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

  






 


 


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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 this Thirteenth
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
Thirteenth 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 Thirteenth Amendment and both prior to
(other than with respect to the Applicable Default) and after giving effect to
this Thirteenth Amendment, each of the representations and warranties contained
in the Credit Agreement and other Loan Documents is true and correct in all
material respects.


 


 


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4.03.       Corporate Power,
Etc.  Administrative
Borrower (a) has all requisite corporate power and authority to execute
and deliver this Thirteenth Amendment and to consummate the transactions
contemplated hereby for itself and, in the case of Administrative Borrower, on
behalf of all of the other Borrowers, and (b) has taken all action,
corporate or otherwise, necessary to authorize the execution and delivery of
this Thirteenth Amendment and the consummation of the transactions contemplated
hereby for itself and, in the case of Administrative Borrower, on behalf of all
of the other Borrowers.


 


4.04.       No Conflict.  The execution, delivery and performance by
Administrative Borrower (on behalf of itself and all of the other Borrowers) of
this Thirteenth Amendment will not (a) violate any provision of federal,
state, or local law or regulation applicable to any Borrower, the Governing
Documents of any Borrower, or any order, judgment or decree of any court or
other Governmental Authority binding on any Borrower, (b) conflict with or
result in any breach of, or constitute (with due notice or lapse of time or
both) a default under any material contractual obligation of any Borrower, (c) result
in or require the creation or imposition of any Lien of any nature whatsoever
upon any properties or assets of any Borrower, other than Permitted Liens, or (d) require
any approval of any Borrower’s interestholders or any approval or consent of
any Person under any material contractual obligation of any Borrower, other
than consents or approvals that have been obtained and that are still in force
and effect.


 


4.05.       Binding Effect.  This Thirteenth Amendment has been duly
executed and delivered by the Administrative Borrower (on behalf of itself and
all of the other Borrowers) and constitutes the legal, valid and binding
obligation of the Administrative Borrower (on behalf of itself and all of the
other Borrowers), enforceable against the Administrative Borrower (on behalf of
itself and all of the other Borrowers) in accordance with its terms, except as
such enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, relating to or affecting the enforcement of creditors’ rights
generally, and (b) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).


 


Section 5.              Conditions.  This Thirteenth Amendment shall
be effective upon the fulfillment by the Borrowers, in a manner satisfactory to
Agent and the Lenders, of all of the following conditions precedent set forth
in this Section 5 (such date, the “Effective Date”):


 


5.01.       Execution of the
Thirteenth Amendment.  Each of
the parties hereto shall have executed an original counterpart of this
Thirteenth Amendment and shall have delivered (including by way of
telefacsimile or electronic mail) the same to Agent.


 


5.02.       Amendment Fee.  Borrowers shall have paid to Agent, for the ratable
benefit of the Lenders, in immediately available funds an amendment fee equal
to $100,000.


 


5.03.       Representations and
Warranties.  As of the Effective
Date, the representations and warranties set forth in Section 4
hereof shall be true and correct.


 


5.04.       Compliance with Terms. 
Borrowers shall have complied in all respects with the terms hereof and
of any other agreement, document, instrument or other writing to be delivered
by Borrowers in connection herewith.


 


 


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5.05.       Delivery
of Other Documents.  Agent shall have received all other
instruments, documents and agreements as Agent may reasonably request, in form
and substance reasonably satisfactory to Agent.


 


Section 6.              Miscellaneous.


 


6.01.       Continuing Effect.  Except as specifically provided herein, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their respective terms and are hereby ratified and
confirmed in all respects.


 


6.02.       No Waiver;
Reservation of Rights.  This Thirteenth
Amendment is limited as specified and the execution, delivery and effectiveness
of this Thirteenth Amendment shall not operate as a modification, acceptance or
waiver of any provision of the Credit Agreement, or any other Loan Document,
except as specifically set forth herein. 
Notwithstanding
anything contained in this Thirteenth Amendment to the contrary, Agent and the
Lenders expressly reserve the right to exercise any and all of their rights and
remedies under the Credit Agreement, any other Loan Document and applicable law
in respect of any Default or Event of Default (except to the extent set forth
in Section 2 with respect to the Applicable Default).


 


6.03.       References.


 


(a)           From and after the Effective Date, (i) the Credit Agreement, the other Loan Documents and
all agreements, instruments and documents executed and delivered in connection
with any of the foregoing shall each be deemed amended hereby to the extent
necessary, if any, to give effect to the provisions of this Thirteenth
Amendment and (ii) all of the terms and provisions of this Thirteenth
Amendment are hereby incorporated by reference into the Credit Agreement, as
applicable, as if such terms and provisions were set forth in full therein, as
applicable.


 


(b)           From and after the Effective Date, (i) all
references in the Credit Agreement to “this Agreement”, “hereto”, “hereof”,
“hereunder” or words of like import referring to the Credit Agreement shall
mean the Credit Agreement as amended hereby and (ii) all references in the
Credit Agreement, the other Loan Documents or any other agreement, instrument
or document executed and delivered in connection therewith to  “Credit Agreement”, “thereto”, “thereof”,
“thereunder” or words of like import referring to the Credit Agreement shall
mean the Credit Agreement as amended hereby.


 


6.04.       Governing Law.  THIS THIRTEENTH AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


6.05.       Severability.  The provisions of this Thirteenth Amendment
are severable, and if any clause or provision shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision in this
Thirteenth Amendment in any jurisdiction.


 


 


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6.06.       Counterparts.  This Thirteenth Amendment may be executed in
any number of counterparts, each of which counterparts when executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument.  Delivery of an
executed counterpart of this Thirteenth Amendment by telefacsimile or
electronic mail shall be equally effective as delivery of a manually executed
counterpart.  A complete set of
counterparts shall be lodged with the Administrative Borrower, Agent and each
Lender.


 


6.07.       Headings.  Section headings in this Thirteenth
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Thirteenth Amendment for any other purpose.


 


6.08.       Binding Effect;
Assignment.  This Thirteenth
Amendment shall be binding upon and inure to the benefit of Borrowers, Agent
and the Lenders and their respective successors and assigns; provided, however,
that the rights and obligations of Borrowers under this Thirteenth Amendment
shall not be assigned or delegated without the prior written consent of Agent
and the Lenders.


 


6.09.       Expenses.  Borrowers agree to pay Agent upon demand, for
all reasonable expenses, including reasonable fees of attorneys and paralegals
for Agent and the Lenders (who may be employees of Agent or the Lenders),
incurred by Agent and the Lenders in connection with the preparation,
negotiation and execution of this Thirteenth Amendment and any document
required to be furnished herewith.


 


6.10.       Integration.  This Thirteenth Amendment, together with the
other Loan Documents, incorporates all negotiations of the parties hereto with
respect to the subject matter hereof and is the final expression and agreement
of the parties hereto with respect to the subject matter hereof.


 


[Signature
page follows]


 


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Thirteenth Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


	
   

  	
  ADMINISTRATIVE
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TRC
  COMPANIES, INC., a Delaware corporation, as Administrative Borrower, on behalf of itself
  and all other Borrowers 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /S/
  Martin H. Dodd

  
	
   

  	
  Name: 

  	
  Martin H. Dodd

  
	
   

  	
  Title: 

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT AND LENDERS:

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO FOOTHILL, INC.,

  as Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /S/ Jason
  P. Shanahan

  
	
   

  	
  Name: 

  	
  Jason P. Shanahan

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TEXTRON FINANCIAL CORPORATION,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /S/ Chris
  Grivakis

  
	
   

  	
  Name: 

  	
  Chris Grivakis

  
	
   

  	
  Title: 

  	
  Senior Account Executive

  
								



 


 


[SIGNATURE PAGE OF
THIRTEENTH AMENDMENT]


 


7