit Facility Commitment" shall mean as set forth in
Section 2.01(a) hereof.
"Revolving Credit Loans" shall mean as set forth in Section 2.01(a)
hereof.
"Revolving Credit Note" means the joint and several Revolving Credit
Note of Borrowers executed and delivered pursuant to Section 2.01(b) of this
Agreement, as the same may be amended, modified or supplemented from time to
time, together with all extensions, renewals, refinancings or refundings, in
whole or in part.
"Subsidiary" of a Borrower at any time means (i) any corporation more
than fifty percent (50%) of whose 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 the Borrower and (ii) any partnership, association,
joint venture or other entity in which the Borrower and/or one or more
Subsidiaries of the Borrower has more than a fifty percent (50%) equity
interest.
"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.
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 Bank
include good faith estimates by Bank (in the case of quantitative judgments)
and good faith beliefs by Bank (in the case of qualitative judgments).
(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 FACILITIES
---------------------
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
and the other Loan Documents, the Bank agrees to make, continue or convert
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
(including the aggregate Letter of Credit Face Amount of all outstanding
Letters of Credit) not exceeding at any one time outstanding Twenty-Five
Million and 00/100 Dollars ($25,000,000.00) (the "Revolving Credit Facility
Commitment"). 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 Bank's right to demand repayment of the Revolving Credit Loans
upon the occurrence of an Event of Default, Borrowers may borrow, repay and
reborrow under this Section 2.01; provided, however, that Borrowers may repay
any Libor Rate Loan or As Offered Rate Loan only on the last day of the
applicable Interest Period for such Libor Rate Loan or As Offered Rate Loan.
(b) Revolving Credit Note. The joint and several obligations of
Borrowers to repay the unpaid principal amount of the Revolving Credit Loans
made to Borrowers by the Bank and to pay interest on the unpaid principal
amount thereof will be evidenced in part by the Revolving Credit Note of
Borrowers dated the Closing Date, in substantially the form attached as Exhibit
"A" to this Agreement (the "Revolving Credit Note"), with the blanks
appropriately filled. The executed Revolving Credit Note will be delivered by
Borrowers to the Bank 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 Bank shall make Revolving Credit
Loans to the Borrowers which, as selected by the Borrowers pursuant to this
Section 2.01(c), shall be either Prime Rate Loans, ABS Rate Loans, Libor Rate
Loans or As Offered Rate Loans.
(i) Each Revolving Credit Loan that is made as or converted
into a Prime Rate Loan shall be made or converted on such Business Day and in
such amount as Borrowers shall request by written notice or telephonic notice
from an Authorized Representative (confirmed promptly in writing which notice
shall be irrevocable by and binding on the applicable Borrower) received by the
Bank no later than 12:00 noon (Pittsburgh, Pennsylvania time) on the date of
requested disbursement of the requested Prime Rate Loan. On each borrowing
date, the Bank shall make the proceeds of the Prime Rate Loan available to
Borrowers at the Bank's Office in immediately available funds not later than
4:00 p.m. (Pittsburgh, Pennsylvania, time).
(ii) Each Revolving Credit Loan that is made as, continued or
converted into a Libor Rate Loan shall be made, continued or converted on such
Business Day, in such amount (greater than or equal to Five Hundred Thousand
Dollars ($500,000) provided, however, that any amount in excess of Five Hundred
Thousand Dollars ($500,000) may only be in increments of One Hundred Thousand
Dollars ($100,000)), and with such an Interest Period as Borrowers shall
request by written notice or telephonic notice from an Authorized
Representative (confirmed promptly in writing) received by the Bank no later
than 12:00 noon (Pittsburgh, Pennsylvania time) on the Second (2nd) Business
Day prior to the date of disbursement of the requested Libor Rate Loan. On
each borrowing date, the Bank shall make the proceeds of the Libor Rate Loan
available to Borrowers at the Bank's Office in immediately available funds, no
later than 12:00 noon (Pittsburgh, Pennsylvania time). In addition, in the
event that Borrowers desire to continue a Libor Rate Loan for an additional
Interest Period, Borrowers shall provide Bank with written notice or
telephonic notice thereof from an Authorized Representative (confirmed promptly
in writing) on the Second (2nd) Business Day prior to the expiration of the
applicable Interest Period. In the event that Borrowers fail to provide the
Bank with the required notice on the Second (2nd) Business Day prior to the
expiration of the applicable Interest Period for a Libor Rate Loan, Borrowers
shall be deemed to have given notice that such Loan shall be converted to a
Prime Rate Loan on the last day of the applicable Interest Period. Each notice
of any Libor Rate Loan shall be irrevocable and binding on Borrowers and
Borrowers shall indemnify the Bank against any loss or expense incurred by the
Bank as a result of any failure by Borrowers to consummate such transaction
including, without limitation, any loss (including loss of anticipated profits)
or expense incurred by reason of liquidation or re-employment of deposits or
other funds acquired by the Bank to fund the Loan. A certificate as to the
amount of such loss or expense submitted by the Bank in good faith to Borrowers
shall be presumptive evidence of such amount.
(iii) Each Revolving Credit Loan that is made as, continued
or converted into an As Offered Rate Loan shall be made, continued or converted
on such Business Day, in such amount(greater than or equal to One Hundred
Thousand Dollars ($100,000) and with such an Interest Period as Borrowers shall
request by written notice or telephonic notice from an Authorized
Representative (confirmed promptly in writing) received by the Bank no later
than 12:00 noon (Pittsburgh, Pennsylvania time) on the date of requested
disbursement of the requested As Offered Rate Loan. On each borrowing date,
the Bank shall make the proceeds of the As Offered Rate Loan available to
Borrowers at the Bank's Office in immediately available funds not later than
2:00 p.m. (Pittsburgh, Pennsylvania time). In addition, in the event that
Borrowers desire to continue an As Offered Rate Loan for an additional Interest
Period, Borrowers shall provide Bank with written notice or telephonic notice
thereof from an Authorized Representative (confirmed promptly in writing) on
or before 12:00 noon on the date of the expiration of the applicable Interest
Period. In the event that Borrowers fail to provide the Bank with the
required notice on or before 12:00 noon on the date of expiration of the
applicable Interest Period for an As Offered Rate Loan, Borrowers shall be
deemed to have given notice that such Loan shall be converted to a Prime Rate
Loan on the last day of the applicable Interest Period. Each notice of any
As Offered Rate Loan shall be irrevocable and binding on Borrowers and
Borrowers shall indemnify the Bank against any loss or expense incurred by
the Bank as a result of any failure by Borrowers to consummate such
transaction, including, without limitation, any loss (including loss of
anticipated profits) or expense incurred by reason of liquidation or
re-employment of deposits or other funds acquired by the Bank to fund the Loan.
A certificate as to the amount of such loss or expense submitted by the Bank to
Borrowers in good faith shall be presumptive evidence of such amount.
(iv) each Revolving Credit Loan that is made as or
converted into an ABS Rate Loan shall be made or converted on such Business Day
and in such amount as determined pursuant to an automated borrowing system
agreement (an "ABS Agreement") to be entered into by and between the Borrowers
and the Bank. Revolving Credit Loans that are made as ABS Rate Loans shall be
made available to the Borrowers pursuant to the terms of the ABS Agreement.
Notwithstanding the foregoing, the Borrowers shall not be entitled to request
or make any ABS Rate Loans until such time as the Borrowers and the Bank have
executed an ABS Agreement.
(d) Maximum Principal Balance of Revolving Credit Loans. The
aggregate principal amount of all Revolving Credit Loans (including the Letter
of Credit Face Amount of all outstanding Letters of Credit) outstanding shall
not exceed the Revolving Credit Facility Commitment. The Borrowers agree that
if at any time the aggregate principal amount of all Revolving Credit Loans
outstanding (including the Letter of Credit Face Amount of all outstanding
Letters of Credit) exceeds the Revolving Credit Facility Commitment
("Overadvance"), the Borrowers shall promptly pay to the Bank such amount as
may be necessary to eliminate such Overadvance. If not sooner paid, all of the
Revolving Credit Loans, all unpaid accrued interest thereon, and all other sums
and costs owed to Bank by Borrowers pursuant to this Agreement with respect to
the Revolving Credit Loans, shall be immediately due and payable on the Expiry
Date, without notice, presentment or demand.
2.02 Interest Rates.
(a) Interest on Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, at all times during the term of this Agreement,
the aggregate outstanding principal balance of all Revolving Credit Loans shall
be, at the option of the Borrowers, as elected pursuant to Section 2.01(c):
(I) Prime Rate Loans which shall bear interest at a rate per
annum equal to the Prime Rate;
(ii) As Offered Rate Loans which shall bear interest during
each Interest Period at a rate equal to the As Offered Rate for such Interest
Period;
(iii) Libor Rate Loans which shall bear interest during each
Interest Period at the rates determined pursuant to subsection 2.02(b) below; or
(iv) ABS Rate Loans which shall bear interest at the rates
determined pursuant to Section 2.02(b) below.
(b) Interest on Libor Rate Loans and ABS Rates Loans. Subject to
the terms and conditions of this Agreement, until the first Incentive Pricing
Effective Date (as hereinafter defined), the Revolving Credit Loans which are
Libor Rate Loans shall bear interest during each Interest Period at a rate
equal to one and one-quarter of one percent (1.25%) in excess of the Libor Rate
for such Interest Period, and all Revolving Credit Loans which are ABS Rate
Loans shall bear interest at a rate equal to one and one-quarter of one percent
(1.25%) in excess of the ABS Rate.
Subject to the terms and conditions of this Agreement, during each
Fiscal Quarter, the Borrowers shall, in accordance with Section 5.01(b), submit
to the Bank quarterly financial statements (the Fiscal Quarter in which such
financial statements are required to be received by the Bank is the "Reporting
Quarter") as of the last day of the Fiscal Quarter immediately preceding such
Reporting Quarter (the Fiscal Quarter immediately preceding the most recent
Reporting Quarter is the "Measurement Quarter"). Upon receipt of such
quarterly financial statements in accordance with Section 5.01(b), the
Borrowers' Borrowed Debt Ratio as of the last day of the Measurement Quarter
shall be calculated, and from the first day of the first full calendar month
following the receipt of such quarterly financial statements and calculation of
the Borrowers' Borrowed Debt Ratio as set forth above (the "Incentive Pricing
Effective Date") until the next Incentive Pricing Effective Date, Revolving
Credit Loans which are either Libor Rate Loans or ABS Rate Loans shall bear
interest as follows:
(i) If the Borrowers' Borrowed Debt Ratio is greater than or
equal to 2.5 to 1.0, Revolving Credit Loans which are Libor Rate Loans shall
bear interest during each applicable Interest Period at a rate per annum equal
to two and one-quarter of one percent (2.25%) in excess of the Libor Rate for
such Interest Period, and Revolving Credit Loans which are ABS Rate Loans shall
bear interest at a rate per annum equal to two and one-quarter of one percent
(2.25%) in excess of the ABS Rate;
(ii) If the Borrowers' Borrowed Debt Ratio is less than 2.5
to 1.0, but greater than or equal to 2.0 to 1.0, Revolving Credit Loans which
are Libor Rate Loans shall bear interest during each applicable Interest Period
at a rate per annum equal to two percent (2.00%) in excess of the Libor Rate
for such Interest Period, and Revolving Credit Loans which are ABS Rate Loans
shall bear interest at a rate per annum equal to two percent (2.0%) in excess
of the ABS Rate;
(iii) If the Borrowers' Borrowed Debt Ratio is less than 2.00
to 1.0, but greater than or equal to 1.50 to 1.0, Revolving Credit Loans which
are Libor Rate Loans shall bear interest during each applicable Interest Period
at a rate per annum equal to one and three-quarters of one percent (1.75%) in
excess of the Libor Rate for such Interest Period, and Revolving Credit Loans
which are ABS Rate Loans shall bear interest at a rate per annum equal to one
and three-quarters of one percent (1.75%) in excess of the ABS Rate;
(iv) If the Borrowers' Borrowed Debt Ratio is less than or
equal to 1.50 to 1.0, but greater than or equal to 1.0 to 1.0, Revolving Credit
Loans which are Libor Rate Loans shall bear interest during each applicable
Interest Period at a rate per annum equal to one and one-half of one percent
(1.50%) in excess of the Libor Rate for such Interest Period, and Revolving
Credit Loans which are ABS Rate Loans shall bear interest at a rate per annum
equal to one and one-half of one percent (1.50%) in excess of the ABS Rate; or
(v) If the Borrowers' Borrowed Debt Ratio is less than 1.0
to 1.0, Revolving Credit Loans which are Libor Rate Loans shall bear interest
during each applicable Interest Period at a rate per annum equal to one and
one-quarter of one percent (1.25%) in excess of the Libor Rate for such
Interest Period, and Revolving Credit Loans which are ABS Rate Loans shall bear
interest at a rate per annum equal to one and one-quarter of one percent
(1.25%) in excess of the ABS Rate.
2.03 Interest Payments. The Borrowers shall pay to the Bank
interest on the unpaid principal balance of the aggregate outstanding balance
of the Revolving Credit Loans which are Prime Rate Loans or ABS Rate Loans, in
arrears, on the first (1st) day of the first (1st) full calendar month after
the Closing Date and on the first day of each calendar month thereafter through
and including the Expiry Date. The Borrower shall pay to the Bank interest on
the unpaid principal balance of the aggregate outstanding balance of the
Revolving Credit Loans which are Libor Rate Loans or As-Offered 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 Bank of an invoice for
such interest without further notice, presentment, or demand.
2.04 Interest After Default; Usury. Whenever the unpaid principal
amount of the Loans or any portion thereof, accrued interest thereon, any fees,
or any other sums payable hereunder shall become due and payable and remain
unpaid (whether at maturity, upon the occurrence of an Event of Default, by
acceleration or otherwise) the amount thereof shall thereafter until paid in
full bear interest at a rate per annum two percent (2.00%) in excess of the
interest rate otherwise applicable to such Loans. In the event the rates of
interest provided for in this section 2.04, or any other section of this
Agreement, are finally determined by any Official Body to exceed the maximum
rate of interest permitted by applicable usury or similar laws, their or its
application will be suspended and there will be charged instead the maximum
rate of interest permitted by such laws.
2.05 [Reserved]
2.06 Fees. The Borrowers shall pay to Bank a commitment fee on the
unused portion 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 July 1, 1997 and continuing on the first (1st) day of each
October, January, April and July thereafter and on the Expiry Date. Such fee
shall be equal to the amount by which Twenty-Five Million and 00/100 Dollars
($25,000,000.00) has exceeded the average daily closing principal balance of
the Revolving Credit Loans (including the Letter of Credit Face Amount of all
outstanding Letters of Credit) during the preceding calendar quarter,
multiplied by three hundred and seventy-five one-hundredths 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.
2.07 Computation of Interest and Fees; Adjustment to Prime Rate and
ABS Rate. Interest on the Prime Rate Loans shall be computed on the basis of a
year of three hundred sixty-five (365) days and paid for the actual number of
days elapsed. Interest on all other Loans shall be computed on the basis of a
year of three hundred sixty (360) days and paid for the actual number of days
elapsed. Interest on unpaid fees and other sums payable hereunder shall be
computed on the basis of a year of three hundred sixty five (365) days and paid
for the actual number of days elapsed. In the event of any change in the Prime
Rate or the ABS Rate, the rate of interest upon each Prime Rate Loan or ABS
Rate Loan shall be adjusted to immediately correspond with such change; except
any interest charged hereunder shall not exceed the highest rate permitted by
law.
2.08 Agreement to Issue Letters of Credit. From time to time
during the period from the Closing Date to the Business Day immediately
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 Bank shall issue standby or trade letters of credit (collectively,
"Letters of Credit") for the account of the Borrowers in an amount not to
exceed Twenty-Five Million and 00/100 Dollars ($25,000,000.00), as a
sub-facility 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, plus the total
Letter of Credit Face Amount of all Letters of Credit issued and outstanding
shall not exceed the Revolving Credit Facility Commitment. All such Letters
of Credit shall be issued by the Bank 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 Bank of applications and agreements
required by Bank and the payment by the Borrowers of all applicable fees with
respect thereto. As of the Effective Date, those letters of credit set forth
on Schedule 2.08 hereof (the "Existing Letters of Credit") which were issued
under the Prior Loan Agreement and are outstanding will be deemed to have been
issued and be Letters of Credit issued and outstanding hereunder.
2.09 Letter of Credit Fees. The Borrowers shall pay to Bank (a)
one percent (1.00%) per annum of the Letter of Credit Face Amount of all
Letters of Credit issued and outstanding hereunder, such fee to be paid
quarterly in arrears, (b) the Bank's standard issuance fees for each Letter of
Credit issued hereunder, such fee to be paid on the date of issuance of such
Letter of Credit, and (c) any reasonable out-of-pocket expenses and costs
incurred by Bank 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.
2.10 Payments Under Letters of Credit. Upon a draw under any
Letter of Credit, the Borrowers irrevocably authorize Bank to treat such draw
as a request for a Revolving Credit Loan which shall be a Prime Rate Loan in
the amount of such draw, so long as the Revolving Credit Facility Commitment
has not terminated.
2.11 Period of Issuance and Term of Letters of Credit. Letters of
Credit shall only be issued by Bank for the account of the Borrowers for such
terms which expire prior to or on the Expiry Date.
2.12 [Reserved]
2.13 Additional Costs.
(a) If, due to either (i) the introduction of, or any change in,
or in the interpretation of, any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
(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 Loans (or commitments to make the Loans), then the Borrowers shall
from time to time, upon demand by the Bank made within a reasonable time after
Bank's determination thereof, pay to the 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 Bank in good faith using
appropriate attribution and averaging methods ordinarily employed by the Bank.
A certificate of the Bank submitted to the Borrowers in good faith as to the
amount of such additional costs shall be presumptive evidence of such amount.
Upon notice from the Bank to the Borrowers within ten (10) Business Days after
the Bank notifies the Borrowers of any such additional costs pursuant to this
Section 2.13(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 Bank. If any such repayment or
conversion of any Libor Rate Loan or As Offered 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 Bank such additional amounts as set forth in
section 2.13(c).
(b) If either (i) the introduction of, or any change in, or in the
interpretation of, any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), affects or would affect the amount of
capital required or expected to be maintained by the Bank or any corporation
controlling the Bank and the 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 the Bank, the Borrowers 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 reasonably
determines in good faith such increase in capital to be allocable to the
existence of the Bank's Loans (or commitment to make the Loans). Any such
demand by Bank must be made by the Bank within a reasonable time. A
certificate of the Bank in good faith submitted to the Borrowers as to such
amounts shall be presumptive evidence of such amounts. Upon notice from the
Borrowers to the Bank within ten (10) Business Days after the Bank notifies
the Borrowers of any such additional costs pursuant to this Section 2.13(b),
the Borrowers may (A) prepay 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 the Bank. If any such prepayment or conversion
of any Libor Rate Loan or As Offered 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 Bank such additional amounts as set forth in section 2.13(c).
(c) If the Borrowers shall repay any Libor Rate Loan or As Offered
Rate Loan on a day other than the last day of the applicable Interest Period
for such Loan (whether such repayment is permitted by Section 2.13 or 2.14, 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) and (iii), otherwise
permitted by Bank or otherwise required under the terms of this Agreement), the
Borrowers shall within ten (10) Business Days of demand pay to the Bank such
additional amounts reasonably determined by Bank in good faith to be sufficient
to indemnify the Bank against any loss, cost, or expense incurred by the Bank
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 Bank
to fund such Loan, and a certificate as to the amount of any such loss, cost or
expense submitted by the Bank to the Borrowers in good faith shall be
presumptive evidence of such amount.
2.14 Illegality; Impracticability. Notwithstanding any other
provision contained in this Agreement, if: (a) it is unlawful, or any central
bank or other governmental authority shall determine that it is unlawful, for
the 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, the 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 the Bank of funding a proposed Libor Rate Loan exceeds the Libor Rate
then (y) on notice thereof by the Bank to the Borrowers, the obligation of the
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 Bank shall
thereafter be obligated to make Prime Rate Loans whenever any written notice
requests any type of Loans so affected and (z) upon demand therefor by the 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 the 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 Bank such additional amounts as set
forth in Section 2.13(c).
2.15 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 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 Borrowers' demand or deposit accounts
with Bank 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 Agreement 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 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, they
will pay such additional amounts as may be necessary in order that the net
payments after such deduction, and after giving effect to any United States
federal or state income taxes required to be paid by the Bank in respect of
such additional amounts, shall equal the amount of such payment without such
tax, deduction or withholding.
2.16 Loan Account. The Bank will open and maintain on its books
a loan account (the "Loan Account") for the Borrowers with respect to Loans
made, repayments, prepayments, the computation and payment of interest and fees
and the computation and final payment of all other amounts due and sums paid to
the Bank under this Agreement. The Loan Account for the Borrowers will be
presumptive evidence as to the amount at any time due to the Bank from the
Borrowers under this Agreement or the Notes.
2.17 Security. The Bank hereby releases, discharges and terminates
all security interests, liens and other encumbrances created pursuant to the
security documents listed on Schedule 2.17 to this Agreement (the "Prior
Security Documents"), and such Prior Security Documents are hereby terminated
and are of no further force and effect. Upon request of, and at the sole cost
and expense of the Borrowers, the Bank will execute and deliver to the
Borrowers such instruments as may be reasonably requested by the Borrowers to
evidence the foregoing. Notwithstanding anything to the contrary contained in
the preceding sentence, all indemnity and expense obligations contained in the
Prior Security Documents, shall survive the termination of, and the release of
the security interests and mortgages created under, the Prior Security
Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrowers represent and warrant to the Bank 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 where
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 where 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 corporation 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 the Borrowers who are a party thereto, enforceable 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 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 their
Subsidiaries are 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 their 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.
3.06 [Reserved]
3.07 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 3.08 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.
3.08 Financial Statements.
(a) The Borrowers have delivered to the Bank 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,
1996, as audited by Price Waterhouse L.L.P. 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 Bank internally
prepared Consolidated and Consolidating balance sheets and related statements
of income, cash flow and retained earnings of the Borrowers and their
Subsidiaries and each Borrower and its Subsidiary as of, and for the fiscal
year ending, December 31, 1996. Such financial statements provided by the
Borrowers present fairly the financial position of each Borrower and their
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 GAAP,
applied on a basis consistent with that of the preceding fiscal periods.
3.09 Taxes. All tax returns required to be filed by each Borrower
and their 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 their 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).
3.10 [Reserved]
3.11 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 Bank,
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.
3.12 Compliance with Laws. To the best of MBC's knowledge, except
as set forth in Schedule 3.12 hereto, no Borrower nor any Subsidiary of a
Borrower is in violation of or subject to any material contingent liability on
account of any Law which in the aggregate would have a Material Adverse
Effect.
3.13 Pension Plans. Except as described in Schedule 3.13 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, as defined in ERISA, 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.
3.14 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 business 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.
3.15 Environmental Matters. Except as set forth in Schedule 3.15
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, statute, rule, regulation or
ordinance applicable to any Borrower, its Subsidiaries, or their respective
properties (all of the foregoing are sometimes collectively referred to in this
Section 3.17 as the "Environmental Laws") except where 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, whether or not
to a location identified by the EPA on the National Priorities List, 40 C.F.R.
Part 300, (or proposed by the EPA in the Federal Register for listing on such
National Priorities List) or identified under any corresponding state statute
or regulation concerning cleanup of waste disposal sites (a "State Superfund
Law") except where 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 (as defined by CERCLA, as amended), owned, used or
possessed by the predecessor, except where 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.
3.16 Proceeds. The Borrowers will use the proceeds of the
Revolving Credit Loans to repay Indebtedness of the Borrowers to the Bank under
the Prior Loan Agreement and for general corporate purposes.
3.17 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".
3.18 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.
3.19 No Material Adverse Change. Except as otherwise disclosed
herein, since December 31, 1996, there has been no Material Adverse Change.
3.20 Subsidiaries. Schedule 3.20 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.
3.21 Labor Controversies. There are no labor controversies pending
or, to the best knowledge of MBC, threatened, against any Borrower or any of
its Subsidiaries which, if adversely determined, would have a Material Adverse
Effect.
3.22 [Reserved]
3.23 Accurate and Complete Disclosure. No represen-tation 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 MBC
no statement made by any Borrower or its Subsidiaries in any financial
statement (furnished pursuant to Sections 3.08 or 5.01 or otherwise),
certificate, report, exhibit or document furnished by any Borrower or its
Subsidiaries to the 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 Bank 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. Failure of the Bank 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.
4.02 Proceedings and Incumbency. On the Closing Date, each
Borrower shall have delivered to the Bank a certificate, in form and substance
satisfactory to the Bank, dated 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 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 Bank may conclusively rely on each such certificate unless and
until a later certificate revising the prior certificate has been furnished to
the Bank.
4.03 Agreement and Notes. On the Closing Date, this Agreement and
the Notes, satisfactory in terms, form and substance to the Bank, shall have
been executed and delivered by the Borrowers to the Bank.
4.04 Opinion of Counsel. On the Closing Date, there shall have
been delivered to the Bank a written opinion, dated the Closing Date, of
counsel to the Borrowers, in form and substance satisfactory to Bank and its
counsel.
4.05 Other Documents and Conditions. On or before the Closing Date,
the following documents and conditions shall have been delivered to Bank or
satisfied by or on behalf of the Borrowers:
(a) Good Standing and Tax Lien Certificates. A good standing
certificate of each Borrower certifying to the good standing and corporate
status of such Borrower in its jurisdiction of incorporation, good
standing/foreign qualification certificates from other jurisdictions in which
such Borrower is qualified to do business and tax lien certificates of such
Borrower from each jurisdiction in which such Borrower is qualified to do
business.
(b) Financial Statements. Financial statements in form and
substance satisfactory to the Bank, as described in Section 3.08 of this
Agreement.
(c) Insurance. Evidence, in form and substance satisfactory
to the Bank, that the business and all assets of the Borrowers and their
Subsidiaries are adequately insured and that the issuers of such policies shall
endeavor to provide the Bank with thirty (30) days notice of any cancellation
or modification to such policies.
(d) Lien Search. Copies of record searches (including UCC
searches, judgment, tax and other lien searches) evidencing that no Liens exist
against any Borrower or any of its Subsidiaries except those Liens permitted by
Section 6.01 of this Agreement.
(e) No Material Adverse Change. No Material Adverse Change
shall have occurred with respect to any Borrower since December 31, 1996.
(f) Other Documents and Conditions. Such other documents and
conditions as may be required to be submitted to the 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 Bank and the Bank 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 Bank, as the Bank may from time to time request.
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 Bank 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 Bank 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
and satisfactory to the Bank. The certificate or report of such accountants
shall be free of exception or qualifications not reasonably acceptable to the
Bank 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.
(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 Bank Consolidated
and Consolidating statements of income for MBC for such Fiscal Quarter and for
the portion of the fiscal year to the end of such Fiscal Quarter, and a
Consolidated and Consolidating balance sheet of MBC as of the close of such
Fiscal Quarter, all in reasonable detail. All such income statements and
balance sheets shall be prepared by the Borrowers and certified by the
President, Chief Financial Officer or Vice President and Corporate Controller
of MBC as presenting fairly the Consolidated and Consolidating financial
position of MBC as of the end of such Fiscal Quarter and the results of their
operations for such periods, in conformity with GAAP (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 Bank. For
each Borrower and each Subsidiary which is operating in the construction
industry, the Borrowers shall also, along with the quarterly financial
statements referred to above, submit to the Bank a summary job status report
for all on-going construction projects of such Borrower or Subsidiary.
(c) [Reserved]
(d) 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, Chief Financial Officer or Vice President
and 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.
(e) Reports to Governmental Agencies and Other Creditors.
As soon as practicable, and in event within ten (10) days after the filing
thereof, the Borrower shall furnish to Bank 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.
(f) 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 Bank one 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 banks and records.
(g) Annual Plan. On or before January 31 of each calendar
year, the Borrowers shall submit to the Bank Consolidated and Consolidating
projections for the Borrowers and their Subsidiaries for such calendar year
setting forth projected income and cash flow for each quarter and the projected
balance sheet as of the end of each quarter. Such projections shall be
prepared in a manner fully and accurately presenting the projected financial
condition and results of operation of the Borrowers and their Subsidiaries and
making such projections not misleading under the circumstances.
(h) Visitation: Audits. The Borrowers will permit such
persons as the Bank may designate to visit and inspect any of the properties of
the Borrowers and their Subsidiaries to examine, and to make copies and
extracts from, the books and records of the Borrowers and their Subsidiaries
and to discuss their affairs with their officers, employees and independent
accountants during normal business hours. Provided that no Event of Default
has occurred, the Bank shall provide the Borrower with reasonable notice of any
such visitation or inspection. The Borrowers authorize the officers, employees
and independent accountants for the Borrowers to discuss with the Bank the
affairs of the Borrowers.
(i) 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 Bank 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.
(j) Notice of Material Adverse Change. Promptly, and in any
event within five (5) Business Days, after becoming aware thereof, the
Borrowers will give the Bank 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.
(k) Notice of Proceedings. Promptly, and in any event within
five (5) Business Days, after becoming aware thereof, the Borrowers will give
the Bank 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.
(l) Further Information. The Borrowers will promptly, but
in any event within fifteen (15) days, furnish to the Bank such other
information, and in such form, as the Bank may reasonably request from time to
time.
5.02 Preservation of Existence and Franchises. The Borrowers and
their Subsidiaries will maintain their respective corporate existences, rights
and franchises in full force and effect in their respective jurisdictions of
incorporation. Except where 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.
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 Bank 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 will deliver to the Bank, on the
last day of each fiscal year during the term of this Agreement, a statement or
insurance company certificate in such detail as the Bank may request as to all
insurance coverage of the Borrower and all of its Subsidiaries.
5.04 Maintenance of Properties. Except where 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 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;
(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 Borrower or its Subsidiaries have established
adequate reserves on their books and for which the Borrower and its
Subsidiaries have put in place adequate bonds or other security to cover the
amount of any such Lien;
(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 Borrower and its Subsidiaries have established sufficient reserves on
their books; and
(d) all other current liabilities so that none is due more
than one hundred twenty (120) days after the due date for each liability,
except current liabilities which are subject to good faith dispute and as to
which the Borrowers or their Subsidiaries have created adequate 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
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 Bank 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 Bank,
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 materially or adversely affect any Borrower, their
businesses, assets, financial condition, or the ability of such Borrower to
perform its respective obligations under this Agreement.
5.09 Use of Proceeds. The Borrowers shall use the proceeds of the
Loans for the purposes set forth in Section 3.16 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, 1996 (the "1996 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 Bank.
5.11 Lien Searches. Upon an Event of Default, the Bank may, but
shall not be obligated to, conduct lien searches of the Borrowers, their
Subsidiaries and their assets and properties. The Borrowers shall reimburse
the Bank for the Bank's 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 Bank 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 [Reserved]
5.14 Financial Covenants. The following financial covenants with
respect to the Borrowers shall apply:
(a) Interest Coverage Ratio. The Borrowers shall, as of the
last day of each Fiscal Quarter, maintain an Interest Coverage Ratio, for the
period equal to the four (4) consecutive Fiscal Quarters ending on the last day
of such Fiscal Quarter, greater than or equal to 4.0 to 1.0.
(b) Cash Flow Coverage Ratio. The Borrowers shall, as of the
last day of each Fiscal Quarter, maintain a Cash Flow Coverage Ratio, for the
period equal to the four (4) consecutive Fiscal Quarters ending on the last day
of such Fiscal Quarter, greater than or equal to 1.2 to 1.0.
(c) Leverage Ratio. The Borrowers shall, as of the last day
of each Fiscal Quarter, maintain a Leverage Ratio less than or equal to 0.40 to
1.0 for each Fiscal Quarter.
ARTICLE VI
NEGATIVE COVENANTS
------------------
The Borrowers covenant to the Bank 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 their
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 Bank;
(c) pledges or deposits under workers compensation,
unemployment insurance and social security laws, or to secure the performance
of bids, tenders, contracts (other 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(d); 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(h) or 7.01(i) 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; and
(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.
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 the Bank;
(b) Indebtedness existing on the date hereof, and described
in Schedule 6.02 to this Agreement, including all extension renewals or
refinancings thereof which do not increase the amount thereof;
(c) Current accounts payable, accrued expenses and other
current items arising out of transactions (other than borrowings) in the
ordinary course of business;
(d) Purchase money Indebtedness or Capitalized Lease
Obligations for purchases or leases of equipment in the ordinary course of
business and in amounts which shall not exceed Five Million and 00/100 Dollars
($5,000,000.00) as to the aggregate, at any time, of all such purchase money
Indebtedness and Capitalized Lease Obligations; and
(e) Indebtedness represented by unsecured promissory notes
provided that such Indebtedness shall not exceed Three Million and 00/100
Dollars ($3,000,000.00) as to any single promissory note or Five Million and
00/100 Dollars ($5,000,000.00) as to the aggregate, at any time, of all such
outstanding notes.
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; and
(c) those guarantees existing on the Closing Date and set
forth on Schedule 6.03 attached to this Agreement.
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 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 3.20 to this Agreement;
(b) Acquisitions permitted under Section 6.05 hereof;
(c) other loans and investments existing on the Closing Date
and set forth on Schedule 6.04 attached to this Agreement; or
(d) 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 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 3.20) in any other Borrower or Subsidiary
incurred in the ordinary course of business and usual and customary terms in
the form of advances to such Borrower or Subsidiary; provided, however, that
(A) the total amount of all such 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).
(e) so long as no Event of Default has occurred or will occur
as a result thereof, additional repurchases of outstanding common stock of MBC
as may hereafter be authorized by the Board of Directors of MBC from time to
time.
6.05 Acquisitions. No Borrower nor any Subsidiary of a Borrower
shall acquire, directly or indirectly, substantially all of the assets or all
of the stock, other securities or other equity interest of any Person (whether
in a single or series of related transactions) or make or permit to exist any
agreement for any of the foregoing (any of the foregoing arrangements being
herein referred to as an "Acquisition"), except Acquisitions of Persons in
businesses similar to those described in the 1996 Form 10-K so long as each of
the following conditions are satisfied:
(a) the Bank 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 Bank 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 Bank;
(c) if requested by Bank, Bank shall have received pro forma
financial statements of the Borrowers and their Subsidiaries after giving
affect to such Acquisition;
(d) immediately after the closing 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
(g) the aggregate purchase price of all such Acquisitions in
any fiscal year shall not exceed Five Million and 00/100 Dollars
($5,000,000.00) in the aggregate.
6.06 Partnerships, Combinations, Mergers or Consolidations. No
Borrower nor any Subsidiary of a Borrower shall form a partnership or a joint
venture 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) any Borrower may merge with any other Borrower; and
(c) 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 and other assets 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) 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 disposition, not
in excess of One Million and 00/100 Dollars ($1,000,000.00) in the aggregate
for all such dispositions in any fiscal year.
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 Bank 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 Operating Leases. No Borrower nor any Subsidiary of a
Borrower shall enter into or become subject to any operating leases which in
the aggregate provide for Lease Obligations during any fiscal year in excess of
Twenty Million and 00/100 Dollars ($20,000,000.00).
6.11 [Reserved]
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.
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 when 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 of the date when due; 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 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(i); 5.01(j); 5.01(k);
5.11; 5.12; 5.14 or any section in Article VI hereof; 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(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; or
5.10 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 notice to MBC by the Bank;
(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, 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) 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) Bank has determined 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 that the Bank is insecure; 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;
(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 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 or any Subsidiary shall become insolvent,
shall become generally unable to pay its debts as they become due, shall
voluntarily suspend transaction of their businesses, 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 (b)
through (n) of Section 7.01 of this Agreement occurs, the Bank will be under no
further obligation to make Loans and may at its option demand the unpaid
principal amount of the Notes, interest accrued on the unpaid principal amount
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.
(b) If an Event of Default specified in subsections (a), (o)
or (p) of Section 7.01 of this Agreement occurs and continues or exists, the
Bank will be under no further obligation to make Loans and the unpaid principal
amount of the Notes, interest accrued on the unpaid principal amount of the
Notes 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), the Bank, any assignee of the Bank and the 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 the 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 the Bank, such assignee or such
holder. The Borrowers consent to and confirm the foregoing arrangements and
confirm the Bank's 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 Bank's rights, such assignee's rights or
any such holder's rights of banker's lien or set-off.
ARTICLE VIII
MISCELLANEOUS
-------------
8.01 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.
8.02 Records. The unpaid principal amount of the Notes, the unpaid
interest accrued thereon, the interest rate or rates applicable to such unpaid
principal amount and the duration of such applicability shall at all times be
ascertained from the records of the Bank, which shall be conclusive absent
manifest error.
8.03 Amendments and Waivers. The Bank and the Borrowers may from
time to time enter into agreements amending, modifying or supplementing this
Agreement, the Notes or any other Loan Document or changing the rights of the
Bank or of the Borrowers under this Agreement, under the Notes or under any
other Loan Document and the Bank may from time to time grant waivers or consent
to a departure from the due performance of the obligations of the Borrowers
under this Agreement, under the Notes or under any other Loan Document. 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 Agreement, 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 to any other or subsequent Event of Default or Potential Default or
impair any right consequent thereto.
8.04 No Implied Waiver: Cumulative Remedies. No course of dealing
and no delay or failure of the Bank 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 Bank under this Agreement, the Notes or any other Loan Document
are cumulative and not exclusive of any rights or remedies which the Bank would
otherwise have.
8.05 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: Craig O. Stuver
Vice President and Corporate Controller
Michael Baker Corporation
Airport Office Park, Building No. 3
420 Rouser Road
Coraopolis, PA 15108
and a copy to: H. James McKnight
Secretary and General Counsel
Michael Baker Corporation
Airport Office Park, Building No. 3
420 Rouser Road
Coraopolis, PA 15108
If to Bank: Mark T. Latterner
Assistant Vice President
Mellon Bank, N.A.
Two Mellon Bank Center, Room 152-0230
Pittsburgh, PA 15259-0001
Telecopier: (412) 236-9010
and a copy to: Jeffrey J. Conn, Esquire
Thorp Reed & Armstrong
One Riverfront Center
Pittsburgh, PA 15222
Telecopier: (412) 394-2555
8.06 Expenses; Taxes; Attorneys Fees. The Borrowers 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 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 Bank's 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 Bank 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 Bank to be
payable in connection with this Agreement, the Notes or any other Loan
Document. The Borrowers 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 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 Bank 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.
8.07 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.
8.08 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 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.
8.09 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.
8.10 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 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 Bank 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.
8.11 Term of Agreement. This Agreement will terminate when all
Indebtedness of the Borrowers to Bank including, without limitation, the Loans
and interest on the Loans is paid in full, and the Borrowers have no right to
borrow under this Agreement and the Bank has no obligation to make Loans under
this Agreement.
8.12 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.
8.13 Successors and Assigns. This Agreement will be binding upon
and inure to the benefit of the Bank, 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 Bank.
8.14 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.
8.15 Participation and Assignment. The Bank may from time to time
sell, assign or grant one or more participations in all or any part of the
Loans made by Bank or which may be made by the Bank, or its right, title and
interest in the Loans in or to this Agreement, to another lending office,
lender or financial institution. Except to the extent otherwise required by
the context of this Agreement, the word "Bank" where used in this Agreement
means and includes any holder of a Note originally issued to the Bank and each
such holder of a Note will be bound by and have the benefits of this Agreement,
the same if such holder had been a signatory to this Agreement. In connection
with any such sale, assignment or grant of participation, the Bank may make
available to any prospective purchaser, assignee or participant any information
relative to the Borrowers in the Bank's possession.
8.16 Exhibits. All exhibits and schedules attached to this
Agreement are incorporated and made a part of this Agreement.
8.17 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.
8.18 Limitation of Liability. To the fullest extent permitted by
Law, no claim may be made by the Borrowers against the Bank, or by the Bank
against the Borrowers, or by the Borrowers 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 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 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 suspected to
exist in its favor. This Section 8.18 shall not limit any rights of the
Borrowers or the Bank arising solely out of gross negligence or willful
misconduct.
8.19 WAIVER OF TRIAL BY JURY. INITIALS:
THE BORROWERS AND THE BANK EXPRESSLY,
KNOWINGLY AND VOLUNTARILY WAIVE ALL
BENEFIT AND ADVANTAGE OF ANY RIGHT TO A /s/ JRW
TRIAL BY JURY, AND NEITHER WILL AT ANY TIME ----------------
INSIST UPON, OR PLEAD OR IN ANY MANNER J. Robert White
WHATSOEVER CLAIM OR TAKE THE BENEFIT OR All Borrowers
ADVANTAGE OF A TRIAL BY JURY IN ANY ACTION
ARISING IN CONNECTION WITH THIS AGREEMENT, /s/ MTL
THE NOTES OR ANY OF THE LOAN DOCUMENTS. -----------------
Mark T. Latterner
Bank
IN WITNESS WHEREOF, and intending to be legally bound, the parties,
by their duly authorized officers, have executed and delivered this Agreement
as of the date set forth at the beginning of this Agreement.
<TABLE>
Attest: Michael Baker Corporation
<S> <C>
By: /s/ H. James McKnight By: /s/ J. Robert White
--------------------- ---------------------------
Title: Secretary Title: Executive Vice President
------------------ ------------------------
Attest: Michael Baker Jr., Inc.
By: /s/ H. James McKnight By: /s/ J. Robert White
--------------------- ---------------------------
Title: Secretary Title: Executive Vice President
------------------ ------------------------
Attest: Baker Environmental, Inc.
By: /s/ H. James McKnight By: /s/ J. Robert White
--------------------- ---------------------------
Title: Secretary Title: Executive Vice President
------------------ ------------------------
Attest: Baker/MO Services, Inc.
By: /s/ H. James McKnight By: /s/ J. Robert White
--------------------- ---------------------------
Title: Secretary Title: Executive Vice President
------------------ ------------------------
Attest: Baker Support Services, Inc.
By: /s/ H. James McKnight By: /s/ J. Robert White
--------------------- ---------------------------
Title: Secretary Title: Executive Vice President
------------------ ------------------------
Attest: Baker/Mellon Stuart
Construction, Inc.
By: /s/ H. James McKnight By: /s/ J. Robert White
--------------------- ---------------------------
Title: Secretary Title: Executive Vice President
------------------ ------------------------
Attest: Baker Heavy & Highway, Inc.
By: /s/ H. James McKnight By: /s/ J. Robert White
--------------------- ---------------------------
Title: Secretary Title: Executive Vice President
------------------ ------------------------
Attest: Baker/OTS, Inc.
By: /s/ H. James McKnight By: /s/ J. Robert White
--------------------- ---------------------------
Title: Secretary Title: Executive Vice President
------------------ ------------------------
Mellon Bank, N.A.
By: /s/ Mark T. Latterner
---------------------
Assistant Vice President
</TABLE>
<PAGE>
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