Dames & Moore, Inc.
First Amendment
Dated as of April 15, 1996
To
Note Purchase Agreements
Dated as of March 15, 1996
Re: $40,000,000 6.54% Senior Notes, Series A,
Due March 29, 2001,
$30,000,000 6.87% Senior Notes, Series B,
Due March 29, 2003,
$10,000,000 6.92% Senior Notes, Series C,
Due September 29, 2003,
$5,000,000 7.20% Senior Notes, Series D,
Due March 29, 2006
and
$15,000,000 7.25% Senior Notes, Series E,
Due September 29, 2006
FIRST AMENDMENT TO NOTE AGREEMENT
THIS FIRST AMENDMENT to Note Purchase Agreements dated as of April 15,
1996 (this "First Amendment"), is entered into between Dames & Moore, Inc., a
Delaware corporation (the "Company"), and Teachers Insurance and Annuity
Association of America, Principal Mutual Life Insurance Company, MML Pension
Insurance Company, Massachusetts Mutual Life Insurance Company, Allstate Life
Insurance Company, American General Life Insurance Company, United of Omaha
Life Insurance Company, American Republic Insurance Company, Aid Association
for Lutherans, The Canada Life Assurance Company, Canada Life Insurance
Company of America, Canada Life Insurance Company of New York, Provident
Mutual Life Insurance Company, and Indianapolis Life Insurance Company (each
a "Noteholder" and collectively, the "Noteholders").
RECITALS:
A. The Company and the Noteholders, respectively, have heretofore
entered into separate Note Purchase Agreements each dated as of March 15,
1996 (as amended, the "Note Purchase Agreements").
B. The Company and the Noteholders now desire to amend certain of the
terms of the Note Purchase Agreements.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreements unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this First Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed
have been done or performed.
NOW, THEREFORE, the Company and the Noteholders, in consideration of good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENT.
Section 1.1. Section 3 of the Note Purchase Agreements shall be and is
hereby amended in its entirety to read as follows:
"The sale and purchase of the Notes to be purchased by you and the
Other Purchasers shall occur at the offices of Chapman and Cutler, 111
West Monroe Street, Chicago, Illinois 60603, at 10:00 a.m. Chicago time,
at a closing on the dates set forth opposite your name on Schedule A
hereto, the first of which shall occur on March 29, 1996 or on such later
date (not later than April 5, 1996) as shall be agreed upon by the
Company, you and the Other Purchasers (the "first Closing"), the closing
with respect to all, but not less than all, of the Series C Notes shall
occur on such date (not later than September 30, 1996) as shall be
agreed upon by the Company and Teachers Insurance and Annuity Association
of America (the "Series C Closing") and the closing with respect to all,
but not less than all, of the Series E Notes shall occur on such date
(not later than September 30, 1996) as shall be agreed upon by the Company
and Teachers Insurance and Annuity Association of America (the "Series
E Closing"; the first Closing, the Series C Closing and the Series E
Closing are each referred to as a "Closing" and the first Closing, the
Series C Closing and the Series E Closing are collectively referred to as
the "Closings"); provided, that in the case of the Series C Closing
and the Series E Closing the Company shall provide Teachers Insurance and
Annuity Association of America with written notice as provided in Section
18 of its desire to consummate each such Closing not less than 14 days
prior to the date of each such Closing; and provided further, that it is
understood and agreed by the Company and Teachers Insurance and Annuity
Association of America that the Series C Closing and the Series E
Closing may occur on the same date, in which event, the parties' document
delivery requirements for each of the Series C Closing and the Series E
Closing shall be combined to the extent practicable. At each Closing the
Company will deliver to you the Notes of the series to be purchased by
you in the form of a single Note (or such greater number of Notes in
denominations of at least $1,000,000, or such lesser amount as shall
constitute your entire commitment, as you may request) dated the date of
the Closing and registered in your name (or in the name of your nominee),
against delivery by you to the Company or its order of immediately
available funds in the amount of the purchase price therefor by wire
transfer of immediately available funds for the account of the Company to
account number 0491-12465 at Sanwa Bank California, 601 South Figueroa
St., Los Angeles, California 90017, ABA No. 122003516. If at the Closing
at which you are to purchase Notes the Company shall fail to tender such
Notes to you as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to your satisfaction,
you shall, at your election, be relieved of all further obligations under
this Agreement, without thereby waiving any rights you may have by reason
of such failure or such nonfulfillment."
Section 1.2. Section 4.1 of the Note Purchase Agreements shall be and
is hereby amended in its entirety to read as follows:
"Section 4.1. Representations and Warranties. The representations and
warranties of the Company in this Agreement shall be correct when made and at
the time of each Closing; provided that the Schedules to the representations
and warranties set forth in Sections 5.4 and 5.15 may be revised to reflect
any changes that have occurred between the first Closing and each subsequent
Closing so long as such occurrences do not individually or in the aggregate
have a Material Adverse Effect."
Section 1.3. Section 17.1 of the Note Purchase Agreements shall be and
is hereby amended in its entirety to read as follows:
"Section 17.1. Requirements. This Agreement and the Notes may be
amended, and the observance of any term hereof or of the Notes may be waived
(either retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no amendment
or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof,
or any defined term (as it is used therein), will be effective as to you
unless consented to by you in writing, and (b) no such amendment or waiver
may, without the written consent of the holder of each Note at the time
outstanding affected thereby, (i) subject to the provisions of Section 12
relating to acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or reduce the rate or change the time
of payment or method of computation of interest or of the Make-Whole
Amount on, the Notes, (ii) change the percentage of the principal amount of
the Notes the holders of which are required to consent to any such amendment
or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or 20; and
provided that, anything contained in this Section 17.1 and 17.2 to the
contrary notwithstanding, if for any reason whatsoever it becomes necessary
or appropriate to enter into any amendment of this Agreement or any waiver
with respect to compliance herewith by the Company during the period from and
including the first Closing through and including the later of the date of
the Series C Closing and of the Series E Closing (the "Series C and Series E
Note Cut-Off Date"): (1) notwithstanding the aggregate principal amount of
Notes then actually outstanding, Teachers Insurance and Annuity Association
of America shall be deemed to be the holder of $10,000,000 aggregate
principal amount of outstanding Series C Notes and $15,000,000 aggregate
principal amount of outstanding Series E Notes (i) for purposes of any
determination of the percentage of holders of the Notes required to grant or
deny such requested amendment or waiver and (ii) for purposes of any
determination of any payment of remuneration, whether by way of supplemental
or additional interest, fee or otherwise pursuant to Section 17.2,
notwithstanding that the issuance, sale and delivery of the Series C Notes at
the Series C Closing or the Series E Notes at the Series E Closing, as the
case may be, has not been consummated at the time such amendment or waiver is
requested or such payment of remuneration is determined pursuant to Section
17.2, and (2) if for any reason whatsoever, the Notes to be issued to Teachers
Insurance and Annuity Association of America are not issued on or prior to
the Series C and Series E Note Cut-Off Date, any such amendment or waiver
entered into as contemplated by the foregoing clause (1)(i) of this Section
17.1 shall, at the option of the Required Holders of the then outstanding
Notes, be deemed null and void."
Section 1.4. The first sentence of Section 19 of the Note Purchase
Agreement shall be and is hereby amended in its entirety to read as follows:
"This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that may
hereafter be executed, (b) documents received by you at any Closing
(except the Notes themselves), and (c) financial statements, certificates
and other information previously or hereinafter furnished to you, may be
reproduced by you by any photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process and you may destroy any
original documents so reproduced."
Section 1.5. Schedule A of the Note Purchase Agreements shall be and is
hereby amended as follows:
(a) the reference to the "Second Closing" on page A of Schedule A
is hereby replaced with "Series C Closing"; and
(b) the reference to the "Second Closing" on page A-3 of Schedule A
is hereby replaced with "Series E Closing"
Section 1.6. The reference to the "Second Closing Date" on Schedule 5.14
of the Note Purchase Agreements is hereby replaced with: "the later of the
date of the Series C Closing and of the Series E Closing."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this First
Amendment, the Company represents and warrants to the Noteholders (which
representations shall survive the execution and delivery of this First
Amendment) that:
(a) this First Amendment has been duly authorized, executed and
delivered by it and this First Amendment constitutes the legal, valid and
binding obligation, contract and agreement of the Company enforceable
against it in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or limiting creditors' rights
generally;
(b) the Note Purchase Agreements, as amended by this First Amendment,
constitute the legal, valid and binding obligations, contracts and
agreements of the Company enforceable against it in accordance with their
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally;
(c) the execution, delivery and performance by the Company of this
First Amendment (1) has been duly authorized by all requisite corporate
action and, if required, shareholder action, (2) does not require the
consent or approval of any governmental or regulatory body or agency, and
(3) will not (i) violate (A) any provision of law, statute, rule or
regulation or its certificate of incorporation or bylaws, (B) any order
of any court or any rule, regulation or order of any other agency or
government binding upon it, or (C) any provision of any material
indenture, agreement or other instrument to which it is a party or by
which its properties or assets are or may be bound, or (ii) result in a
breach or constitute (alone or with due notice or lapse of time or both)
a default under any indenture, agreement or other instrument referred to
in clause (3)(i)(C) of this Section 2.1(c); and
(d) as of the date hereof and after giving effect to this First
Amendment, no Default or Event of Default has occurred which is continuing.
SECTION 3. MISCELLANEOUS.
Section 3.1. This First Amendment shall become effective and binding
upon the Company and the Noteholders on the date hereof upon the acceptance
hereof by the Noteholders in the space below.
Section 3.2. Except as modified and expressly amended by this First
Amendment, the Note Purchase Agreements are in all respects ratified,
confirmed and approved and all of the terms, provisions and conditions
thereof shall be and remain in full force and effect.
Section 3.3. The Company agrees to pay all reasonable fees and expenses
of the Noteholders and their special counsel in connection with the
preparation of this First Amendment.
Section 3.4. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
First Amendment may refer to the Note Purchase Agreements without making
specific reference to this First Amendment but nevertheless all such
references shall include this First Amendment unless the context otherwise
requires.
Section 3.5. This First Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
Section 3.6. This First Amendment may be executed and delivered in any
number of counterparts, each of such counterparts constituting an original,
but all together only one First Amendment.
IN WITNESS WHEREOF, the Company and the Noteholders have caused this
instrument to be executed, all as of the day and year first above written.
DAMES & MOORE, INC.
By Robert M. Perry
______________________________
Its CFO
Accepted and Agreed to:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By Gregory W. MacCordy
______________________________
Its Director - Private Placement
Accepted and Agreed to:
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By Karen A. Pearston
______________________________
Its Counsel
By Shabnam B. Miglani
______________________________
Its Counsel
Accepted and Agreed to:
UNICARE LIFE & HEALTH
INSURANCE COMPANY BY
MASSACHUSETTS MUTUAL
LIFE INSURANCE COMPANY
Its Investment Adviser
By Mark A. Ahmed
______________________________
Its Managing Director
Accepted and Agreed to:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By Mark A. Ahmed
_______________________________
Its Managing Director
Accepted and Agreed to:
ALLSTATE LIFE INSURANCE COMPANY
By Patricia Wilson
_________________________________
Its
By Judith P. Greffin
_________________________________
Its
Accepted and Agreed to:
AMERICAN GENERAL LIFE INSURANCE COMPANY
By Julie S. Tucker
_________________________________
Its Investment Officer
Accepted and Agreed to:
UNITED OF OMAHA LIFE INSURANCE COMPANY
By Richard A. Witt
________________________________
Its Senior Vice President
Accepted and Agreed to:
AMERICAN REPUBLIC INSURANCE COMPANY
By G.F. Sheldon
_________________________________
Its Senior Vice President, Investments
By__________________________________
Its
Accepted and Agreed to:
AID ASSOCIATION FOR LUTHERANS
By James A. Bitz
________________________________
Its Vice President - Securities
Accepted and Agreed to:
THE CANADA LIFE ASSURANCE COMPANY
By Brian J. Lynch
________________________________
Its Associate Treasurer
Accepted and Agreed to:
CANADA LIFE INSURANCE COMPANY OF AMERICA
By Brian J. Lynch
________________________________
Its Assistant Treasurer
Accepted and Agreed to:
CANADA LIFE INSURANCE COMPANY OF NEW YORK
By Brian J. Lynch
________________________________
Its Assistant Treasurer
Accepted and Agreed to:
PROVIDENT MUTUAL LIFE INSURANCE COMPANY
By James D. Kestner
_______________________________
Its Vice President
Accepted and Agreed to:
INDIANAPOLIS LIFE INSURANCE COMPANY
By Gene E. Trueblood
_______________________________
Its Vice President, CIO and Treasurer