Dames & Moore, Inc.
Third Amendment
Dated as of December 16, 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
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS THIRD AMENDMENT to Note Purchase Agreements dated as of December 16,
1996 (this "Third 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 and the Company and the Noteholders have heretofore entered into the
Second Amendment to Note Purchase Agreements dated as of November 18, 1996
(collectively as amended, the "Note Purchase Agreements").
B. On or about November 18, 1996, the Company consummated 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 have resulted in a
violation of the terms of the Note Purchase Agreements and in consequence
thereof, the Company 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
and the holders of at least 51% in principal of the Notes consented to the
amendment of certain of the terms of the Note Purchase Agreements as set
forth in the Second Amendment to Note Purchase Agreements dated as of
November 18, 1996 (the "Second Amendment").
E. The Second Amendment did not accurately reflect the agreement of
the Company and the Noteholders with respect to Section 10.5 of the Note
Purchase Agreements.
F. 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 amended by the Second
Amendment in order to set forth correctly the agreement of the Company and
the Noteholders.
G. 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.
H. All requirements of law have been fully complied with and all other
acts and things necessary to make this Third 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 10.5(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 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 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 Septembe 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 Third
Amendment, the Company represents and warrants to the Noteholders (which
representations shall survive the execution and delivery of this Third
Amendment) that:
(a) this Third Amendment has been duly authorized, executed
and delivered by it and this Third 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; and
(b) the Note Purchase Agreements, as amended by this Third
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.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIRD AMENDMENT.
This Third 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 Third Amendment, duly
executed by the Company and the Noteholders, shall have been delivered
to the Noteholders; and
(b) 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.
SECTION 4. MISCELLANEOUS.
Section 4.1. Except as modified and expressly amended by this Third
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 4.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Third Amendment may refer to the Note Purchase Agreements without making
specific reference to this Third Amendment but nevertheless all such
references shall include this Third Amendment unless the context otherwise
requires.
Section 4.3. This Third Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
Section 4.4. This Third Amendment may be executed and delivered in any
number of counterparts, each of such counterparts constituting an original,
but all together only one Third 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 Mark A. Snell
_______________________________
Its Executive Vice President and
Chief Financial Officer
Accepted and Agreed to:
Teachers Insurance and Annuity
Association of America
By Gregory W. MacCordy
_______________________________
Its Director - Private Placements
Accepted and Agreed to:
Principal Mutual Life Insurance
Company
By Sarah J. Pitts
_______________________________
Its Counsel
By Frederick A. Bell
________________________________
Its Second Vice President -
Securities Investment
Accepted and Agreed to:
American General Life Insurance
Company
By Julia P. Tucker
________________________________
Its Investment Officer
Accepted and Agreed to:
United of Omaha Life Insurance
Company
By Curt Caldwell
_________________________________
Its First Vice President
Accepted and Agreed to:
American Republic Insurance
Company
By G.F. Sheldon
_________________________________
Its Senior Vice President, Investments
Accepted and Agreed to:
Aid Association for Lutherans
By James Abitz
________________________________
Its Vice President - Securities
By R. Jerry Scheel
________________________________
Its Second Vice President - Securities
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