EXHIBIT 10.24
MERIX CORPORATION
________________________
FOURTH AMENDMENT
Dated as of May 28, 199
to
Note Purchase Agreements
dated September 10, 1996
________________________
Re: $40,000,000 7.92% Senior Notes
due September 15, 0000
XXXXXX XXXXXXXXX TO NOTE PURCHASE AGREEMENTS
THIS FOURTH AMENDMENT dated as of May 28, 1999 (the or this "Fourth
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,
the Second Amendment to Note Purchase Agreements dated August 29, 1997, and the
Third Amendment to Note Purchase Agreements dated November 28, 1997, and
supplemented by the First Waiver Under Note Purchase Agreements dated as of
August 29, 1998, the Second Waiver Under Note Purchase Agreements dated as of
November 28, 1998, and the Third Waiver Under Note Purchase Agreements dated as
of February 27, 1999 is between MERIX CORPORATION, an Oregon corporation (the
"Company"), and each of the institutions which is a signatory to this Fourth
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,
the Second Amendment to Note Purchase Agreements dated August 29, 1997, and the
Third Amendment to Note Purchase Agreements dated November 28, 1997, and
supplemented by the First Waiver Under Note Purchase Agreements dated as of
August 29, 1998, the Second Waiver Under Note Purchase Agreements dated as of
November 28, 1998 and the Third Waiver Under Note Purchase Agreements dated as
of February 27, 1999 (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 Fourth Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
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NOW, THEREFORE, 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. AMENDMENT
1.1. Section 8.1 of the Note Purchase Agreements shall be and is hereby
amended in its entirety to read as follows:
"8.1. Required Prepayments.
On September 15, 1999 and on each March 15 and September 15
thereafter to and including March 15, 2003, the Company will prepay
$4,000,000 principal amount (or such lesser principal amount as shall
then be outstanding) of the Notes at par and without payment of the
Make-Whole Amount or any premium, provided that upon any partial
prepayment of the Notes pursuant to Section 8.2 or purchase of the
Notes permitted by Section 8.5, the principal amount of each required
prepayment of the Notes becoming due under this Section 8.1 on and
after the date of such prepayment or purchase shall be reduced in the
same proportion as the aggregate unpaid principal amount of the Notes
is reduced as a result of such prepayment or purchase."
1.2. 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 28, 1999, 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 2.00 to 1.00.
(b) The Company will not permit the ratio, as of the end of the
fiscal quarter of the Company ended November 27, 1999, of (i)
Consolidated Income Available for Interest Charges for the period of
the two consecutive fiscal quarters then ended to (ii) Interest
Charges for the period of the two consecutive fiscal quarters then
ended, to be less than 2.00 to 1.00.
(c) The Company will not permit the ratio, as of the end of the
fiscal quarter of the Company ended February 26, 2000,
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of (i) Consolidated Income Available for Interest Charges for the
period of the three consecutive fiscal quarters then ended to (ii)
Interest Charges for the period of the three consecutive fiscal
quarters then ended, to be less than 2.00 to 1.00.
(d) The Company will not permit the ratio, as of the end of any
fiscal quarter of the Company ended after February 26, 2000, 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.
1.3. Section 10.5 of the Note Purchase Agreements shall be and is hereby
amended in its entirety to read as follows:
"10.5. Consolidated Net Worth.
The Company will not, at any time, permit Consolidated Net Worth
to be less than the sum of (a) $49,000,000 plus (b) an aggregate
amount equal to 50% of Consolidated Net Income (but, in each case,
only if a positive number) for each completed fiscal quarter of the
Company beginning with the fiscal quarter ended August 28, 1999."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
2.1. To induce the Noteholders to execute and deliver this Fourth Amendment
(which representations shall survive the execution and delivery of this Fourth
Amendment), the Company represents and warrants to the Noteholders that:
(a) this Fourth Amendment has been duly authorized, executed and
delivered by the Company and this Fourth Amendment, the Note Purchase
Agreements, as amended by this Fourth 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 Fourth 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,
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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 a party 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;
(c) after giving effect to this Fourth Amendment, (i) no Default
or Event of Default has occurred and is continuing and (ii) except as
disclosed on Schedule 1 attached to this Fourth Amendment, no event
has occurred and no condition exists which has had a Material Adverse
Effect; and
(d) except as disclosed on Schedule 1 attached to this Fourth
Amendment, 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 FOURTH AMENDMENT.
3.1. This Fourth Amendment shall become effective and binding upon the
Company and the Noteholders at such time as (a) executed counterparts of this
Fourth Amendment, duly executed by the Company and the Noteholders, shall have
been delivered to the Noteholders and (b) the Company shall have paid (in
immediately available funds) a fee of $75,000 in the aggregate to the
Noteholders (such fee to be allocated among the Noteholders in proportion to the
respective principal amounts of the Notes held by each).
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 Fourth Amendment.
SECTION 5. MISCELLANEOUS.
5.1. 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 Fourth Amendment embodies the entire agreement and
understanding
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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 Fourth Amendment
may refer to the Note Purchase Agreements without making specific reference to
this Fourth Amendment but nevertheless all such references shall include this
Fourth Amendment unless the context otherwise requires. This Fourth Amendment is
an Operative Document. The headings in this Fourth 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 Fourth 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 Fourth 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 Fourth Amendment and return it to the Company, whereupon the
foregoing shall become a binding agreement between you and the Company.
MERIX CORPORATION
By: XXXXX X. XXXXX
----------------------------------
Its Chief Financial Officer
Accepted and Agreed to:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: XXXX XXXXXXX
----------------------------------
Its Senior Investment Officer
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: XXXX XXXXXXX
----------------------------------
Its Senior Investment Officer
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: XXXXXXX X. XXXXXXXX
----------------------------------
Its Managing Director
CM LIFE INSURANCE COMPANY
By: XXXXXXX X. XXXXXXXX
----------------------------------
Its Investment Officer
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SCHEDULE I
TO
FOURTH AMENDMENT
dated as of May 28, 1999
BETWEEN
MERIX CORPORATION,
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY,
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY,
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
AND
C.M. LIFE INSURANCE COMPANY
The representations and warranties in Section 5.3 of the Note Purchase
Agreements are qualified by the effects of the restructuring of the Company
disclosed in a press release dated August 18, 1998 and the operating losses
incurred by the Company through February 27, 1999 as reflected in the Company's
financial statements.
