Dames & Moore, Inc.
Second Amendment
Dated as of November 18, 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
Second Amendment to Note Purchase Agreements
This Second Amendment to Note Purchase Agreements dated as of
November 18, 1996 (this "Second 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,
American General Life Insurance Company, United of Omaha Life Insurance
Company, American Republic Insurance Company, Aid Association for Lutherans,
Provident Mutual Life Insurance Company, and Indianapolis Life Insurance
Company (each a "Noteholder" and collectively, the "Noteholders").
Recitals:
A. The Company and the Noteholders, together with Unicare
Life & Health Insurance Company (as successor MML Pension Insurance Company),
Massachusetts Mutual Life Insurance Company, The Canada Life Assurance
Company, Canada Life Insurance Company of America, Canada Life Insurance
Company of New York and Allstate Life Insurance Company (together with the
Noteholders, the "Original Purchasers"), respectively, have heretofore
entered into separate Note Purchase Agreements, each dated as of March 15,
1996 and the First Amendment to Note Purchase Agreements dated as of April
15, 1996 (as amended, the "Note Purchase Agreements").
B. On or about November 18, 1996, the Company will
consummate the acquisition of approximately 3,700,000 shares of its common
stock held by DM Investors, Inc., a Delaware corporation and wholly-owned
Subsidiary of Hochtief AG, a corporation organized under the laws of Germany
("Hochtief"), upon the terms and conditions and all as contemplated by that
certain Stock Purchase Agreement, dated as of November 5, 1996 among the
Company, DM Investors, Inc. and Hochtief (the "Stock Acquisition").
C. The consummation of the Stock Acquisition would result in
a violation of the terms of the Note Purchase Agreements and in consequence
thereof, the Company has requested the Noteholders to enter into a second
amendment to the Note Purchase Agreements for the purpose of amending such of
the terms of the Note Purchase Agreements as would be necessary in order to
permit the Stock Acquisition.
D. Pursuant to Section 17 of the Note Purchase Agreements,
the Company has requested that the holders of at least 51% in principal of
the Notes consent to the amendment of certain of the terms of the Note
Purchase Agreements.
E. The Company and the Noteholders now desire to amend,
effective on the date on which the conditions specified in Section 3 hereof
are satisfied, certain of the terms of the Note Purchase Agreements in order
to permit the Stock Acquisition and to cause the Company to be, after giving
effect to the Stock Acquisition and on an ongoing basis, within the
limitations of the Note Agreement.
F. 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.
G. All requirements of law have been fully complied with and
all other acts and things necessary to make this Second 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 10.3 of the Note Purchase Agreements
shall be and is hereby amended in its entirety to read as follows:
Section 10.3. Consolidated Net Worth. From and after
November 18, 1996 until the Net Worth Reset Date the Company will not at
any time permit Consolidated Net Worth to be an amount less than the
sum of (a) $118,000,000 plus (b) 40% of Consolidated Net Income computed
on a cumulative basis for each of the elapsed fiscal quarters beginning
after December 27, 1996; provided that notwithstanding that Consolidated
Net Income for any elapsed fiscal quarter may be a deficit figure, no
reduction as a result thereof shall be made in the sum to be maintained
pursuant hereto. From and after the Net Worth Reset Date, the Company
will not at any time permit Consolidated Net Worth to be an amount less
than the sum of (y) the Reset Net Worth Amount plus (z) 25% of
Consolidated Net Income computed on a cumulative basis for each of the
elapsed fiscal quarters beginning after the Net Worth Reset Date; provided
that notwithstanding that Consolidated Net Income for any elapsed fiscal
quarter may be a deficit figure, no reduction as a result thereof shall
be made in the sum to be maintained pursuant hereto." As used in this
Section 10.3, "Net Worth Reset Date" shall mean the last day of the
fiscal quarter in which the minimum level of Consolidated Net Worth
required to be maintained pursuant to first sentence of this Section
10.3 equals or exceeds $135,000,000 and "Reset Net Worth Amount" shall
mean the minimum level of Consolidated Net Worth required to be
maintained pursuant to the first sentence of this Section 10.3 on the
Net Worth Reset Date.
Section 1.2. Section 10.5(iv)(1) of the Note Purchase Agreements
shall be and is hereby amended in its entirety to read as follows:
"(1) Consolidated Funded Debt, shall not exceed
the applicable percentage of Consolidated Total Capitalization set
forth below opposite the period during which such additional Funded
Debt is to be created, issued, assumed, guaranteed or incurred:
Percent of Consolidated
For The Period Total Capitalization
______________ ____________________
From September 27, 1996 to and including March 28, 1997 56%
From March 29, 1997 to and including September 26, 1997 55%
From September 27, 1997 to and including March 27, 1998 54%
From March 28, 1998 to and including September 25, 1998 52%
From September 26, 1998 and thereafter 50%
Section 2. Representations and Warranties of the Company.
Section 2.1. To induce the Noteholders to execute and deliver
this Second Amendment, the Company represents and warrants to the Noteholders
(which representations shall survive the execution and delivery of this
Second Amendment) that:
(a) this Second Amendment has been duly authorized, executed
and delivered by it and this Second 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 Second
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 Second 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
Second Amendment, no Default or Event of Default has occurred which is
continuing.
Section 3. Conditions to Effectiveness of Second Amendment.
This Second Amendment shall not become effective until, and
shall become effective when, each and every one of the following conditions
shall have been satisfied:
(a) executed counterparts of this Second Amendment, duly
executed by the Company and the Noteholders, shall have been delivered
to the Noteholders;
(b) the Noteholders shall have received a copy of the
resolutions of the Board of Directors of the Company authorizing the
execution, delivery and performance by the Company of this Second
Amendment, certified by its Secretary or an Assistant Secretary;
(c) the representations and warranties of the Company set
forth in Section 2 hereof shall be true and correct on and with respect
to the date hereof;
(d) the Noteholders shall have received evidence, in form and
substance reasonably satisfactory to the Noteholders and their special
counsel, that the Stock Acquisition shall have been consummated.
Receipt of all of the foregoing is acknowledged on the 19th day of
November, 1996 and, accordingly, this Second Amendment shall be effective on
and as of such date.
Section 4. Payment of Noteholders' Counsel Fees and Expenses.
The Company agrees to pay upon demand, the reasonable fees and
expenses of Chapman and Cutler, counsel to the Noteholders, in connection
with the negotiation, preparation, approval, execution and delivery of this
Second Amendment.
Section 5. Miscellaneous.
Section 5.1. Except as modified and expressly amended by this
Second 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 5.2. Any and all notices, requests, certificates and
other instruments executed and delivered after the execution and delivery of
this Second Amendment may refer to the Note Purchase Agreements without
making specific reference to this Second Amendment but nevertheless all such
references shall include this Second Amendment unless the context otherwise
requires.
Section 5.3. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 5.4. This Second Amendment may be executed and delivered
in any number of counterparts, each of such counterparts constituting an
original, but all together only one Second 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 Its: MARK A. SNELL
_________________________________
Mark A. Snell
Executive Vice President and Chief
Financial Officer
Teachers Insurance and Annuity
Association of America
By Its: GREGORY W. MACCORDY
_________________________________
Gregory W. MacCordy
Director-Private Placements
Accepted and Agreed to:
Principal Mutual Life Insurance Company
By Its: AUSTIN RAMZY
_________________________________
Austin Ramzy
Assistant Director Investments Securities
By Its: SARAH J. PITTS
________________________________
Sarah J. Pitts
Counsel
Accepted and Agreed to:
American General Life Insurance Company
By Its: JULIA S. TUCKER
_______________________________
Julia S. Tucker
Investment Officer
Accepted and Agreed to:
United of Omaha Life Insurance Company
By Its: CURT CALDWELL
______________________________
Curt Caldwell
First Vice President
Accepted and Agreed to:
American Republic Insurance Company
By Its: S.F. SHELDON
_____________________________
S.F. Sheldon
Senior Vice President, Investments
Accepted and Agreed to:
Aid Association for Lutherans
By Its: JAMES ABITZ
_____________________________
James Abitz
Vice President - Securities
By Its: R. JERRY SCHEEL
----------------------------
R. Jerry Scheel
Second Vice President - Securities
Accepted and Agreed to:
Provident Mutual Life Insurance Company
By Its: JAMES D. KESTNER
_____________________________
James D. Kestner
Vice President
Accepted and Agreed to:
Indianapolis Life Insurance Company
By Its: GENE E. TRUEBLOOD
____________________________
Gene E. Trueblood
Vice President, C.I.O. and Treasurer