Exhibit 10.1
CONSENT AND FIRST AMENDMENT TO
VISHAY INTERTECHNOLOGY, INC. SECOND AMENDED AND RESTATED LONG TERM REVOLVING
CREDIT AGREEMENT
This Consent and First Amendment to Credit Agreement ("First Amendment")
is made as of this 14th day of May, 2004 by and among Vishay Intertechnology,
Inc. (the "Company"), the Permitted Borrowers, Comerica Bank as Co-Lead
Arranger, Co-Book Running Manager and Administrative Agent (the "Agent"), Fleet
Securities, Inc., as Co-Lead Arranger, Co-Book Running Manager and Syndication
Agent, Wachovia Bank, National Association, X.X. Xxxxxx Xxxxx Bank and Bank of
America, N.A., as Documentation Agents and Bank Leumi USA, as Managing Agent,
and the other lenders party hereto (collectively, with the agent, the
"Lenders").
RECITALS
A. The Company, the Permitted Borrowers, Agent and Lenders entered into
that certain Vishay Intertechnology, Inc. Second Amended and Restated Long Term
Revolving Credit Agreement dated as of July 31, 2003 (the "Credit Agreement").
B. The Company and the Permitted Borrowers have requested that Agent and
Lenders make certain amendments to the Credit Agreement, and Agent and Lenders
are willing to do so, but only on the terms and conditions set forth in this
First Amendment.
NOW, THEREFORE, the Company, the Permitted Borrowers, Agent and the
Lenders agree:
1. The following definitions are inserted in Section 1.1 of the Credit
Agreement in the appropriate alphabetical order:
""First Amendment Effective Date" shall mean the date when all of the
conditions to effectiveness of that certain Consent and First Amendment to
Credit Agreement by and among the Company, the Permitted Borrowers,
Comerica Bank as Co-Lead Arranger, Co-Book Running Manager and
Administrative Agent, Fleet Securities, Inc., as Co-Lead Arranger, Co-Book
Running Manager and Syndication Agent, Wachovia Bank, National
Association, X.X. Xxxxxx and Bank of America, N.A., as Documentation
Agents and Bank Leumi USA, as Managing Agent, and the other lenders party
thereto shall have been satisfied and such Amendment will have become
effective."
""GATX Guaranties" shall mean each of those certain Guaranties by Vishay
Xxxx Electronics, Inc., Vishay Xxxxxxx Holdings Corp. and Vishay Xxxxxxx,
Inc. dated as of April 22, 2004 in favor of GATX Technology Services
Corporation
("GATX") of the obligations of the Company to GATX under that certain
Master Lease Agreement and related Lease Schedule, each dated as of April
22, 2004."
""Note Pledge Agreements" shall mean those certain pledge agreements
executed and delivered by Company and certain of its Subsidiaries pledging
certain Intercompany Notes, in form and substance acceptable to the Agent,
as the same may be amended, restated or otherwise modified from time to
time."
""Ultronix Note" shall mean that certain Vishay Xxxxxxx Holdings Corp.
Subordinated Promissory $32,060,375.00 - Demand Note issued by Vishay
Xxxxxxx Holdings Corp. to Ultronix, Inc. dated as of September 27, 2003."
""Ultronix Restructuring" shall mean that certain reorganization and
restructuring of certain of the Company's Subsidiaries, to the extent
consummated on substantially the terms described in the documentation
delivered by the Company to the Agent and dated April 8, 2004 and the
related charts dated May 3, 2004."
2. The definitions of "PDD Restructuring," "Intercompany Notes" and
"Collateral Documents" are deleted from Section 1.1 of the Credit
Agreement and the following definitions are inserted in their respective
places:
""Collateral Documents" shall mean the Security Agreements, the Note
Pledge Agreements and the Pledge Agreements, in each case as may be
amended or otherwise modified from time to time."
""Intercompany Notes" shall mean subordinated promissory notes issued or
to be issued by the Company or any Subsidiary to the Company or any
Subsidiary (in accordance with the terms hereof), substantially in the
forms attached hereto as Xxxxxxxx X-0, X-0, X-0 xxx X-0 such forms being
altered to provide for a single maker and holder, or multiple makers and
holders, at the Company's option."
""PDD Restructuring" shall mean that certain reorganization and
restructuring of certain of the Company's Subsidiaries, to the extent
consummated on substantially the terms described in documentation
delivered by the Company to the Agent on July 30, 2003, as updated by the
documentation delivered by the Company to the Agent and dated April 8,
2004 and the related charts dated May 3, 2004."
3. Section 8.2(c) of the Credit Agreement is hereby amended by inserting the
following at the end of the section:
"provided that the amount of consideration given for such sales, leases,
transfers or dispositions shall not be in excess of the higher of the book
value or fair market value of the assets transferred;"
4. Section 8.3(iii) of the Credit Agreement is hereby amended (with
retroactive effect to April 22, 2004) by deleting such subsection in its
entirety and inserting the following in its place:
"(iii) guaranties of indebtedness as set forth on Schedule 8.3 attached
hereto or as permitted under clauses (d), (e), (f) or (g) of Section 8.7
hereof or the GATX Guaranties (provided that the aggregate stated lease
payments to which the GATX Guaranties relate shall not exceed Three
Million Dollars ($3,000,000)) and"
5. Section 8.7(d) of the Credit Agreement is hereby amended (with retroactive
effect to the Effective Date) by deleting such section in its entirety and
inserting the following in its place:
"(d) Intercompany Loans, Advances or Investments made on or after the
Effective Date hereunder to the Company, or by the Company or by any
Subsidiary to the Company or any 100% Subsidiary (excluding Vishay
Israel), (i) provided that any Intercompany Loan included therein be
evidenced by and funded under an Intercompany Note, encumbered, (x) in the
case of Intercompany Loans from a Domestic Subsidiary, pursuant to a
Security Agreement or Note Pledge Agreement securing all obligations of
the Borrowers under this Agreement and the related Loan Documents and (y)
in the case of Intercompany Loans from a Foreign Subsidiary which is
incorporated under the laws of the United States of America, pursuant to a
Security Agreement or Note Pledge Agreement securing all obligations of
the Foreign Permitted Borrowers under this Agreement and the related Loan
Documents and (ii) further provided that, no Intercompany Loan, Advance or
Investment made on or after the First Amendment Effective Date may be made
as specified in this subsection if at the time of making such Intercompany
Loan, Advance or Investment a Default or Event of Default has occurred and
is continuing under this Agreement (or would result from the making of
such Intercompany Loan, Advance or Investment), and in the case of
Intercompany Loans from a Domestic Subsidiary or the Company to a Domestic
Subsidiary or the Company and Intercompany Loans from a Foreign Subsidiary
to a Foreign Subsidiary, notice has been given by Agent (upon the
direction of the Required Lenders) that no such Intercompany Loans shall
be made;"
6. Section 8.7(e) of the Credit Agreement is hereby amended (with retroactive
effect to the Effective Date) by deleting such section in its entirety and
inserting the following in its place:
"(e) Intercompany Loans, Advances or Investments made on or after the
Effective Date by Company or any Subsidiary to Vishay Israel or to any
Subsidiary which does not constitute a 100% Subsidiary other than
Siliconix (provided that any Intercompany Loan included therein be
evidenced by and funded under an Intercompany Note encumbered pursuant to
a Security Agreement or Note Pledge Agreement), provided that, for any
Intercompany Loan, Advance or Investment made on or after the First
Amendment Effective Date, at the time such Intercompany Loan, Advance or
Investment is made no
Default or Event of Default has occurred and is continuing (or would
result from the making of such Intercompany Loan, Advance or Investment)
and provided further that the aggregate amount of all such loans, advances
and investments shall not exceed, at any time outstanding, 10% of Tangible
Net Worth;"
7. Section 8.7(f) of the Credit Agreement is hereby amended (with retroactive
effect to the Effective Date) by deleting such section in its entirety and
inserting the following in its place:
"(f) Intercompany Loans to Siliconix, but only to the extent evidenced by
and funded under an Intercompany Note encumbered pursuant to a Security
Agreement or a Note Pledge Agreement, provided that, for any Intercompany
Loan, Advance or Investment made on or after the First Amendment Effective
Date, no Default or Event of Default has occurred and is continuing at the
time of making such Intercompany Loan (or would result from the making of
such Intercompany Loan)."
8. Each of Annex 1, Annex 2, Annex 3 and Annex 4 to this First Amendment
shall, respectively, be inserted as new "Exhibit L-1", "Exhibit L-2",
"Exhibit L-3" and "Exhibit L-4".
9. The Agent and the Lenders hereby consent (retroactively, to the extent
necessary) to (i) the PDD Restructuring and (ii) the Ultronix
Restructuring.
10. This First Amendment shall become effective (according to the terms
hereof) on the date confirmed by the Company that the following conditions
have been fully satisfied by the Company:
(a) Agent shall have received counterpart originals of this First
Amendment, in each case duly executed and delivered by the Company,
the Permitted Borrowers and requisite Lenders and in form and
substance satisfactory to Agent and the requisite Lenders;
(b) Agent shall have received counterpart originals of those certain
Reaffirmations of Guaranty executed and delivered by the applicable
Guarantors;
(c) Agent shall have received Note Pledge Agreements in form and
substance acceptable to the Agent, relating to those certain
outstanding Intercompany Loans outstanding as of the First Amendment
Effective Date to the extent required under Section 8.7(d) of the
Credit Agreement after giving effect to the amendment to such
section contained herein;
(d) In connection with the PDD Restructuring and the Ultronix
Restructuring, the Company shall have executed or caused to be
executed all Pledge Agreements, Security Agreements and Joinder
Agreements and such other documentation (including secretary's
certificates, organizational documents and resolutions) as may be
necessary or deemed desirable by Agent to ensure that Company has
complied with Section 7.16 of the Credit Agreement and with the
requirements of the other Loan Documents with regards to the
following Subsidiaries of the Company: Vishay GSI, Inc, Vishay Thin
Film, LLC, Vishay Precision Resistors Holdings Corp., Vishay Techno
Components, LLC, Vishay General Semiconductor, LLC, Century
Components, LLC, and General Semiconductor (China) Holdings, LLC;
(e) Company shall have delivered duly executed copies of the outstanding
Intercompany Notes substantially in the forms attached hereto as
Annex 1, Annex 2, Annex 3 and Annex 4 and otherwise acceptable to
the Agent;
(f) Company shall have provided an opinion of counsel to the Company and
each Domestic Subsidiary of Company executing and delivering the
Loan Documents specified in subsection (d) above, such opinion in
form and substance acceptable to the Agent; and
(g) Company shall have delivered to Agent such other documentation as
Agent and the Lenders may reasonably request.
11. Each of the Company and the Permitted Borrowers hereby represents and
warrants that, after giving effect to the amendments contained herein, (a)
execution and delivery of this First Amendment and the other Loan
Documents required to be delivered hereunder (if any), and the performance
by the Company and the Permitted Borrowers of their respective obligations
under the Credit Agreement as amended hereby (herein, as so amended, the
"Amended Credit Agreement") are within such undersigned's corporate
powers, have been duly authorized, are not in contravention of law or the
terms of its articles of incorporation or bylaws or other organic
documents of the parties thereto, as applicable, and except as have been
previously obtained do not require the consent or approval, material to
the amendments contemplated in this First Amendment or the Amended Credit
Agreement, of any governmental body, agency or authority, and this First
Amendment, the Amended Credit Agreement and the other Loan Documents
required to be delivered hereunder (if any), will constitute the valid and
binding obligations of such undersigned parties enforceable in accordance
with their respective terms, except as enforcement thereof may be limited
by applicable bankruptcy, reorganization, insolvency, moratorium, ERISA or
similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity (whether enforcement is sought in a
proceeding in equity or at law), (b) the continuing representations and
warranties set forth in Sections 6.1 through 6.20, inclusive, of the
Amended Credit Agreement are true and correct on and as of the date hereof
(except to the extent such representations specifically relate to an
earlier date), and such representations and warranties are and shall
remain continuing representations and warranties during the entire life of
the Amended Credit Agreement, and (c) as of the First Amendment Effective
Date, no Default or Event of Default shall have occurred and be
continuing, except as may have been waived by the terms of this First
Amendment.
12. Except as specifically set forth above, this First Amendment shall not be
deemed to amend or alter in any respect the terms and conditions of the
Credit Agreement, any of
the Notes issued thereunder or any of the other Loan Documents, or to
constitute a waiver by the Agent and the Lenders of any right or remedy
under or a consent to any transaction not meeting the terms and conditions
of the Credit Agreement, any of the Notes issued thereunder or any of the
other Loan Documents.
13. Each of the Company and the Permitted Borrowers hereby acknowledges and
confirms that it does not possess (and hereby forever waives, releases and
holds harmless the Agent and the Lenders and each of their former, current
and future parents, subsidiaries, affiliates, directors, officers,
employees, attorneys and other representatives and each of their
respective successors and assigns (collectively, the "Lender Parties")
from and against, and agrees not to allege or pursue) any claim, cause of
action, demand, defense, and other right of action whatsoever, in law or
equity which it and its respective successors or assigns have or may have
against the Lender Parties, or any of them, prior to or as of the date of
this First Amendment by reason of any cause or matter arising from,
relating to, or connected with, in any manner the Credit Agreement, any of
the Loan Documents, any related document, instrument or agreement or this
First Amendment (including, without limitation, any payment, performance,
validity or enforceability of any or all of the indebtedness, covenants,
agreements, rights, remedies, obligations and liabilities under the Credit
Agreement, any of the Loan Documents, any related document, instrument or
agreement or this First Amendment) or any transactions relating to any of
the foregoing, or any or all actions, courses of conduct or other matters
in any manner whatsoever relating to or otherwise connected with any of
the foregoing.
14. Each of the Company and the Permitted Borrowers hereby acknowledges and
agrees that this First Amendment and the amendments contained herein do
not constitute any course of dealing or other basis for altering any
obligation of the Company, any Permitted Borrower or any other party or
any rights, privilege or remedy of the Agent or the Lenders under the
Credit Agreement, any other Loan Document, any other agreement or
document, or any contract or instrument.
15. Each of the Company and the Permitted Borrowers hereby reaffirms its
obligations under the Credit Agreement, as amended as of the date hereof,
and each other Loan Document previously executed and delivered by it, or
executed and delivered in accordance with this First Amendment. Each
reference in the Credit Agreement to "this Agreement" or "the Credit
Agreement" shall be deemed to refer to Credit Agreement as amended by this
First Amendment and each other amendment from time to time executed and
delivered thereto.
16. Unless otherwise defined to the contrary herein, all capitalized terms
used in this First Amendment shall have the meaning set forth in the
Credit Agreement.
17. This First Amendment may be executed in counterpart in accordance with
Section 13.10 of the Credit Agreement.
18. This First Amendment shall be construed in accordance with and governed by
the laws of the State of Michigan.
WITNESS the due execution hereof as of the day and year first above
written.
COMPANY: AGENT:
VISHAY INTERTECHNOLOGY, INC. COMERICA BANK, As Co-Lead
Arranger, Co-Book Running Manager and
Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx By: /s/
--------------------------------- --------------------------------
Its: Executive Vice President, Its: Vice President
Chief Financial Officer One Detroit Center
63 Lincoln Highway 000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Finance
PERMITTED BORROWERS:
VISHAY EUROPE GmbH
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Its: Vice President
VISHAY ELECTRONIC GmbH
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Its: Vice President
VISHAY INTERTECHNOLOGY ASIA PTE LTD
By: /s/
--------------------------------
Its:_______________________________
COMERICA BANK, individually, as a
Lender, Swing Line Bank and as Issuing
Bank
By: /s/
---------------------------------
Its:
--------------------------------
BANK OF AMERICA N.A., as
Documentation Agent and as a Lender
By: /s/
---------------------------------
Its:
--------------------------------
FLEET NATIONAL BANK, as a Lender
By: /s/
---------------------------------
Its:
--------------------------------
BANK HAPOALIM B.M.,
NEW YORK BRANCH, as a Lender
By: /s/
---------------------------------
Its:
--------------------------------
By: /s/
---------------------------------
Its:
--------------------------------
BANK LEUMI USA, as Managing Agent
and as a Lender
By: /s/
---------------------------------
Its:
--------------------------------
ISRAEL DISCOUNT BANK OF NEW YORK, as
a Lender
By: /s/
---------------------------------
Its:
--------------------------------
WESTLB AG, New York Branch, as a
Lender
By:
---------------------------------
Its:
--------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent and a Lender
By: /s/
---------------------------------
Its:
--------------------------------
XX XXXXXX XXXXX BANK, as
Documentation Agent and a Lender
By: /s/
---------------------------------
Its:
--------------------------------
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: /s/
---------------------------------
Its:
--------------------------------
KEYBANK NATIONAL
ASSOCIATION, as a Lender
By: /s/
---------------------------------
Its:
--------------------------------
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/
---------------------------------
Its:
--------------------------------
FLEET SECURITIES, INC., as Co-Lead
Arranger, Co-Book Running Manager and
Syndication Agent
By: /s/
---------------------------
Its:
--------------------------
ANNEX 1
Exhibit L-1
INTERCOMPANY NOTE
(Intercompany Loan from Foreign Subsidiary to
Foreign Subsidiary)
___________, 200__
ON DEMAND, FOR VALUE RECEIVED, each of the undersigned (individually and
collectively, "Maker") promises to pay to the order of the entity or entities
appearing on Schedule 1 hereto from which it has received advances of credit
(individually and collectively, "Holder") at such place as shall be designated
from time to time by Holder to Maker, in lawful money of the United States of
America or in such other currencies applicable to any particular advance made
hereunder (each an "Advance" and, collectively, the "Advances") which may, from
time to time, be outstanding hereunder, such sum as may from time to time have
been advanced by Holder to Maker and then be outstanding hereunder, together
with interest thereon as hereinafter set forth. Each Advance shall bear interest
at [the average cost of borrowing of Vishay Intertechnology, Inc. from time to
time as certified by Holder/other interest rate] and shall be payable on demand.
Any interest not paid on demand, shall, at the option of the Holder, be added to
the principal amount of the Note.
This Note is a note under which advances, repayments and readvances may be
made from time to time.
This Note shall be fully subordinated in all respects to the Indebtedness.
Upon the occurrence and during the continuance of a Default or an Event of
Default and following delivery by Agent (upon the direction of the Required
Lenders) of notice requiring that payments under this Note be suspended (such
notice to be delivered to Maker in care of Vishay Intertechnology, Inc.)
payments of principal and interest shall no longer be permitted. During the
period when payments of interest hereon are not permitted, interest shall accrue
and be added to principal on each interest payment date.
Maker agrees, and Holder by accepting this Note agrees, that: (A) the
obligations evidenced by this Note are subordinated in right of payment to the
prior payment in full in cash of all the Indebtedness; the subordination is for
the benefit of the Lenders, and each Lender shall be deemed to have acquired
Indebtedness whether now outstanding or hereafter created, incurred, assumed or
guaranteed in reliance upon the covenants and provisions contained in this Note;
(B) if Maker is prohibited by the terms of this Note from making any payment of
principal, interest or any other sum under or in respect of this Note when due,
and therefore the Maker shall fail to pay when due any such sum, such failure
shall not constitute a default or event of default under and in respect of this
Note (provided that interest shall continue to accrue as provided herein and be
added to principal as herein set forth); and (C) no revision to any provision of
this Note applicable
or relevant to the subordination of this Note to the Indebtedness shall be made
or become effective until approved in writing by the Agent.
Upon any distribution (whether cash, securities or other property, by
setoff or otherwise) to creditors of Maker in a liquidation or dissolution of
Maker or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to Maker or its property: (A) the Lenders shall be entitled
to payment in full in cash of all obligations with respect to the Indebtedness
(including interest after the commencement of any such proceeding at the rates
specified for the applicable Indebtedness to the date of payment of the
Indebtedness) before Holder shall be entitled to receive any payment of any
obligations with respect to this Note; and (B) until all obligations with
respect to the Indebtedness are paid in full in cash, any distribution to which
Holder would be entitled shall be made to the Lenders as their interests may
appear.
No right of any Lender to enforce the subordination of the indebtedness
evidenced by this Note shall be impaired by any act or failure to act by the
Maker or by its failure to comply with the terms and conditions of this Note.
If any payment of principal or interest is made to Holder which under the
terms of this Note is prohibited, Holder agrees, by accepting delivery of this
Note that (a) such payment shall not be commingled with any of the assets of
Holder, shall be held in trust by Holder for the benefit of Agent and the
Lenders and shall be promptly paid over to Agent for application (in accordance
with the Credit Agreement) to the payment of the Indebtedness then remaining
unpaid, until all of the Indebtedness is paid in full in cash and all
commitments to lend have expired or been terminated, provided, however, if no
Indebtedness, including any contingent Indebtedness, is then outstanding Holder
shall hold such payment in trust for the benefit of Maker, and shall promptly
pay over the improper payment to Maker; and (b) none of the indebtedness
evidenced by this Note may be forgiven without the prior consent, in writing, of
the Agent.
Maker hereby waives presentment for payment, demand, protest and notice of
dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Holder, by acceptance of this Note, shall be deemed to have accepted all
of the terms, conditions and limitations set forth herein, and shall be deemed
to have covenanted and agreed to abide by all of the obligations ascribed to it
in this Note.
Terms not defined herein shall have the meanings set forth in the Credit
Agreement. Nothing herein shall limit any right granted Holder by any other
instrument or by law.
As used herein, "Credit Agreement" shall mean that certain Vishay
Intertechnology, Inc. Second Amended and Restated Long Term Revolving Credit
Agreement dated as of July 31, 2003 by and among Vishay Intertechnology, Inc.,
the Permitted Borrowers, Comerica Bank, as Administrative Agent (the "Agent"),
and certain financial institutions from time to time signatory thereto (the
"Lenders"); and any extensions, renewals amendments, restatements or other
modifications made from time to time thereto.
[FOREIGN SUBSIDIARY]
By:_________________________________
Its:_________________________________
Dated: _____________, 200___
[Pay to the order of Comerica Bank, as Agent
By: [Holder(s) of Note]
By:_________________________________
Its:________________________________]
ANNEX 2
Exhibit L-2
INTERCOMPANY NOTE
(Intercompany Loan from Domestic Subsidiary or Company to
Domestic Subsidiary or Company)
___________, 200__
ON DEMAND, FOR VALUE RECEIVED, each of the undersigned (individually and
collectively, "Maker") promises to pay to the order of the entity or entities
appearing on Schedule 1 hereto from which it has received advances of credit
(individually and collectively, "Holder") at such place as shall be designated
from time to time by Holder to Maker, in lawful money of the United States of
America or in such other currencies applicable to any particular advance made
hereunder (each an "Advance" and, collectively, the "Advances") which may, from
time to time, be outstanding hereunder, such sum as may from time to time have
been advanced by Holder to Maker and then be outstanding hereunder, together
with interest thereon as hereinafter set forth. Each Advance shall bear interest
at [the average cost of borrowing of Vishay Intertechnology, Inc. from time to
time as certified by Holder/other interest rate] and shall be payable on demand.
Any interest not paid on demand, shall, at the option of the Holder, be added to
the principal amount of the Note.
This Note is a note under which advances, repayments and readvances may be
made from time to time.
This Note shall be fully subordinated in all respects to the Indebtedness.
Upon the occurrence and during the continuance of a Default or an Event of
Default and following delivery by Agent (upon the direction of the Required
Lenders) of notice (such notice to be delivered to Maker in care of Vishay
Intertechnology, Inc.) requiring that payments under this Note be suspended
payments of principal and interest shall no longer be permitted. During the
period when payments of interest hereon are not permitted, interest shall accrue
and be added to principal on each interest payment date.
Maker agrees, and Holder by accepting this Note agrees, that: (A) the
obligations evidenced by this Note are subordinated in right of payment to the
prior payment in full in cash of all the Indebtedness; the subordination is for
the benefit of the Lenders, and each Lender shall be deemed to have acquired
Indebtedness whether now outstanding or hereafter created, incurred, assumed or
guaranteed in reliance upon the covenants and provisions contained in this Note;
(B) if Maker is prohibited by the terms of this Note from making any payment of
principal, interest or any other sum under or in respect of this Note when due,
and therefore the Maker shall fail to pay when due any such sum, such failure
shall not constitute a default or event of default under and in respect of this
Note (provided that interest shall continue to accrue as provided herein and be
added to principal as herein set forth); and (C) no revision to any provision of
this Note applicable
or relevant to the subordination of this Note to the Indebtedness shall be made
or become effective until approved in writing by the Agent.
Upon any distribution (whether cash, securities or other property, by
setoff or otherwise) to creditors of Maker in a liquidation or dissolution of
Maker or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to Maker or its property: (A) the Lenders shall be entitled
to payment in full in cash of all obligations with respect to the Indebtedness
(including interest after the commencement of any such proceeding at the rates
specified for the applicable Indebtedness to the date of payment of the
Indebtedness) before Holder shall be entitled to receive any payment of any
obligations with respect to this Note; and (B) until all obligations with
respect to the Indebtedness are paid in full in cash, any distribution to which
Holder would be entitled shall be made to the Lenders as their interests may
appear.
No right of any Lender to enforce the subordination of the indebtedness
evidenced by this Note shall be impaired by any act or failure to act by the
Maker or by its failure to comply with the terms and conditions of this Note.
If any payment of principal or interest is made to Holder which under the
terms of this Note is prohibited, Holder agrees, by accepting delivery of this
Note that (a) such payment shall not be commingled with any of the assets of
Holder, shall be held in trust by Holder for the benefit of Agent and the
Lenders and shall be promptly paid over to Agent for application (in accordance
with the Credit Agreement) to the payment of the Indebtedness then remaining
unpaid, until all of the Indebtedness is paid in full in cash and all
commitments to lend have expired or been terminated, provided, however, if no
Indebtedness, including any contingent Indebtedness, is then outstanding Holder
shall hold such payment in trust for the benefit of Maker, and shall promptly
pay over the improper payment to Maker; and (b) none of the indebtedness
evidenced by this Note may be forgiven without the prior consent, in writing, of
the Agent.
This Note may be pledged by Holder pursuant to the requirements of the
Credit Agreement.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Maker hereby waives presentment for payment, demand, protest and notice of
dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Holder, by acceptance of this Note, shall be deemed to have accepted all
of the terms, conditions and limitations set forth herein, and shall be deemed
to have covenanted and agreed to abide by all of the obligations ascribed to it
in this Note.
Terms not defined herein shall have the meanings set forth in the Credit
Agreement. Nothing herein shall limit any right granted Holder by any other
instrument or by law.
As used herein, "Credit Agreement" shall mean that certain Vishay
Intertechnology, Inc. Second Amended and Restated Long Term Revolving Credit
Agreement dated as of July 31, 2003 by and among Vishay Intertechnology, Inc.,
the Permitted Borrowers, Comerica Bank, as Administrative Agent (the "Agent"),
and certain financial institutions from time to time signatory thereto (the
"Lenders"); and any extensions, renewals amendments, restatements or other
modifications made from time to time thereto.
[DOMESTIC SUBSIDIARY OR COMPANY]
By:_________________________________
Its:_________________________________
Dated: _____________, 200___
Pay to the order of Comerica Bank, as Agent
By: [Holder(s) of Note]
By:_________________________________
Its:________________________________
ANNEX 3
Exhibit L-3
INTERCOMPANY NOTE
(Intercompany Loan from Domestic Subsidiary or Company to
Foreign Subsidiary)
___________, 200__
ON DEMAND, FOR VALUE RECEIVED, each of the undersigned (individually and
collectively, "Maker") promises to pay to the order of the entity or entities
appearing on Schedule 1 hereto from which it has received advances of credit
(individually and collectively, "Holder") at such place as shall be designated
from time to time by Holder to Maker, in lawful money of the United States of
America or in such other currencies applicable to any particular advance made
hereunder (each an "Advance" and, collectively, the "Advances") which may, from
time to time, be outstanding hereunder, such sum as may from time to time have
been advanced by Holder to Maker and then be outstanding hereunder, together
with interest thereon as hereinafter set forth. Each Advance shall bear interest
at [the average cost of borrowing of Vishay Intertechnology, Inc. from time to
time as certified by Holder/other interest rate] and shall be payable on demand.
Any interest not paid on demand, shall, at the option of the Holder, be added to
the principal amount of the Note.
This Note is a note under which advances, repayments and readvances may be
made from time to time.
This Note shall be fully subordinated in all respects to the Indebtedness.
Upon the occurrence and during the continuance of a Default or an Event of
Default, no payments may be made of principal or interest on this Note (unless
the Agent, at the direction of the Required Lenders, has otherwise instructed
Maker). During the period when payments of interest hereon are not permitted,
interest shall accrue and be added to principal on each interest payment date.
Maker agrees, and Holder by accepting this Note agrees, that: (A) the
obligations evidenced by this Note are subordinated in right of payment to the
prior payment in full in cash of all the Indebtedness; the subordination is for
the benefit of the Lenders, and each Lender shall be deemed to have acquired
Indebtedness whether now outstanding or hereafter created, incurred, assumed or
guaranteed in reliance upon the covenants and provisions contained in this Note;
(B) if Maker is prohibited by the terms of this Note from making any payment of
principal, interest or any other sum under or in respect of this Note when due,
and therefore the Maker shall fail to pay when due any such sum, such failure
shall not constitute a default or event of default under and in respect of this
Note (provided that interest shall continue to accrue as provided herein and be
added to principal as herein set forth); and (C) no revision to any provision of
this Note applicable
or relevant to the subordination of this Note to the Indebtedness shall be made
or become effective until approved in writing by the Agent.
Upon any distribution (whether cash, securities or other property, by
setoff or otherwise) to creditors of Maker in a liquidation or dissolution of
Maker or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to Maker or its property: (A) the Lenders shall be entitled
to payment in full in cash of all obligations with respect to the Indebtedness
(including interest after the commencement of any such proceeding at the rates
specified for the applicable Indebtedness to the date of payment of the
Indebtedness) before Holder shall be entitled to receive any payment of any
obligations with respect to this Note; and (B) until all obligations with
respect to the Indebtedness are paid in full in cash, any distribution to which
Holder would be entitled shall be made to the Lenders as their interests may
appear.
No right of any Lender to enforce the subordination of the indebtedness
evidenced by this Note shall be impaired by any act or failure to act by the
Maker or by its failure to comply with the terms and conditions of this Note.
If any payment of principal or interest is made to Holder which under the
terms of this Note is prohibited, Holder agrees, by accepting delivery of this
Note that (a) such payment shall not be commingled with any of the assets of
Holder, shall be held in trust by Holder for the benefit of Agent and the
Lenders and shall be promptly paid over to Agent for application (in accordance
with the Credit Agreement) to the payment of the Indebtedness then remaining
unpaid, until all of the Indebtedness is paid in full in cash and all
commitments to lend have expired or been terminated, provided, however, if no
Indebtedness, including any contingent Indebtedness, is then outstanding Holder
shall hold such payment in trust for the benefit of Maker, and shall promptly
pay over the improper payment to Maker; and (b) none of the indebtedness
evidenced by this Note may be forgiven without the prior consent, in writing, of
the Agent.
This Note may be pledged by Holder pursuant to the requirements of the
Credit Agreement.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Maker hereby waives presentment for payment, demand, protest and notice of
dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Holder, by acceptance of this Note, shall be deemed to have accepted all
of the terms, conditions and limitations set forth herein, and shall be deemed
to have covenanted and agreed to abide by all of the obligations ascribed to it
in this Note.
Terms not defined herein shall have the meanings set forth in the Credit
Agreement. Nothing herein shall limit any right granted Holder by any other
instrument or by law.
As used herein, "Credit Agreement" shall mean that certain Vishay
Intertechnology, Inc. Second Amended and Restated Long Term Revolving Credit
Agreement dated as of July 31, 2003 by and among Vishay Intertechnology, Inc.,
the Permitted Borrowers, Comerica Bank, as Administrative Agent (the "Agent"),
and certain financial institutions from time to time signatory thereto (the
"Lenders"); and any extensions, renewals amendments, restatements or other
modifications made from time to time thereto.
[FOREIGN SUBSIDIARY]
By:_________________________________
Its:_________________________________
Dated: _____________, 200___
Pay to the order of Comerica Bank, as Agent
By: [Holder(s) of Note]
By:_________________________________
Its:_________________________________
ANNEX 4
Exhibit L-4
INTERCOMPANY NOTE
(Intercompany Loan from Foreign Subsidiary to Domestic Subsidiary or to Company)
___________, 200__
ON DEMAND, FOR VALUE RECEIVED, each of the undersigned (individually and
collectively, "Maker") promises to pay to the order of the entity or entities
appearing on Schedule 1 hereto from which it has received advances of credit
(individually and collectively, "Holder") at such place as shall be designated
from time to time by Holder to Maker, in lawful money of the United States of
America or in such other currencies applicable to any particular advance made
hereunder (each an "Advance" and, collectively, the "Advances") which may, from
time to time, be outstanding hereunder, such sum as may from time to time have
been advanced by Holder to Maker and then be outstanding hereunder, together
with interest thereon as hereinafter set forth. Each Advance shall bear interest
at [the average cost of borrowing of Vishay Intertechnology, Inc. from time to
time as certified by Holder/other interest rate] and shall be payable on demand.
Any interest not paid on demand, shall, at the option of the Holder, be added to
the principal amount of the Note.
This Note is a note under which advances, repayments and readvances may be
made from time to time.
This Note shall be fully subordinated in all respects to the Indebtedness.
Upon the occurrence and during the continuance of a Default or an Event of
Default, no payments may be made of principal or interest on this Note (unless
the Agent, at the direction of the Required Lenders, has otherwise instructed
Maker). During the period when payments of interest hereon are not permitted,
interest shall accrue and be added to principal on each interest payment date.
Maker agrees, and Holder by accepting this Note agrees, that: (A) the
obligations evidenced by this Note are subordinated in right of payment to the
prior payment in full in cash of all the Indebtedness; the subordination is for
the benefit of the Lenders, and each Lender shall be deemed to have acquired
Indebtedness whether now outstanding or hereafter created, incurred, assumed or
guaranteed in reliance upon the covenants and provisions contained in this Note;
(B) if Maker is prohibited by the terms of this Note from making any payment of
principal, interest or any other sum under or in respect of this Note when due,
and therefore the Maker shall fail to pay when due any such sum, such failure
shall not constitute a default or event of default under and in respect of this
Note (provided that interest shall continue to accrue as provided herein and be
added to principal as herein set forth); and (C) no revision to any provision of
this Note applicable or relevant to the subordination of this Note to the
Indebtedness shall be made or become effective until approved in writing by the
Agent.
Upon any distribution (whether cash, securities or other property, by
setoff or otherwise) to creditors of Maker in a liquidation or dissolution of
Maker or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to Maker or its property: (A) the Lenders shall be entitled
to payment in full in cash of all obligations with respect to the Indebtedness
(including interest after the commencement of any such proceeding at the rates
specified for the applicable Indebtedness to the date of payment of the
Indebtedness) before Holder shall be entitled to receive any payment of any
obligations with respect to this Note; and (B) until all obligations with
respect to the Indebtedness are paid in full in cash, any distribution to which
Holder would be entitled shall be made to the Lenders as their interests may
appear.
No right of any Lender to enforce the subordination of the indebtedness
evidenced by this Note shall be impaired by any act or failure to act by the
Maker or by its failure to comply with the terms and conditions of this Note.
If any payment of principal or interest is made to Holder which under the
terms of this Note is prohibited, Holder agrees, by accepting delivery of this
Note that (a) such payment shall not be commingled with any of the assets of
Holder, shall be held in trust by Holder for the benefit of Agent and the
Lenders and shall be promptly paid over to Agent for application (in accordance
with the Credit Agreement) to the payment of the Indebtedness then remaining
unpaid, until all of the Indebtedness is paid in full in cash and all
commitments to lend have expired or been terminated, provided, however, if no
Indebtedness, including any contingent Indebtedness, is then outstanding Holder
shall hold such payment in trust for the benefit of Maker, and shall promptly
pay over the improper payment to Maker; and (b) none of the indebtedness
evidenced by this Note may be forgiven without the prior consent, in writing, of
the Agent.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Maker hereby waives presentment for payment, demand, protest and notice of
dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Holder, by acceptance of this Note, shall be deemed to have accepted all
of the terms, conditions and limitations set forth herein, and shall be deemed
to have covenanted and agreed to abide by all of the obligations ascribed to it
in this Note.
Terms not defined herein shall have the meanings set forth in the Credit
Agreement. Nothing herein shall limit any right granted Holder by any other
instrument or by law.
As used herein, "Credit Agreement" shall mean that certain Vishay
Intertechnology, Inc. Second Amended and Restated Long Term Revolving Credit
Agreement dated as of July 31, 2003 by and among Vishay Intertechnology, Inc.,
the Permitted Borrowers, Comerica Bank, as Administrative Agent (the "Agent"),
and certain financial institutions from time to time signatory thereto (the
"Lenders"); and any extensions, renewals, amendments, restatements or other
modifications made from time to time thereto.
[DOMESTIC SUBSIDIARY OR COMPANY]
By:_________________________________
Its:_________________________________
Dated: _____________, 200___
[Pay to the order of Comerica Bank, as Agent
By: [Holder(s) of Note]
By:_________________________________
Its:________________________________]
