EXHIBIT 10.1
FIRST AMENDMENT TO LOAN AND
SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND SECURITY
AGREEMENT (the “ Amendment ”) is entered into as
of May 18, 2009, between MERIX CORPORATION, an Oregon corporation
(the “ Borrower ”), BANK OF AMERICA, N.A., a
national banking association, as agent (the “ Agent
”), and certain financial institutions (“
Lenders ”) party to that certain Loan and Security
Agreement dated as of May 9, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Loan Agreement ”), among Borrower, Agent and such
Lenders. Borrower, Lenders and Agent have agreed to
amend the Loan Agreement, as set forth in this
Amendment.
NOW THEREFORE, in consideration of the
foregoing, and for other good and valuable consideration receipt of
which is hereby acknowledged, Borrower, Agent and Lenders agree as
follows:
1.
Definitions; Interpretation
. All capitalized terms used in this Amendment and not
otherwise defined herein have the meanings specified in the Loan
Agreement. The rules of construction and interpretation
specified in Section 1.4 of the Loan Agreement also apply to
this Amendment and are incorporated herein by this
reference.
2.
Amendments to Credit
Agreement . The Loan Agreement is hereby amended
as follows:
(a)
Additional Definition
. The following defined term is added to Section 1.1 of
the Loan Agreement in its proper alphabetical order:
“
Foreign Account Debtor : An Account Debtor that
is organized or has its principal offices or assets outside the
United States, Canada or the United Kingdom.”
(b)
Amendment to
Definitions .
(i) The
chart contained in the definition of “Applicable
Margin” in Section 1.1 of the Loan Agreement is amended to
read in its entirety as follows:
|
Level
|
|
Average Excess
Availability
|
|
Base Rate Loans
|
|
LIBOR Revolver Loans
|
|
Merix Singapore Guaranty
Fee
|
|
I
|
|
> $45,000,000
|
|
0.00%
|
|
2.00%
|
|
0.75%
|
|
II
|
|
> $30,000,000 < $45,000,000
|
|
0.50%
|
|
2.50%
|
|
1.00%
|
|
III
|
|
> $15,000,000 < $30,000,000
|
|
1.00%
|
|
3.00%
|
|
1.50%
|
|
IV
|
|
< $15,000,000
|
|
1.50%
|
|
3.50%
|
|
2.00%
|
(ii)
Clause (c) of the definition of
“Eligible Account” in Section 1.1 of the Loan Agreement
is amended to read in its entirety as follows:
“(c) when
aggregated with other Accounts owing by the Account Debtor, it
exceeds 15% of the aggregate Eligible Accounts (including for
purposes of such calculation Eligible Foreign Accounts owing by
such Account Debtor) (or such higher percentage as Agent may
establish for the Account Debtor from time to time); provided,
however, that (i) in the case of an Account owing by Flextronix
International Limited or its subsidiaries, it exceeds 20% of the
aggregate Eligible Accounts (including for purposes of such
calculation Eligible Foreign Accounts owing by subsidiaries of
Flextronix International Limited) and (ii) in the case an Account
owing by Jabil Circuit, Inc. or its subsidiaries, it exceeds 30% of
the aggregate Eligible Accounts (including for purposes of such
calculation Eligible Foreign Accounts owing by subsidiaries of
Jabil Circuit, Inc.);”
(iii) The
definition of “Eligible Foreign Account” in Section 1.1
of the Loan Agreement is amended to read in its entirety as
follows:
“
Eligible Foreign Account : an Account owing by
(a) a Foreign Account Debtor that (i) is listed on Schedule 1.1(a)
or (ii) is a direct or indirect subsidiary of a Person listed on
Schedule 1.1(a) and Borrower has provided Agent with such evidence
of such subsidiary’s affiliation with a Person listed on
Schedule 1.1(a) as Agent may have requested, or (b) a Foreign
Account Debtor that Agent, in its discretion, has approved in
writing, in each case that meets the
