Exhibit 10.29
MERIX CORPORATION
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SECOND AMENDMENT
Dated as of August 29, 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
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS SECOND AMENDMENT dated as of August 29, 1997 (the or this "Second
Amendment") to the Note Purchase Agreements, each dated September 10, 1996, as
amended by the First Amendment to Note Purchase Agreements dated May 28, 1997,
is between MERIX CORPORATION, an Oregon corporation (the "Company"), and each of
the institutions which is a signatory to this Second 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, as
amended by the First Amendment to Note Purchase Agreements dated May 28, 1997
(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 Second 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 Second 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.
(a) The Company will not permit the ratio, as of the end of the
fiscal quarter of the Company ended August 30, 1997, of (i)
Consolidated Income Available for Interest Charges for the fiscal
quarter then ended to (ii) Interest Charges for such fiscal quarter,
to be less than .80 to 1.00.
(b) The Company will not permit the ratio, as of the end of the
fiscal quarter of the Company ended November 29, 1997, of (i)
Consolidated Income Available for Interest Charges for the fiscal
quarter then ended to (ii) Interest Charges for such fiscal quarter,
to be less than 1.880 to 1.00.
(c) The Company will not permit the ratio, as of the end of any
fiscal quarter of the Company ended after November 29, 1997, of (i)
Consolidated Income Available for Interest Charges for the period of
the four consecutive fiscal quarters then ended to (ii) Interest
Charges for the
period of the four consecutive fiscal quarters then ended, to be less
than 2.00 to 1.00."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
2.1. To induce the Noteholders to execute and deliver this Second Amendment
(which representations shall survive the execution and delivery of this Second
Amendment), the Company represents and warrants to the Noteholders that:
(a) this Second Amendment has been duly authorized, executed and
delivered by the Company and this Second Amendment, the Note Purchase
Agreements, as amended by this Second 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 Second 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, 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 Second
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.
SECTION 3. CONDITION TO EFFECTIVENESS OF THIS SECOND AMENDMENT; DELIVERY OF
BOARD RESOLUTIONS.
3.1. This Second Amendment shall become effective and binding upon the
Company and the Noteholders at such time as executed counterparts of this Second
Amendment, duly executed by the Company and the Noteholders, shall have been
delivered to the Noteholders.
3.2. Not later than September 20, 1997, the Company shall deliver to the
Noteholders a copy of the resolutions of the Audit and Finance Committee of the
Board of Directors of the Company ratifying the execution, delivery and
performance by the Company of this Second Amendment, certified by its Secretary
or an Assistant Secretary.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
5.1. 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 Second Amendment.
SECTION 5. MISCELLANEOUS.
5.1. This Second 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 Second 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 Second 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 Second
Amendment may refer to the Note Purchase Agreements without making
specific reference to this Second Amendment but nevertheless all such
references shall include this Second Amendment unless the context
otherwise requires. This Second Amendment is an Operative Document.
The headings in this Second 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 Second 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.
5.3. This Second 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.
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If you are in agreement with the foregoing, please sign the accompanying
counterpart of this Second Amendment and return it to the Company, whereupon the
foregoing shall become a binding agreement between you and the Company.
MERIX CORPORATION
By: /s/ XXXXXX X. XXXXXX
Its Senior Vice President and
Chief Financial Officer
By: /s/ XXXXXX X. XXXXXXXX, XX.
Its Vice President,
Corporate Development
and Secretary
By: /s/ XXXXX X. XXXXX
Its Vice President and
Corporate Controller
Accepted and Agreed to:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: /s/ D. XXXX XXXXXXX
Its
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ D. XXXX XXXXXXX
Its
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXXXX
Its
CM LIFE INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXXXX
Its
