Unassociated Document


    Exhibit
10.1

     

    AMENDMENT
TO

     CREDIT
AND SECURITY AGREEMENT

    


     

    THIS  AMENDMENT (the
“Amendment”), dated November 30, 2009, is entered into by and between MERRIMAC INDUSTRIES,
INC., a Delaware corporation
(“Company”), and WELLS FARGO BANK, NATIONAL
ASSOCIATION (“Wells Fargo”), acting through its Wells Fargo Business
Credit operating division.

    


    RECITALS

    


    Company and Wells Fargo are parties to
a Credit and Security Agreement dated September 29, 2008 (as amended from time
to time, the “Credit Agreement”). Capitalized terms used in these recitals have
the meanings given to them in the Credit Agreement unless otherwise
specified.

    


    The Company has requested that certain
amendments be made to the Credit Agreement, which Wells Fargo is willing to make
pursuant to the terms and conditions set forth herein.

    


    NOW, THEREFORE, in
consideration of the premises and of the mutual covenants and agreements herein
contained, it is agreed as follows:

    


     

    
      	
               
      

            	
              1.

            	
              Section 5.2((b) is
      hereby amended to read as follows:

            


    

     

    (b)           Minimum Net
Income.  Company shall achieve for each period described below,
Net Income (net of any impairment adjustments, write-downs and non-cash items)
of not less than the amount set forth for each such period:

     

    


    
      	
              Period

            	 	
              Minimum Net Income

            	 
	 	 	 	 	 
	
              October
      4, 2009 through January 2, 2010

            	 	$	338,000.00	 
	
              January
      3, 2010 through April 3, 2010

            	 	$	282,000.00	 
	
              January
      3, 2010 through July 3, 2010

            	 	$	800,000.00	 
	
              January
      3, 2010 through October 2, 2010

            	 	$	1,308,000.00	 
	
              January
      3, 2010 through January 1, 2011

            	 	$	1,967,000.00	 


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2.  Section 5.2(g) is hereby
amended to read as follows:

     

    (g)           Capital
Expenditures.  Company shall not incur or contract to incur
Capital Expenditures of more than $1,000,000.00 in the aggregate during
Company’s fiscal year ending January 2, 2010, and for each subsequent year
end.

     

               3.           No Other Changes.
Except as explicitly amended by this Amendment, all of the terms and conditions
of the Credit Agreement shall remain in full force and effect and shall apply to
any advance or letter of credit thereunder.

    


     4.           Amendment Fee. The
Company shall pay Wells Fargo as of the date hereof a fully earned,
non-refundable fee in the amount of $5,000.00 in consideration of Wells Fargo’s
execution and delivery of this Amendment.

    


    5.           Conditions Precedent.
This Amendment shall be effective when Wells Fargo shall have received an
executed original hereof, together with each of the following, each in substance
and form acceptable to Wells Fargo in its sole discretion:

    


    (a)           A
Certificate of Authority (Amendments) of the Company certifying as to
(i) the resolutions of the board of directors of the Company approving the
execution and delivery of this Amendment, (ii) the fact that the articles
of incorporation and bylaws of the Company, which were certified and delivered
to Wells Fargo pursuant to the Certificate of Authority of the Company’s
secretary dated September 29, 2008 continue in full force and effect and have
not been amended or otherwise modified except as set forth in the Certificate to
be delivered, and (iii) certifying the sample signatures of each of the
officers and agents of the Company authorized to execute and deliver this
Amendment and all other documents, agreements and certificates on behalf of the
Company.

    


    (b)           Payment
of the fee described in Paragraph 4.

    


    (c)           Such
other matters as Wells Fargo may require.

    


    6.           Representations and
Warranties. The Company hereby represents and warrants to Wells Fargo as
follows:

    


    (a)           The
Company has all requisite power and authority to execute this Amendment and any other agreements
or instruments required hereunder and to perform all of its obligations
hereunder, and this Amendment and all such other
agreements and instruments has been duly executed and delivered by the Company
and constitute the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.

     

    
      
        
        

      

      
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    (b)           The
execution, delivery and performance by the Company of this Amendment and any other agreements
or instruments required hereunder have been duly authorized by all necessary
corporate action and do not (i) require any authorization, consent or
approval by any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of any
law, rule or regulation or of any order, writ, injunction or decree presently in
effect, having applicability to the Company, or the articles of incorporation or
by-laws of the Company, or (iii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Company is a party or by which it or its
properties may be bound or affected.

    


    (c)           All
of the representations and warranties contained in Article V of the Credit
Agreement are correct on and as of the date hereof as though made on and as of
such date, except to the extent that such representations and warranties relate
solely to an earlier date.

    


    7.           References.  All
references in the Credit Agreement to “this Agreement” shall be deemed to refer
to the Credit Agreement as amended hereby; and any and all references in the
Security Documents to the Credit Agreement shall be deemed to refer to the
Credit Agreement as amended hereby.

    


    8.           Release. The
Company hereby
absolutely and unconditionally releases and forever discharges Wells Fargo, and
any and all participants, parent corporations, subsidiary corporations,
affiliated corporations, insurers, indemnitors, successors and assigns thereof,
together with all of the present and former directors, officers, agents and
employees of any of the foregoing, from any and all claims, demands or causes of
action of any kind, nature or description, whether arising in law or equity or
upon contract or tort or under any state or federal law or otherwise, which the
Company has had,
now has or has made claim to have against any such person for or by reason of
any act, omission, matter, cause or thing whatsoever arising from the beginning
of time to and including the date of this Amendment, whether such claims,
demands and causes of action are matured or unmatured or known or
unknown.

    


    9.           Costs and Expenses.
The Company hereby reaffirms its agreement under the Credit Agreement to pay or
reimburse Wells Fargo on demand for all costs and expenses incurred by Wells
Fargo in connection with the Loan Documents, including without limitation all
reasonable fees and disbursements of legal counsel. Without limiting the
generality of the foregoing, the Company specifically agrees to pay all fees and
disbursements of counsel to Wells Fargo for the services performed by such
counsel in connection with the preparation of this Amendment and the documents
and instruments incidental hereto. The Company hereby agrees that Wells Fargo
may, at any time or from time to time in its sole discretion and without further
authorization by the Company, make a loan to the Company under the Credit
Agreement, or apply the proceeds of any loan, for the purpose of paying any such
fees, disbursements, costs and expenses and the fee required under Paragraph 4
of this Amendment.

     

    
      
        
        

      

      
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    10.           Miscellaneous. This
Amendment may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original and all of which
counterparts, taken together, shall constitute one and the same
instrument.

    


    IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed as of the date
first above written.

     

    

      
        	
                WELLS
      FARGO BANK,

                  NATIONAL
      ASSOCIATION

              	 	 	MERRIMAC INDUSTRIES,
      INC.	 
	 	 	 	 	 	 	 
	By 	
                
                  /s/ Sabato Mutone,
      VP

                

              	 	 	By
      	
                
                  /s/ J.
      Robert Patterson

                

              	 
	 	
                SABATO
      MUTONE

              	 	 	 	
                J.
      ROBERT PATTERSON

              	 
	 	
                Its
      Vice President

              	 	 	 	
                
                  Its
      Chief Financial Officer

                

              	 


      

    

     

    
      
        
        

      

      
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