Exhibit 10.11.14
EXECUTION VERSION
FOURTEENTH AMENDMENT TO CREDIT
AGREEMENT
THIS FOURTEENTH AMENDMENT TO CREDIT
AGREEMENT (this “ Fourteenth Amendment ”) is
made and entered into as of May 29, 2009, by and among the
financial institutions identified on the signature
pages hereof (such financial institutions, together with their
respective successors and assigns, are referred to hereinafter each
individually as a “ Lender ” and collectively as
the “ Lenders ”), WELLS FARGO FOOTHILL, INC., a
California corporation, as arranger and administrative agent for
the Lenders (in such capacities, together with any successor
arranger and administrative agent, “ Agent ”),
and TRC COMPANIES, INC., a Delaware corporation (the “
Administrative Borrower ”), on behalf of all
Borrowers.
WITNESSETH
:
WHEREAS, the Administrative
Borrower, the Administrative Borrower’s Subsidiaries party
thereto, the Lenders and Agent are parties to that certain Credit
Agreement dated as of July 17, 2006 (as amended as of
October 31, 2006, as of November 29, 2006, as of
December 29, 2006, as of January 31, 2007, as of
July 30, 2007, as of September 25, 2007, as of
November 28, 2007, as of December 14, 2007, as of
March 3, 2008, as of April 4, 2008, as of April 22,
2008, as of May 20, 2008, and as of August 19, 2008, and
as the same may be further amended, modified, supplemented or
amended and restated from time to time, the “ Credit
Agreement ”); and
WHEREAS, Agent, the Lenders and the
Borrowers have agreed to amend the Credit Agreement, all as herein
provided subject to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of
the agreements and provisions herein contained, the parties hereto
do hereby agree as follows:
Section 1.
Definitions
. Any capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such
terms in the Credit Agreement.
Section 2.
Amendments to Credit
Agreement . Subject to the terms and conditions set forth
herein, the Credit Agreement is hereby amended, as of the Effective
Date (as defined in Section 4 below), as follows:
2.01.
Amendment to
Section 2.12 . Section 2.12(a) of the Credit
Agreement is hereby amended by deleting the words “the Letter
of Credit Usage would exceed $7,500,000” in clause
(ii) thereof and inserting “the Letter of Credit Usage
would exceed $15,000,000” in lieu thereof.
2.02.
Amendments to
Section 6.16 of the Credit Agreement
.
2.02.1.
Amendment to
Section 6.16(a). Section 6.16(a) of the Credit
Agreement is hereby amended by deleting it in its entirety and
inserting the following in lieu thereof:
(a)
Minimum EBITDA.
Fail to achieve EBITDA, measured on
a quarterly basis, of at least the required amount set forth in the
following table for the applicable period set forth opposite
thereto:
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Applicable Amount
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Applicable Period
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$2,100,000
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For the 3 month period ending September 30,
2008
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$3,800,000
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For the 6 month period ending December 31,
2008
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$7,600,000
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For the 9 month period ending March 31,
2009
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$10,600,000
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For the 12 month period ending June 30,
2009
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70% of projected EBITDA based on the projections
delivered pursuant to Section 5.3 so long as such
projections are satisfactory to Agent (or if such projections are
not satisfactory to Agent or Borrowers fail to timely deliver such
projections, an amount reasonably determined by Agent but in no
event less than $10,600,000 for each fiscal quarter in fiscal year
2010, $11,100,000 for the first fiscal quarter of fiscal year 2011,
$11,600,000 for the second fiscal quarter of fiscal year 2011,
$12,000,000 for the third fiscal quarter of fiscal year 2011, and
$12,500,000 for the fourth fiscal quarter of fiscal year 2011),
unless in any such case otherwise agreed to in writing by Agent,
Required Lenders and Borrowers
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For the 12 month period ending each fiscal
quarter thereafter
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2.02.2.
New
Section 6.16(d) . Section 6.16 of the Credit
Agreement is hereby amended by adding the following new clause
(d) at the end thereof:
(d)
Minimum Fixed Charge Coverage
Ratio. Fail to
achieve Fixed Charge Coverage Ratio, measured on a quarterly basis,
of at least the required ratio set forth in the following table for
the applicable period set forth opposite thereto:
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Applicable Ratio
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Applicable Period
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1.00:1.00
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For the 12 month period ending June 30,
2009
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1.00:1.00
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For the 12 month period ending
September 30, 2009
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1.00:1.00
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For the 12 month period ending December 31,
2009
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1.00:1.00
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For the 12 month period ending each fiscal
quarter thereafter
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2.03.
Definition of Base LIBOR Rate
in Schedule 1.1 . The definition of “Base LIBOR
Rate” in Schedule 1.1 to the Credit Agreement is
hereby amended by deleting clause (a) thereof and inserting
“(a) 3.00 percentage points per annum” in lieu
thereof with respect to all sums outstanding on and after the
Effective Date.
2.04.
Definition of Base Rate in
Schedule 1.1 .
The definition of “Base Rate” in Schedule 1.1 to
the Credit Agreement is hereby amended by deleting clause
(a) thereof and inserting “(a) 5.75 percentage
points per annum” in lieu thereof with respect to all sums
outstanding on and after the Effective Date.
2.05.
Definition of Base Rate Margin
in Schedule 1.1 . The definition of “Base Rate
Margin” in Schedule 1.1 to the Credit Agreement is
hereby amended by deleting it in its entirety and inserting the
following in lieu thereof with respect to all sums outstanding on
and after the Effective Date:
“ Base Rate Margin
” means, as of any date of determination:
(a)
For the period from and including
the Fourteenth Amendment Effective Date to but excluding the
effective date of any determination of the Base Rate Margin
pursuant to clause (c) below, 3.50 percentage points per annum
(the “ Initial Base Rate Margin ”).
(b)
Thereafter, so long as no Event of
Default has occurred and is continuing, the relevant Base Rate
Margin set forth in the table below that corresponds to the
applicable
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TTM EBITDA of Parent and its Subsidiaries set
forth opposite thereto (as determined in accordance with
clause (c) below). At any time that an Event of Default has
occurred and is continuing, the “Base Rate Margin”
shall be reset to the Initial Base Rate Margin.
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TTM EBITDA
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Base Rate Margin
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Less than or equal to $10,000,000
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3.50 percentage points
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Greater than $10,000,000 but less than or equal
to $13,000,000
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3.00 percentage points
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Greater than $13,000,000
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2.50 percentage points
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(c)
The Base Rate Margin shall be
determined from time to time pursuant to clause (b) above
on the first day of the month following the date on which Parent
delivers to Agent a quarterly Compliance Certificate in accordance
with Section 5.3 , commencing with the delivery by
Parent of the Compliance Certificate for the fiscal quarter of
Parent ended September 30, 2007. In the event that a
quarterly Compliance Certificate is not provided to Agent in
accordance with Section 5.3 , the Base Rate Margin
shall be set at the Initial Base Rate Margin as of the first day of
the month following the date on which such quarterly Compliance
Certificate was required to be delivered until the date on which
such quarterly Compliance Certificate is delivered (on which date
(but not retroactively), without constituting a waiver of any
Default or Event of Default arising as a result of Parent’s
and Borrowers’ failure to timely deliver such quarterly
Compliance Certificate, the Base Rate Margin shall be set at the
relevant Base Rate Margin set forth in the table above based upon
the calculation of TTM EBITDA of Parent and its Subsidiaries set
forth in such quarterly Compliance Certificate). If the
aforementioned financial statements are at any time restated or
otherwise revised (including as a result of an audit) or if the
information set forth in such financial statements otherwise proves
to be false or incorrect such that the Base Rate Margin would have
been higher than was otherwise in effect during any period, without
constituting a waiver of any Default or Event of Default arising as
a result thereof, interest due under the Agreement shall
immediately be recalculated at such higher rate for any applicable
periods and shall be due and payable on demand.
2.06.
Definition of Borrowing Base
in Schedule 1.1 . The definition of “Borrowing
Base” in Schedule 1.1 to the Credit Agreement is
hereby amended by deleting “$25,000,000” in clause
(a)(i)(b) thereof and inserting “$15,000,000” in
lieu thereof.
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2.07.
Definition of EBITDA in
Schedule 1.1 .
The definition of “EBITDA” in Schedule 1.1 to
the Credit Agreement is hereby amended by deleting it in its
entirety and inserting the following in lieu thereof:
“ EBITDA ” means,
with respect to any fiscal period, Parent’s and its
Subsidiaries’ consolidated net earnings (or loss), minus
(a) without duplication and to the extent included in
determining Parent’s and its Subsidiaries’ consolidated
net earnings (or loss) for such period, the sum for such period of
(i) extraordinary gains and (ii) interest income
(excluding interest income related to any Exit Strategy Program),
in the case of each of clauses (a)(i) and (a)(ii) above
determined on a consolidated basis in accordance with GAAP, plus
(b) without duplication and to the extent deducted in
determining Parent’s and its Subsidiaries’ consolidated
net earnings (or loss) for such period, the sum for such period of
(i) interest expenses, (ii) income taxes,
(iii) depreciation and amortization, (iv) restructuring
charges incurred during the fiscal year ended June 30, 2008 in
an aggregate amount not to exceed $2,750,000,
(v) restructuring charges incurred during the fiscal year
ended June 30, 2009 in an aggregate amount not to exceed
$1,500,000 ( provided that no amount under this clause
(v) shall be added back for purposes of calculating EBITDA
unless and until Agent has received satisfactory documentation and
other evidence relating to any such restructuring charges),
(vi) restructuring charges incurred during the fiscal year
ended June 30, 2010 in an aggregate amount not to exceed
$5,000,000 ( provided that no amount under this clause
(vi) shall be added back for purposes of calculating EBITDA
unless and until Agent has received satisfactory documentation and
other evidence relating to any such restructuring charges),
(vii) non-cash losses incurred in connection with the Exit
Strategy Program solely to the extent such losses are reimbursable
to Parent or one of its Subsidiaries under insurance policies with
AIG (or another insurer), and (viii) non-cash goodwill
impairment charges and non-cash dividend and preferred stock
accretion charges, in the case of each of clauses
(b)(i) through and including (b)(viii) above, determined
on a consolidated basis in accordance with GAAP.
2.08.
New Definition of Fixed
Charges in Schedule 1.1 . Schedule 1.1 to the Credit
Agreement is hereby amended by adding the following new definition
of “Fixed Charges” in proper alphabetical
order:
“ Fixed Charges ”
means, with respect to any fiscal period and with respect to Parent
determined on a consolidated basis in accordance with GAAP, the
sum, without duplication, of (a) cash Interest Expense paid
during such period, (b) principal payments in respect of
Indebtedness that are required to be paid during such period, and
(c) all federal, state, and local income taxes paid in cash
during such period (less any refunds received in cash during such
period in respect of any such federal, state or local income
taxes).
2.09.
New Definition of Fixed Charge
Coverage Ratio in Schedule 1.1 . Schedule 1.1 to the Credit
Agreement is hereby amended by adding the following new definition
of “Fixed Charge Coverage Ratio” in proper alphabetical
order:
“ Fixed Charge Coverage
Ratio ” means, with respect to Parent for any period, the
ratio of (a) EBITDA for such period, minus the actual
amount paid by Borrower and its
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Subsidiaries in cash on account of Capital
Expenditures during such period, plus Qualified Cash as of
the last day of such period, to (b) Fixed Cha
