Exhibit 10.9
EIGHTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
This Eighth Amendment and Waiver to Credit Agreement (herein, the
"Amendment") is entered into as of May 1, 2009, among CalAmp Corp., a
Delaware corporation (the "Borrower"), the lenders party hereto (herein, the
"Lenders"), and Bank of Montreal, as administrative agent for the Lenders
(the "Administrative Agent").
PRELIMINARY STATEMENTS:
A. The Borrower, certain subsidiaries of the Borrower, as
guarantors, the Administrative Agent, and the other Lenders have entered into
that certain Credit Agreement dated as of May 26, 2006 (such Credit
Agreement, as the same has been or may be amended, modified or restated from
time to time, hereinafter referred to as the "Credit Agreement"). All
defined terms used herein shall have the same meaning as in the Credit
Agreement unless otherwise defined herein.
B. The Borrower has requested that the Lenders waive certain Events
of Default and make certain amendments to the Credit Agreement, and the
Lenders are willing to do so, all in the manner and on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. WAIVER.
The Borrower has advised the Lenders that it was not in compliance with
(i) the Minimum EBITDA covenant set forth in Section 8.21 of the Credit
Agreement for the 12-month period ended February 28, 2009 (the "Minimum
EBITDA Default") and (ii) the Minimum Sales of Wireless DataCom Division
covenant set forth in Section 8.21 of the Credit Agreement for the 3-month
periods ended March 28, 2009 and April 25, 2009 (the "Minimum Sales
Default"); each such event of non-compliance constitutes an Event of Default
under Section 9.1 of the Credit Agreement (the Minimum EBITDA Default and the
Minimum Sales Default are referred to collectively as the "Existing
Defaults"). The Borrowers have requested that the Lenders waive the Minimum
EBITDA Default for the period ended February 28, 2009 and the Minimum Sales
Default for the periods ended March 28, 2009 and April 25, 2009, and by
signing below, the Lenders agree to waive the Existing Defaults for such
periods and only for such periods.
SECTION 2. AMENDMENTS.
Subject to the satisfaction of the conditions precedent set forth in
Section 3 below, the Credit Agreement shall be and hereby is amended as
follows:
2.1. Section 8.21(d) (Minimum EBITDA) shall be amended and restated in
its entirety to read as follows:
(d) Minimum EBITDA. The Borrower shall not, as of the last day of
each period set forth below, permit EBITDA for such period to be less than:
PERIOD EBITDA SHALL
NOT BE LESS THAN:
12 Months ending 5/30/2009 ($5,449,000)
12 Months ending 8/29/2009 ($6,196,000)
12 Months ending 11/28/2009 ($3,542,000)
2.2. Section 8.21(e) of the Credit Agreement (Minimum Sales of
Wireless DataCom Division) shall be amended and restated in its entirety to
read as follows:
(e) Minimum Sales of Wireless DataCom Division. As of the last day of
each fiscal month set forth below, the Borrower shall not permit sales of the
Wireless DataCom Division for the past three (3) fiscal months to be less
than:
SALES OF WIRELESS DIVISION SHALL
FISCAL MONTH ENDING NOT BE LESS THAN:
5/30/2009 $11,226,000
6/27/2009 $11,594,000
7/25/2009 $12,566,000
8/29/2009 $13,173,000
9/26/2009 $13,842,000
10/24/2009 $14,255,000
11/28/2009 $14,761,000
12/26/2009 $15,328,000
SECTION 3. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
3.1. The Borrower, the Required Lenders and the Administrative Agent
shall have executed and delivered this Amendment.
3.2. The Administrative Agent shall have received copies (executed or
certified, as may be appropriate) of all legal documents or proceedings taken
in connection with the execution and delivery of this Amendment to the extent
the Administrative Agent or its counsel may reasonably request.
3.3. Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Administrative Agent and its counsel.
3.4. The Guarantors shall have executed their reaffirmation,
acknowledgment, and consent in the space provided for that purpose below.
3.5. The Borrower shall have paid any invoices for professional
services rendered on behalf of the Administrative Agent, including legal
fees.
SECTION 4. REPRESENTATIONS.
In order to induce the Lenders to execute and deliver this Amendment,
the Borrower hereby represents to the Lenders that as of the date hereof
after giving effect to this Amendment the representations and warranties set
forth in Section 6 of the Credit Agreement are and shall be and remain true
and correct in all material respects, except to the extent the same expressly
relate to an earlier date (except that the representations contained in
Section 6.5 shall be deemed to refer to the most recent financial statements
of the Borrower delivered to the Administrative Agent) and the Borrower is in
compliance with the terms and conditions of the Credit Agreement and no
Default or Event of Default (other than the Existing Defaults) has occurred
and is continuing under the Credit Agreement or shall result after giving
effect to this Amendment.
SECTION 5. MISCELLANEOUS.
5.1. The Borrower and the Guarantors heretofore executed and delivered
to the Administrative Agent certain Collateral Documents and the Borrower
hereby, and the Guarantors by signing below, acknowledge and agree, that,
notwithstanding the execution and delivery of this Amendment, the Collateral
Documents remain in full force and effect and the rights and remedies of the
Agent and the Lenders, the obligations of the Borrower and the Guarantors
thereunder and the liens and security interests created and provided for
thereunder remain in full force and effect and shall not be affected,
impaired or discharged hereby. Nothing herein contained shall in any manner
affect or impair the priority of the liens and security interests created and
provided for by the Collateral Documents as to the indebtedness which would
be secured thereby prior to giving effect to this Amendment.
5.2. Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit
Agreement, the Notes, or any other instrument or document executed in
connection therewith, or in any certificate, letter or communication issued
or made pursuant to or with respect to the Credit Agreement, any reference in
any of such items to the Credit Agreement being sufficient to refer to the
Credit Agreement as amended hereby.
5.3. The Borrower agrees to pay on demand all reasonable costs and
expenses of or incurred by the Administrative Agent in connection with the
negotiation, preparation, execution and delivery of this Amendment, including
the reasonable fees and expenses of counsel for the Administrative Agent.
5.4. This Amendment may be executed in any number of counterparts, and
by the different parties on different counterpart signature pages, all of
which taken together shall constitute one and the same agreement. Any of the
parties hereto may execute this Amendment by signing any such counterpart and
each of such counterparts shall for all purposes be deemed to be an original.
This Amendment shall be governed by the internal laws of the State of New
York.
5.5. FOR VALUE RECEIVED, INCLUDING WITHOUT LIMITATION, THE AGREEMENTS
OF THE LENDERS IN THIS AGREEMENT, THE BORROWER HEREBY RELEASES THE
ADMINISTRATIVE AGENT AND EACH LENDER, ITS CURRENT AND FORMER SHAREHOLDERS,
DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, ATTORNEYS, CONSULTANTS, AND
PROFESSIONAL ADVISORS (COLLECTIVELY, THE "RELEASED PARTIES") OF AND FROM ANY
AND ALL DEMANDS, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES, ACTS AND
OMISSIONS, LIABILITIES, AND OTHER CLAIMS OF EVERY KIND OR NATURE WHATSOEVER,
BOTH IN LAW AND IN EQUITY, KNOWN OR UNKNOWN, WHICH THE BORROWER HAS OR EVER
HAD AGAINST THE RELEASED PARTIES, INCLUDING, WITHOUT LIMITATION, THOSE
ARISING OUT OF THE EXISTING FINANCING ARRANGEMENTS BETWEEN THE BORROWER AND
THE LENDERS, AND THE BORROWER FURTHER ACKNOWLEDGES THAT, AS OF THE DATE
HEREOF, IT DOES NOT HAVE ANY COUNTERCLAIM, SET-OFF, OR DEFENSE AGAINST THE
RELEASED PARTIES, EACH OF WHICH THE BORROWER HEREBY EXPRESSLY WAIVES.
This Eighth Amendment and Waiver to Credit Agreement is entered into as of
the date and year first above written.
"BORROWER"
CALAMP CORP.
By /s/ Richard K. Vitelle
Name: Richard K. Vitelle
Title: Vice President of Finance
Accepted and agreed to by the Lenders.
"LENDERS"
BANK OF MONTREAL, acting through its
Chicago Branch, in its individual
capacity as a Lender, as L/C Issuer,
and as Administrative Agent
By /s/ Shane Koonce
Name Shane Koonce
Title Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Daniel J. Isenberg
Name Daniel J. Isenberg
Title Vice President
BANK OF THE WEST
By /s/ J. Neal Churchill
Name J. Neal Churchill
Title Vice President