Exhibit 10.9
WAIVER TO FIVE-YEAR CREDIT AGREEMENT
THIS WAIVER TO FIVE-YEAR CREDIT AGREEMENT (this "Waiver") is made as of the
26th day of June, 2000, by XXXXXX & XXXXX CORPORATION (the "Borrower"), XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK as Agent (the "Agent"), and the Banks
identified on the signature pages to this Waiver (the "Banks").
RECITALS:
The Borrower, the Agent and the Banks are party to a Five-Year Credit
Agreement dated as of July 1, 1998 (the "Credit Agreement"). Capitalized terms
used but not defined in this Waiver shall have the respective meanings set forth
in the Credit Agreement.
The Borrower has requested that the Agent and the Banks execute this Waiver
on the terms set forth herein.
NOW, THEREFORE, the Borrower, the Agent and the Banks executing this Waiver
hereby agree as follows:
1. Notwithstanding anything to the contrary set forth in the Credit
Agreement, (a) any breach by the Borrower of Section 5.07 (Operating Cash Flow
Ratio) of the Credit Agreement for the period from and including July 2, 2000
through and including the earlier of (i) August 15, 2000 and (ii) the day which
is three (3) Domestic Business Days following the date on which the Tyco
Transaction is consummated (the "Waiver Period") is hereby waived and any
Default or Event of Default arising solely by reason of any such breach during
the Waiver Period is hereby waived, (b) in the event that the Tyco Transaction
is consummated prior to August 16, 2000, for all periods from and after August
16, 2000, compliance by the Borrower with Section 5.07 of the Credit Agreement
shall be determined as if the Tyco Transaction, and the application of the net
proceeds received by the Borrower in respect of the Tyco Transaction to the
repayment of Debt, had occurred during the fiscal quarter ended July 2, 2000,
and (c) on or before August 16, 2000, the Borrower shall deliver to each of the
Banks financial statements of the type required by Section 5.1(b) of the Credit
Agreement for the period ended July 2, 2000, together with a Compliance
Certificate setting forth in reasonable detail calculations required to
establish whether the Borrower was in compliance with Section 5.07 of the Credit
Agreement for the period ended July 2, 2000 (with such calculations being made
consistent with clause (b) of this paragraph). As used herein, "Tyco
Transaction" shall mean the sale by the Borrower and its Subsidiaries of its
Electronics Original Equipment Manufacturing ("OEM") business to TYCO Group
S.A.R.L., a Luxembourg subsidiary of Tyco Group International for a purchase
price of $750,000,000, payable in cash.
2. The Borrower hereby agrees with the Agent and the Banks that any
failure by the Borrower to comply with clause (c) of paragraph 1 of this Waiver
shall constitute an Event of Default under the Credit Agreement.
1
3. Except for the Waiver set forth above, the text of the Credit
Agreement shall remain unchanged and in full force and effect.
4. This Waiver may be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which, taken together, shall
constitute one and the same instrument.
5. This Waiver shall be construed in accordance with and governed by the
laws of the State of New York.
6. This Waiver shall become effective upon execution and delivery hereof
by the Borrower, the Agent and those Banks constituting the Required Banks.
IN WITNESS WHEREOF, the parties have executed and delivered, or have caused
their respective duly authorized officers or representatives to execute and
deliver, this Waiver as of the day and year first above written.
XXXXXX & XXXXX CORPORATION
By:
----------------------------------
Xxx X. Xxxxxx
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, AS AGENT AND A BANK
By:
----------------------------------
Title:
BANK OF AMERICA, N.A.
By:
----------------------------------
Title:
2
ABN AMRO BANK N.V.
By:
----------------------------------
Title:
By:
----------------------------------
Title:
THE BANK OF NOVA SCOTIA
By:
----------------------------------
Title:
CIBC, INC.
By:
----------------------------------
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By:
----------------------------------
Title:
By:
----------------------------------
Title:
FIRST UNION NATIONAL BANK
By:
----------------------------------
Title:
3
SUNTRUST BANK
By:
----------------------------------
Title:
THE NORTHERN TRUST COMPANY
By:
----------------------------------
Title:
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH
By:
----------------------------------
Title:
By:
----------------------------------
Title:
THE BANK OF NEW YORK
By:
----------------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
----------------------------------
Title:
AMSOUTH BANK
By:
----------------------------------
Title:
4
KBC BANK N.V.
By:
----------------------------------
Title:
By:
----------------------------------
Title:
THE SUMITOMO BANK, LTD.
By:
----------------------------------
Title:
WACHOVIA BANK, N.A.
By:
----------------------------------
Title:
UNION PLANTERS BANK, N.A.
By:
----------------------------------
Title:
5
