Contract
Exhibit 10.1
FIRST AMENDMENT dated as of August 15, 2024 (this “Amendment”), to the Credit Agreement dated as of June 5, 2019, as amended and restated as of May 8, 2023 (the “Existing Credit Agreement”),
among VISHAY INTERTECHNOLOGY, INC., (the “Borrower”), the LENDERS party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”).
Capitalized terms used but not otherwise defined herein (including in the preamble and recitals hereto) have the
meanings assigned to them in the Existing Credit Agreement.
WHEREAS, the Borrower has requested that certain modifications be made to the Existing Credit Agreement in the manner
set forth below and the Administrative Agent and each of the Lenders and Issuing Banks party hereto, which Lenders and Issuing Banks constitute the Required Lenders under the Existing Credit Agreement, are willing to agree to the amendments set forth
herein, in each case, on the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:
SECTION 1 Amendments to the Existing Credit Agreement. Effective as
of the First Amendment Effective Date (as defined below), the Existing Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing the definition of “Interest Coverage Ratio” with the following:
““Interest Coverage Ratio” means, (x) for any
Test Period ending on or after September 28, 2024, the ratio of (i) Consolidated EBITDA for such Test Period to (ii) Consolidated Cash Interest Expense for such Test Period, and (y) for any Test Period ending prior to September 28, 2024, the ratio of
(i) Consolidated EBITDA less Capital Expenditures for such Test Period to (ii) Consolidated Cash Interest Expense for such Test Period.”;
(b) Section 6.01(a)(vii) of the Existing Credit Agreement is hereby amended to read as follows:
“(vii) Indebtedness of Foreign Subsidiaries; provided that the aggregate outstanding principal amount of Indebtedness incurred in
reliance on this clause (vii) shall not at any time of incurrence exceed the greater of (x) $300,000,000 and (y) 15% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which
financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b);”
(c) Section 6.04(b)(iii)(C) of the Existing Credit Agreement is hereby amended to read as follows:
“(C) the aggregate amount of such Investments by the Loan Parties in Subsidiaries that are not Loan Parties, taken together with the
aggregate amount of loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness of Subsidiaries that are not Loan Parties made in reliance on clauses (iv) and (v) below, but excluding all such Investments, loans,
advances and Guarantees existing on the date hereof and permitted by clause (ii) above, and net of any dividends, distributions, returns of capital or payments of Indebtedness made to the Loan Parties by Subsidiaries that are not Loan Parties and
release of Guarantees of Indebtedness of non-Loan Parties, shall not exceed $300,000,000; and provided further that in no event shall any Subsidiary that is a Material Domestic Subsidiary cease to be a Loan Party pursuant to this clause (iii) except as a result of a consolidation, merger or similar transaction in
which the continuing or surviving Person is a Loan Party;”
(d) Section 6.12 of the Existing Credit Agreement is hereby amended to read as follows:
“The Borrower will not permit the Interest Coverage Ratio (x) for any Test Period ending on or after September 28, 2024 to be less than
3.25 to 1.00, and (y) for any Test Period ending prior to September 28, 2024 to be less than 2.00 to 1.00.”
(e) Section 9.12 of the Existing Credit Agreement is hereby amended by adding the following “For the avoidance of doubt, nothing in this Section 9.12 shall
prohibit any Person from voluntarily disclosing or providing any Information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the extent that any such prohibition on disclosure set forth in this Section 9.12 shall be prohibited by the laws or regulations applicable to such Regulatory
Authority.” at the end of Section 9.12.
(f) Each reference in the Existing Credit Agreement (including in Schedule 2.01) to "UniCredit Bank AG, New York Branch" or "UniCredit Bank AG" is
hereby replaced with "UniCredit Bank GmbH, New York Branch".
SECTION 2 Representations and Warranties. The Borrower represents
and warrants to the Administrative Agent and to each of the Lenders, as of the First Amendment Effective Date, that:
(a) this Amendment to be entered into by each Loan Party are within such Loan Party’s corporate or other organizational powers and have been duly authorized
by all necessary corporate or other organizational and, if required, stockholder or other equityholder action of each Loan Party. This Amendment has been duly executed and delivered by the Borrower and each of the other Loan Parties and constitutes
a legal, valid and binding obligation of the Borrower and each Loan Party enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
(b) at the time of and immediately after giving effect to this Amendment, the representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct (i) in the case of the representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, in each case on and as of the First Amendment Effective Date, except in
the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty is so true and correct in all material respects (or in all respects, as applicable) on and as of such prior date;
and
(c) at the time of and as of the First Amendment Effective Date, after giving effect to this Amendment, no Default has occurred and is continuing.
SECTION 3 Effectiveness. This Amendment shall become effective on
the first date on which the Administrative Agent (or its counsel) shall have received duly executed counterparts (which may include telecopy, emailed .pdf or any other electronic means as set forth in Section 7 of this Amendment) hereof that, when
taken together, bear the authorized signatures of the Administrative Agent, the Borrower, the other Loan Parties and Lenders constituting the Required Lenders (such date, the “First Amendment Effective Date”).
The Administrative Agent shall notify the Borrower and the Lenders of the First Amendment Effective Date, and such notice shall be
conclusive and binding.
SECTION 4 Effect of Amendment; No Novation.
(a) Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the
rights and remedies of the Administrative Agent or the Lenders under the Existing Credit Agreement, the Security Documents or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Existing Credit Agreement, the Security Documents or any other Loan Document, all of which shall continue in full force and effect in accordance with the provisions thereof. Nothing herein shall be deemed to
entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement, as amended hereby, the Security Documents
or any other Loan Document in similar or different circumstances.
(b) On and after the First Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or
words of like import, as used in the Existing Credit Agreement, shall refer to the Existing Credit Agreement as amended hereby, and the term “Credit Agreement”, as used in any Loan Document, shall mean the Existing Credit Agreement as amended
hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Existing Credit Agreement and the other Loan Documents.
(c) This Amendment shall not extinguish the obligations for the payment of money outstanding under the Existing Credit Agreement or discharge or release any
Guarantee thereof. Nothing herein contained shall be construed as a substitution or novation of the Secured Obligations (as defined in the Collateral Agreement) outstanding under the Existing Credit Agreement or the Security Documents, which shall
remain in full force and effect. Nothing expressed or implied in this Amendment or any other document contemplated hereby shall be construed as a release or other discharge of the Borrower under the Existing Credit Agreement or any Loan Party under
any Loan Document (as defined in the Existing Credit Agreement) from any of its obligations and liabilities thereunder.
SECTION 5 Waiver. Pursuant to the
request by the Borrower, the Administrative Agent and Lenders party hereto hereby waive the requirement pursuant to the Collateral and Guarantee Requirement and Section 3.01(a) of the Collateral Agreement that Vishay Xxxx Electronics, LLC (i) pledge
to the Administrative Agent, for the benefit of the Secured Parties, a security interest in the Equity Interests it directly owns in Ametherm, Inc. and (ii) deliver any Pledged Securities related thereto, so long as Ametherm, Inc. merges with and
into Vishay Xxxx Electronics, LLC, as permitted by Section 6.03(a) of the Credit Agreement, by March 31, 2025. This waiver set forth in Section 5 shall not be construed as a waiver of any breach, Default or Event of Default other than as
specifically waived herein or (ii) affect the right of the Lenders to demand compliance by the Loan Parties with all terms and conditions of the Loan Documents, except as specifically modified or waived by this Amendment.
SECTION 6 Reaffirmation. Each of the Borrower and the entities party
hereto as “Subsidiary Loan Parties” (the “Subsidiary Loan Parties” together with the Borrower, the “Reaffirming Loan Parties”) hereby acknowledges that it
expects to receive substantial direct and indirect benefits as a result of this Amendment and the transactions contemplated hereby. Each Reaffirming Loan Party hereby further (i) confirms its guarantees, pledges and grants of security interests, as
applicable, under each of the Loan Documents to which it is party and (ii) agrees that, notwithstanding the effectiveness of this Amendment and the transactions contemplated hereby, its guarantees, pledges and grants of security interests, as
applicable, under each of the Loan Documents to which it is party shall continue to be in full force and effect and shall accrue to the benefit of the Secured Parties (and shall be determined after giving effect to this Amendment).
SECTION 7 Governing Law; Jurisdiction; Consent to Service of Process; Jury Trial
Waiver. THE PROVISIONS CONCERNING (A) GOVERNING LAW, JURISDICTION AND CONSENT TO SERVICE OF PROCESS SET FORTH IN SECTION 9.09 OF THE EXISTING CREDIT AGREEMENT AND (B) JURY TRIAL WAIVER SET FORTH IN SECTION 9.10 OF EXISTING CREDIT
AGREEMENT SHALL APPLY TO THIS AMENDMENT AND ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.
SECTION 8 Counterparts. This Amendment may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. The words “execution,” “signed,” “signature,” “delivery,”
and words of like import in or relating to this Amendment and/or any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), deliveries or
the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. “Electronic Signatures” means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent
to sign, authenticate or accept such contract or record.
SECTION 9 Severability. Any provision of this Amendment held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 10 Headings. Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.
[Signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above
written.
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BORROWER:
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VISHAY INTERTECHNOLOGY, INC.
By: /s/
Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Sr. Vice President - Chief Accounting Officer
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SUBSIDIARY LOAN PARTIES:
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VISHAY GSI, INC.
SILICONIX INCORPORATED
VISHAY BCCOMPONENTS HOLDINGS LTD.
VISHAY XXXXXXX, INC.
VISHAY AMERICAS, INC.
VISHAY HIREL SYSTEMS LLC
VISHAY SILICONIX, LLC
SILICONIX SEMICONDUCTOR, LLC
MAXPOWER SEMICONDUCTOR, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President, Finance & Assistant Secretary
XXXXXX XXXX ELECTRONICS, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President & Corporate Controller
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JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent and a Lender,
By: /s/ Xxxxxxxxx Xxxxxxx
Name: Xxxxxxxxx Xxxxxxx
Title: Executive Director
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| COMERICA BANK |
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| HSBC BANK USA, NATIONAL ASSOCIATION |
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| UNICREDIT BANK GMBH, NEW YORK BRANCH |
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| TD Bank, N.A., |
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| SANTANDER BANK, N.A. |
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| Bank of America, N.A. |
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| MUFG Bank, Ltd. |
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| KBC BANK N.V., New York Branch |
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LENDER SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT OF VISHAY INTERTECHNOLOGY, INC. | |||
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| Bank Leumi le-Israel B.M |
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