EXECUTION COPY
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MERIX CORPORATION
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FIRST AMENDMENT
Dated May 28, 1997
to
Note Purchase Agreements
dated September 10, 1996
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Re: $40,000,000 7.92% Senior Notes
due September 15, 2003
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FIRST AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS FIRST AMENDMENT dated May 28, 1997 (the or this "First Amendment") to
the Note Purchase Agreements, each dated September 10, 1996, is between MERIX
CORPORATION, an Oregon corporation (the "Company"), and each of the institutions
which is a signatory to this First Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into
separate and several Note Purchase Agreements each dated September 10, 1996
(collectively, the "Note Purchase Agreements"). The Company has heretofore
issued the $40,000,000 7.92% Senior Notes Due September 15, 2003 (the "Notes")
dated September 10, 1996 pursuant to the Note Purchase Agreements. The
Noteholders are the holders of 100% of the outstanding principal amount of the
Notes.
B. The Company and the Noteholders now desire to amend the Note Purchase
Agreements in the respects, but only in the respects, hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreements unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other acts
and things necessary to make this First Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this First Amendment set forth in Section 3.1
hereof, and in consideration of good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. AMENDMENTS
1.1. Section 10.4 of the Note Purchase Agreements shall be and is hereby
amended in its entirety to read as follows:
"10.4. Interest Charges Coverage Ratio
The Company will not permit the ratio, as of the end of
any fiscal quarter of the Company, of (a) Consolidated
Income Available for Interest Charges for the period of the
four consecutive fiscal quarters then ended to (b) Interest
Charges for the period of the four consecutive fiscal
quarters then ended, to be less than 2.00 to 1.00; provided
that the applicable
measurement period for which the ratio is to be determined
under this Section 10.4 as of May 31, 1997, August 31, 1997
and November 30, 1997 shall be the period of the four most
recently completed fiscal quarters ended on such dates other
than the fiscal quarter ended February 28, 1997."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
2.1. To induce the Noteholders to execute and deliver this First Amendment
(which representations shall survive the execution and delivery of this First
Amendment), the Company represents and warrants to the Noteholders that:
(a) this First Amendment has been duly authorized, executed and
delivered by the Company and this First Amendment, the Note Purchase
Agreements, as amended by this First Amendment, and the Notes, constitute
the legal, valid and binding obligations of the Company enforceable against
it in accordance with their respective terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(b) the execution, delivery and performance by the Company of this
First Amendment (i) has been duly authorized by all necessary corporate
action on the part of the Company, (ii) does not require the consent,
approval or authorization of, or registration, filing or declaration with,
or other action by, any Governmental Authority or any other Person and
(iii) will not (A) contravene, result in any breach of, constitute a
default under, result in the creation of any Lien in respect of any
property of the Company under, or give any other Person the right to
require the Company to purchase or repay any Debt under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter or by-laws, or any other agreement or instrument to which
the Company is bound or by which the Company or any of its properties may
be bound or affected, (B) conflict with or result in any breach of any of
the terms, conditions or provisions of any order, judgment, decree or
ruling of any court, arbitrator or Governmental Authority applicable to the
Company or (C) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company;
(d) as of the date hereof and after giving effect to this First
Amendment, (i) no Default or Event of Default has occurred and is
continuing and (ii) no event has occurred and no condition exists which has
had a Material Adverse Effect; and
(e) all the representations and warranties contained in Section 5 of
the Note Purchase Agreements are true and correct in all material respects
with the same force and effect as if made by the Company on and as of the
date hereof.
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SECTION 3. CONDITION TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
3.1. This First Amendment shall become effective and binding upon the
Company and the Noteholders' acceptance in the space(s) below and upon the
satisfaction in full of each of the following conditions:
(a) executed counterparts of this First Amendment, duly executed by
the Company and the Noteholders, shall have been delivered to the
Noteholders; and
(b) the Noteholders shall have received a copy of the resolutions of
the Board of Directors of the Company authorizing the execution, delivery
and performance by the Company of this First Amendment, certified by its
Secretary or an Assistant Secretary.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
4.1. The Company agrees to pay upon demand, the reasonable fees and
expenses of Xxxxxx, Xxxx & Xxxxxxx, special counsel to the Noteholders, in
connection with the negotiation, preparation, approval, execution and delivery
of this First Amendment.
SECTION 5. MISCELLANEOUS.
5.1. This First Amendment shall be construed in connection with and as part
of each of the Note Purchase Agreements, and except as modified and expressly
amended by this First Amendment, all terms, conditions and covenants contained
in the Note Purchase Agreements and the Notes are hereby ratified and shall be
and remain in full force and effect. This First Amendment embodies the entire
agreement and understanding between the Company and the Noteholders and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
5.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Note Purchase Agreements without making specific reference to
this First Amendment but nevertheless all such references shall include this
First Amendment unless the context otherwise requires. This First Amendment is
an Operative Document. The headings in this First Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
execution hereof by you shall constitute a contract between us for the uses and
purposes hereinabove set forth, and this First Amendment may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
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5.3. This First Amendment shall be governed by and construed in accordance
with, and the rights of the parties shall be governed by, the law of The
Commonwealth of Massachusetts excluding choice-of-law principles of the law of
such jurisdiction that would require the application of the law of a
jurisdiction other than such jurisdiction.
[The remainder of this page is left blank intentionally.]
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If you are in agreement with the foregoing, please sign the accompanying
counterpart of this First Amendment and return it to the Company, whereupon the
foregoing shall become a binding agreement between you and the Company.
MERIX CORPORATION
By: XXXXXX XXXXXX
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Its SR VP and Chief Financial Officer
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By: XXXXXX X. XXXXXXXX
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Its VP Corporate Development
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By: XXXXXXX XXXXXXXXX
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Its VP Treasurer
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Accepted and Agreed to:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: D. XXXX XXXXXXX
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Its Senior Investment Officer
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XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: D. XXXX XXXXXXX
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Its Senior Investment Officer
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MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: XXXXXXX X. XXXXXX
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Its Managing Director
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CM LIFE INSURANCE COMPANY
By: XXXXXXX X. XXXXXX
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Its Managing Director
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