EXHIBIT 10.1


 


AMENDMENT
NO. 1,
dated as of March 8, 2017 (this “Amendment”).  Reference is made to the
Credit Agreement dated as of November 12, 2015, among Benchmark Electronics, Inc., a Delaware corporation (the “Company”),
the Borrowing Subsidiaries party thereto, the several banks and other financial
institutions or entities from time to time parties to the Credit Agreement, as
lenders (the “Lenders”),  JPMORGAN
CHASE BANK, N.A., as Administrative Agent (in such capacity, the “Administrative
Agent”) and Collateral Agent and the various other parties thereto (as
amended, restated, modified and supplemented from time to time prior to the
date hereof, the “Credit Agreement”, and the Credit Agreement, as
amended by this Amendment, the “Amended Credit Agreement”).  Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
such terms in the Amended Credit Agreement.


WHEREAS,
the Company has requested that the Credit Agreement be amended as set forth in
this Amendment;


WHEREAS,
pursuant to Section 9.02 of the Credit Agreement, the consent of the Company
and the Required Lenders on the Amendment No. 1 Effective Date (as defined
below) is required to effect this Amendment and the amendments to the Credit
Agreement set forth herein; and


WHEREAS,
the Administrative Agent, the Company and the Lenders party hereto constituting
the Required Lenders are willing to enter into this Amendment on the terms and
conditions set forth herein.


NOW, THEREFORE,
the parties hereto agree as follows:


Section
1. 
Amendments
to the Credit Agreement.  The Credit Agreement is, effective as of the
Amendment No. 1 Effective Date (as defined below), hereby amended as follows:


(a)  Section 1.01 of
the Credit Agreement is hereby amended by adding the following definitions in
alphabetical order:


“Amendment No. 1” means Amendment No. 1 to
this Agreement, dated as of March 8, 2017 among the Company, the Guarantors,
the Administrative Agent and the Lenders party thereto.


“Amendment No. 1 Effective Date” has the
meaning assigned to such term in Amendment No. 1.


“Bail-In Action” means the exercise of any
Write-Down and Conversion Powers by the applicable EEA Resolution Authority in
respect of any liability of an EEA Financial Institution.






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“Bail-In
Legislation” means, with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the
Council of the European Union, the implementing law for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule.


“EEA Financial Institution” means (a) any
credit institution or investment firm established in any EEA Member Country
which is subject to the supervision of an EEA Resolution Authority, (b) any
entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition, or (c) any financial institution
established in an EEA Member Country which is a subsidiary of an institution
described in clauses (a) or (b) of this definition and is subject to
consolidated supervision with its parent.


“EEA Member Country” means any of the member
states of the European Union, Iceland, Liechtenstein, and Norway.


“EEA
Resolution Authority” means any public administrative authority or any
person entrusted with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of any EEA
Financial Institution.


“EU Bail-In Legislation Schedule” means the
EU Bail-In Legislation Schedule published by the Loan Market Association (or
any successor person), as in effect from time to time.


“Outstanding Receivables Transaction Amount”
means, at any time of determination, the excess of (i) the face amount of all
Receivables disposed of pursuant to Section 6.05(e) prior to such time of
determination minus  (ii) any amount included in clause (i) above that is
attributable to Receivables with a stated due date prior to such time of
determination.


“Permitted Receivables Transaction” means a
Receivables Transaction, provided that (x) the financing terms, covenants,
termination events and other provisions thereof, including any Standard
Receivables Undertakings, shall be market terms (as determined in good faith by
the Company) and (y) the aggregate Outstanding Receivables Transaction Amount
at any time in respect of all Receivables Transactions does not exceed
$40,000,000.


“Receivables” means any "account"
as defined under the UCC including without limitation, any receivable, account
receivable, right to payment of a monetary obligation, indebtedness, contract
right, chose in action, and proceeds thereof, wherever located, arising out of
the sale, lease, license or assignment of any products or any other goods or
services that are the subject of any contracts pursuant to which goods are sold
or services are rendered by the Company and that give rise to any Receivables
by the Company or any Restricted Subsidiary (“Goods” or “Services”,
respectively); all related invoices, sales orders, bills of 




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lading,
and other contractual rights and supporting obligations relating thereto (“Invoices”);
all rights to payment of any interest, finance, returned check or late charges,
if any; all indebtedness and other obligations owed to the Company or any
Restricted Subsidiary as a result of the sale of such Goods or Services pursuant
to the Invoices; any and all returned, reclaimed, and repossessed Goods sold or
financed pursuant thereto; all rights as to any Goods or other property,
contracts of indemnity, letters of credit, guaranties or sureties, pledges,
hypothecations, mortgages, chattel mortgages, security agreements, deeds of
trust, proceeds of insurance (including credit insurance on such Receivables),
and other collateral, liens or proceeds thereof at any time constituting
supporting obligations for such Receivables; any proceeds of the foregoing; and
any and all other rights, remedies, benefits and interests, both legal and
equitable, to which the Company or any Restricted Subsidiary may be entitled in
respect of any of the foregoing, including, but not limited to, any rights,
remedies, benefits, and interests set forth in the UCC with respect to
"accounts", "payment intangibles" or "supporting
obligations."


“Receivables Related Rights” means, in
relation to any Receivable that is the subject of a Receivables Transaction,
(i) any rights under or relating to the contract governing such Receivable to
the extent necessary to enforce collection of such Receivable, (ii) all
security interests or Liens and property subject thereto from time to time
purporting to secure payment of such Receivable, whether pursuant to the
contract governing such Receivable or otherwise, (iii) all guarantees,
insurance (but only to the extent such insurance relates solely to Receivables
that are of the same type as the Receivables subject of the Receivables
Transaction) and other agreements or arrangements of whatever character from
time to time supporting or securing payment of such Receivable whether pursuant
to the contract governing such Receivable or otherwise and (iv) other assets
relating to such Receivable which are customarily transferred in connection
with sales or factoring of Receivables.


“Receivables Transaction” means, with respect
to Company and/or any of the Restricted Subsidiaries, any transaction or series
of transactions of sales or factoring involving Receivables and Receivables
Related Rights pursuant to which Company or any Restricted Subsidiary may sell,
convey or otherwise transfer to any other Person any Receivables (whether now
existing or arising in the future) and Receivables Related Rights of Company or
any Restricted Subsidiary.


“Standard Receivables Undertakings” means
representations, warranties, covenants and indemnities entered into by Company
or any Subsidiary of Company that Company has determined in good faith to be
customary in a Permitted Receivables Transaction.


“Write-Down and Conversion Powers” means,
with respect to any EEA Resolution Authority, the write-down and conversion
powers of such EEA Resolution Authority from time to time under the Bail-In
Legislation for the 




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applicable EEA Member Country,
which write-down and conversion powers are described in the EU Bail-In
Legislation Schedule.


(b)  Section 1.01 of the Credit
Agreement is hereby amended by
amending and restating the definition of “Defaulting Lender” as follows:


“Defaulting Lender” means, subject to Section 2.22(b),
any Lender that (a) has failed to (i) fund all or any portion of its Loans
within two Business Days of the date such Loans were required to be funded by it
hereunder unless such Lender notifies the Administrative Agent and the Company
in writing that such failure is the result of such Lender’s determination that
one or more conditions precedent to funding (each of which conditions
precedent, together with any applicable default, shall be specifically
identified in such writing) has not been satisfied, or (ii) pay to the
Administrative Agent, any Issuing Lender or any other Lender any other amount
required to be paid by it hereunder (including in respect of its participations
in Letters of Credit) within two Business Days of the date when due, (b) has
notified the Company, the Administrative Agent or any Issuing Lender in writing
that it does not intend to comply with its funding obligations hereunder or has
made a public statement to that effect (unless such writing or public statement
relates to such Lender’s obligation to fund a Loan hereunder and states that
such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable
default, shall be specifically identified in such writing or public statement)
cannot be satisfied, (c) has failed, within three Business Days after written
request by the Administrative Agent or the Company, to confirm in writing that
it will comply with its prospective funding obligations hereunder (provided 
that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (c) upon receipt of such written confirmation by the Administrative
Agent and the Company), or (d) has, or has a direct or indirect parent company
that has, (i) become the subject of a proceeding under any Debtor Relief Law,
(ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or assets, including the
Federal Deposit Insurance Corporation or any other state or federal regulatory
authority acting in such capacity or, in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any such proceeding or appointment
or (iii) become the subject of a Bail-In Action; provided  that a Lender shall
not be a Defaulting Lender solely by virtue of (A) an Undisclosed
Administration or (B) the ownership or acquisition of any equity interest in
that Lender or any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of the courts within the United
States or from the enforcement of judgments or writs of attachment on its
assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contracts or agreements made by such
Person.






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(c)  Section
2.22(a)(iv) of the Credit Agreement is hereby amended by amending and restating
the second sentence thereof as follows:


“Subject to Section 9.18, no reallocation
hereunder shall constitute a waiver or release of any claim of any party
hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result
of such Non-Defaulting Lender’s increased exposure following such
reallocation.”


(d)  Section 6.01(m)
of the Credit Agreement is hereby amended by deleting “and” at the end of such
section.


(e)  Section 6.01(n)
of the Credit Agreement is hereby amended by deleting “.” at the end of such
section and replacing such text with the following: “; and”.


(f)  Section 6.01 of
the Credit Agreement is hereby amended by adding the following new Section
6.01(o):


“Indebtedness owing in connection with a Permitted
Receivables Transaction in the event that any purchase of Receivables
thereunder is not characterized as a “true sale.”


(g)  Section 6.02(m)
of the Credit Agreement is hereby amended by deleting “and” at the end of such
section.


(h)  Section 6.02(n)
of the Credit Agreement is hereby amended by deleting “.” at the end of such
section and replacing such text with the following: “; and”.


(i)  Section 6.02 of
the Credit Agreement is hereby amended by adding the following new Section
6.02(o):


“Liens (x) on deposit accounts established for the
purpose of receiving the proceeds of Receivables sold or transferred in
connection with a Permitted Receivables Transaction; provided  that any
amounts deposited into such accounts that do not represent (i) such proceeds or
(ii) amounts deposited into such accounts to establish or maintain a minimum
balance shall be transferred out of such accounts by or at the direction of the
Company as soon as reasonably practicable but in no event more than 15 days
from the date of their deposit into such accounts; and (y) on Receivables and
Receivables Related Rights subject of a Permitted Receivables Transaction.”


(j)  Section 6.05(c)
of the Credit Agreement is hereby amended by deleting “and” at the end of such
section.


(k)  Section 6.05(d)
of the Credit Agreement is hereby amended by deleting “.” at the end of such
section and replacing such text with the following: “; and”.






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(l)  Section 6.05 of
the Credit Agreement is hereby amended by adding the following new Section
6.05(e):


“sales, transfers and dispositions of Receivables
and Receivables Related Rights pursuant to a Permitted Receivables
Transaction.”


(m) 
Section 6.13 of the Credit Agreement is hereby amended by deleting “.” at the
end of such section and replacing such text with the following:


“, in each case, except as permitted pursuant to
Section 6.05(e).”.


(f) 
Article IX of the Credit Agreement is hereby amended by adding the following new
Section 9.18:


“Section
9.18  Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. 
Notwithstanding anything to the contrary in any Loan Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto
acknowledges that any liability of any EEA Financial Institution arising under
any Loan Document, to the extent such liability is unsecured, may be subject to
the write-down and conversion powers of an EEA Resolution Authority and agrees
and consents to, and acknowledges and agrees to be bound by:


(a)  the
application of any Write-Down and Conversion Powers by an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it
by any party hereto that is an EEA Financial Institution; and


(b)  the effects
of any Bail-In Action on any such liability, including, if applicable:


(i)                
a
reduction in full or in part or cancellation of any such liability;


(ii)              
a
conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEA Financial Institution, its parent
undertaking, or a bridge institution that may be issued to it or otherwise
conferred on it, and that such shares or other instruments of ownership will be
accepted by it in lieu of any rights with respect to any such liability under
this Agreement or any other Loan Document; or


(iii)            
the
variation of the terms of such liability in connection with the exercise of the
write-down and conversion powers of any EEA Resolution Authority.”


Section
2. 
Representations
and Warranties. 
To induce the Administrative Agent and the Lenders to enter into this
Amendment, the Company represents and warrants that as of the Amendment No. 1
Effective Date:






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(a)  Organization;
Powers. 
The Company is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to conduct its business as it is currently being conducted and is
qualified and/or licensed in all jurisdictions where it is required to be so
qualified or licensed to operate its business, except where the failure to so
qualify or be in good standing, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.


(b)  Authorization;
Enforceability. 
This Amendment has been duly authorized by all necessary corporate action. 
This Amendment has been duly executed and delivered by the Company.  This
Amendment constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights or remedies generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.


Section
3. 
Effectiveness.  This
Amendment shall become effective on the date (the “Amendment No. 1 Effective
Date”) that the following conditions have been satisfied:


(a)  Consents. The
Administrative Agent shall have received counterparts of this Amendment
executed by each Loan Party, the Required Lenders and the Administrative Agent.


(b)  Expenses.  The
Administrative Agent shall have received all fees required to be paid, and all
expenses required to be paid or reimbursed under Section 9.03(a) of the Credit
Agreement for which invoices have been presented a reasonable period of time
prior to the Amendment No. 1 Effective Date, in each case on or before the
Amendment No. 1 Effective Date.


(c)  Consent Fees.  The Company
shall have paid to the Administrative Agent, for the account of each Lender
that delivers a signature page to this Amendment, an amendment fee in an amount
equal to 0.05% of the aggregate amount of such Lender’s commitments under the
Initial Term A Facility and Revolving Facility as of the Amendment No. 1
Effective Date.


(d)  Officer’s
Certificate.
The Administrative Agent shall have received a certificate, dated the Amendment
No. 1 Effective Date and signed by a Financial Officer or any other executive
officer of the Company confirming that (a) after giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing and
(b) after giving effect to this Amendment, the representations and warranties
of each Loan Party set forth in the Credit Agreement and the other Loan
Documents are true and correct in all material respects as of the date hereof
(except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they were true and correct as of such
earlier date).


Section
4. 
Reaffirmation.  Each Loan
Party hereby acknowledges its receipt of a copy of this Amendment and the
Credit Agreement and its review of the terms and conditions hereof and thereof
and consents to the terms and conditions of this Amendment and the Amended
Credit Agreement and the transactions contemplated hereby and thereby,
including the extension of credit to the Company in the form of the Loans made
and Letters of Credit issued thereunder.  Each Guarantor hereby (a) affirms and
confirms its guarantees and other 




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commitments under the
Guarantee Agreement, and (b) agrees that the Guarantee Agreement is in full
force and effect and shall accrue to the benefit of the Secured Parties to
secure the Obligations after giving effect to this Amendment. Each Loan Party
hereby (a) affirms and confirms its pledges, grants and other commitments under
the Security Documents and the Liens granted by it pursuant to the Security
Documents, and (b) agrees that the Security Documents and the Liens granted by
it pursuant to the Security Documents are each in full force and effect after
giving effect to this Amendment and shall accrue to the benefit of the Secured
Parties to secure the Obligations after giving effect to this Amendment. This
Amendment is not intended to constitute a novation of the Credit Agreement or
any of the other Loan Documents as in effect prior to the Amendment No. 1
Effective Date. 


Section
5. 
Counterparts.  This
Amendment may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be deemed to be an original, but all of which when taken
together shall constitute a single instrument.  Delivery of an executed
counterpart of a signature page of this Amendment by facsimile or any other
electronic transmission shall be effective as delivery of a manually executed
counterpart hereof. 


Section
6. 
Applicable
Law; Waiver of Jury Trial; Jurisdiction; Consent to Service of Process.  The
provisions set forth in Sections 9.09 and 9.10 of the Credit Agreement are
hereby incorporated mutatis mutandis with all references to the
“Agreement” therein being deemed references to this Amendment.


Section
7. 
Headings.  The headings
of this Amendment are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.


Section
8. 
Effect
of Amendment. 
Except as expressly set forth herein, (i) this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders, the Administrative Agent or the
Collateral Agent, in each case under the Credit Agreement or any other Loan
Document, and (ii) shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other provision of either such agreement or any other
Loan Document.  This Amendment shall constitute a Loan Document for purposes of
the Credit Agreement and from and after the Amendment No. 1 Effective Date, all
references to the Credit Agreement in any Loan Document and all references in
the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of
like import referring to the Credit Agreement, shall, unless expressly provided
otherwise, refer to the Amended Credit Agreement.  The Company hereby consents
to this Amendment and confirms that all obligations of the Company under the
Loan Documents to which it is a party shall continue to apply to the Amended
Credit Agreement.


[Signature
pages follow]













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


BENCHMARK ELECTRONICS, INC.






By:      /s/
Donald Adam

       Name:  Donald Adam

       Title:    Chief Financial Officer













[Signature Page to Amendment No. 1]


 












 





JPMORGAN 
CHASE BANK, N.A., 

as Administrative Agent


 


By:   /s/
Justin Burton

    Name: Justin Burton

    Title: Vice President









[Signature Page to Amendment No. 1]


 












 





JPMORGAN CHASE BANK, N.A.,

as Lender


 


By:   /s/
Justin Burton

    Name: Justin Burton

    Title: Vice President





 






[Signature Page to Amendment No. 1]


 












 





Bank of America, N.A.,

as Lender


 


By:   /s/
Juan Trejo

    Name: Juan Trejo

    Title: Vice President





 






[Signature Page to Amendment No. 1]


 












 





Branch Banking & Trust Company,

as Lender


 


By:   /s/
Matt McCain

    Name: Matt McCain

    Title: Senior Vice President





 






[Signature Page to Amendment No. 1]


 












 





COMPASS BANK d/b/a BBVA Compass,

as Lender


 


By:   /s/
Raj Nambiar

    Name: Raj Nambiar

    Title: Sr. Vice President





 






[Signature Page to Amendment No. 1]


 












 





Wells Fargo Bank, N.A.,

as Lender


 


By:   /s/
Warren R. Ross

    Name: Warren R. Ross

    Title: Senior Vice President





 






[Signature Page to Amendment No. 1]


 












 





ZB, N.A.dba Amegy Bank,

as Lender


 


By:   /s/
Megan Dilger

    Name: Megan Dilger

    Title: Assistant Vice President





 






[Signature Page to Amendment No. 1]


 












 





ING Bank N.V., Dublin Branch

as Lender


 


By:   /s/
Padraig Matthews

    Name: Padraig Matthews

    Title: Vice President


 


By:   /s/
San Hassett

    Name: Sean Hassett

    Title: Director 





 






[Signature Page to Amendment No. 1]


 












 





HSBC Bank USA, N.A.

as Lender


 


By:   /s/
Michael Bustios

    Name: Michael Bustios

    Title: Vice President, 20556





 






[Signature Page to Amendment No. 1]


 












 





BOKF, NA dba Bank of Texas

as Lender


 


By:   /s/
Marian Livingston

    Name: Marian Livingston

    Title: SVP 


 








[Signature Page to Amendment No. 1]