SECOND AMENDMENT TO
FIRST AMENDED AND CREDIT AGREEMENT
This SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT
AGREEMENT ("Second Amendment") is entered into as of November 19, 1996 by and
among DAMES & MOORE, INC., a Delaware corporation (the "Company"),
O'BRIEN-KREITZBERG, INC., as a Guarantied Subsidiary, the several financial
institutions party to the Agreement hereinafter referred to (collectively,
the "Banks" and individually, a "Bank") and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as agent for such Banks ("Agent") and amends the
First Amended and Restated Credit Agreement dated as of May 24, 1996 among
the Company, the Banks and the Agent, as amended by a First Amendment to
First Amended and Restated Credit Agreement dated as of September 17, 1996
(as so amended, the "Agreement").
RECITAL
The Borrowers, the Banks, the Issuing Bank and the Agent desire to
increase the aggregate Revolving Commitments to $60,000,000 and to amend
other terms and conditions in the Agreement, all on the terms and conditions
set forth in this Second Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. All terms used herein shall have the same
meaning as in the Agreement unless otherwise defined herein. All references
to the Agreement shall mean the Agreement as hereby amended.
2. Amendatory Provisions. The parties hereby agree that the
Agreement is amended as follows:
2.1 Section 2.1(a) of the Agreement is amended and restated in its
entirety as follows:
"(a) Subject to the terms and conditions hereof, each Bank
severally agrees to make revolving credit loans (each, a "Revolving
Loan" and, collectively, the "Revolving Loans") to the Borrowers
pursuant to this Section 2 on a revolving basis from time to time
from the Closing Date to the Termination Date, during which period
the Borrowers may borrow, prepay and reborrow in accordance with
the provisions hereof, provided, that:
"(i) the aggregate outstanding principal Equivalent
Amount of the Revolving Loans and L/C Obligations of each Bank
shall not exceed such Bank's Revolving Commitment at any time;
"(ii) the aggregate outstanding principal Equivalent
Amount of all Revolving Loans and L/C Obligations of all Banks
shall not exceed the combined Revolving Commitments at any time;
"(iii) the aggregate outstanding principal Equivalent
Amount of all Revolving Loans of all Banks shall not exceed
(A) $50,000,000 at any time or (B) $15,000,000 for at least 30
consecutive days in any fiscal year; and
"(iv) the aggregate outstanding principal Equivalent
Amount of all Revolving Loans made by all Banks to any
Guarantied Subsidiary and L/C Obligations owing by any
Guarantied Subsidiary to all Banks at any time shall not
exceed the Designated Sublimit for such Subsidiary Borrower.
"The Revolving Loans may be maintained, at the election of the
Borrowers made from time to time as permitted herein, as Base Rate
Loans, CD Rate Loans or Offshore Rate Loans or any combination
thereof."
2.2 Section 6.1(a) of the Agreement is amended and restated in its
entirety as follows:
"(a) Use the proceeds of the Loans for general working
capital, general corporate purposes, to repurchase shares of the
Company owned by Hochtief AG and only those acquisitions which have
been approved by the board of directors or, in the case of a stock
purchase the owners of the acquiree; and"
2.3 Section 6.3 of the Agreement is amended by deleting "and" at
the end of subsection (d), deleting the period at the end of subsection
(e) and inserting "; and" in lieu thereof and inserting a new subsection
(f) as follows:
"(f) the closing of the Company's repurchase of 3.7 million of
its shares owned by Hochtief AG, which notice shall include a
Compliance Certificate to the Agent demonstrating compliance with
the covenant levels required to be met as of December 27, 1996
under Sections 7.11, 7.12, 7.13, 7.14 and 7.15, on a pro forma
basis as of September 27, 1996, after giving effect to such
repurchase."
2.4 Section 7.11 of the Agreement is amended and restated in its
entirety as follows:
"7.11 Leverage Ratio. As to the Company as of the last day
of any fiscal quarter, permit the Leverage Ratio to be greater than
the ratio set forth in the table below (subject to the proviso
immediately following such table) opposite such fiscal quarter or
the period during which such fiscal quarter ends:
Maximum Permitted
Fiscal Quarter Ending Leverage Ratio
December 27, 1996 0.58 to 1
March 28, 1997 0.55 to 1
June 27, 1997 0.55 to 1
September 26, 1997 0.53 to 1
December 26, 1997 0.53 to 1
March 27, 1998
and thereafter 0.45 to 1
"provided, however, the maximum permitted Leverage Ratio set forth above
shall be reduced by .01 for each $5,000,000 in additional equity issued
from time to time after September 27, 1996, any such reduction to be
effective as of the end of the fiscal quarter in which such equity is
issued; provided, however, the maximum permitted Leverage Ratio
shall not be reduced to less than 0.45 to 1 at any time."
2.5 Sections 7.13, 7.14 and 7.15 of the Agreement are amended and
restated in their entirety as follows:
"7.13 Asset Coverage Ratio. As to the Company as of the last
day of any fiscal quarter, permit its Consolidated Net Funded Debt
to exceed the percentage of Net Eligible Receivables set forth
below opposite such fiscal quarter or the period during which such
fiscal quarter ends:
Maximum
Fiscal Quarter Ending Percentage
December 27, 1996 90%
March 28, 1997 85%
June 27, 1997 85%
September 26, 1997
and thereafter 80%
"7.14 Net Worth. As to the Company, permit its Net Worth
as of the end of any fiscal quarter, commencing with the fiscal
quarter ending December 27, 1996, to be less than the sum of (a)
$120,000,000 plus (b) 50% of cumulative Net Income for each fiscal
quarter, commencing with the fiscal quarter ending December 27,
1996, in which the Company and its Subsidiaries has positive
consolidated Net Income plus 75% of the aggregate net cash
proceeds received by the Company subsequent to November 1, 1996
from the issuance and sale of capital stock of the Company.
"7.15 Consolidated Net Funded Debt to Consolidated EBITDA
Ratio. As to the Company, permit, as of the last day of any fiscal
quarter, the ratio of (a) Consolidated Net Funded Debt to (b)
Consolidated EBITDA for the period of four fiscal quarters ending
on the last day of such fiscal quarter to exceed (I) 3.00 to
1.00 through and including the fiscal quarter ending March 28,
1997, (ii) 2.75 to 1.00 through and including the fiscal quarter
ending June 27, 1997, and (iii) 2.50 to 1.00 thereafter."
2.6 Schedule 2.1 to the Agreement is amended and restated in its
entirety as set forth on Schedule 2.1 hereto.
3. Representations and Warranties. The Borrowers hereby jointly
and severally represent and warrant to the Agent, the Issuing Bank and the
Banks:
3.1 Authority. Each Borrower has all necessary corporate power
and has taken all action necessary to make this Second Amendment, the
Agreement, and all other agreements and instruments executed in connection
herewith and therewith, the valid and enforceable obligations they purport to
be.
3.2 No Legal Obstacle to Agreement. Neither the execution of this
Second Amendment, the making by the Borrowers of any borrowings under the
Agreement, nor the performance of the Agreement has constituted or resulted
in or will constitute or result in a breach of the provisions of any contract
to which any Borrower is a party, or the violation of any law, judgment,
decree or governmental order, rule or regulation applicable to any Borrower,
or result in the creation under any agreement or instrument of any security
interest, lien, charge, or encumbrance upon any of the assets of any Borrower
other than in favor of the Agent, the Issuing Bank and the Banks. No
approval or authorization of any governmental authority is required to
permit the execution, delivery or performance by the Borrowers of this Second
Amendment, the Agreement, or the transactions contemplated hereby or thereby,
or the making of any borrowing by the Borrowers under the Agreement.
3.3 Incorporation of Certain Representations. The representations
and warranties set forth in Section 5 of the Agreement are true and correct
in all respects on and as of the date hereof as though made on and as of the
date hereof.
3.4 Default. No Default or Event of Default under the Agreement
has occurred and is continuing.
4. Conditions, Effectiveness. The effectiveness of this Second
Amendment shall be subject to the compliance by the Borrowers with their
respective agreements herein contained, and to the delivery of the following
to the Agent in form and substance satisfactory to the Agent:
4.1 Corporate Resolution. A copy of a resolution or resolutions
passed by the Board of Directors of each Borrower, certified by the Secretary
or an Assistant Secretary of such Borrower as being in full force and effect
on the effective date of this Second Amendment, authorizing the amendments to
the Agreement herein provided for and the execution, delivery and performance
of this Second Amendment and any note or other instrument or agreement
required hereunder.
4.2 Authorized Signatories. A certificate, signed by the
Secretary or an Assistant Secretary of each Borrower and dated the date of
this Second Amendment, as to the incumbency of the person or persons
authorized to execute and deliver this Second Amendment and any instrument or
agreement required hereunder on behalf of such Borrower.
4.3 Underwriting Fee. An underwriting fee of $25,000 payable on
the date hereof to the Agent for the benefit of the Banks in accordance with
their respective Pro Rata Shares after giving effect to this Second Amendment.
4.4 Work Fee. A work fee described in the letter dated November
14, 1996 payable on the date hereof to the Agent for the sole benefit of BofA.
4.5 Other Evidence. Such other evidence with respect to any
Borrower or any other person as Agent or the Majority Banks may reasonably
request to establish the consummation of the transactions contemplated
hereby, including the repurchase of 3.7 million of the Company's shares from
Hochtief AG, the taking of all corporate proceedings in connection with this
Second Amendment and the Agreement and the compliance with the conditions set
forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Agreement. Except as hereby amended, the
Agreement shall remain in full force and effect.
5.2 Waivers. This Second Amendment is specific in time and in
intent and does not constitute, nor should be construed as, a waiver of any
other right, power or privilege under the Agreement, or under any agreement,
contract, indenture, document or instrument mentioned in the Agreement; nor
does it preclude other or further exercise hereof or the exercise of any
other right, power or privilege, nor shall any waiver of any right, power,
privilege or default hereunder, or under any agreement, contract, indenture,
document or instrument mentioned in the Agreement, constitute a waiver of any
other default of the same or of any other term or provision.
5.3 Counterparts. This Second Amendment may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This Second Amendment
shall not become effective until the Borrowers, the Agent, the Issuing Bank
and the Banks shall have signed a copy hereof, whether the same or
counterparts, and the same shall have been delivered to the Agent.
5.4 Jurisdiction. This Second Amendment, and any instrument or
agreement required hereunder, shall be governed by and construed under the
laws of the State of California.
IN WITNESS WHEREOF, the parties have caused this Second Amendment
to the executed by their duly authorized representatives as of the day and
year first written above.
DAMES & MOORE, INC.
By: Mark A. Snell
____________________________
Title: CFO and EVP
O'BRIEN-KREITZBERG, INC., as
a Guarantied Subsidiary
By: Steve Beinfest
___________________________
Title: Executive VP and CFO
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: Robert Troutman
___________________________
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank and Issuing Bank
By: Robert Troutman
___________________________
Title: Managing Director
SANWA BANK CALIFORNIA
By: Mary E. King
___________________________
Title: Vice President
SCHEDULE 2.1
REVOLVING COMMITMENTS
AND PRO RATA SHARES
Pro
Revolving Rata
Bank Commitment Share
Bank of America
National Trust and
Savings Association $36,000,000 60%
Sanwa Bank California 24,000,000 40%
Total $60,000,000 100%
CERTIFICATE OF INCUMBENCY
OF THE
OFFICERS OF
DAMES & MOORE, INC.
I, Steven D. Beinfest, Assistant Secretary of O'Brien-Kreitzberg,
Inc., a California corporation, do hereby certify that the
following named individuals are the duly elected qualified and
acting officers of O'Brien-Kreitzberg Inc., and hold the offices of
Dames & Moore, Inc. set forth opposite their names. I further
certify that the signatures written opposite the names and titles
of such officers are their correct signatures and that such
officers, or any one of them, are authorized to execute and deliver
the Second Amended to the First Amended and Restated Credit
Agreement dated as of November 19, 1996, and all amendments
thereto, between O'Brien-Kreitzberg Inc. and Bank of America
National Trust and Savings Association as Agent.
NAME TITLE SIGNATURE
Fred C. Kreitzberg President & Fred C. Kreitzberg
Chief Executive Officer __________________________
Steven D. Beinfest Executive Vice President Steven D. Beinfest
& Chief Financial Officer __________________________
In Witness Whereof
Name of Corporation: O'Brien-Kreitzberg Inc.
By: Steven D. Beinfest
_________________________________
Name: Steven D. Beinfest, Assistant Secretary
Date: November 19, 1996
BANK OF AMERICA AS AGENT
Second Amendment to First Amended and Restated Credit Agreement
This will certify that the attached Resolution of the Board of Directors
of Dames & Moore, Inc. Is a true and exact copy of the Resolution of the
Board of Directors that authorizes the Second Amendment to the First
Amended and Restated Credit Agreement dated as of November 19, 1996.
This will also certify that the Board of Directors has granted the
authority to the President and/or Executive Vice President to execute and
deliver the amendments to the Agreement and related documents as required
by the Banks. I further certify that said resolutions are still in full
force and effect and have not been amended or revoked.
In Witness Whereof
Name of Corporation: Dames & Moore, Inc.
By: Stephanie H. Paxton
________________________________
Name: Stephanie H. Paxton, Assistant Secretary
Dated: November 19, 1996
CERTIFICATE OF INCUMBENCY
OF THE OFFICERS OF
DAMES & MOORE, INC.
I, Stephanie H. Paxton, Assistant Secretary of Dames & Moore, Inc., a
Delaware corporation, do hereby certify that the following named
individuals are the duly elected qualified and acting officers of Dames
& Moore, Inc., and hold the offices of Dames & Moore, Inc. set forth
opposite their names. I further certify that the signatures written
opposite the names and titles of such officers are their correct
signatures and that such officers, or any one or more of them, are
authorized to execute and deliver the Second Amended to the First Amended
and Restated Credit Agreement dated as of November 19, 1996, and all
amendments thereto, between Dames & Moore, Inc. and Bank of America
National Trust and Savings Association as Agent.
NAME TITLE SIGNATURE
Arthur C. Darrow President & Arthur C. Darrow
Chief Executive Officer ____________________________
Mark A. Snell Executive Vice President Mark A. Snell
& Chief Financial Officer ____________________________
In Witness Whereof
Name of Corporation: Dames & Moore, Inc.
By: Stephanie H. Paxton
______________________________
Name: Stephanie H. Paxton, Assistant Secretary
Date: November 19, 1996
RESOLUTIONS OF
THE BOARD OF DIRECTORS OF
DAMES & MOORE, INC.
WHEREAS, there has been presented to this Board of Directors that
certain Stock Purchase Agreement, dated as of November 5, 1996 (the
"Stock Purchase Agreement"), among Dames & Moore, Inc. (the "Company")
Hochtief AG (the "Seller") and DM Investors, Inc. (formerly named
Hochtief, Inc.), a Delaware corporation (the "Subsidiary"), providing
for the sale of 1,000 shares of the Subsidiary's common stock, no par
value (the "Shares"), which Shares constitute all of the issued and
outstanding shares of capital stock of the Subsidiary;
WHEREAS, the Subsidiary owns 3,700,000 shares of common stock, par
value $0.01 per share, of the Company (the "D&M Shares");
WHEREAS, prior to the Closing Date (as defined in the Stock
Purchase Agreement, the Subsidiary will cause all of its right, title
and interest in any and all of its assets other than the D&M Shares, to
be transferred to the Seller or another subsidiary the Seller;
WHEREAS, upon the Closing Date, the Subsidiary will become a
wholly-owned subsidiary of the Company;
WHEREAS, the Board of Directors has reviewed a Certificate, dated
November 11, 1996, of the Company's Controller and Chief Accounting
Officer to the effect that the transaction contemplated by the Stock
Purchase Agreement will not result in an impairment of the Company's
capital within the meaning of the Delaware General Corporation Law; and
WHEREAS, this Board of Directors has determined that the Company's
purchase of the Shares from the Seller pursuant to the Stock Purchase
Agreement is in the best interests of the Company and its shareholders.
RESOLVED, that the Company be, and hereby is, authorized to
purchase the Shares from the Seller pursuant to, and upon the terms and
conditions set forth in, the Stock Purchase Agreement.
RESOLVED FURTHER, that the Stock Purchase Agreement, as presented
to this Board of Directors, and the execution thereof by the Executive
Vice President -- Chief Financial Officer of the Company is hereby
ratified, confirmed and approved.