Exhibit 10.11.9
EXECUTION
VERSION
NINTH AMENDMENT TO, AND
WAIVER UNDER, CREDIT AGREEMENT
THIS NINTH AMENDMENT TO, AND WAIVER UNDER,
CREDIT AGREEMENT (this “ Ninth Amendment ”) is
made and entered into as of March 3, 2008, 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, and as of
December 14, 2007, and as the same may be further amended,
modified, supplemented or amended and restated from time to time,
the “ Credit Agreement ”);
WHEREAS, pursuant to Section 5.9 of
the Credit Agreement, Borrowers are obligated to keep their and
their Restricted Subsidiaries’ Inventory and Equipment (other
than vehicles and Equipment out for repair or maintained with
customers in the ordinary course of business) only at the locations
specified on Schedule 4.5 ; provided , however
, that Administrative Borrower may amend Schedule 4.5 so
long as such amendment occurs by written notice to Agent not less
than 30 days prior to the date on which such Inventory or Equipment
is moved to such new location, so long as such new location is
within the continental United States, and so long as, at the time
of such written notification, the applicable Borrower provides
Agent a Collateral Access Agreement with respect thereto (provided
that a Collateral Access Agreement shall only be required to be
delivered if books and records are maintained at such
location);
WHEREAS, TRC Environmental Corporation
moved certain of its Inventory and Equipment, from 2313 W. Sam
Houston Parkway North, Houston, Texas 77043 and 1500 City West
Boulevard, Houston, Texas 77042 to 10011 Meadowglen, Houston, Texas
77042, without providing to Agent the notice and Collateral Access
Agreement required by Section 5.9 of the Credit
Agreement (the “ Applicable Default
”);
WHEREAS, the Administrative Borrower has
requested Agent and the Lenders to waive the Applicable Default,
and Agent and the Lenders have agreed to do so subject to the terms
and conditions set forth herein; 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.
Waiver Under Credit Agreement . Subject to the satisfaction of
the terms and conditions set forth herein, Agent and the Required
Lenders hereby waive the Applicable Default; provided that
the foregoing waiver shall be rescinded and no longer effective as
of March 31, 2008 if the Borrowers fail to deliver to Agent a
Collateral Access Agreement with respect to the Collateral located
at 10011 Meadowglen, Houston, Texas 77042 on or prior to
April 30, 2008.
Section 3.
Amendments to the Credit
Agreement . Subject to the terms and conditions
set forth herein, the Credit Agreement is hereby amended, as of the
Effective Date (defined below), as follows:
3.01.
Section 6.1 . Section 6.1 of the Credit
Agreement is hereby amended as follows:
(a) the word “and” at the end
of clause (e) thereof is hereby deleted;
(b) the period at the end of clause
(f) thereof is hereby replaced by “; and”;
and
(c) the following new clause (g) is
hereby added at the end thereof: “(g) Indebtedness in
the form of promissory notes from Administrative Borrower to each
of Federal Partners, L.P., Peter R. Kellogg, Lee I. Kellogg and
Charles Kirkland Kellogg, in an aggregate principal amount not to
exceed $600,000 so long as such Indebtedness is (i) not
secured by any of the assets of any Borrower or any Guarantor or
any of their respective Subsidiaries and (ii) subordinated to
the Obligations on terms satisfactory to Agent.”
3.02.
Schedule 4.5 . Schedule 4.5 to the Credit
Agreement is hereby amended as follows:
(a)
The following locations under TRC Environmental Corporation are
hereby deleted from Schedule 4.5 : 2313 W. Sam Houston
Parkway North, Houston, Texas 77043 and 1500 City West Boulevard,
Houston, Texas 77042; and
(b)
The following location under TRC Environmental Corporation is
hereby added to Schedule 4.5 : 10011 Meadowglen, Houston,
Texas 77042.
Section 4.
Representations and Warranties .
In order to induce Agent
and the Lenders to enter into this Ninth Amendment, the
Administrative Borrower, for itself and on behalf of all of the
other Borrowers, hereby represents and warrants that:
4.01.
No Default . At and as of the date of this Ninth
Amendment and at and as of the Effective Date and both prior to
(other than with respect to the Applicable Default) and after
giving effect to this Ninth Amendment, no Default or Event of
Default exists and is continuing.
4.02.
Representations and Warranties True and Correct .
At and as of the
date of this Ninth Amendment and both prior to (other than with
respect to the Applicable Default) and after giving effect to this
Ninth Amendment, each of the representations and warranties
contained in the Credit Agreement and other Loan Documents is true
and correct in all material respects.
4.03.
Corporate Power, Etc . Administrative Borrower (a) has all
requisite corporate power and authority to execute and deliver this
Ninth Amendment and to consummate the
