EXHIBIT 10.1
TENTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
This Tenth Amendment and Waiver to Credit Agreement (herein, the
"Amendment") is entered into as of October 5, 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
the Minimum EBITDA covenant set forth in Section 8.21 of the Credit Agreement
for the 12-month period ended August 29, 2009 and (ii) the Minimum Sales of
Wireless DataCom Division covenant set forth in Section 8.21 of the Credit
Agreement for the 3-month period ended September 26, 2009; each such event of
non-compliance constitutes an Event of Default under Section 9.1 of the
Credit Agreement (the "Existing Defaults"). The Borrower has requested that
the Lenders waive the Existing Defaults for the period ended August 29, 2009
and September 26, 2009, respectively, 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. The definition of "Base Rate" set forth in Section 1.4(a) of the
Credit Agreement shall be amended and restated to read in its entirety as
follows:
"Base Rate" means, for any day, the rate per annum equal to the
greatest of: (a) the rate of interest announced or otherwise established by
the Administrative Agent from time to time as its prime commercial rate, or
its equivalent, for U.S. Dollar loans to borrowers located in the United
States as in effect on such day, with any change in the Base Rate resulting
from a change in said prime commercial rate to be effective as of the date of
the relevant change in said prime commercial rate (it being acknowledged and
agreed that such rate may not be the Administrative Agent's best or lowest
rate), (b) the sum of (i) the rate determined by the Administrative Agent to
be the average (rounded upward, if necessary, to the next higher 1/100 of 1%)
of the rates per annum quoted to the Administrative Agent at approximately
10:00 a.m. (Chicago time) (or as soon thereafter as is practicable) on such
day (or, if such day is not a Business Day, on the immediately preceding
Business Day) by two or more Federal funds brokers selected by the
Administrative Agent for sale to the Administrative Agent at face value of
Federal funds in the secondary market in an amount equal or comparable to the
principal amount for which such rate is being determined, plus (ii) 1/2 of
1%, (c) the LIBOR Quoted Rate for such day plus 1.00% and (d) 3.00%. As used
herein, the term "LIBOR Quoted Rate" means, for any day, the rate per annum
equal to the quotient of (i) the rate per annum (rounded upwards, if
necessary, to the next higher one hundred-thousandth of a percentage point)
for deposits in U.S. Dollars for a one-month interest period which appears on
the LIBOR01 Page as of 11:00 a.m. (London, England time) on such day (or, if
such day is not a Business Day, on the immediately preceding Business Day)
divided by (ii) one (1) minus the Eurodollar Reserve Percentage.
2.2. The definitions of "Eurodollar Reserve Percentage" and "LIBOR" set
forth in Section 1.4(b) of the Credit Agreement shall be amended and restated
in their entirety to read as follows:
"Eurodollar Reserve Percentage" means the maximum reserve percentage,
expressed as a decimal, at which reserves (including, without limitation, any
emergency, marginal, special, and supplemental reserves) are imposed by the
Board of Governors of the Federal Reserve System (or any successor) on
"eurocurrency liabilities", as defined in such Board's Regulation D (or any
successor thereto), subject to any amendments of such reserve requirement by
such Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the relevant Loans shall be deemed
to be "eurocurrency liabilities" as defined in Regulation D without benefit
or credit for any prorations, exemptions or offsets under Regulation D. The
Eurodollar Reserve Percentage shall be adjusted automatically on and as of
the effective date of any change in any such reserve percentage.
"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar Loans,
the greater of (x) 2.00% and (y) (a) the LIBOR Index Rate for such Interest
Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetic average of the rates of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits
in U.S. Dollars in immediately available funds are offered to the
Administrative Agent at 11:00 a.m. (London, England time) 2 Business Days
before the beginning of such Interest Period by 3 or more major banks in the
interbank eurodollar market selected by the Administrative Agent for delivery
on the first day of and for a period equal to such Interest Period and in an
amount equal or comparable to the principal amount of the Eurodollar Loan
scheduled to be made by the Administrative Agent as part of such Borrowing.
2.3. The definition of "LIBOR Index Rate" appearing in Section 1.4(b)
of the Credit Agreement shall be amended by deleting the phrase "Telerate
Page 3750" appearing therein and replacing it with the phrase "LIBOR01 Page".
2.4. Section 1.4(b) of the Credit Agreement shall be amended by
deleting the definition of "Telerate Page 3750" appearing therein and adding
a new definition of "LIBOR01 Page" to appear in the appropriate alphabetical
order and read as follows:
"LIBOR01 Page" means the display designated as "LIBOR01 Page" on the
Reuters Service (or such other page as may replace the LIBOR01 Page on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar deposits).
2.5. Section 2.1 of the Credit Agreement shall be amended by adding a
new subsection (h) to read as follows:
(h) Tenth Amendment Fee. The Borrower shall pay to the Administrative
Agent for the ratable account of each of the Lenders who execute and deliver
the Tenth Amendment by no later than October 9, 2009 in accordance with their
respective Percentages a Tenth Amendment fee of $100,000 which shall be fully
earned on the Tenth Amendment Effective Date and shall be due and payable on
the Revolving Credit Termination Date; provided, however, if the Obligations
are paid in full on or before December 31, 2009, such fee shall be forgiven.
2.6. The definition of "Applicable Margin" set forth in Section 5.1 of
the Credit Agreement shall be amended and restated in its entirety to read as
follows:
"Applicable Margin" means, with respect to Loans, Reimbursement
Obligations, and the commitment fees and letter of credit fees payable under
Section 2.1 hereof, the rate per annum determined in accordance with the
following schedule:
APPLICABLE
APPLICABLE MARGIN FOR MARGIN FOR APPLICABLE
BASE RATE LOANS AND EURODOLLAR MARGIN FOR
REIMBURSEMENT LOANS AND LETTER COMMITMENT
OBLIGATIONS SHALL BE: OF CREDIT FEE SHALL BE: FEE SHALL BE:
4.25% 5.25% 0.50%
2.7. Section 5.1 of the Credit Agreement shall be amended by adding the
following new definition in the appropriate alphabetical sequence:
"Tenth Amendment" means that certain Tenth Amendment and Waiver to
Credit Agreement dated as of October 5, 2009, among the Borrower, the Lenders
party thereto and the Administrative Agent.
"Tenth Amendment Effective Date" means the date upon which all of the
conditions precedent to the effectiveness of the Tenth Amendment have been
satisfied or waived to the satisfaction of the Administrative Agent.
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.
[SIGNATURE PAGE TO FOLLOW]
This Tenth Amendment and Waiver to Credit Agreement is entered into as
of the date and year first above written.
"BORROWER"
CALAMP CORP.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title Managing Director
UNION BANK OF CALIFORNIA, N.A.
By
Name
Title
BANK OF THE WEST
By /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title Vice President
REAFFIRMATION, ACKNOWLEDGEMENT AND CONSENT OF GUARANTORS
Each of the undersigned, the Guarantors, heretofore executed and
delivered to the Administrative Agent, on behalf of the Lenders, the Credit
Agreement or an Additional Guarantor Supplement. Each of the undersigned
hereby consents to the Tenth Amendment and Waiver to Credit Agreement (the
"Amendment") set forth above and confirms that its Guaranty, and all
obligations of the undersigned thereunder, remains in full force and effect.
Each of the undersigned further agrees that the consent of the undersigned to
any further amendments to the Credit Agreement shall not be required as a
result of this consent having been obtained. Each of the undersigned
acknowledges that the Lenders are relying on the assurances provided herein
in entering into the Amendment.
"GUARANTORS"
CALAMP SOLUTIONS HOLDINGS, INC.
By /s/▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
CALAMP SOLUTIONS, INC.
By /s/▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
DATARADIO CORPORATION (successor by
merger to Dataradio Holdings, Inc. and
Dataradio COR Ltd.)
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President