Exhibit 4.6
SECOND AMENDMENT TO AMENDED AND RESTATED
VISHAY INTERTECHNOLOGY, INC. LONG TERM
REVOLVING CREDIT AGREEMENT AND CONSENT
THIS SECOND AMENDMENT AND CONSENT ("Second Amendment") is made as of this
13th day of December, 2002 by and among Vishay Intertechnology, Inc., a Delaware
corporation ("Company"), and the Permitted Borrowers, Comerica Bank and the
Lenders signatory hereto and Comerica Bank, as administrative agent for the
Lenders (in such capacity, "Agent").
RECITALS:
A. The Company and each of the Permitted Borrowers, Agent and certain
of the Lenders entered into that certain Amended and Restated Vishay
Intertechnology, Inc. Long Term Revolving Credit Agreement dated as of June 1,
1999, as amended by First Amendment dated as of August 31, 2000 (the "Credit
Agreement") under which such Lenders renewed and extended (or committed to
extend) credit to the Company and the Permitted Borrowers (collectively with the
Company, the "Borrowers"), as set forth therein.
B. At the request of the Borrowers, Agent and the requisite Lenders
signatory to this Second Amendment have agreed (i) to make certain amendments to
the Credit Agreement and to certain other Loan Documents as hereinafter set
forth and (ii) to consent to the BCc Acquisition (as defined below) and certain
related changes in capital structure, but in each case only on the terms and
conditions set forth in this Second Amendment.
NOW THEREFORE, the Borrowers, Agent and the Lenders agree:
1. Section 1 of the Credit Agreement shall be amended by:
(a) adding the following new definitions:
"BCc Acquisition" shall mean the acquisition by the Company,
directly or through its subsidiaries, of BCcomponents and its
subsidiaries (and related property and interests) pursuant, subject
to the terms hereof, to the BCc Acquisition Documents.
"BCc Acquisition Documents" shall mean the BCc Share Purchase
Agreement, together with all other related documents and instruments
(including conveyances) executed and delivered in connection with
the BCc Acquisition, as amended (subject to the terms hereof) from
time to time.
"BCcomponents" shall mean BCcomponents Holdings B.V., a Dutch
private limited liability company.
"BCc Share Purchase Agreement" shall mean that certain Share Sale
and Purchase Agreement dated November 10, 2002 by and among the BCc
Shareholders, the Foundation, BCcomponents International BV (each
such term being defined therein), the Company and Vishay Europe, as
amended (subject to the terms hereof) from time to time.
"FPB Advance Notice" shall mean notice from the Company or the
applicable Foreign Permitted Borrower that such Foreign Permitted
Borrower intends to submit a Request for Advance (or for the
issuance of a Letter of Credit) under this Agreement.
"Revolving Credit Optional Increase" shall mean an amount up to One
Hundred Million Dollars ($100,000,000), minus the portions thereof
applied from time to time pursuant to Section 2.17 hereof to
increase the Revolving Credit Aggregate Commitment.
"Second Amendment" shall mean that certain Second Amendment to the
Credit Agreement and Consent dated as of December 12, 2002 by and
among the Company, the Permitted Borrowers, Agent and the Lenders
signatory thereto.
"Second Amendment Effective Date" is defined in Section 8 of the
Second Amendment.
"Security Agreement(s)" shall mean the security agreements executed
and delivered by the Company, each Significant Domestic Subsidiary
and certain Significant Foreign Subsidiaries pursuant to this
Agreement incorporated under the laws of the United States of
America, or a state, territory, possession or other political
subdivision thereof (whether by execution thereof or by execution of
a joinder agreement attached to the form of such security agreement)
in favor of the Agent substantially in the form of the security
agreements previously delivered under this Agreement, as amended or
otherwise modified from time to time.
"Senior Debt" shall mean, with respect to the Company and its
Consolidated Subsidiaries, Total Indebtedness, excluding
Subordinated Debt.
"Subordinated Debt" shall mean all Debt of the Company and its
Subsidiaries which has been subordinated in right of payment and
priority to the Indebtedness, in each case on terms and conditions
reasonably satisfactory to the Agent and the Required Lenders,
including, without limitation, the Subordinated Debt existing on the
Second Amendment Effective Date and identified (as such) on Schedule
8.13 hereto.
(b) amending and restating the following existing definitions:
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"Revolving Credit Aggregate Commitment" shall mean Five Hundred
Million Dollars ($500,000,000), subject to any increases in the
Revolving Credit Aggregate Commitment pursuant to Section 2.17 of
this Agreement by an amount not to exceed the Revolving Credit
Optional Increase, and subject to any reduction or termination of
the Revolving Credit Aggregate Commitment under Section 2.15 or 9.2
hereof.
"Significant Domestic Subsidiary(ies)" shall mean, on the Second
Amendment Effective Date, those Domestic Subsidiaries identified as
Significant Domestic Subsidiaries on Schedule 6.6A hereto (for
purposes of determining the required Guarantors hereunder) and
Schedule 6.6B hereto (for purposes of determining those Subsidiaries
whose share capital is required to be encumbered by a Pledge
Agreement hereunder) and thereafter shall mean the Significant
Domestic Subsidiaries as of the Second Amendment Effective Date and
all other Domestic Subsidiaries, whether existing as of the
Effective Date or created or acquired by the Company thereafter,
except any Subsidiary:
(a) the total assets of which, on an individual basis, on
any date of determination, are less than $5,000,000; and
(b) which has, as of the most recent fiscal quarter then
ending, for the four preceding fiscal quarters, an EBITDA of less
than $1,000,000;
provided however that, notwithstanding the foregoing, Siliconix
shall not be considered a Significant Subsidiary hereunder unless
and until becoming a 100% Subsidiary.
"Significant Foreign Subsidiary(ies)" shall mean, on the Second
Amendment Effective Date, those Foreign Subsidiaries which have
executed and delivered a Foreign Guaranty on or prior to the Second
Amendment Effective Date, as identified on Schedule 6.6A hereto (for
purposes of determining the required Guarantors hereunder) or whose
share capital (or any portion thereof) has been encumbered by a
Pledge Agreement on or prior to the Second Amendment Effective Date,
as identified Schedule 6.6B hereto (for purposes of determining
those Subsidiaries whose share capital is required to be encumbered
by a Pledge Agreement hereunder) and thereafter shall mean the
Significant Foreign Subsidiaries as of the Second Amendment
Effective Date and all other Foreign Subsidiaries, whether existing
as of the Effective Date or created or acquired by the Company
thereafter, except any Subsidiary:
(a) the total assets of which, on an individual basis, on
any date of determination, are less than $30,000,000; and
(b) which has, as of the most recent fiscal quarter then
ending, for the four preceding fiscal quarters, an EBITDA of less
than $2,500,000;
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provided however that, notwithstanding the foregoing, Vishay Israel
shall not be considered a Significant Subsidiary hereunder.
"Significant Subsidiary(ies)" shall mean the Significant Domestic
Subsidiaries and the Significant Foreign Subsidiaries.
(c) amending the following existing definitions, as follows:
The references to "January 1, 1998" in the definition of "Equity
Offering Adjustment" and to "March 31, 1999" in the definition of
"Net Income Adjustment" are changed to January 1, 2003.
The definition of "Fees" is amended to delete, after the reference
to "Syndication Fee" (in the second line thereof), the words, added
by the First Amendment, "the Utilization Fee".
The definition of "Indebtedness" is amended to delete, after the
word Subsidiaries (in the fifth line thereof), the parenthetical
phrase, added by the First Amendment, "(other than any Special
Purpose Subsidiary)."
The definitions of "Intercompany Loan" and "Intercompany Loans,
Advances or Investments" are amended to delete, after each reference
to Subsidiary in such definitions, the parenthetical phrase, added
by the First Amendment, "(excluding any Special Purpose
Subsidiary)."
The definition of "Total Indebtedness" is amended to delete, at the
end of such definition, the words (added by the First Amendment) ",
including without limitation any Debt incurred by a Special Purpose
Subsidiary pursuant to a Permitted Securitization, whether or not
required to be so included in accordance with GAAP."
(d) deleting, in their entirety, the definitions of "Permitted
Securitization," "Securitization Transactions," "Special Purpose
Subsidiary," "Utilization Fee" and "Utilization Fee Percentage".
2. Section 2 of the Credit Agreement is amended as follows:
(a) Clause (a) of Section 2.1 (Commitment) of the Credit Agreement is
amended and restated in its entirety, as follows:
"(a) No Permitted Borrower shall be entitled to request an Advance
of the Revolving Credit or the Swing Line or the issuance of a
Letter of Credit hereunder until (i) it has become a party to this
Agreement, either by execution and delivery of this Agreement, or by
execution and delivery of a Permitted Borrower Addendum to this
Agreement, (ii) it has become a party to the applicable Guaranty
either by execution and delivery of such Guaranty or by execution
and delivery of a Joinder Agreement to such Guaranty, (iii) in the
case of each Domestic Permitted Borrower, it has
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become a party to the applicable Security Agreement, (iv) in the
case of the first Advance to a Foreign Permitted Borrower after the
Second Amendment Effective Date, the Company, or such Foreign
Permitted Borrower, has submitted to the Agent, not less than 60
days prior to date of such Advance, a FPB Advance Notice and (v) in
the case of each Permitted Borrower, the Company has encumbered
and/or delivered (or caused to be encumbered and/or delivered), as
the case may be, pursuant to a Pledge Agreement those shares of
stock issued by such Permitted Borrower and owned (directly or
indirectly) by the Company which are required to be encumbered
and/or delivered under the Prior Credit Agreement or Section 7.16 or
7.17 hereof, as applicable, and accompanied in each case by
authority documents, legal opinions and other supporting documents
as reasonably required by Agent and the Required Lenders hereunder;"
(b) Section 2.13A (Utilization Fee) is deleted from the Credit
Agreement, in its entirety.
(c) Existing Section 2.17 of the Credit Agreement is redesignated in its
entirety as Section 2.18 and New Section 2.17 is added to the Credit
Agreement as follows:
"2.17 Optional Increase in Revolving Credit Aggregate Commitment.
Provided that no Default or Event of Default has occurred and is
continuing, and provided that the Company has not previously elected
to terminate the Revolving Credit Aggregate Commitment under Section
2.15 hereof, the Company may request that the Revolving Credit
Aggregate Commitment be increased in an aggregate amount (for all
such Requests for Increase (as defined below) under this Section
2.17) not to exceed the Revolving Credit Optional Increase, subject,
in each case, to Section 11.1 hereof and to the satisfaction
concurrently with or prior to the date of each such request of the
following conditions:
(a) the Company shall have delivered to the Agent not less
than thirty (30) days prior to the Revolving Credit Maturity Date
then in effect a written request for such increase, specifying the
amount of Revolving Credit Optional Increase thereby requested (each
such request, a "Request for Increase"); provided, however that in
the event the Company has previously delivered a Request for
Increase pursuant to this Section 2.17, the Company may not deliver
a subsequent Request for Increase until all the conditions to
effectiveness of such first Request for Increase have been fully
satisfied or waived hereunder (or such Request for Increase has been
withdrawn); and provided further that the Company may make no more
than two Requests for Increase in any calendar year;
(b) a lender or lenders meeting the requirements of Section
13.8(c) hereof and acceptable to the Company and the Agent (for
purposes
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of this Section 2.17, such lenders, together with any existing
Lender which agrees to increase its commitment hereunder, being
referred to herein as the "New Lender(s)") shall have become a party
to this Agreement by executing and delivering a New Lender Addendum
(in the form attached as Exhibit K) for a minimum amount (including
for the purposes of this Section 2.17, the existing commitment of
any existing Lender) for each such New Lender of Ten Million Dollars
($10,000,000) and an aggregate amount for all such New Lenders of
that portion of the Revolving Credit Optional Increase, taking into
account the amount of any prior increase in the Revolving Credit
Aggregate Commitment (pursuant to this Section 2.17), covered by the
applicable Request for Increase, provided, however that each New
Lender shall remit to the Agent funds in an amount equal to its
Percentage (after giving effect to this Section 2.17) of all
Advances of the Revolving Credit then outstanding, such sums to be
reallocated among and paid to the existing Lenders based upon the
new Percentages as determined below;
(c) the Company (i) shall have paid to the Agent for
distribution to the existing Lenders, as applicable (based on the
existing Percentages, before giving effect to the applicable Request
for Increase) all interest, fees (including the Revolving Credit
Facility Fee and the Letter of Credit Fees) and other amounts, if
any, accrued to the effective date of such increase and any breakage
fees attributable to the reduction (prior to the last day of the
applicable Interest Period) of any outstanding Eurocurrency-based
Advances, calculated on the basis set forth in Section 11.1 hereof
as though Company has prepaid such Advances and (ii) shall have paid
to each New Lender (based on its applicable Percentage, but if an
existing Lender on such date, only to the extent of its increase in
Percentage) a special letter of credit fee on the Letters of Credit
outstanding on the effective date of such increase, calculated on
the basis of the Letter of Credit Fees which would be applicable to
such Letters of Credit if issued on the date of such increase, for
the period from the effective date of such increase to the
expiration date of such Letters of Credit;
(d) the Company and each of the Permitted Borrowers shall
have executed and delivered to the Agent, if requested by such New
Lenders, new Revolving Credit Notes payable to each of the New
Lenders in the face amount of each such New Lender's Percentage of
the Revolving Credit Aggregate Commitment (after giving effect to
this Section 2.17) and, if applicable, renewal and replacement
Revolving Credit Notes payable to each of the existing Lenders in
the face amount of each such Lender's Percentage of the Revolving
Credit Aggregate Commitment (after giving effect to this Section
2.17), each of such Revolving Credit Notes to be substantially in
the form of Exhibit B-1 or B-2 to the Credit Agreement, as
applicable, and dated as of the effective
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date of such increase (with appropriate insertions relevant to such
Notes and acceptable to the applicable Lender, including the New
Lenders);
(e) except to the extent such representations and warranties
are not, by their terms, continuing representations and warranties,
but speak only as of a specific date, the representations and
warranties made by Company, the Permitted Borrower, or each
Guarantor in this Agreement or any of the other Loan Documents, and
the representations and warranties of any of the foregoing which are
contained in any certificate, document or financial or other
statement required to be furnished at any time hereunder or
thereunder shall have been true and correct in all material respects
when made and shall be true and correct in all material respects on
and as of the effective date of such increase; and (ii) no Default
or Event of Default shall have occurred and be continuing as of the
effective date of such increase; and
(f) such other amendments, acknowledgments, consents,
documents, instruments, any registrations, if any, shall have been
executed and delivered and/or obtained by Company as required by
Agent, in its reasonable discretion.
Promptly on or after the date on which all of the conditions to such
Request for Increase set forth above have been satisfied or waived,
Agent shall notify the Company and each of the Lenders of the amount
of the Revolving Credit Aggregate Commitment as increased pursuant
this Section 2.17 and the date on which such increase has become
effective and shall prepare and distribute to the Company and each
of the Lenders (including the New Lenders) a revised Schedule 1.1 to
this Agreement setting forth the applicable new Percentages of the
Lenders (including the New Lender(s)), taking into account such
increase and assignments (if any)."
3. Section 7 of the Credit Agreement shall be amended as follows:
(a) The preamble to Section 7 is amended to delete after the word
"Subsidiaries" (in the second line thereof) the parenthetical
phrase, added by the First Amendment, "(excluding any Special
Purpose Subsidiary)".
(b) Clause (f) of Section 7.3 (Reporting Requirements) is amended to
delete at the end of clause (f) the words, added by the First
Amendment, "and promptly following each Permitted Securitization,
copies of the principal operative documents relating to such
Permitted Securitization."
(c) Section 7.4 (Tangible Net Worth) is amended to change the date
reference in the second line thereof from "December 31, 1998" to
"December 31, 2002" and to change the reference to "Five Hundred
Fifty Two Million Four Hundred One Thousand Three Hundred Twenty
Three Dollars
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($552,401,323)" in the third and fourth lines thereof to "Nine
Hundred Million Dollars ($900,000,000)".
(d) Section 7.5 (Leverage Ratio) is amended and restated in its entirety
as follows:
"7.5 Leverage Ratio. Maintain, as of the last day of each fiscal
quarter during the periods specified below, a Leverage Ratio of not
more than the following amounts during the periods specified below:
Period Ratio
------ -----
Effective date through December 30, 2003 3.50
December 31, 2003 through December 30, 2004 3.25
December 31, 2004 and thereafter 3.00
(e) New Section 7.6A (Senior Debt Ratio) is added to the Credit
Agreement (immediately following Section 7.6), as follows:
"7.6A Senior Debt Ratio. Maintain, as of the last day of each fiscal
quarter ending during the periods specified below, for the four
fiscal quarters then ending, a ratio of Senior Debt to Consolidated
EBITDA of not more than the following amounts during the periods
specified below:
Period Ratio
------ -----
Effective date through December 30, 2003 1.75
December 31, 2003 and thereafter 1.50
(f) Clause (a) of Section 7.16 (Future Subsidiaries) is amended and
restated in its entirety as follows:
"(a) With respect to each Person which becomes a Significant
Subsidiary subsequent to the Effective Date, cause such new
Subsidiary to execute and deliver to the Agent (i) in the case of
each such Significant Domestic Subsidiary, (x) a Joinder Agreement
whereby such Significant Domestic Subsidiary becomes obligated as a
Guarantor under the Domestic Guaranty and (y) a Joinder Agreement
whereby such Significant Domestic Subsidiary becomes obligated under
the applicable Security Agreement, such documents to be executed and
delivered within thirty days of the date such Person is created,
acquired or otherwise becomes a Significant Subsidiary (whichever
first occurs) and (ii) in the case of each such Significant Foreign
Subsidiary, (a) a Joinder Agreement whereby such Significant Foreign
Subsidiary becomes obligated as a Guarantor under the Foreign
Guaranty and (b) a Security Agreement or a Joinder Agreement whereby
such Significant Foreign Subsidiary incorporated
8
under the laws of the United States of America becomes obligated
under the applicable Security Agreement, as the case may be, such
documents to be executed and delivered within fifty-five days of the
Agent's receipt of a FPB Advance Notice; and"
(g) Clause (b) of Section 7.16 (Future Subsidiaries) is amended to add,
in the second line thereof, following the words "Effective Date"
(after the comma) the words, "if such Subsidiary is a direct
Subsidiary of the Company or a Domestic Subsidiary, and to add, at
the end of clause (b), before the semicolon, the following:
"and; for all other Foreign Subsidiaries within fifty-five days of
the Agent's receipt of a FPB Advance Notice, the Company shall
execute, or cause to be executed, and deliver to the Agent a Pledge
Agreement encumbering subject to Section 7.17 hereof, with a first
priority Lien 65% of the share capital of each such Significant
Foreign Subsidiary to secure the Indebtedness of the Company and the
Domestic Permitted Borrowers and the Indebtedness (as such term is
defined therein) of such parties under the Short Term Revolving
Credit Agreement and 100% of the share capital of each such
Significant Foreign Subsidiary to secure the Indebtedness of the
Foreign Permitted Borrowers hereunder; and"
4. Section 8 of the Credit Agreement shall be amended as follows:
(a) Clause (e) of Section 8.2 (Limitations on Fundamental Changes) is
amended to delete, after the words Permitted Transfers, the words,
added by the First Amendment, "and Permitted Securitizations."
(b) The reference in the last line of Section 8.3 (Guaranties) to
"Section 8.7(g)" is changed to "clauses (d), (e), (f) or (g) of
Section 8.7."
(c) The first clause of Clause (f) of Section 8.4 (Debt) (contained in
the first two lines of said Section) is hereby amended and restated
(without affecting the balance of said Section) to read as follows:
"Debt to third parties issued by any Foreign Subsidiary of the
Company in an aggregate amount at any time outstanding not to exceed
$55,000,000;"
(d) The words "on a pari passu basis with the Indebtedness, or"
contained in the fifth line of clause (h) of Section 8.4 (Debt) are
deleted.
(e) The period at the end of clause (i) of Section 8.4 is changed to ";
and," and new clause (j) is added, as follows:
"(j) unsecured Debt issued (or to be issued) by the Company in an
aggregate principal amount not to exceed $105,000,000 to refinance
the mezzanine debt issued by BCcomponents prior to the BCc
Acquisition (the "BCc Replacement Financing")."
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(f) Section 8.5 (Liens) is amended to delete clause (f), added by the
First Amendment, in its entirety, and to move the "; and" from the
end of clause (e) thereof to the end of clause (d).
(g) Section 8.7 (Investments) is amended to change the reference to
"five percent (5%)" in clause (g) thereof to "seven and one-half
percent (7.5%)", and to delete clause (l) in its entirety, added by
the First Amendment, and to move the "; and" from the end of clause
(k) to the end of clause (j).
(h) Section 8.8 (Accounts Receivable) is amended to delete, at the end
of such section, the words (added by the First Amendment) ", and
except pursuant to a Permitted Securitization."
(i) Section 8.11 (Prohibition Against Certain Restrictions) is amended
to delete (after the word "Agreement" in the parenthetical phrase in
the second line thereof) the words, added by the First Amendment,
"and excluding any such agreement by a Special Purpose Subsidiary
pursuant to a Permitted Securitization, but only to the extent such
agreement applies only to such Special Purpose Subsidiary."
(j) Section 8.12 (Amendment of Various Documents) is amended to add, in
the caption (immediately preceding Temic Acquisition Agreement) the
words "BCc Acquisition Documents," and to add in the third line
thereof, immediately preceding the words "Temic Acquisition
Agreement," the words "BCc Acquisition Documents."
(k) New Sections 8.13 (Amendment of Subordinated Debt Documents), 8.14
(Limitations on Prepayments) and 8.15 (EBIT Requirement) are added
to the Credit Agreement, as follows:
"8.13 Amendment of Subordinated Debt and Other Debt Documents.
Amend, modify or otherwise alter (or suffer to be amended, modified
or altered) any of the terms and conditions of those documents or
instruments evidencing or otherwise related to any Debt set forth on
Schedule 8.13 or any other Subordinated Debt, except for those
amendments, modifications or other alterations which could not
reasonably be determined to have a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole,
(b) the ability of the Company or any of its Subsidiaries to perform
their respective obligations under this Agreement or any other Loan
Document to which any of them is a party, or (c) the validity or
enforceability of this Agreement or any of the other Loan Documents
or the rights or remedies of the Agent or the Lenders hereunder or
thereunder, or except as may be approved by Agent and the Required
Lenders."
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"8.14 Payment or Prepayment of Other Debts. Prepay, purchase, redeem
or defease any Subordinated Debt or other Debt set forth on Schedule
8.14, except to the extent permitted under that certain Consent
issued by the Agent, for and on behalf of the Lenders, on May 29,
2001 with respect to the Additional Debt (as defined therein) and
under that certain consent issued by the Agent for and on behalf of
the Lenders on November 2, 2001 (with respect to the Subordinated
Debt issued by General Semiconductor); and, except for regularly
scheduled payments of interest, make any payments, prepayments or
purchase, redeem or otherwise defease the BCc Replacement Financing
in cash or cash equivalents, prior to the Revolving Credit Maturity
Date as in effect on the Second Amendment Effective Date."
"8.15 EBIT Requirement. Have EBIT, determined on a Consolidated
basis for the Company and its Subsidiaries (as defined below), which
is a negative number for two or more consecutive fiscal quarters.
For purposes of this Section 8.15, "EBIT" shall mean Net Income of
the Company and its Subsidiaries (determined on a consolidated
basis) for the applicable period adjusted to exclude, without
duplication, the following items of income or expense to the extent
that such items are included in the calculation of Net Income:
Interest Expense, and total income tax expense."
5. Section 13 of the Credit Agreement shall be amended, as follows:
(a) Section 13.11 (Amendment and Waiver) is amended and restated in its
entirety, as follows:
"13.11 Amendment and Waiver. No amendment or waiver of any provision
of this Agreement or any other Loan Document, or consent to any
departure by the Company or the Permitted Borrowers therefrom, shall
in any event be effective unless the same shall be in writing and
signed by the Required Lenders (or signed by the Agent at the
direction of the Required Lenders), and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (X) no
amendment, waiver or consent shall increase the Percentage or the
stated commitment amounts applicable to any Lender unless approved,
in writing, by the affected Lender and (Y) no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders, do
any of the following: (a) increase the Revolving Credit Aggregate
Commitment, except pursuant to Section 2.17 hereof, (b) reduce the
principal of, or interest on, the Advances or any Fees or other
amounts payable hereunder, (c) postpone any date fixed for any
payment of principal of, or interest on, the outstanding Advances or
any Fees or other amounts payable hereunder, (d) waive any Event of
Default specified in Section 9.1(a) or (b) hereof, (e) release or
defer the granting or perfecting of a lien or security interest in
any Collateral or release any
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guaranty or similar undertaking provided by any Person or modify any
indemnity provided to the Lenders, hereunder or under the other Loan
Documents, except as shall be otherwise expressly provided in this
Agreement or any other Loan Document, (f) take any action which
requires the signing of all Lenders pursuant to the terms of this
Agreement or any other Loan Document, (g) change the aggregate
unpaid principal amount of the outstanding Advances which shall be
required for the Lenders or any of them to take any action under
this Agreement or any other Loan Document, (h) change this Section
13.11, or (i) change the definition of "Required Lenders", "Interest
Periods", "Alternative Currencies", "Permitted Borrower" or
"Percentage"; and provided further, however, that no amendment,
waiver or consent hereunder shall, unless in writing and signed (x)
by the Agent, in addition to all the Lenders, affect the rights or
duties of the Agent under this Agreement or any other Loan Document,
whether in its capacity as Agent or the issuing bank or (y) by the
Swing Line Bank, in addition to all the Lenders, affect the rights
or duties of the Swing Line Bank under this Agreement or any other
Loan Documents, in its capacity as Swing Line Bank. All references
in this Agreement to "Lenders" or "the Lenders" shall refer to all
Lenders, unless expressly stated to refer to "Required Lenders."
6. Replacement Schedule 4.1 (Pricing Matrix) to the Credit Agreement set
forth on Attachment 1 shall replace in its entirety, the existing Schedule
4.1 to the Credit Agreement. Replacement Schedules 6.6A and 6.6B to the
Credit Agreement (relating to the Significant Subsidiaries and set forth
on Attachment 2) shall replace in their entirety the existing Schedule
6.6A and 6.6B and Replacement Schedule 8.3 (set forth on Attachment 3)
shall replace in its entirety existing Schedule 8.3. New Schedules 8.13
and 8.14 are added to the Credit Agreement in the form of Attachments 4
and 5, respectively. New Exhibit K is hereby added to the Credit Agreement
in the form of Attachment 6.
7. The Company has requested that the requisite Lenders consent to the BCc
Acquisition and to the changes in capital structure identified on
Attachment 7. The Agent and the requisite Lenders hereby consent to the
BCc Acquisition and to the changes in capital structure identified on
Attachment 7 substantially on the terms and conditions set forth in the
BCc Share Purchase Agreement and otherwise as set forth in this Second
Amendment, provided that the following conditions are satisfied or waived
on the date of the BCc Acquisition:
(a) the BCc Acquisition Documents shall be in form and substance
reasonably satisfactory to the Agent and the requisite Lenders and
each of the BCc Acquisition Documents shall have been duly
authorized, executed and delivered by each of the parties thereto
and shall be in full force and effect;
(b) no term or provision of the BCc Acquisition Documents shall have
been modified, and no condition to consummation of the BCc
Acquisition shall have been waived, in either case in a manner
materially detrimental to the Company, by any of the parties
thereto;
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(c) the Company shall have in all material respects done and performed
such acts and observed such covenants which each is required to do
or perform under the BCc Acquisition Documents in order to
consummate the BCc Acquisition; and
(d) no Default or Event of Default shall have occurred and be
continuing.
If the BCc Acquisition has not been consummated prior to January 31, 2003
(or such later date approved by the Required Lenders) this Consent shall
expire and be of no further force and effect.
8. This Second Amendment shall become effective (according to the terms
hereof) on the date confirmed in a written notice to the Borrowers and the
Lenders from the Agent (such date, the "Second Amendment Effective Date")
that the following conditions have been fully satisfied by the Borrowers,
which date shall occur on or before December 31, 2002 (the "Conditions"):
(a) Agent shall have received counterpart originals of this Second
Amendment, duly executed and delivered by each of the Borrowers, and
the requisite Lenders, and of acknowledgments and reaffirmations of
the Guarantors, in each case in form reasonably satisfactory to
Agent and the Lenders;
(b) Agent shall have received from each of the Borrowers and each of the
Guarantors a certification (i) that all necessary actions have been
taken by such parties to authorize execution and delivery of this
Second Amendment (and any acknowledgments and reaffirmations),
supported by such resolutions or other evidence of corporate
authority or action as reasonably required by Agent and that no
consents or other authorizations of any third parties are required
in connection therewith; and (ii) that, after giving effect to this
Second Amendment, no Default or Event of Default has occurred and is
continuing on the proposed effective date of the Second Amendment;
(c) To the extent aggregate Advances of the Revolving Credit (and the
undrawn amount of any Letters of Credit) and the Swing Line
outstanding on such date exceed the Revolving Credit Aggregate
Commitment (as reduced by the Second Amendment), the Company or any
Permitted Borrower, as applicable, shall prepay the amount of such
Advances in accordance with the terms set forth in Credit Agreement
(including any breakage costs assessed under Section 11.1 of the
Credit Agreement), such prepayment to be distributed to the Lenders
based on the Percentages in effect on the Second Amendment Effective
Date, accompanied by any breakage costs, as aforesaid;
(d) Agent shall have received from Company and each of the Domestic
Guarantors (as of the Second Amendment Effective Date) counterpart
13
originals of a Security Agreement covering all tangible and
intangible personal property (excluding real estate and fixtures)
substantially in the form of the Security Agreement previously in
effect (prior to the First Amendment) under the Credit Agreement;
provided, however, the Company and the Domestic Guarantors shall be
required to deliver Schedule I (Intellectual Property) to the
Security Agreement and any other items or documentation relating to
the Intellectual Property owned by such Persons on or before
December 23, 2002; and
(e) Company shall have paid to Agent, an amendment and consent fee in
the amount of 0.20% of the aggregate amount of the Revolving Credit
Aggregate Commitment (after giving effect to reduction thereof under
the Second Amendment), for distribution to those Lenders (based on
the applicable Percentages in effect on the Second Amendment
Effective Date) which executed and delivered this Second Amendment
on or before December 11, 2002, and, to the extent applicable, shall
have selected new Interest Periods for the Advances to be
outstanding on the First Amendment Effective Date in compliance with
Sections 2.3 and 2.5(c) of the Credit Agreement.
9. Each of Company, the Permitted Borrowers and the Guarantors hereby
represents and warrants that, after giving effect to the amendments
contained herein, (a) execution and delivery of this Second Amendment and
the performance by each of 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 the Amended Credit
Agreement, of any governmental body, agency or authority, and the Amended
Credit Agreement, will constitute the valid and binding obligations of
such undersigned parties enforceable in accordance with its 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 in all material respects on and as of the date hereof;
and (c) each of the foregoing representations and warranties (whether
expressly set forth or incorporated by reference) are and shall remain
continuing representations and warranties until the termination or
expiration of the Amended Credit Agreement.
10. Except as specifically set forth above, this Second Amendment shall not be
deemed to amend or alter in any respect the terms and conditions of the
Credit Agreement (including without limitation all conditions and
requirements for Advances and any financial covenants) or any of the other
Loan Documents, or to constitute a waiver or release by any of the Lenders
or the Agent of any right, remedy, Default or Event of Default under the
Credit Agreement or any of the other Loan Documents, except to the extent
specifically set forth above.
14
Furthermore, this Second Amendment shall not affect in any manner
whatsoever any rights or remedies of the Lenders or the Agent with respect
to any other non-compliance by the Borrowers with the Credit Agreement or
the other Loan Documents, whether in the nature of a Default or Event of
Default, and whether now in existence or subsequently arising, and shall
not apply to any other transaction.
11. Unless otherwise defined to the contrary herein, all capitalized terms
used in this Second Amendment shall have the meanings set forth in the
Credit Agreement.
12. This Second Amendment shall be a contract made under and governed by the
internal laws of the State of Michigan, and may be executed in counterpart
in accordance with Section 13.10 of the Credit Agreement.
* * *
[Signatures follow on succeeding pages]
15
IN WITNESS WHEREOF, Company, the Permitted Borrowers, the Lenders and
Agent have each caused this Second Amendment to be executed by their respective
duly authorized officers or agents, as applicable, all as of the date first set
forth above.
COMPANY: AGENT:
VISHAY INTERTECHNOLOGY, INC. COMERICA BANK, As Agent
By:__________________________________ By:______________________________
Its: Executive Vice President, Its: Vice President
Chief Financial Officer and One Detroit Center
Director 000 Xxxxxxxx Xxxxxx
00 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx, Xxxxxxxxxxxx 00000 Attention: Corporate Finance
PERMITTED BORROWERS:
VISHAY EUROPE GmbH
By:_________________________________
Its:________________________________
VISHAY ELECTRONIC GmbH
By:_________________________________
Its:________________________________
XXXXXX VERWALTUNGSGESELLSCHAFT mbH
By:_________________________________
Its:________________________________
16
COMERICA BANK, individually
and as Issuing Bank
By:__________________________________
Its:_________________________________
17
BANK OF AMERICA N.A., individually
and as Swing Line Bank
By:__________________________________
Its:_________________________________
18
FLEET NATIONAL BANK
By:__________________________________
Its:_________________________________
00
XXXX XXXXXXXX X.X.,
XXX XXXX BRANCH
By:__________________________________
Its:_________________________________
By:__________________________________
Its:_________________________________
20
BANK LEUMI USA
By:__________________________________
Its:_________________________________
00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXX XXXX
BRANCH
By:__________________________________
Its:_________________________________
22
ABN AMRO BANK NV
By:__________________________________
Its:_________________________________
By:__________________________________
Its:_________________________________
23
BARCLAYS BANK PLC
By:__________________________________
Its:_________________________________
24
WACHOVIA BANK, N.A.
By:__________________________________
Its:_________________________________
00
XXX XXXXX XXXXXXXXX BANK
By:__________________________________
Its:_________________________________
26
THE BANK OF TOKYO-MITSUBISHI,
LTD. NEW YORK BRANCH
By:__________________________________
Its:_________________________________
27
KEYBANK NATIONAL ASSOCIATION
By:__________________________________
Its:_________________________________
28
SANPAOLO IMI SPA, formerly known as
Istituto Bancario San Paolo Di Torino,
S.p.A.
By:__________________________________
Its:_________________________________
29
SOCIETE GENERALE, NEW YORK
BRANCH
By:__________________________________
Its:_________________________________
30
ISRAEL DISCOUNT BANK
By:__________________________________
Its:_________________________________
00
XXX XXXX XX XXX XXXX
By:__________________________________
Its:_________________________________
32
REPLACEMENT SCHEDULE 4.1
PRICING MATRIX
Applicable Margin Grid
Vishay Intertechnology, Inc.
Amended and Restated Long Term Revolving Credit Facility
--------------------------------------------------------------------------------
Basis for Pricing LEVEL I LEVEL II LEVEL III** LEVEL IV
--------------------------------------------------------------------------------
Leverage Ratio 2.00:1.0 2.00:1.0 2.50:1.0 3.00:1.0
but but
2.50:1.0 3.00:1.0
--------------------------------------------------------------------------------
Revolving Credit Facility 0.30% 0.45% .625% .625%
Fee
--------------------------------------------------------------------------------
Eurocurrency-based Margin 1.20% 1.30% 1.625% 2.25%
--------------------------------------------------------------------------------
Prime-based Rate Margin 0.0% 0.0% 0.0% 0.0%
--------------------------------------------------------------------------------
Letter of Credit Fee 1.20% 1.30% 1.625% 2.25%
(exclusive of facing fee)
--------------------------------------------------------------------------------
** Level III pricing shall be in effect until the delivery of the financial
statements and Covenant Compliance Report for the quarter ending December
31, 2002 required to be delivered under Section 7.3 hereof, after which
time the pricing grid shall govern.
33
EXHIBIT K
NEW LENDER ADDENDUM
NEW LENDER ADDENDUM, dated ___________, to the Amended and Restated Vishay
Intertechnology, Inc. Long Term Revolving Credit Agreement dated as of June 1,
1999 (as otherwise amended or modified from time to time, the "Credit
Agreement"), among Vishay Intertechnology, Inc. ("Company"), the Permitted
Borrowers parties thereto, each of the financial institutions parties thereto
(collectively, the "Banks") and Comerica Bank, as Agent for the Banks.
W I T N E S S E T H:
WHEREAS, the Credit Agreement provides in Section 2.17 thereof that a
financial institution, although not originally a party thereto, may become a
party to the Credit Agreement with the consent of the Company and the Agent by
executing and delivering to the Agent a New Lender Addendum to the Credit
Agreement in substantially the form of this new lender addendum; and
WHEREAS, the undersigned New Lender was not an original party to the
Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the New Lender hereby agrees as follows:
The New Lender hereby confirms that it has received a copy of the Credit
Agreement and the exhibits and schedules referred to therein, and all other Loan
Documents which it considers necessary, together with copies of the other
documents which were required to be delivered under the Credit Agreement as a
condition to the making of the loans thereunder. The New Lender acknowledges and
agrees that it: (a) has made and will continue to make such inquiries and has
taken and will take such care on its own behalf as would have been the case had
its commitment been granted and its loans been made directly by such New Lender
to the Company without the intervention of the Agent or any other Lender; and
(b) has made and will continue to make, independently and without reliance upon
the Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, its own credit analysis and decisions relating to the
Credit Agreement. The New Lender further acknowledges and agrees that the Agent
has not made any representations or warranties about the creditworthiness of the
Company or any other party to the Credit Agreement or any other of the Loan
Documents, or with respect to the legality, validity, sufficiency or
enforceability of the Credit Agreement, or any other of the Loan Documents.
New Lender represents and warrants that it is a Person to which
assignments are permitted pursuant to Sections 13.8(c) of the Credit Agreement.
Except as otherwise provided in the Credit Agreement, effective as of the
Effective Date (as defined below):
(a) the New Lender (i) shall be deemed automatically to have
become a party to the Credit Agreement and the other Loan
Documents, and to have all the rights and obligations of a
party to the Credit Agreement and the other Loan Documents, as
if it were an original signatory; and (ii) agrees to be bound
by the terms and conditions set forth in the Credit Agreement
and the other Loan Documents as if it were an original
signatory thereto; and
(b) the New Lender shall be a Lender and its Percentage of the Revolving
Credit (and its risk participation in Letters of Credit) shall be as
set forth in the attached revised Exhibit D (Percentages); provided
any fees paid prior to the Effective Date, including any Letter of
Credit Fees, shall not be recalculated, redistributed or reallocated
by Company, Agent or the Banks.
As used herein, the term "Effective Date" means the date on which all of
the following have occurred or have been completed, as reasonably determined by
the Agent:
(1) the Company shall have paid to the Agent all interest, fees
(including the Revolving Credit Facility Fee) and other amounts, if
any, accrued to the Effective Date for which reimbursement is then
owing under the Credit Agreement;
(2) New Lender shall have remitted to the Agent funds in an amount equal
to its Percentage of all Advances of the Revolving Credit
outstanding as of the Effective Date; and
(3) the Company shall have executed and delivered to the Agent for the
New Lender, new Revolving Credit Notes payable to such New Lender in
the face amount of such New Lender's Percentage of the Revolving
Credit Aggregate Commitment (after giving effect to this New Lender
Addendum, and any other New Lender Addendum executed concurrently
herewith).
The Agent shall notify the New Lender, along with Company, of the
Effective Date. The New Lender shall deliver herewith to the Agent
administrative details with respect to the funding and distribution of Advances
(and Letters of Credit) as requested by Agent.
Terms defined in the Credit Agreement and not otherwise defined herein
shall have their defined meanings when used herein.
2
IN WITNESS WHEREOF, the undersigned has caused this New Lender Addendum to
be executed and delivered by a duly authorized officer on the date first above
written.
[NEW LENDER]
By_________________________________
Title:
Accepted this ______ day of _______, ____.
VISHAY INTERTECHNOLOGY, INC.
By_________________________________
Title:
Accepted this ______ day of _______, ____.
COMERICA BANK, as Agent
By_________________________________
Title:
3
