THIRTEENTH AMENDMENT TO, AND WAIVER UNDER, CREDIT AGREEMENTWaiver Agreement |
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TEXTRON FINANCIAL CORPORATION | TRC COMPANIES, INC | WELLS FARGO FOOTHILL, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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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:
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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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$12,800,000 |
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For the 12 month period ending June 30, 2009 |
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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 |
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For the 12 month period ending each quarter thereafter |
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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
