Exhibit 10.2
TETRA TECH, INC.
FIFTH AMENDMENT TO NOTE PURCHASE
AGREEMENT
Dated as of March 24, 2006
To the Holders of the Senior Notes of Tetra
Tech, Inc.
Named in the Attached Schedule I (the “
Noteholders ”)
Ladies and Gentlemen:
Reference is made to the Note
Purchase Agreements, each dated as of May 15, 2001, as amended by
the First Amendment to Note Purchase Agreement dated as of
September 30, 2001, the Second Amendment to Note Purchase Agreement
dated as of April 22, 2003, the Third Amendment to Note Purchase
Agreement dated as of December 14, 2004 and the Fourth Amendment to
Note Purchase Agreement dated as of May 12, 2005 (collectively, as
in effect immediately prior to the effectiveness hereof, the
“ Existing Note Agreement ”, and as amended
hereby, the “ Note Agreement ”), by and between
Tetra Tech, Inc., a Delaware corporation (the “
Company ”), and each of the Noteholders, pursuant to
which the Company issued $92,000,000 aggregate principal amount of
its 7.28% Senior Secured Notes, Series A, due May 30, 2011 (as
amended, collectively, the “ Series A Notes ”)
and $18,000,000 aggregate principal amount of its 7.08% Senior
Secured Notes, Series B, due May 30, 2008 (as amended,
collectively, the “ Series B Notes ”, and,
together with the Series A Notes, the “ Notes
”). Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Existing Note
Agreement.
In connection with the
Company’s sale of all of the capital stock of its
Subsidiaries Expert Wireless Solutions, Inc., Vertex Engineering
Services, Inc. and Tetra Tech Canada Ltd, the Company has made
certain loans (the “ Loans ”) to certain
purchasers of such entities, as evidenced by (i) that certain
promissory note dated October 1, 2005, from Dr. Shawn Ziglari in
the aggregate principal amount of $1,840,000, due September 30,
2007 (the “ Ziglari Note ”), (ii) that certain
promissory note dated November 1, 2005 from The Breakwater
Companies, LLC in the aggregate principal amount of $13,350,000,
due November 1, 2009 (the “ Breakwater Note ”),
(iii) that certain promissory note dated December 1, 2005 from
Tetra Tech Canada Ltd. in the aggregate principal amount of
C$1,170,000 (US$1,000,000) (the “ Paid in Full Canada
Note ”) and (iv) that certain promissory note dated
December 1, 2005, from Tetra Tech Canada Ltd. in the aggregate
principal amount of C$4,620,000 (US$3,960,000), due December 1,
2007 (the “ Second Canada Note ”, and
together with the Ziglari Note, the Breakwater Note and the Paid in
Full Canada Note, collectively, the “ Seller Notes
”).
The Company has requested that the
Noteholders agree to amend and waive certain provisions of the Note
Agreement to permit the Loans, and the Noteholders have agreed to
such amendments and waiver on the terms and subject to the
conditions set forth herein.
In consideration of the premises and
for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the Company and the Noteholders hereby
agree as follows:
1.
AMENDMENT OF NOTE AGREEMENT.
Subject to the satisfaction of the conditions set forth in Section
4 of this Fifth Amendment, the Noteholders and the Company agree as
follows:
1.1.
Amendment of Section 10.13 . Section 10.13 of the Existing
Note Agreement is hereby amended in its entirety to read as
follows:
“ 10.13 Loans and
Advances.
The Company will not, and will not permit any Subsidiary to, make
any loan or advance; except for (i) loans or advances by the
Company to any Subsidiary or by any Subsidiary to the Company, (ii)
loans and advances to officers and employees of the Company and its
Subsidiaries for travel, entertainment, relocation and similar
ordinary business purposes in an aggregate amount not exceeding
$500,000 at any time outstanding, (iii) the loans described on
Schedule 10.13 and (iv) other loans and advances in an aggregate
amount not exceeding $5,000,000 at any time
outstanding.”
1.2.
Addition of Schedule 10.13 . The Schedule 10.13 attached to
this Fifth Amendment is hereby added to the Existing Note Agreement
as Schedule 10.13 thereto.
2.
WAIVER.
Subject to the satisfaction of the
conditions set forth in Section 4 of this Fifth Amendment, the
Required Holders hereby waive any Default or Event of Default
existing as a result of the failure of the Company to comply with
Section 10.13(iii) of the Existing Note Agreement caused by the
making of any loan described on Schedule 10.13 attached
hereto.
3.
REAFFIRMATION; REPRESENTATIONS AND WARRANTIES.
3.1.
Reaffirmation of Note Agreement . The Company reaffirms its
agreement to comply with each of the covenants, agreements and
provisions of the Note Agreement, the Notes and the other Financing
Documents.
3.2.
Note Agreement . The Company represents and warrants that
the representations and warranties contained in the Note Agreement
are true and correct as of the date hereof, except (a) to the
extent that any of such representations and warranties specifically
relate to an earlier date, (b) for such changes, facts,
transactions and occurrences that have arisen since September 30,
2001 in the ordinary course of business, (c) for such other matters
as have been previously disclosed in writing by the Company
(including in its financial statements and notes thereto) to the
Noteholders and (d) for other changes that could not reasonably be
expected to have a Material Adverse Effect.
3.3.
No Default or Event of Default . After giving effect to the
waivers contemplated hereby, there will exist no Default or Event
of Default.
3.4.
Authorization and Enforceability . The execution, delivery
and performance by the Company of this Fifth Amendment (and the
acknowledgement of this Fifth Amendment by
2
the Subsidiaries) have been duly authorized by
all necessary corporate action. The Note Agreement, the Notes, this
Fifth Amendment and the other Financing Documents each constitute
the legal, valid and binding obligations of the Company and each
Subsidiary party thereto, enforceable in accordance with their
respective terms, except as such enforceability may be limited by
(i) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights g
