Exhibit 10.11.13
THIRTEENTH AMENDMENT TO, AND
WAIVER UNDER, CREDIT AGREEMENT
THIS THIRTEENTH AMENDMENT TO, AND
WAIVER UNDER, CREDIT AGREEMENT (this “ Thirteenth
Amendment ”) is made and entered into as of
August 19, 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, as of December 14, 2007, as of
March 3, 2008, as of April 4, 2008, as of April 22,
2008, and as of May 20, 2008, 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 6.16(a) of the Credit Agreement, the
Borrowers were required to achieve EBITDA of at least $7,945,000
for the 12-month period ended June 30, 2008 (the “
June 2008 EBITDA Requirement ”);
WHEREAS, the Borrowers have failed
to comply with the June 2008 EBITDA Requirement (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.
Section 3.
Amendments to 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.
Amendments to Section 6.16(a) of the Credit
Agreement . 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:
|
Applicable Amount
|
|
|
Applicable Period
|
|
$2,100,000
|
|
|
For the 3 month period ending September 30,
2008
|
|
$3,800,000
|
|
|
For the 6 month period ending December 31,
2008
|
|
$7,600,000
|
|
|
For the 9 month period ending March 31,
2009
|
|
$12,800,000
|
|
|
For the 12 month period ending June 30,
2009
|
|
85% 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 $14,000,000), unless otherwise agreed to in writing
by Agent, Required Lenders and Borrowers
|
|
|
For the 12 month period ending each quarter
thereafter
|
2
3.02.
Section 6.19 . Section 6.19 of the Credit
Agreement is hereby amended by deleting it in its entirety and
inserting the following in lieu thereof:
“6.19.
Liquidity . At any time permit the sum of
Borrowers’ and their Restricted Subsidiaries’ Excess
Availability plus Qualified Cash to be less than
$2,500,000.”
3.03.
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) 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 (vii) non-cash goodwill
impairment charges, in the case of each of clauses
(b)(i) through and including (b)(vii) above, determined
on a consolidated basis in accordance with GAAP.
Section 4.
Representations and Warranties .
In order to induce Agent and the
Lenders to enter into this Thirteenth 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
