Attached files
file | filename |
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10-K - FORM 10-K - MICHAEL BAKER CORP | l39089e10vk.htm |
EX-23.2 - EX-23.2 - MICHAEL BAKER CORP | l39089exv23w2.htm |
EX-99.1 - EX-99.1 - MICHAEL BAKER CORP | l39089exv99w1.htm |
EX-21.1 - EX-21.1 - MICHAEL BAKER CORP | l39089exv21w1.htm |
EX-23.1 - EX-23.1 - MICHAEL BAKER CORP | l39089exv23w1.htm |
EX-10.1 - EX-10.1 - MICHAEL BAKER CORP | l39089exv10w1.htm |
EX-99.2 - EX-99.2 - MICHAEL BAKER CORP | l39089exv99w2.htm |
EX-13.1 - EX-13.1 - MICHAEL BAKER CORP | l39089exv13w1.htm |
EX-32.1 - EX-32.1 - MICHAEL BAKER CORP | l39089exv32w1.htm |
EX-31.2 - EX-31.2 - MICHAEL BAKER CORP | l39089exv31w2.htm |
EX-99.3 - EX-99.3 - MICHAEL BAKER CORP | l39089exv99w3.htm |
EX-31.1 - EX-31.1 - MICHAEL BAKER CORP | l39089exv31w1.htm |
EX-10.2.G - EX-10.2.G - MICHAEL BAKER CORP | l39089exv10w2wg.htm |
Exhibit 10.3(b)
SECOND AMENDMENT TO THE FIRST AMENDED
AND RESTATED LOAN AGREEMENT
AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO THE FIRST AMENDED AND RESTATED LOAN AGREEMENT (this
Amendment), dated as of September 25, 2009, by and among MICHAEL BAKER CORPORATION, a
Pennsylvania corporation (MBC), MICHAEL BAKER, JR., INC., a Pennsylvania corporation (Michael
Baker Jr.), BAKER/MO SERVICES, INC., a Texas corporation (Baker/MO), BAKER/OTS, INC., a
Delaware corporation (Baker/OTS), BAKER ENGINEERING NY, INC., a New York corporation (Baker NY)
(MBC, Michael Baker Jr., Baker/MO, Baker/OTS and Baker NY are sometimes individually referred to
herein as a Borrower and collectively as the Borrowers), the Bank parties
hereto from time to time and CITIZENS BANK OF PENNSYLVANIA, a banking association organized and
existing under the laws of the Commonwealth of Pennsylvania, as administrative agent for the Bank
parties hereunder (in such capacity, together with the successors in such capacity, the
Agent).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Banks and the Agent entered into that certain First Amended and
Restated Loan Agreement dated as of September 17, 2004, as amended by letter agreements dated as of
September 30, 2005, December 31, 2005, June 15, 2006, June 20, 2008 and by First Amendment to the
First Amended and Restated Loan Agreement dated as of September 1, 2007, as the same may have been
further amended from time to time (the First Amended and Restated Loan Agreement or the
Existing Credit Agreement), pursuant to which the Bank parties to the First Amended and
Restated Loan Agreement made a revolving credit facility in the maximum aggregate amount of
$60,000,000 available to Borrowers and the Swing Line Lender (as defined in the First Amended and
Restated Loan Agreement) made a swing line facility in the maximum aggregate amount of $5,000,000
available to the Borrowers;
WHEREAS, the parties to this Amendment, in their mutual interest, have agreed to amend certain
provisions of the First Amended and Restated Loan Agreement and to waive certain Events of Default,
all as provided for and upon the terms and conditions set forth in this Amendment; and
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Defined Terms. All terms used in this Amendment and not otherwise defined herein
shall have the meanings ascribed to them in the Existing Credit Agreement. The Existing Credit
Agreement and this Amendment are to be treated as one agreement and are together referred to
hereafter as the Agreement.
2. Recitals. The recitals set forth above are fully incorporated into this Amendment
by reference. All references to Agent shall refer to Agent in its capacity as agent for
the Banks
and for the benefit of itself and the Banks and on behalf of itself and the Banks, as provided
for and contemplated under the Loan Documents.
3. Amendment of Certain Defined Terms.
(a) The following terms contained in Section 1.01 of the Existing Credit Agreement are amended
and restated as follows:
(i) Agreement shall mean the First Amended and Restated Loan Agreement entered into by and
among the Borrowers, the Banks and the Agent dated as of September 17, 2004, as amended by the
First Amendment dated as of the First Amendment Date and the Second Amendment dated as of the
Second Amendment Date, as the same may be further amended, modified or supplemented from time to
time.
(b) The following terms shall be inserted in Section 1.01 of the Existing Credit Agreement in
the appropriate alphabetical order:
(i) Cash Equivalent Investments shall mean any of the following, to the extent
acquired for investment and not with a view to achieving trading profits: (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 Moodys Investors Service at not less
than a A-2 and by Standard & Poors at not less than P-2), (iv) certificates of deposit or
repurchase agreements issued by any Bank or any commercial bank having capital and surplus in
excess of One Hundred Million Dollars ($100,000,000), (v) deposit accounts in and bankers
acceptances of, commercial banks, (vi) investments (other than equity investments listed on
Schedule 3.18 attached hereto and the loans set forth in Section 6.04(f) below) in any
other Borrower or Subsidiary incurred in the ordinary course of business and pursuant to usual and
customary terms in the form of advances to such Borrower or Subsidiary; provided, however, that (A)
the total amount of all such future advances made by the Borrower 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) 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), (vii) United States of America domiciled Investment Company Act of 1940
Institutional Rule 2a-7 approved money market funds, and (viii) municipal securities which are (A)
obligations of a state, territory, or possession of the United States of America that are
guaranteed by the United States of America, or (B) pre-refunded.
(ii) Second Amendment shall mean the Second Amendment to the First Amended and
Restated Loan Agreement by and among the Borrowers, the Agent and the Banks dated as of the Second
Amendment Date.
(iii) Second Amendment Date shall mean September 25, 2009.
4. Amendment of Section 6.04(e). Subsection (e) of Section 6.04 of the Existing
Credit Agreement shall be amended and restated as follows:
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(e) Cash Equivalent Investments;
5. Amendment of Section 6.04(h). Subsection (h) of Section 6.04 of the Existing
Credit Agreement shall be amended and restated as follows:
(h) other investments in an aggregate amount not to exceed at any time the lesser of (i)
Fifteen Million and 00/100 Dollars ($15,000,000) and (ii) fifty percent (50%) of the fair market
value of the Borrowers Cash Equivalent Investments at the time of calculation.
6. Amendment of Section 6.07(d). Subsection (d) of Section 6.07 of the Existing
Credit Agreement shall be amended and restated as follows:
(d) so long as no Event of Default or Potential Default shall have occurred, a sale or sales
(either in one or a series of related transactions) of the capital stock or substantially all of
the assets of Baker/OTS, Baker/MO and Michael Baker Global, any of their Subsidiaries or any
Subsidiaries of Michael Baker International, including, without limitation, B.E.S. Energy Resources
Company, Ltd. and Baker Energy de Venezuela, C.A., , provided that the Net Proceeds received by the
Borrowers from the sale of such capital stock or assets are at least Thirty Million Dollars
($30,000,000). In the event that Borrowers sell all or substantially all of the capital stock or
assets of Baker/OTS, Baker/MO and/or Michael Baker Global and/or any of their Subsidiaries or any
Subsidiaries of Michael Baker International, including, without limitation, B.E.S. Energy Resources
Company, Ltd. and Baker Energy de Venezuela, C.A. in accordance with the terms of this subsection
(d), the Agent and the Banks shall amend the Agreement and any other Loan Documents to remove
Baker/OTS and Baker/MO as Borrowers under this Agreement and any other Loan Documents and
release Baker/OTS and Baker/MO from any liability or obligation in connection with this Agreement
or any of the other Loan Documents.
7. Waiver. The Borrowers have advised the Agent and the Banks that during the fiscal
periods ended December 31, 2008, March 31, 2009 and June 30, 2009 the Borrower have made
investments in securities and obligations that the Borrowers believed were cash equivalent
investments but which were not permitted by the terms of Subsection (e) of Section 6.04 of the
Agreement and as a result an Event of Default has occurred under Section 7.01(e) of the Agreement
(the Existing Default). The Agent and each of the Banks hereby waive the occurrence of the
Existing Default. The foregoing waiver does not constitute a continuing waiver of any provision of
the Agreement or any of the other Loan Documents and except as specifically provided above, the
Agent and the Banks hereby expressly reserve all rights, remedies, powers, and privileges they have
or may have under the Agreement, any of the Loan Documents, or any agreement, document, instrument,
or applicable Law or equity.
8. Counterparts. This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
9. Saving Clause. Except as specifically amended or modified by this Amendment, all
parties to this Amendment hereby confirm and ratify the Existing Credit Agreement in its
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entirety, including without limitation, the Exhibits, Schedules and Annexes thereto and agree
to be bound by the terms thereof.
10. Fees and Expenses. The Borrower shall pay to the Agent all costs and expenses
(including reasonable attorneys fees) incurred by the Agent in connection with the negotiation,
execution and delivery of this Amendment.
11. Authorization. Each individual signing this Amendment on behalf of a legal entity
represents that such individual is an authorized representative of such legal entity.
[Signature pages begin on following page]
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SIGNATURE PAGE 1 OF 4 TO THE SECOND AMENDMENT TO THE AMENDED
AND RESTATED LOAN AGREEMENT
AND RESTATED LOAN AGREEMENT
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized, have
executed and delivered this Amendment as of the date first above written.
BORROWERS: | ||||||
MICHAEL BAKER CORPORATION | ||||||
By: Title: |
/s/ Michael J. Zugay
|
|||||
MICHAEL BAKER, JR., INC. | ||||||
By: Title: |
/s/ Michael J. Zugay
|
|||||
BAKER/MO SERVICES, INC. | ||||||
By: Title: |
/s/ Michael J. Zugay
|
|||||
BAKER/OTS, INC. | ||||||
By: Title: |
/s/ Michael J. Zugay
|
|||||
BAKER ENGINEERING NY, INC. | ||||||
By: | /s/ Michael J. Zugay | |||||
Title: |
SIGNATURE PAGE 2 OF 4 TO THE SECOND AMENDMENT TO THE AMENDED
AND RESTATED LOAN AGREEMENT
AND RESTATED LOAN AGREEMENT
AGENT: | ||||||
CITIZENS BANK OF PENNSYLVANIA | ||||||
By: Title: |
/s/ John J. Ligday, Jr.
|
SIGNATURE PAGE 3 OF 4 TO THE SECOND AMENDMENT TO THE AMENDED
AND RESTATED LOAN AGREEMENT
AND RESTATED LOAN AGREEMENT
PNC BANK, NATIONAL ASSOCIATION | ||||||
By: Title: |
/s/ Troy Brown
|
SIGNATURE PAGE 4 OF 4 TO THE SECOND AMENDMENT TO THE AMENDED AND RESTATED LOAN AGREEMENT
FIFTH THIRD BANK | ||||||
By: Title: |
/s/ Neil Corry-Roberts
|