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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 18, 1994
----------------------
VISHAY INTERTECHNOLOGY, INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-7416 38-1686453
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
63 Lincoln Highway, Malvern, PA 19355
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (610) 644-1300
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Not Applicable
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(Former name or former address, if changed since last report)
The Exhibit Index is on Page .
Page 1 of Pages
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Item 2. Acquisition or Disposition of Assets.
On July 18, 1994, Vishay Intertechnology, Inc.
("Registrant") consummated an agreement with Thomas & Betts
Corporation, a New Jersey corporation ("Seller"), to purchase all
of the issued and outstanding capital stock of Vitramon,
Incorporated, a Delaware corporation and a wholly-owned
subsidiary of Seller, and Vitramon Limited, an English
corporation, and an indirect subsidiary of Seller (collectively,
"Vitramon"), for consideration of $184 million in cash.
Vitramon's business involves the design, manufacture and sale of
multilayer ceramic chip capacitors and certain types of filters
(the "Business"). Registrant has no current intention to change
the nature of the Business.
The purchase price was funded from a $200,000,000 bridge and
term loan facility made available to Registrant under the Vishay
Intertechnology, Inc. $200,000,000 Acquisition Loan Agreement
dated as of July 18, 1994 (the "Acquisition Loan Agreement"), by
and among Registrant and Comerica Bank, N.A., NationsBank of
North Carolina, N.A., Berliner-Handels-und Frankfurter Bank,
Signet Bank / Maryland, CoreStates Bank, N.A., Bank Hapoalim,
B.M., ABN AMRO Bank, N.V. New York Branch, Credit Lyonnais New
York Branch, Meridian Bank, Bank Leumi le-Israel, B.M. and Credit
Suisse (collectively, the "Banks"), and Comerica Bank, N.A. as
agent for the Banks (the "Agent"). The Acquisition Loan
Agreement is comprised of a $100 million bridge facility due on
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July 18, 1996 (the "Bridge Facility") and a $100 million non-
amortizing term facility due on July 18, 2001 (the "Acquisition
Term Facility"). The facilities will bear interest at variable
rates based, at the option of Registrant, on the prime rate or
LIBOR. In addition, with respect to the Acquisition Term
Facility, Registrant may, at its option, elect a fixed rate of
interest for the remainder of the term of the loan.
In addition, on July 18, 1994, Registrant and certain of its
subsidiaries entered into bank agreements (the "Bank Agreements")
with the Banks and the Agent. The Bank Agreements amended and
restated Registrant's previously-existing revolving credit and
term loan agreements.
After giving effect to the Bank Agreements and the
Acquisition Loan Agreement, the Company's domestic credit
facilities consist of a $200,000,000 revolving credit facility
that matures on December 31, 1997, subject to the Company's right
to request year-to-year renewals thereafter, a $102,500,000
domestic term loan (the "Domestic Term Loan") that matures on
December 31, 2000, the $100,000,000 Bridge Facility, due on July
18, 1996 and a $100,000,000 non-amortizing domestic term loan
due July 18, 2001. Borrowings under these facilities bear
interest at variable rates based on the prime rate or, at the
Company's option, LIBOR; at July 18, 1994, the rates ranged from
4.9375% to 5.5%. With respect to the Domestic Term Loan, the
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Company may elect, at its option, a fixed rate of interest for
the remainder of the term of such loan.
The Banks also provide Deutsche Mark ("DM") denominated
revolving credit and term loan facilities for certain of the
Company's German subsidiaries, which permit borrowings, in the
aggregate, of DM 153,821,990 including a DM 40,000,000 revolving
credit facility that matures on December 31, 1997, subject to the
borrower's right to request year-to-year renewals thereafter, a
DM 9,506,000 term loan that matures on December 31, 1994 and a DM
104,315,990 term loan that matures on December 31, 1997.
Borrowings bear interest at variable rates based on LIBOR; at
July 18, 1994, the rates ranged from 5.875% to 6.0%.
As a result of the amendments contained in the Bank
Agreements, all of the Company's bank facilities are unsecured
and all collateral currently held by the Banks in connection with
the previously-existing revolving credit and term loan agreements
will be released. However, the facilities are cross-guaranteed
by the Company and certain of its subsidiaries. The Bank
Agreements also resulted in a decrease in interest rates from
those previously in effect, as well as a significant reduction in
the number of financial and restrictive covenants. Financial
covenants are currently limited to requirements regarding
leverage and fixed charge coverage ratios and minimum tangible
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net worth. Other restrictive covenants include limitations on
the payment of cash dividends, guaranties and liens.
The foregoing is a summary of certain terms of the
Acquisition Loan Agreement and the Bank Agreements and is
qualified in its entirety by reference to such agreements, copies
of which are annexed as exhibits to this Report on Form 8-K.
Further, Registrant intends shortly to file a Registration
Statement on Form S-3 with the Commission relating to a public
offering of approximately 2,750,000 shares of Registrant's common
stock, and to use the net proceeds (estimated at approximately,
$111,375,000, based on a closing price of $42.50 of the common
stock on July 14, 1994) to repay the Bridge Facility and to
reduce Registrant's revolving credit borrowings. Accordingly,
the Pro Forma Financial Information annexed to this Report gives
effect to the sale of shares of Registrant's common stock, and
the use of the estimated net proceeds therefrom to repay the
Bridge Facility and to reduce Registrant's revolving credit
borrowings. Footnote F to the Pro Forma Condensed Consolidated
Financial Statements sets forth relevant financial information to
take into account the adjustments to the Pro Forma Financial
Information in the event the public offering is not consummated.
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Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(a) Pro Forma Financial Information.
Set forth on pages F-2 through F-9 are Pro Forma
Condensed Consolidated Financial Statements of
Vishay Intertechnology, Inc. and Vitramon
(Unaudited). The following are included:
Pro Forma Condensed Consolidated Balance
Sheet as of March 31, 1994.
Pro Forma Condensed Consolidated Statement of
Operations for the Year Ended December 31,
1993.
Pro Forma Condensed Consolidated Statement of
Operations for the Three Months Ended
March 31, 1994.
Notes to Pro Forma Condensed Consolidated
Financial Statements.
(b) Financial statements of business acquired.
1. Set forth on pages F-10 through F-22 are
Vitramon, Incorporated and Vitramon Limited
(U.K.) Combined Audited Financial Statements.
The following are included:
Report of KPMG Peat Marwick
Combined Balance Sheet at January 1, 1994
and January 2, 1993.
Combined Statement of Earnings for the Year
Ended January 1, 1994 and January 2, 1993.
Combined Statement of Cash Flows for the
Year Ended January 1, 1994 and January 2,
1993.
Combined Statement of Shareholder's Equity
for the Year Ended January 1, 1994 and
January 2, 1993.
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Notes to Combined Financial Statements.
2. Set forth on pages F-23 through F-26 are
Vitramon Incorporated and Vitramon Limited
(U.K.) Combined Interim Financial Statements
(Unaudited). The following are included:
Combined Balance Sheet at April 2, 1994 and
January 1, 1994.
Combined Statement of Earnings for the Quarter
Ended April 2, 1994 and April 3, 1993.
Combined Statement of Cash Flows for the
Quarter Ended April 2, 1994 and April 3,
1993.
Notes to Combined Interim Financial
Statements.
(c) Exhibits.
2.1 Stock Purchase Agreement, dated July 12, 1994, between
Thomas & Betts Corporation and Vishay Intertechnology
Inc.
10.1 Amended and Restated Vishay Intertechnology, Inc.
$302,500,000 Revolving Credit and Term Loan Agreement,
dated as of July 18, 1994, by and among Comerica Bank,
NationsBank of North Carolina, N.A., Berliner Handels-
und Frankfurter Bank, Signet Bank/Maryland, Core-
States Bank, N.A., Bank Hapoalim, B.M., ABN AMRO Bank
N.V. New York Branch, Credit Lyonnais New York Branch,
Meridian Bank, Bank Leumi le-Israel, B.M. and Credit
Suisse (collectively, the "Banks"), Comerica Bank, as
agent for the Banks (the "Agent"), and Vishay
Intertechnology, Inc.("Vishay"), dated as of July 18,
1994.
10.2 Amended and Restated Vishay Beteiligungs GmbH DM
40,000,000 Revolving Credit and DM 9,506,000 Term Loan
Agreement, dated as of July 18, 1994, by and among the
Banks, the Agent and Vishay Beteiligungs GmbH ("VBG").
10.3 Amended and Restated Roederstein DM 104,315,990.20 Term
Loan Agreement, dated as of July 18, 1994, by and among
the Banks, the Agent, and Vishay.
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10.4 Vishay Intertechnology, Inc. $200,000,000 Acquisition
Loan Agreement, dated as of July 18, 1994, by and among
the Banks, the Agent and Vishay.
10.5 Amended and Restated Guaranty by Vishay to the Banks,
dated July 18, 1994.
10.6 Amended and Restated (Domestic) Guaranty by Dale
Holdings, Inc., Dale Electronics, Inc., Measurements
Group, Inc., Vishay Sprague Holdings Corp. and Sprague
Sanford, Inc. to the Banks, dated July 18, 1994.
10.7 Amended and Restated Permitted Borrowers Guaranty by
Vilna Equities Holding B.V., VBG, Draloric Electronic
GmbH, E-Sil Components Ltd., Sfernice S.A. and
Roederstein GmbH in favor of the Banks dated July 18,
1994.
23 Consent of KPMG Peat Marwick.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
VISHAY INTERTECHNOLOGY, INC.
By: /s/Richard N. Grubb
---------------------------
Name: Richard N. Grubb
Title: Vice President,
Treasurer and CFO
Date: July 18, 1994
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INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
----
Pro Forma Condensed Consolidated Financial Statements of
Vishay Intertechnology, Inc. and Vitramon (Unaudited) . . . F-2
Pro Forma Condensed Consolidated Balance Sheet as of
March 31, 1994. . . . . . . . . . . . . . . . . . . . . . F-3
Pro Forma Condensed Consolidated Statement of
Operations for the Year Ended December 31, 1993 . . . . . F-4
Pro Forma Condensed Consolidated Statement of
Operations for the Three Months Ended March 31, 1994. . . F-5
Notes to Pro Forma Condensed Consolidated Financial
Statements. . . . . . . . . . . . . . . . . . . . . . . . F-6
Vitramon Incorporated and Vitramon Limited (U.K.)
Combined Audited Financial Statements
Report of KPMG Peat Marwick. . . . . . . . . . . . . . . . F-10
Combined Balance Sheet at January 1, 1994 and
January 2, 1993 . . . . . . . . . . . . . . . . . . . . . F-11
Combined Statement of Earnings for the Year Ended
January 1, 1994 and January 2, 1993 . . . . . . . . . . . F-12
Combined Statement of Cash Flows for the Year Ended
January 1, 1994 and January 2, 1993 . . . . . . . . . . . F-13
Combined Statement of Shareholder's Equity for the
Years Ended January 1, 1994 and January 2, 1993 . . . . . F-14
Notes to Combined Financial Statements . . . . . . . . . . F-15
Vitramon Incorporated and Vitramon Limited (U.K.)
Combined Interim Financial Statements (Unaudited)
Combined Balance Sheet at April 2, 1994 and
January 1, 1994 . . . . . . . . . . . . . . . . . . . . . F-23
Combined Statement of Earnings for the Quarter
Ended April 2, 1994 and April 3, 1993 . . . . . . . . . . F-24
Combined Statement of Cash Flows for the Quarter
Ended April 2, 1994 and April 3, 1993 . . . . . . . . . . F-25
Notes to Combined Interim Financial Statements . . . . . . F-26
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PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
VISHAY INTERTECHNOLOGY, INC.
AND
VITRAMON
(Unaudited)
The following pro forma condensed consolidated balance sheet
(unaudited) as of March 31, 1994 and pro forma condensed
consolidated statements of operations (unaudited) for the year
ended December 31, 1993 and the three months ended March 31, 1994
give effect to (i) Vishay's acquisition of all of the capital
stock of Vitramon from Thomas & Betts Corporation and (ii) the
sale by Vishay of 2,750,000 shares of Common Stock pursuant to a
contemplated public offering (assuming a public offering price of
$42.50 per share based on the closing market price of the Common
Stock on July 14, 1994) and the use of such proceeds to fund the
prepayment of the Bridge Facility and reduce revolving credit
borrowings. The pro forma condensed consolidated statements of
operations for the year ended December 31, 1993 and the three
months ended March 31, 1994, present the results of operations of
Vishay as if both of the above mentioned transactions were
consummated as of January 1, 1993. The pro forma information is
based on the historical financial statements of Vishay and
Vitramon, giving effect to the acquisition under the purchase
method of accounting and the assumptions and adjustments set
forth in the accompanying notes.
These pro forma condensed consolidated financial statements have
been prepared by Vishay's management based upon the audited
combined financial statements of Vitramon for the year ended
January 1, 1994 and the unaudited combined interim financial
statements of Vitramon as of and for the quarter ended April 2,
1994. These pro forma financial statements may not be indicative
of the results that actually would have occurred if Vishay had
acquired all of the capital stock of Vitramon on the dates
indicated or those that may be obtained in the future. The pro
forma financial statements should be read in conjunction with the
consolidated financial statements of Vishay included in Vishay's
Annual Report on Form 10-K for the year ended December 31, 1993
and Vishay's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994, and the combined financial statements of Vitramon
for the year ended January 1, 1994 and as of and for and the quarter
ended April 2, 1994, included herein.
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<TABLE>
<CAPTION>
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
(UNAUDITED)
March 31, 1994 April 2, 1994 March 31,
As Reported As Reported Pro Forma 1994
Vishay Vitramon Adjustments Pro Forma
---------- -------- ---------- ----------
(In thousands)
ASSETS
<S> <C> <C> <C> <C>
Cash and cash equivalents $19,155 $14,589 $33,744
Accounts receivable 151,297 17,020 168,317
Inventories 226,468 20,077 246,545
Other current assets 38,241 2,707 ($2,090)(C) 38,858
---------- -------- -------- ----------
Total Current Assets 435,161 54,393 (2,090) 487,464
Property and equipment 433,568 44,711 10,000 (C) 488,279
Goodwill 120,695 105,718 (C) 226,413
Other assets 14,266 949 5,250 (C) 22,365
1,900 (C)
---------- -------- -------- ----------
$1,003,690 $100,053 $120,778 $1,224,521
========== ======== ======== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts and notes payable $86,202 $24,605 ($18,000)(C) $92,807
Other current liabilities 91,610 20,280 (10,530)(C) 101,360
Current portion of long-term debt 30,543 1,909 (1,909)(C) 30,543
---------- -------- -------- ----------
Total Current Liabilities 208,355 46,794 (30,439) 224,710
Long-term debt 285,475 13,790 186,700 (A) 360,800
(111,375)(B)
(13,790)(C)
Other non-current liabilities 116,722 2,819 15,000 (C) 134,498
(43)(C)
Stockholders' equity
Common stock 2,123 234 275 (B) 2,398
(234)(C)
Other stockholders' equity 391,015 36,416 111,100 (B) 502,115
(36,416)(C)
---------- -------- -------- ----------
$1,003,690 $100,053 $120,778 $1,224,521
========== ======== ======== ==========
</TABLE>
See notes to pro forma condensed consolidated financial statements.
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<TABLE>
<CAPTION>
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(UNAUDITED)
Year ended Year ended Year Ended
December 31, 1993 January 1, 1994 Pro Forma December 31,
As Reported As Reported Adjustments 1993
Vishay Vitramon - Note D Pro Forma
---------- --------- --------- ----------
(In thousands, except per share data)
<S> <C> <C> <C> <C>
Net sales $856,272 $118,394 $974,666
Costs of products sold 663,239 81,512 ($4,253)(2) 740,498
---------- --------- --------- ----------
Gross profit 193,033 36,882 4,253 234,168
Selling, general, and
administrative expenses 118,906 24,136 (5,783)(5) 137,530
271 (6)
Restructuring expenses 6,659 6,659
Unusual items (7,221) (7,221)
---------- --------- --------- ----------
Operating income 74,689 12,746 9,765 97,200
Other income (expense):
Interest expense (20,624) (3,229) (4,142)(1) (24,766)
3,229 (3)
Goodwill amortization (3,294) (2,643)(4) (5,937)
Other 123 (84) 39
---------- --------- --------- ----------
(23,795) (3,313) (3,556) (30,664)
---------- --------- --------- ----------
Earnings before income taxes
and cumulative effect of
accounting change 50,894 9,433 6,209 66,536
Income taxes 8,246 4,773 2,173 (7) 15,192
---------- --------- --------- ----------
Earnings before cumulative
effect of accounting change 42,648 4,660 4,036 51,344
Cumulative effect of accounting
change for income taxes 1,427 1,427
---------- --------- --------- ----------
Net earnings $44,075 $4,660 $4,036 $52,771
========== ========= ========= ==========
Earnings per share - Note E
Before cumulative effect of
accounting change $1.91 $2.05
Accounting change for
income taxes $0.07 $0.06
---------- ----------
Net earnings $1.98 $2.11
========== ==========
Weighted average shares
outstanding - Note E 22,289 25,039
</TABLE>
See notes to pro forma condensed consolidated financial statements.
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<TABLE>
<CAPTION>
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(UNAUDITED)
Three Months Three Months Three Months
Ended Ended Ended
March 31, 1994 April 2, 1994 Pro Forma March 31,
As Reported As Reported Adjustments 1994
Vishay Vitramon - Note D ProForma
---------- --------- --------- ---------
(In thousands, except per share data)
<S> <C> <C> <C> <C>
Net sales $226,015 $34,575 $260,590
Costs of products sold 175,215 23,743 ($1,092)(2) 197,866
---------- --------- --------- ---------
Gross profit 50,800 10,832 1,092 62,724
Selling, general, and
administrative expenses 30,176 6,528 (1,569)(5) 35,203
68 (6)
---------- --------- --------- ---------
Operating income 20,624 4,304 2,593 27,521
Other income (expense):
Interest expense (5,040) (729) (1,035)(1) (6,075)
729 (3)
Goodwill amortization (801) (661)(4) (1,462)
Other 468 73 541
---------- --------- --------- ---------
(5,373) (656) (967) (6,996)
---------- --------- --------- ---------
Earnings before income taxes 15,251 3,648 1,626 20,525
Income taxes 2,593 1,676 569 (7) 4,838
---------- --------- --------- ---------
Net earnings $12,658 $1,972 $1,057 $15,687
========== ========= ========= =========
Earnings per share - Note E $0.57 $0.63
========== =========
Weighted average shares
outstanding - Note E 22,292 25,042
========== =========
</TABLE>
See notes to pro forma condensed consolidated financial statements.
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NOTES TO PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED) (DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Certain financial information has been derived from the combined
audited financial statements and notes thereto of Vitramon for
the year ended January 1, 1994 and from Vitramon's unaudited
combined interim financial statements as of and for the quarter ended
April 2, 1994.
(A) Reflects an increase in outstanding indebtedness as a result
of the purchase by Vishay of all of the capital stock of Vitramon
from Thomas & Betts. Assumes additional borrowings of $200,000
(including $100,000 Bridge Facility) from a syndicate of banks,
use of $186,700 of such borrowings to finance the acquisition and
use of $13,300 to reduce revolving credit borrowings, which
results in increased long-term debt of $186,700. Purchase price
and related costs financed through long-term debt:
Purchase price . . . . . . . . . . . . . . . . . . . $ 184,000
Professional fees and other liabilities. . . . . . . 2,700
---------
Total purchase price . . . . . . . . . . . . . . . . $ 186,700
=========
(B) Reflects the assumed receipt of the estimated net proceeds
of $111.4 million from the proposed sale by Vishay of 2,750,000
shares of Common Stock pursuant to a contemplated public offering
(assuming a public offering price of $42.50 per share based on
the closing market price of the Common Stock on July 14, 1994)
and the use of such proceeds to fund the prepayment of the
$100,000 Bridge Facility and to reduce revolving credit borrowings.
Increase
(Decrease)
----------
Long-term debt . . . . . . . . . . . . . . . . . . . $(111,375)
Common stock . . . . . . . . . . . . . . . . . . . . 275
Other stockholders' equity . . . . . . . . . . . . . 111,100
(C) Under purchase accounting, Vitramon's assets and liabilities
are required to be adjusted from historical amounts to their
estimated fair values. Purchase accounting adjustments have been
preliminarily estimated by Vishay's management based upon
available information and are believed by management to be
reasonable. There can be no assurance, however, that the
estimated adjustments represent the final purchase accounting
adjustments that will ultimately be determined by Vishay. The
following pro forma adjustments have been made to reflect the
estimated fair values of the assets and liabilities of Vitramon
as of March 31, 1994 and to eliminate assets and liabilities
which were retained by Thomas & Betts under the terms of the
purchase agreement.
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Net Assets
-------------------
Increase (Decrease)
As reported by Vitramon:
Common Stock . . . . . . . . . . . . . . . . . . . $ 234
Other stockholders' equity . . . . . . . . . . . . 36,416
--------
36,650
Fair value adjustments:
Property and equipment . . . . . . . . . . . . . . 10,000
Estimated Vitramon restructuring costs . . . . . . (15,000)
Deferred income taxes
Other current assets . . . . . . . . . . . . . . ( 2,090)
Other assets . . . . . . . . . . . . . . . . . . 5,250
Other non-current liabilities. . . . . . . . . . 43
Assets and liabilities retained by Thomas & Betts:
Accounts and notes payable . . . . . . . . . . . 18,000
Other current liabilities. . . . . . . . . . . . 10,530
Current portion of long-term debt. . . . . . . . 1,909
Long-term debt . . . . . . . . . . . . . . . . . 13,790
Deferred bank costs. . . . . . . . . . . . . . . . 1,900
Cost in excess of net assets of company acquired . 105,718
--------
Total purchase price . . . . . . . . . . . . . . . $186,700
========
(D) For purposes of determining the pro forma effect of the
Vitramon acquisition on the Vishay consolidated statement of
operations, the following estimated pro forma adjustments have
been made:
Increase (Decrease) Income
--------------------------
Year Ended Three Months Ended
12/31/93 3/31/94
-------- -------
1. Interest expense on net
additional variable rate
long-term debt of
$75,300 at a 5.5%
assumed rate. . . . . . . . $( 4,142) $( 1,035)
2. Decrease in depreciation
resulting from adjustments
to fair value of property,
plant and equipment and the
establishment by Vishay of
estimated remaining useful
lives . . . . . . . . . . . 4,253 1,092
3. Elimination of Vitramon's
interest expense relating
to debt not assumed by
Vishay. . . . . . . . . . . 3,229 729
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4. Amortization of cost in
excess of net assets acquired
(goodwill) over a forty-year
period. . . . . . . . . . . ( 2,643) ( 661)
5. Elimination of Vitramon's
management charges from
parent. . . . . . . . . . . 5,783 1,569
6. Amortization of deferred
bank costs over a seven-year
period. . . . . . . . . . . ( 271) ( 68)
7. Income tax expense applicable
to adjustments at a 35%
assumed rate. . . . . . . . ( 2,173) ( 569)
-------- -------
$ 4,036 $ 1,057
======== =======
Vitramon's management charges from parent noted above represent
services provided by Thomas & Betts for general management,
accounting, internal audit, cash management, risk management,
human resources, legal and tax services. These costs have been
eliminated as Vishay's current organization is structured to
provide these management services without incurring significant
additional costs.
(E) Earnings per share for the year ended December 31, 1993 and
the three months ended March 31, 1994 were computed as follows
(in thousands, except earnings per share data):
Year Ended Three Months Ended
12/31/93 3/31/94
-------- -------
Weighted average number of
common shares outstanding. . . 22,289 22,292
Contemplated issuance of
common stock . . . . . . . . . 2,750 2,750
------- -------
Total. . . . . . . . . . . . . . 25,039 25,042
======= =======
Pro forma net earnings . . . . . $52,771 $15,687
======= =======
Pro forma net earnings per share $ 2.11 $ 0.63
======= =======
(F) The pro forma condensed consolidated financial statements
are presented assuming that Vishay will complete a contemplated
public offering of 2,750,000 shares of common stock as described
in Note B. While it is Vishay's current intention to complete such
offering, Vishay cannot assure that the offering will occur as
planned. If such offering does not occur, the pro forma long-
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<PAGE> 18
term debt would increase by $111,375 and pro forma stockholders'
equity would decrease by a corresponding amount. Also, pro forma
interest expense for the year ended December 31, 1993 and the
three months ended March 31, 1994 would increase by $6,126 and
$1,531, respectively. After considering applicable income tax
effects, pro forma net earnings and earnings per share would be
as follows:
Year Three Months
Ended Ended
12/31/93 3/31/94
-------- -------
Net earnings. . . . . . . . . . . $48,789 $14,692
Earnings per share. . . . . . . . $2.19 $0.66
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<PAGE> 19
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
Independent Auditors' Report
- ----------------------------
The Boards of Directors
Vitramon, Incorporated and Vitramon Limited (UK):
We have audited the combined balance sheets of Vitramon, Incorporated
and subsidiaries and Vitramon Limited (UK) (both of which are
directly or indirectly wholly-owned subsidiaries of Thomas & Betts
Corporation) as of January 1, 1994 and January 2, 1993, and the
related combined statements of earnings, cash flows, and shareholder's
equity for the years then ended. These combined financial statements
are the responsibility of the Company's management. Our
responsibility is to express an opinion on these combined financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. These standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well
as evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above
present fairly, in all material respects, the financial position of
Vitramon, Incorporated and subsidiaries and Vitramon Limited (UK) at
January 1, 1994 and January 2, 1993, and the results of their
operations and their cash flows for the years then ended in conformity
with generally accepted accounting principles.
KPMG Peat Marwick
June 17, 1994, except as to
note 10, which is as of
July 13, 1994
<PAGE>
<PAGE> 20
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
<TABLE>
<CAPTION>
COMBINED BALANCE SHEET
(In Thousands) January 1, January 2,
ASSETS 1994 1993
CURRENT ASSETS --------- ---------
<S> <C> <C>
Cash $ 11,881 $ 7,857
Receivables, less allowance for doubtful accounts and
cash discounts of $655 in 1993 and $564 in 1992 13,669 13,189
Inventories:
Finished goods 6,998 7,235
Work in process 3,062 3,750
Raw materials 11,092 10,407
-------- --------
Total inventories 21,152 21,392
Deferred income taxes 2,009 1,879
Prepaid expenses 524 830
-------- --------
Total Current Assets 49,235 45,147
-------- --------
PROPERTY, PLANT AND EQUIPMENT
Land and land improvements 2,945 3,125
Buildings 22,520 23,797
Machinery and equipment 55,185 52,729
Construction in progress 6,904 3,532
-------- --------
87,554 83,183
Less accumulated depreciation 44,755 39,253
-------- --------
42,799 43,930
OTHER ASSETS 945 1,021
-------- --------
TOTAL ASSETS $ 92,979 $90,098
======== ========
LIABILITIES AND SHAREHOLDER'S EQUITY
CURRENT LIABILITIES
Short-term borrowings $ 88 $ 51
Current maturities of long-term bank debt 1,856 650
Notes payable to parent company 18,000 10,166
Accounts payable 5,180 5,944
Accounts payable - parent company 11,407 13,135
Accrued liabilities 4,376 3,890
Income taxes 1,154 0
Deferred income taxes - 507
-------- --------
Total Current Liabilities 42,061 34,343
LONG-TERM BANK DEBT 13,874 18,248
DEFERRED INCOME TAXES 1,376 1,565
OTHER LONG-TERM LIABILITIES 1,233 1,117
SHAREHOLDER'S EQUITY
Common stock 234 234
Additional paid-in capital 9,679 9,679
Retained earnings 24,127 23,467
Foreign currency translation adjustment 395 1,445
-------- --------
Total Shareholder's Equity 34,435 34,825
-------- --------
TOTAL LIABILITIES AND SHAREHOLDER'S EQUITY $ 92,979 $ 90,098
======== ========
See notes to Combined Financial Statements.
</TABLE>
<PAGE>
<PAGE> 21
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
COMBINED STATEMENT OF EARNINGS
(In Thousands) Year ended
January 1, January 2
1994 1993
---------- ----------
NET SALES $ 118,394 $ 111,528
---------- ----------
COSTS AND EXPENSES
Cost of sales 81,512 77,624
Marketing, general and administrative 14,453 13,850
Research and development 3,900 3,601
Management charge 5,783 4,965
---------- ----------
105,648 100,040
Earnings from operations 12,746 11,488
Other expense - net 3,313 2,711
---------- ----------
Earnings before income taxes 9,433 8,777
Income taxes 4,773 4,479
---------- ----------
NET EARNINGS $ 4,660 $ 4,298
========== ==========
See notes to Combined Financial Statements.
<PAGE>
<PAGE> 22
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
<TABLE>
<CAPTION>
COMBINED STATEMENT OF CASH FLOWS
(In Thousands) Year ended
January 1, January 2,
1994 1993
--------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net earnings $ 4,660 $ 4,298
Adjustments:
Depreciation and amortization 8,908 8,009
Changes in assets and liabilities:
Receivables (1,506) (1,240)
Inventories (810) (2,031)
Prepaid expenses 296 (264)
Accounts payable (554) 1,513
Accounts payable - Parent Company (1,912) 12,850
Accrued liabilities 629 463
Income taxes 1,423 (2,511)
Other 902 35
--------- --------
Net cash provided by operating activities 12,036 21,122
--------- --------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property, plant and equipment (10,511) (9,202)
Proceeds from sale of property, plant and equipment 38 91
--------- --------
Net cash used in investing activities (10,473) (9,111)
--------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Increase (decrease) in short-term borrowings 144 (3,831)
Proceeds from long-term debt and other borrowings 23 3,306
Proceeds from Parent Company debt 7,834 416
Repayment of long-term debt and other borrowings (1,457) (387)
Cash dividends paid (4,000) (10,000)
--------- --------
Net cash provided by (used in) financing activities 2,544 (10,496)
--------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH (83) 219
--------- --------
Net increase in cash 4,024 1,734
Cash at beginning of year 7,857 6,123
--------- --------
Cash at end of year $ 11,881 $ 7,857
========= ========
</TABLE>
See notes to Combined Financial Statements.
<PAGE>
<PAGE> 23
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
<TABLE>
<CAPTION>
COMBINED STATEMENT OF SHAREHOLDER'S EQUITY
(In Thousands)
Common Stock Additional Cumulative
------------------- Paid-in Retained Translation
Shares Dollars Capital Earnings Adjustment
------ ------- ----------- -------- ------------
<S> <C> <C> <C> <C> <C>
Balance at December 28, 1991 1,990 $ 234 $ 9,679 $29,169 $ 2,154
----- ------ ------- ------- --------
Net earnings 4,298
Dividends (10,000)
Translation adjustment net of
income tax of $366 709
----- ------ ------- ------- --------
Balance at January 2, 1993 1,990 234 9,679 23,467 1,445
----- ------ ------- ------- --------
Net earnings 4,660
Dividends (4,000)
Translation adjustment net of
income tax of ($531) (1,050)
----- ------ ------- ------- --------
Balance at January 1, 1994 1,990 $ 234 $ 9,679 $24,127 $ 395
----- ------ ------- ------- --------
Common Stock:
(Dollars in Thousands)
Issued
---------------------- Par
Shares Dollars Authorized Value
------ ------- ---------- -----
Vitramon, Incorporated 1,965,000 $ 197 2,000,000 $0.10
Vitramon Limited (U.K.) 25,000 $ 37 50,000 (BPS)1.00
</TABLE>
See notes to Combined Financial Statements.
<PAGE>
<PAGE> 24
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
NOTES TO COMBINED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
On July 17, 1987, a merger of Vitramon, Incorporated with a subsidiary
of Thomas & Betts Corporation was completed. The accompanying
combined financial statements include Vitramon, Incorporated and
subsidiaries and Vitramon Limited (UK) (collectively, Vitramon).
These legal entities are directly or indirectly wholly owned by Thomas
and Betts Corporation. All significant intercompany balances and
transactions have been eliminated.
A minority investment in a Thomas & Betts affiliate held by Vitramon
Incorporated, which is excluded from the proposed sale of Vitramon
(see Note 10), has been excluded from the accompanying combined
financial statements.
Fiscal Year
Vitramon's fiscal year consists of 52 and 53 weeks ending on the
Saturday closest to the end of the calendar year.
Inventories
Inventories are stated at the lower of cost (first-in, first-out) or
market. Costs included in inventories consist of materials, labor,
and manufacturing overhead that are related to acquisition or
production costs.
Property, plant and equipment
Property, plant and equipment are stated at cost. Expenditures for
maintenance and repair are charged to costs and expenses as incurred.
Significant renewals and betterments that extend the lives of assets
are capitalized. Depreciation is computed principally on an
accelerated method over the estimated useful lives of the assets,
which range principally from 5 to 40 years for land improvements, 35
to 45 years for buildings, and 5 years for machinery and equipment.
Income Taxes
Income taxes payable represent foreign taxes to be remitted directly
by Vitramon to Non-U.S. taxing authorities. All federal and state
income taxes are included in Accounts Payable - Parent Corporation.
Federal and state income taxes are remitted by parent Thomas & Betts
Corporation to the taxing authorities.
Effective January 3, 1993, Vitramon changed from the deferred method
of accounting for income taxes under APB Opinion No. 11, to the
provisions of Statement of Financial Accounting Standards (SFAS) No.
109, "Accounting for Income Taxes." The effect of adopting SFAS No.
109 was not material to the combined financial statements. Prior
years' financial statements have not been restated. SFAS No. 109
requires the asset and liability method of accounting for income
taxes. Under this method, the Corporation provides deferred income
taxes to record temporary differences between the financial statement
carrying amounts and the tax basis of assets and liabilities.
Deferred taxes are not provided on undistributed net earnings of
foreign subsidiaries, approximately $1,900,000 at January 1, 1994, to
the extent that those earnings are expected to be permanently
reinvested in the subsidiaries. It is estimated that taxes ultimately
payable on the distribution of these earnings would not be
significant.
<PAGE>
<PAGE> 25
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
Cash Flow Information
Foreign cash flows have been converted to U.S. dollars at
appropriately weighted average exchange rates or exchange rates in
effect at the time of the cash flows where determinable.
Net cash provided by operating activities for the years 1993 and 1992
respectively, reflect cash payments for trade interest of $1,684,000
and $2,035,000 respectively; interest on Thomas & Betts debt of
$1,271,000 and $952,000, respectively; and income taxes paid directly
by Vitramon or paid on its behalf by parent company, of $3,747,000 and
$4,878,000 respectively.
2. INCOME TAXES
Income taxes were determined as if Vitramon were a stand-alone
corporation. Actual U.S. income taxes were determined as part of the
parent company's consolidated return. The consolidated return
reflected certain tax planning strategies available to the parent that
were not used in calculating the tax provision in the accompanying
combined financial statements, which resulted in an increased tax rate
in both years due primarily to taxes in excess of the U.S. tax rate on
foreign earnings.
The components of earnings before income taxes are as follows:
In thousands 1993 1992
Domestic $3,586 $3,202
Foreign 5,847 5,575
------ ------
Total $9,433 $8,777
====== ======
The components of income tax expense are as follows:
In thousands 1993 1992
Current
Domestic $1,427 $ 530
Foreign 2,266 3,222
State and local 254 325
------ ------
Total current 3,947 4,077
------ ------
Deferred
Domestic (55) 657
Foreign 881 (255)
------ ------
Total deferred 826 402
------ ------
Total $4,773 $4,479
====== ======
<PAGE>
<PAGE> 26
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
The reconciliation between the Federal statutory tax rate and
Vitramon's effective tax rate is as follows:
1993 1992
Federal statutory tax rate 35.0% 34.0%
State tax 1.8 2.4
Foreign subsidiary losses
providing no current tax
benefit 4.0 4.5
Taxes in excess of the
U.S. tax rate on
foreign earnings 9.8 10.1
---- ----
Effective tax rate 50.6% 51.0%
==== ====
All U.S. taxes are recorded as payable to parent, Thomas & Betts
Corporation, and therefore, all U.S. deferred taxes will eventually be
settled against that payable to parent.
The components of Vitramon's net deferred tax asset at January 1, 1994
were:
In thousands U.S. Non U.S. Total
------ -------- -----
Deferred tax assets:
Accrued reserves $1,316 $ 297 $1,613
Accrued employee benefits 682 44 726
Loss carry forwards - 304 304
Other 92 64 156
Valuation allowance - (304) (304)
------ ------ ------
Net deferred tax assets 2,090 405 2,495
------ ------ ------
Deferred tax liabilities:
Property, plant and equipment - 1,293 1,293
Other 43 526 569
------ ------ ------
Net deferred tax liabilities 43 1,819 1,862
------ ------ ------
Net deferred tax asset $2,047 $1,414 $ 633
====== ====== ======
The net change in the valuation allowance for deferred tax assets was
a reduction of $115,000 in 1993. The change relates to a loss carry
forward recovered in 1993. Carry forwards remaining at January 1,
1994 can be carried forward indefinitely.
<PAGE>
<PAGE> 27
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
3. BORROWINGS
Vitramon's long-term bank debt was as follows:
In thousands January 1, January 2,
1994 1993
Deutsche Mark Notes:
7.1% due 2001 $ 2,780 $3,205
7.1% due 2001 2,780 3,205
9.0% due 2004 3,557 4,275
7.2% due 2005 3,939 4,487
7.3% due 1999 765 1,001
9.5% due 2001 1,658 1,923
French Franc Notes:
8.5% due 1997 48 575
Capital leases 203 227
------- -------
15,730 18,898
Less current portion 1,856 650
------- -------
$13,874 $18,248
======= =======
All long-term debt is guaranteed by parent, Thomas & Betts
Corporation.
Principal payments on long-term debt due in the five years
subsequent to January 2, 1994, are $1,856,000, $1,921,000, $1,855,000,
$1,785,000 and $1,763,000.
Vitramon's debt payable to parent, Thomas & Betts Corporation,
was as follows:
In thousands January 1, January 2,
1994 1993
U.S. Dollar Notes:
10% due on demand $ 3,000,000 $ 3,000,000
Prime + 1%, due on demand 7,000,000 7,000,000
Prime + 1%, due on demand 8,000,000
Japanese Yen Notes:
6% due 11-1-93 - 82,986
6% due 10-13-93 - 83,474
----------- -----------
$18,000,000 $10,166,460
=========== ===========
4. RELATED PARTY TRANSACTIONS
Vitramon received and paid for management services provided by Thomas
& Betts. Generally, these management services included general
management, accounting, internal audit, cash management, risk
management, human resource, legal and tax services. The cost of such
services was $5,783,000 and $4,965,000 for the years 1993 and 1992
respectively. Management believes that all allocations are made on a
reasonable basis; however, these costs are not necessarily
representative of the costs which would have been incurred by
Vitramon as an independent company.
Vitramon paid sales commissions to a Foreign Sales Corporation (FSC)
wholly owned by Thomas & Betts to obtain favorable tax treatment on
export sales.
<PAGE>
<PAGE> 28
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
5. POSTRETIREMENT BENEFITS
Vitramon has a noncontributory pension plan covering substantially all
its domestic employees. This plan generally provides pension benefits
that are based on compensation levels and years of service.
Vitramon's funding policy for this plan is to contribute amounts
sufficient to maintain a benefit-security ratio (fair value of plan
assets over accumulated benefit obligation) of at least 125 percent.
Plan assets are primarily invested in equity securities, fixed income
securities, cash equivalents and real estate.
Net periodic pension cost for 1993 and 1992 for Vitramon's defined
benefit pension plan included the following components:
In thousands 1993 1992
Service cost - benefits earned
during the period $465 $316
Interest cost on projected
benefit obligation 508 421
Actual return on assets (499) (538)
Net amortization and deferral (131) (128)
----- -----
Net periodic pension cost $ 343 $ 71
===== =====
Assumptions used in developing the net periodic pension cost were:
1993 1992
Discount rate 8.0% 8.5%
Rate of increase
in compensation level 5.5% 5.0%
Expected long-range rate
of return on plan assets 8.5% 8.5%
<PAGE>
<PAGE> 29
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
The following table sets forth the funded status of Vitramon's defined
benefit plan as of December 1, 1993 and 1992 and amounts recognized in
Vitramon's balance sheet:
In thousands January 1, January 2,
1994 1993
Actuarial present value of
benefit obligations:
Vested employees $5,492 $4,540
Non-vested employees 165 116
------ -------
Accumulated benefit obligation 5,657 4,656
Additional amounts related to
projected pay increases 1,855 961
------ -------
Projected benefit obligation 7,512 5,617
Plan assets at fair value 7,541 7,154
Plan assets in excess of ------ ------
projected benefit obligation 29 1,537
Unrecognized transition
obligation (281) (311)
Unrecognized net gain (167) (1,421)
Accrued pension liability (recorded ------- ------
in accrued liabilities in the
balance sheet) $ (419) $(195)
======= =====
The present value of projected benefits for the above plan for
December 1, 1993 was determined using a discount rate of 7.5% and 8%
as of 1993 and 1992, respectively, and an assumed rate of increase in
compensation of 5.5%. Vitramon also sponsors a defined contribution
401(K) savings plan for its U.S. employees where company contributions
are based on a percentage of employee contributions. The cost of
these plans was $294,000 in 1993 and $287,000 in 1992.
Other pension costs, primarily for non-U.S. defined contribution plans
and plans of insignificant size, amounted to $243,000 in 1993 and
$178,000 in 1992.
Effective January 3, 1993, Vitramon adopted the provisions of SFAS No.
106, "Employers Accounting for Postretirement Benefits Other Than
Pensions." This Statement required changing from a cash to an accrual
basis in accounting for retiree health insurance costs. Vitramon is
recognizing the estimated liability for these benefits over the lives
of the individuals covered. This liability is not being funded. All
employees entitled to these benefits are retired. The total
accumulated postretirement benefit obligation at January 1, 1994 was
$312,000. The net periodic cost for 1993 was $50,000 and the accrued
postretirement benefit costs on the balance sheet at January 1, 1994
was $23,000.
The weighted average discount rate used in determining the accumulated
postretirement benefit obligation was 7.5%. An increase in the cost
of covered health care benefits of 12% was assumed for fiscal year
1993.
This rate was assumed to decrease incrementally to 6.5% after fifteen
years and remain at that level thereafter.
Prior to adoption of SFAS No. 106, postretirement health care and life
insurance benefits paid were $41,000 in 1992.
<PAGE>
<PAGE> 30
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
6. COMMITMENTS
Vitramon and its subsidiaries are parties to various leases relating
to plants, warehouses, office facilities, automobiles, and other
equipment, principally data processing equipment. All operating leases
are renewed annually, and all capital leases expire prior to 1997.
Real estate taxes, insurance, and maintenance expenses are normally
obligations of Vitramon. It is expected that in the normal course of
business the majority of the leases will be renewed or replaced by
other leases. Vitramon has capitalized leases principally for
machinery and equipment. At January 1, 1994 and January 2, 1993, net
property, plant and equipment included $236,000 and $228,000,
respectively, for capital leases.
Future minimum payments under capital leases consisted of the
following at January 1, 1994:
In thousands
1994 $146,000
1995 80,000
1996 10,000
--------
Total minimum lease payments 236,000
Less amounts representing interest 33,000
--------
Present value of future minimum lease payments $203,000
========
Rent expense for operating leases was $546,000 in 1993 and $525,000 in
1992.
7. SIGNIFICANT CUSTOMERS
In 1993 and 1992, sales to the automotive industry represented 35% and
32% of total sales, respectively. In 1993 and 1992, sales to a single
customer represented 16% of total sales.
8. OTHER FINANCIAL DATA
Other expense - net consists of the following:
In thousands 1993 1992
Interest income $ 258 $ 280
Interest expense (1,958) (2,065)
Interest expense - parent company debt (1,271) (952)
Net currency gains (losses) (31) 282
FSC expense (315) (293)
Other 4 37
------- -------
$(3,313) $(2,711)
======= =======
Accrued liabilities consist of the following:
In thousands 1993 1992
Salaries, fringe benefits
and other compensation $2,982 $2,556
Taxes other than income 200 320
Pension 475 262
Other 719 752
-------- --------
$ 4,376 $ 3,890
======== ========
<PAGE>
<PAGE> 31
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
9. INFORMATION RELATING TO OPERATIONS IN DIFFERENT GEOGRAPHIC AREAS
Vitramon operations are conducted in three principal geographic areas:
Domestic, Europe, and Other International locations including Brazil,
Australia, and Japan. Transfers between geographic areas are priced
on a basis that yields an appropriate rate of return based on assets
employed, risk and other factors.
Financial Information Relating to Operations in
Different Geographic Areas
In thousands 1993 1992
Sales to Unaffiliated Customers:
Domestic $ 54,891 $ 44,548
Europe 58,493 62,946
Other International 5,010 4,034
---------- --------
Total $118,394 $111,528
========== ========
Sales or Transfers Between Geographic Areas:
Domestic $ 7,157 $ 6,541
Europe 1,254 1,156
---------- --------
Total $ 8,411 $ 7,697
========== ========
Earnings Before Income Taxes:
Domestic $ 4,007 $ 2,922
Europe 6,594 6,691
Other (1,373) (1,122)
Adjustments and eliminations 205 286
---------- --------
Total $ 9,433 $ 8,777
========== ========
Identifiable Assets:
Domestic $ 44,697 $ 34,966
Europe 44,077 48,246
Other 3,112 3,466
Adjustments and eliminations 1,117 2,072
---------- --------
Total $ 93,003 $ 89,750
========== ========
10. SUBSEQUENT EVENT
On July 13, 1994, Thomas & Betts Corporation announced an agreement to
sell Vitramon to Vishay Intertechnology, Inc.
<PAGE>
<PAGE> 32
<TABLE>
<CAPTION>
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
COMBINED BALANCE SHEET (UNAUDITED)
(In Thousands)
ASSETS April 2, 1994 January 1, 1994
CURRENT ASSETS -------------------------------------
<S> <C> <C>
Cash $ 14,589 $ 11,881
Accounts receivable 17,020 13,669
Inventories:
Finished goods 5,151 6,998
Work in process 3,414 3,062
Raw materials 11,512 11,092
-------------------------------------
Total Inventories 20,077 21,152
Deferred income taxes 2,021 2,009
-------------------------------------
Prepaid expenses 686 524
-------------------------------------
Total Current Assets 54,393 49,235
PROPERTY, PLANT AND EQUIPMENT
Land and land improvements 2,989 2,945
Buildings 22,861 22,520
Machinery and equipment 56,551 55,185
Construction in progress 9,716 6,904
-------------------------------------
92,117 87,554
Less accumulated depreciation 47,406 44,755
-------------------------------------
44,711 42,799
OTHER ASSETS 949 945
-------------------------------------
TOTAL ASSETS $ 100,053 $ 92,979
-------------------------------------
LIABILITIES AND SHAREHOLDER'S EQUITY
CURRENT LIABILITIES
Short-term borrowings $ -- $ 88
Current maturities of long-term bank debt 1,909 1,856
Notes payable to parent company 18,000 18,000
Accounts payable 6,605 5,180
Accounts payable - parent company 12,544 11,407
Accrued liabilities 5,339 4,376
Income taxes 2,397 1,154
Deferred income taxes -- --
-------------------------------------
Total Current Liabilities 46,794 42,061
LONG-TERM BANK DEBT 13,790 13,874
DEFERRED INCOME TAXES 1,550 1,376
OTHER LONG-TERM LIABILITIES 1,269 1,233
SHAREHOLDER'S EQUITY
Common stock 234 234
Additional paid-in capital 9,679 9,679
Retained earnings 26,099 24,127
Foreign currency translation adjustment 638 395
-------------------------------------
Total Shareholder's Equity 36,650 34,435
-------------------------------------
TOTAL LIABILITIES AND SHAREHOLDER'S EQUITY 100,053 $ 92,979
=====================================
</TABLE>
See Notes to Combined Interim Financial Statements.
<PAGE>
<PAGE> 33
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
COMBINED STATEMENT OF EARNINGS (UNAUDITED)
Quarter ended
(In Thousands) April 2, 1994 April 3, 1993
------------- -------------
NET SALES $ 34,575 $ 31,931
---------- ---------
COSTS AND EXPENSES
Cost of sales 23,743 21,953
Marketing, general and administrative 3,867 3,708
Research and development 1,092 976
Management charge 1,569 1,446
---------- ---------
30,271 28,083
---------- ---------
Earnings from operations 4,304 3,848
Other expense - net (656) (908)
---------- ---------
Earnings before income taxes 3,648 2,940
Income taxes 1,676 1,470
---------- ---------
NET EARNINGS $ 1,972 $ 1,470
========== =========
See Notes to Combined Interim Financial Statements.
<PAGE>
<PAGE> 34
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
COMBINED STATEMENT OF CASH FLOWS (UNAUDITED)
(In Thousands)
Quarter ended
April 2, April 3,
1994 1993
-------- --------
CASH FLOWS FROM OPERATING ACTIVITIES
Net earnings $ 1,972 $ 1,470
Adjustments:
Depreciation and amortization 2,277 2,246
Changes in assets and liabilities:
Receivables (3,155) (2,399)
Inventories 1,330 649
Prepaid expenses (154) (177)
Accounts payable 1,379 427
Accounts payable - Parent Company 1,079 1,743
Accrued liabilities 898 1,020
Income taxes 1,336 472
Other 28 127
------- -------
Net cash provided by operating activities 6,990 5,578
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property, plant and equipment (3,647) (1,997)
Proceeds from sale of property, plant and equipment 9 -
------- -------
Net cash used in investing activities (3,638) (1,997)
------- -------
CASH FLOWS FROM FINANCING ACTIVITIES
Increase (decrease) in short-term borrowings (88) 223
Proceeds from long-term debt and other borrowings 36 23
Proceeds from Parent Company debt - -
Repayment of long-term debt and other borrowings (526) (156)
Cash dividends paid - -
------- -------
Net cash used in financing activities (578) 90
------- -------
EFFECT OF EXCHANGE RATE CHANGES IN CASH (66) 15
------- -------
Net increase in cash 2,708 3,686
Cash at beginning of year 11,881 7,857
------- -------
Cash at end of year $14,589 $11,543
======= =======
See notes to Combined Interim Financial Statements
<PAGE>
<PAGE> 35
VITRAMON INCORPORATED AND VITRAMON LIMITED (U.K.)
Notes to Combined Interim Financial Statements
(Unaudited)
1) In the opinion of Management, the accompanying combined interim financial
statements contain all adjustments (consisting of only normal recurring
accruals) necessary for the fair presentation of the financial position as
of April 2, 1994 and January 1, 1994, and the results of operations and
cash flows for the periods ended April 2, 1994 and April 3, 1993.
2) Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted. It is suggested
that these combined interim financial statements be read in conjunction
with the financial statements and notes thereto included in Vitramon's
Combined Financial Statements for the fiscal year ended January 1, 1994.
The results of operations for the period ended April 2, 1994 are not
necessarily indicative of the operating results for the full year.
<PAGE>
<PAGE> 36
EXHIBITS TO
FORM 8-K
VISHAY INTERTECHNOLOGY, INC.
EXHIBIT INDEX
Sequential
Page Number
-----------
2.1 Stock Purchase Agreement, dated July 12, 1994,
between Thomas & Betts Corporation and Vishay
Intertechnology Inc.
10.1 Amended and Restated Vishay Intertechnology, Inc.
$302,500,000 Revolving Credit and Term Loan
Agreement, dated as of July 18, 1994, by and among
Comerica Bank, NationsBank of North Carolina, N.A.,
Berliner Handels-und Frankfurter Bank, Signet
Bank/Maryland, CoreStates Bank, N.A., Bank
Hapoalim, B.M., ABN AMRO Bank N.V. New York Branch,
Credit Lyonnais New York Branch, Meridian Bank,
Bank Leumi le-Israel, B.M. and Credit Suisse
(collectively, the "Banks"), Comerica Bank, as
agent for the Banks (the "Agent"), and Vishay
Intertechnology, Inc.("Vishay"), dated as of July
18, 1994.
10.2 Amended and Restated Vishay Beteiligungs GmbH DM
40,000,000 Revolving Credit and DM 9,506,000 Term
Loan Agreement, dated as of July 18, 1994, by and
among the Banks, the Agent and Vishay Beteiligungs
GmbH ("VBG").
10.3 Amended and Restated Roderstein DM 104,315,990.20
Term Loan Agreement, dated as of July 18, 1994, by
and among the Banks, the Agent, Vishay and VBG.
10.4 Vishay Intertechnology, Inc. $200,000,000
Acquisition Loan Agreement, dated as of July 18,
1994, by and among the Banks, the Agent and Vishay.
10.5 Amended and Restated Guaranty by Vishay to the
Banks, dated July 18, 1994.
10.6 Amended and Restated (Domestic) Guaranty by Dale
Holdings, Inc., Dale Electronics, Inc.,
Measurements Group, Inc., Vishay Sprague Holdings
Corp. and Sprague Sanford, Inc. to the Banks, dated
July 18, 1994.
10.7 Amended and Restated Permitted Borrowers Guaranty
by Vilna Equities Holding B.V., VBG, Draloric
Electronic GmbH, E-Sil Components Ltd., Sfernice
S.A. and Roederstein GmbH to the Banks dated July
18, 1994.
23 Consent of KPMG Peat Marwick.
<PAGE>
<PAGE>
<PAGE> 1 -- Exhibit 2.1 (Stock Purchase Agreement)
EXECUTION COPY
=========================================
STOCK PURCHASE AGREEMENT
Between
Thomas & Betts Corporation,
as Seller
and
Vishay Intertechnology, Inc.,
as Purchaser
Dated July 12, 1994
=========================================
<PAGE>
<PAGE> 2 -- Exhibit 2.1 (Stock Purchase Agreement)
TABLE OF CONTENTS
Sections Page
-------- ----
Index To Defined Terms . . . . . . . . . . . . . . . . . . . iv
1. Purchase and Sale of Stock. . . . . . . . . . . . . . . . 2
2. Purchase Price. . . . . . . . . . . . . . . . . . . . . . 2
3. Closing . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Obligations at Closing; Further Assurances. . . . . . . . 3
5. Representations and Warranties by Seller . . . . . . . . . 5
5.1 Organization, Standing and Qualification;
Business . . . . . . . . . . . . . . . . . . . . . . 5
5.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . 7
5.3 Transactions with Certain Persons. . . . . . . . . . 7
5.4 Execution, Delivery and Performance of Agreement;
Authority; Consents and Approvals. . . . . . . . . . 9
5.5 Capitalization . . . . . . . . . . . . . . . . . . . 10
5.6 Financial Statements . . . . . . . . . . . . . . . . 11
5.7 Absence of Undisclosed Liabilities . . . . . . . . . 13
5.8 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 13
5.9 Absence of Changes or Events . . . . . . . . . . . . 16
5.10 Litigation . . . . . . . . . . . . . . . . . . . . . 19
5.11 Compliance with Laws and Other Instruments . . . . . 20
5.12 Title to and Condition of Properties . . . . . . . . 21
5.13 Schedules. . . . . . . . . . . . . . . . . . . . . . 23
5.14 Insurance. . . . . . . . . . . . . . . . . . . . . . 26
5.15 Patents, etc.. . . . . . . . . . . . . . . . . . . . 27
5.16 No Guaranties. . . . . . . . . . . . . . . . . . . . 28
5.17 Product Returns; Warranties. . . . . . . . . . . . . 29
5.18 Employee Benefit Plans . . . . . . . . . . . . . . . 29
5.19 Labor Matters. . . . . . . . . . . . . . . . . . . . 40
5.20 Environmental Matters. . . . . . . . . . . . . . . . 42
5.21 No Brokers; Absence of Certain Business Practices. . 46
5.22 Vitramon Brazil. . . . . . . . . . . . . . . . . . . 47
5.23 Disclosure . . . . . . . . . . . . . . . . . . . . . 47
6. Representations and Warranties by Purchaser. . . . . . . . 48
6.1 Organization . . . . . . . . . . . . . . . . . . . . 48
6.2 Execution, Delivery and Performance of Agreement . . 48
6.3 Litigation . . . . . . . . . . . . . . . . . . . . . 49
6.4 Governmental Approvals and Filings . . . . . . . . . 49
6.5 Purchase for Investment. . . . . . . . . . . . . . . 49
6.6 No Brokers . . . . . . . . . . . . . . . . . . . . . 50
6.7 Financing. . . . . . . . . . . . . . . . . . . . . . 50
<PAGE>
<PAGE> 3 -- Exhibit 2.1 (Stock Purchase Agreement)
Sections Page
-------- ----
6.8 Breach . . . . . . . . . . . . . . . . . . . . . . . 50
7. Conduct of Business Prior to Closing. . . . . . . . . . . 50
8. Covenants . . . . . . . . . . . . . . . . . . . . . . . . 54
8.1 Covenants of Seller and the Company. . . . . . . . . 54
8.1.1 Access to Information, Documents and
Premises. . . . . . . . . . . . . . . . . . 54
8.1.2 Directors Authorization . . . . . . . . . . . 56
8.1.3 Certain Additional and Pro Forma Financial
Information . . . . . . . . . . . . . . . . 57
8.1.4 Elimination of Certain Liabilities. . . . . . 58
8.2 Covenant of Purchaser Regarding Financing. . . . . . 58
8.3 Covenants of Seller and Purchaser. . . . . . . . . . 59
8.3.1 Maintaining Representations and Warranties. . 59
8.3.2 Facilitating the Transaction. . . . . . . . . 59
8.3.3 Changes in Representations and Warranties . . 59
8.3.4 Title Insurance . . . . . . . . . . . . . . . 60
8.3.5 Replacement Insurance . . . . . . . . . . . . 62
8.3.6 Government Filings. . . . . . . . . . . . . . 62
8.3.7 Cooperation and Records Retention . . . . . . 63
9. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.1 General. . . . . . . . . . . . . . . . . . . . . . . 64
9.2 Tax Sharing Agreements . . . . . . . . . . . . . . . 66
9.3 Elections. . . . . . . . . . . . . . . . . . . . . . 66
9.4 Tax Refunds. . . . . . . . . . . . . . . . . . . . . 66
9.5 Post-Closing Matters . . . . . . . . . . . . . . . . 67
10. Conditions Precedent to Purchaser's Obligations . . . . . 69
11. Conditions Precedent to Seller's Obligations. . . . . . . 72
12. Indemnification . . . . . . . . . . . . . . . . . . . . . 73
13. Termination . . . . . . . . . . . . . . . . . . . . . . . 88
14. Nature and Survival of Representations and Warranties . . 89
15. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 92
16. Legal and Other Costs . . . . . . . . . . . . . . . . . . 93
<PAGE>
<PAGE> 4 -- Exhibit 2.1 (Stock Purchase Agreement)
Sections Page
-------- ----
17. Public Announcements. . . . . . . . . . . . . . . . . . . 95
18. Scope of Representations and Warranties . . . . . . . . . 96
19. Non-Competition . . . . . . . . . . . . . . . . . . . . . 96
19.1 Covenant. . . . . . . . . . . . . . . . . . . . . . 96
19.2 Confidentiality . . . . . . . . . . . . . . . . . . 98
19.3 Remedies. . . . . . . . . . . . . . . . . . . . . . 99
19.4 Non-Competition Severability. . . . . . . . . . . 100
20. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 100
Index To Defined Terms . . . . . . . . . . . . . . . . . . . . iv
<PAGE>
<PAGE> 5 -- Exhibit 2.1 (Stock Purchase Agreement)
INDEX TO DEFINED TERMS
----------------------
Term Page No.(s)
---- -----------
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Base Balance Sheet . . . . . . . . . . . . . . . . . . . . . . 12
Basket . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Base Financial Statements. . . . . . . . . . . . . . . . . . . 12
Benefit Plans. . . . . . . . . . . . . . . . . . . . . . . . . 30
Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Business Practices . . . . . . . . . . . . . . . . . . . . . . 65
Claim Notice . . . . . . . . . . . . . . . . . . . . . . . . . 86
Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Company's Assets . . . . . . . . . . . . . . . . . . . . . . . 22
Company's Defined Benefit Plan . . . . . . . . . . . . . . . . 33
Confidentiality Agreement. . . . . . . . . . . . . . . . . . .100
Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Cut-off Date . . . . . . . . . . . . . . . . . . . . . . . . . 87
D&B Letter . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Defaulting Party . . . . . . . . . . . . . . . . . . . . . . . 93
Dispute Period . . . . . . . . . . . . . . . . . . . . . . . . 87
Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . 17
Environment. . . . . . . . . . . . . . . . . . . . . . . . . . 44
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 44
Environmental Permits. . . . . . . . . . . . . . . . . . . . . 45
ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ERISA Affiliate. . . . . . . . . . . . . . . . . . . . . . 39, 40
Fee Properties . . . . . . . . . . . . . . . . . . . . . . . . 60
Financial Statements . . . . . . . . . . . . . . . . . . . . . 11
Former Employee. . . . . . . . . . . . . . . . . . . . . . . . 30
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Hazardous Substance. . . . . . . . . . . . . . . . . . . . . . 45
Indemnified Party. . . . . . . . . . . . . . . . . . . . . . . 87
Indemnifying Party . . . . . . . . . . . . . . . . . . . . . . 87
Indemnity Notice . . . . . . . . . . . . . . . . . . . . . . . 87
Instrument . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Interim Financial Statements . . . . . . . . . . . . . . . 12, 57
June Value . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Leased Properties. . . . . . . . . . . . . . . . . . . . . . . 60
Material Adverse Effect. . . . . . . . . . . . . . . . . . . . 17
Non-Defaulting Party . . . . . . . . . . . . . . . . . . . . . 94
PBGC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Permitted Encumbrances . . . . . . . . . . . . . . . . . . . . 61
<PAGE>
<PAGE> 6 -- Exhibit 2.1 (Stock Purchase Agreement)
Term Page No.(s)
---- -----------
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Pre-Closing Short Period . . . . . . . . . . . . . . . . . . . 65
Pre-Closing Taxes. . . . . . . . . . . . . . . . . . . . . . . 65
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 2
Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Qualified Product List . . . . . . . . . . . . . . . . . . . . 21
RCRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Representatives. . . . . . . . . . . . . . . . . . . . . . . . 53
Restricted Period. . . . . . . . . . . . . . . . . . . . . . . 96
Retiree Medical Plan . . . . . . . . . . . . . . . . . . . . . 37
Returns. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 338(h)(10) Election. . . . . . . . . . . . . . . . . . 69
Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Seller's Deferred Compensation Plan. . . . . . . . . . . . . . 32
Seller's Defined Benefit Plan. . . . . . . . . . . . . . . . . 32
Seller's Equity Plans. . . . . . . . . . . . . . . . . . . . . 32
Site Conditions. . . . . . . . . . . . . . . . . . . . . . . . 46
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TBHUK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TBI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Territory. . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Third Party Claim. . . . . . . . . . . . . . . . . . . . . . . 79
Title Commitment . . . . . . . . . . . . . . . . . . . . . . . 60
Title Company. . . . . . . . . . . . . . . . . . . . . . . . . 60
Title Defects. . . . . . . . . . . . . . . . . . . . . . . . . 62
Transfer Date. . . . . . . . . . . . . . . . . . . . . . . . . 34
Transferred Subsidiaries . . . . . . . . . . . . . . . . . . . 7
UK Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
VL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
<PAGE>
<PAGE> 7 -- Exhibit 2.1 (Stock Purchase Agreement)
AGREEMENT dated July 12, 1994 by and between Thomas &
Betts Corporation ("Seller"), a New Jersey corporation having its
principal office at 1555 Lynnfield Road, Memphis, Tennessee
38119, and Vishay Intertechnology, Inc. ("Purchaser"), a Delaware
corporation having its principal office at 63 Lincoln Highway,
Malvern, Pennsylvania 19355.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Seller is the owner of all of the issued and
outstanding capital stock of Vitramon, Incorporated, a Delaware
corporation (the "Company"), and Thomas & Betts Holdings (U.K.)
Limited, an indirect subsidiary of Seller ("TBHUK"), and Seller
are the owners of all the issued and outstanding ordinary shares
of Vitramon Limited, an English corporation ("VL");
WHEREAS, the Company and VL are engaged in the design,
manufacture and sale of multilayer ceramic chip capacitors and
certain types of filters; and
WHEREAS, Purchaser desires to purchase from Seller and
TBHUK, and Seller and TBHUK desire to sell to Purchaser, all of
the issued and outstanding capital stock of the Company and VL,
respectively, on the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the
<PAGE>
<PAGE> 8 -- Exhibit 2.1 (Stock Purchase Agreement)
parties hereto, Seller and Purchaser, intending to be legally
bound, do hereby agree as follows:
1. Purchase and Sale of Stock. Subject to and upon
the terms and conditions set forth in this Agreement, Seller
hereby agrees to (or to cause its subsidiaries to) sell,
transfer, convey, assign and deliver to Purchaser, and Purchaser
hereby agrees to purchase and accept delivery from Seller, at the
Closing hereunder, all of the issued and outstanding shares of
capital stock of the Company and of VL, consisting of 100 shares
of common stock, par value $.10 per share, of the Company (the
"Stock"), and 25,000 shares, (BPS)1 par value, of VL (the "U.K
Shares"). Good and valid title to the Stock and the U.K. Shares
shall be transferred free and clear of all liens, encumbrances,
charges and claims whatsoever, including any tax liens and
charges.
2. Purchase Price. In consideration of the sale,
transfer, conveyance, assignment and delivery of the Stock and
the U.K. Shares by Seller to Purchaser hereunder, and in reliance
upon the representations and warranties made herein or pursuant
hereto by Seller, Purchaser will pay to Seller at the Closing a
total purchase price of $184,000,000 (the "Purchase Price"),
$176,000,000 of which is allocable to, and deemed to be in
consideration of, the Stock (of which $32,000,000 is allocable to
the Transferred Subsidiaries (as defined in Section 5.2)
excluding VL) and $8,000,000 of which is allocable to, and deemed
<PAGE>
<PAGE> 9 -- Exhibit 2.1 (Stock Purchase Agreement)
to be in consideration of, the U.K. Shares, payable by wire
transfer in immediately available funds to a bank account of
Seller in accordance with written instructions of Seller given to
Purchaser at least 48 hours prior to the Closing.
3. Closing. The closing of the transactions
contemplated hereby (the "Closing") shall take place at 10:00
A.M., local time, on the 18th day of July, 1994 at the offices of
Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, 919 Third
Avenue, New York, New York 10022, or at such other time and place
as the parties may agree upon. The day on which the Closing
actually takes place is herein sometimes referred to as the
Closing Date. In the event either of the parties is entitled not
to close on the scheduled date because a condition to its
obligation to close set forth in Sections 10 or 11 hereof has not
been met (or waived by the party or parties entitled to waive
it), the other party may, subject to Section 13(a)(ii) hereof,
postpone the Closing, from time to time, by giving at least three
days prior notice to such party, until the condition has been met
(which all parties will use their best efforts to cause to
happen).
4. Obligations at Closing; Further Assurances.
(a) At the Closing, Seller will deliver or cause to be delivered
to Purchaser:
(i) stock certificates representing the
Stock and the U.K. Shares, duly endorsed in
<PAGE>
<PAGE> 10 -- Exhibit 2.1 (Stock Purchase Agreement)
blank or accompanied by stock powers or other
instruments of transfer duly executed in
blank, and accompanied by all requisite stock
transfer stamps;
(ii) resignations or removals of such of
the directors and officers of the Company and
each of the Transferred Subsidiaries (as
defined in Section 5.2 hereof) as shall have
been requested by Purchaser effective
immediately; and
(iii) certified copies of the
certificate of incorporation and by-laws,
good standing certificates (and to the extent
in Seller's possession) minute books, stock
books and stock transfer ledgers of the
Company and each Transferred Subsidiary, and
all other documents required to be delivered
on or before the Closing by Seller and the
Company to the Purchaser under the provisions
of this Agreement (to the extent not
previously delivered).
(b) At the Closing, Purchaser shall deliver, or cause
to be delivered, to Seller, the Purchase Price, and all other
documents required to be delivered on or before the Closing by
Purchaser to Seller (to the extent not previously delivered).
(c) At any time and from time to time after the
Closing, at Purchaser's reasonable request and without further
consideration, Seller will execute and deliver such other
documents or instruments of sale, transfer, conveyance,
assignment, delivery and confirmation, and deliver such other
documents and take such other action as may reasonably be
necessary or desirable in order more effectively to sell, trans-
fer, convey, assign and deliver to Purchaser and to confirm
Purchaser's right, title and interest in and to the Stock and the
<PAGE>
<PAGE> 11 -- Exhibit 2.1 (Stock Purchase Agreement)
U.K. Shares and the transfer thereof to Purchaser and (at no
additional out-of-pocket expense to Seller) to confirm the
Company's right, title and interest in and to the Company's
Assets (as defined in Section 5.12(a) hereof) and to enable
Purchaser to exercise all rights with respect to the Stock, the
U.K. Shares and the Company's Assets and to otherwise carry out
Seller's obligations under this Agreement, and each party shall
take all further actions and execute and deliver such other
instruments that may be reasonably requested by the other party
to effectuate any other provision of this Agreement.
5. Representations and Warranties by Seller. Seller
hereby represents and warrants to Purchaser as follows:
5.1 Organization, Standing and Qualification;
Business. (a) Seller, the Company and each Transferred
Subsidiary is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation as set forth on Schedule 5.1(a). The Company and
each Transferred Subsidiary has all requisite corporate power and
authority to carry on its business as now being conducted and to
own, lease or operate its properties as and in the places where
such business is now conducted and such properties are now owned,
leased or operated; and except as disclosed on Schedule 5.1(a),
each is duly qualified, licensed or domesticated and in good
standing as a foreign corporation authorized to do business in
the jurisdictions listed on Schedule 5.1(a), which are the only
<PAGE>
<PAGE> 12 -- Exhibit 2.1 (Stock Purchase Agreement)
jurisdictions where the nature of the activities conducted by it
or the character of the properties owned, leased or operated by
it require such qualification, licensing or domestication. The
Company has delivered to Purchaser true and complete copies of
its and each Transferred Subsidiary's certificate of
incorporation and all amendments thereto and the by-laws of the
Company and each Transferred Subsidiary as presently in effect,
certified as true, complete and correct by its Secretary, and
such by-laws are in full force and effect as of the date hereof.
(b) Immediately after consummation of the transactions
contemplated by this Agreement, the Company and the Transferred
Subsidiaries will be able to conduct Seller's business involving
the design, manufacture and sale of multilayer ceramic chip
capacitors and certain types of filters (the "Business") in
substantially the same manner as the Company and the Transferred
Subsidiaries conducted the Business prior to the Closing, except
to the extent affected by the identity or legal or regulatory
status of Purchaser or its affiliates (as such term is understood
under U.S. securities law, "Affiliates").
(c) The books of account, minute books, stock certificate
books and stock transfer ledgers of the Company and the
Transferred Subsidiaries made available to Purchaser are complete
and correct, and there have been no transactions involving the
business of the Company or any Transferred Subsidiary which
<PAGE>
<PAGE> 13 -- Exhibit 2.1 (Stock Purchase Agreement)
properly should have been set forth therein and which have not
been accurately so set forth.
5.2 Subsidiaries. (a) The Company has no subsidiaries
except those listed on Schedule 5.2 (with VL, the "Transferred
Subsidiaries"). The Company has no interest, direct or indirect,
and has no commitment to purchase any interest, direct or
indirect, in any other corporation or in any partnership, joint
venture or other business enterprise or entity other than as set
forth on Schedule 5.2. The Business has not been conducted
through any direct or indirect subsidiary or affiliate of Seller
other than the Company and the Transferred Subsidiaries.
(b) Seller owns beneficially and of record all of the
outstanding capital stock of Thomas & Betts International, Inc.
a corporation organized under the laws of Delaware ("TBI"). As
of the date hereof, TBI and the Company together own beneficially
and of record all of the outstanding capital stock of TBHUK.
Prior to the Closing, the Company shall dividend to Seller all of
the outstanding capital stock of TBHUK it owns beneficially and
of record.
5.3 Transactions with Certain Persons. Except as set
forth on Schedule 5.3(a), during the past three years neither the
Company nor any Transferred Subsidiary has, directly or
indirectly, purchased, leased from or otherwise acquired any
property or obtained any services from, or sold, leased to or
<PAGE>
<PAGE> 14 -- Exhibit 2.1 (Stock Purchase Agreement)
otherwise disposed of any property or furnished any services to
(except with respect to remuneration for services rendered as a
director, officer or employee of the Company), in the ordinary
course of business or otherwise, Seller or any person, firm or
corporation which, directly or indirectly, alone or together with
others, controls, is controlled by or is under common control
with the Company or Seller (other than the Transferred
Subsidiaries). Except as set forth on Schedules 5.3(b) or
5.18(a), neither the Company nor any Transferred Subsidiary owes
any amount to, or has any contract with Seller or any director,
officer or employee of Seller, the Company or any Transferred
Subsidiary (other than compensation for current services not yet
due and payable and reimbursement of expenses arising in the
ordinary course of business), and none of such persons (other
than a Transferred Subsidiary) owes any amount other than
advances arising in the ordinary course of business consistent
with prior practice to the Company. Except as set forth on
Schedule 5.3(c), no part of the property or assets of Seller or
any direct or indirect subsidiary or affiliate of Seller (other
than the Transferred Subsidiaries) is used by the Company or any
Transferred Subsidiary. Neither Seller nor any of its direct or
indirect subsidiaries (other than the Company and the Transferred
Subsidiaries) owns, conducts or operates any business involved
directly in the design, manufacture and sale of capacitors or
other completed products of the Company or the Transferred
Subsidiaries.
<PAGE>
<PAGE> 15 -- Exhibit 2.1 (Stock Purchase Agreement)
5.4 Execution, Delivery and Performance of Agreement;
Authority; Consents and Approvals. (a) Neither the execution,
delivery nor performance of this Agreement by Seller will, with
or without the giving of notice or the passage of time, or both,
conflict with, result in a default, right to accelerate or loss
of rights under, or result in the creation of any lien, charge or
encumbrance on the property of the Company or the Transferred
Subsidiaries pursuant to any provision of Seller's, the Company's
or any Transferred Subsidiary's certificate of incorporation or
by-laws or any franchise, mortgage, deed of trust, lease,
license, agreement, law, ordinance, rule or regulation or any
order, judgment or decree to which Seller, the Company or any
Transferred Subsidiary is a party or by which any of them is
bound. Seller has the full corporate power and authority to
execute and deliver this Agreement and to carry out the
transactions contemplated hereby, including, without limitation,
the transfer of the Stock and the U.K. Shares to Purchaser
pursuant hereto. All proceedings required to be taken by Seller
or its stockholders to authorize the execution, delivery and
performance of this Agreement have been properly taken and this
Agreement constitutes a valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
(b) Except as identified on Schedule 5.4(b) or
disclosed pursuant to Section 5.13 hereof, no filing with, and no
permit, authorization, consent, waiver or approval of, any
<PAGE>
<PAGE> 16 -- Exhibit 2.1 (Stock Purchase Agreement)
governmental or regulatory agency or any lender, trustee,
security holder of Seller, the Company or any of the Transferred
Subsidiaries is necessary in connection with the execution,
delivery or performance by Seller of this Agreement or for the
consummation by it of the transactions contemplated hereby.
5.5 Capitalization. All of the authorized capital
stock of the Company consists solely of 2,000,000 shares of
common stock, par value $.10 per share, of which 100 shares are
issued and outstanding as of the date of this Agreement. All of
the authorized capital stock of VL consists of 50,000 shares, par
value (BPS) 1 per share, of which 25,000 are issued and outstanding as
of the date of this Agreement. The issued and outstanding shares
of capital stock of the Company are duly authorized, validly
issued, fully paid and nonassessable and are owned beneficially
and of record by Seller. All of the issued and outstanding
shares of capital stock of each Transferred Subsidiary are duly
authorized, validly issued, fully paid and nonassessable and are
owned beneficially and, except as set forth in Schedule 5.5, of
record by the Company or in the case of the U.K. Shares, by
TBHUK. Except as set forth on Schedule 5.5, Seller has, and will
have at the Closing, valid title to the Stock, and the Company
(or in the case of the U.K. Shares, TBHUK) has, and will have at
the Closing, valid title to all of the capital stock of each of
the Transferred Subsidiaries, in each case free and clear of any
liens, claims, charges, security interests or other legal or
<PAGE>
<PAGE> 17 -- Exhibit 2.1 (Stock Purchase Agreement)
equitable encumbrances, including without limitation, any which
affect transferability. Except for this Agreement, there are no
outstanding (a) securities convertible into or exchangeable or
exercisable for the capital stock of the Company or any of the
Transferred Subsidiaries, (b) subscriptions, options, warrants,
calls, or other rights to purchase or subscribe for or otherwise
acquire capital stock of the Company or any of the Transferred
Subsidiaries or (c) contracts, demands, commitments, or other
agreements or arrangements of any character or nature whatever
under which the Company or any Transferred Subsidiary is or may
become required to issue, assign or transfer any shares of the
capital stock of the Company or any Transferred Subsidiary or
purchase or make payment in respect of any shares of its capital
stock, as the case may be, now or heretofore outstanding.
5.6 Financial Statements. Seller has delivered to
Purchaser copies (initialled by the Seller's Vice President of
Finance and identified with a reference to this Section 5.6) of
the following unaudited consolidated and consolidating financial
statements of the Company and the Transferred Subsidiaries
(hereinafter collectively referred to as the "Financial
Statements"), all of which have been prepared from the books and
records of the Company and the Transferred Subsidiaries and
fairly present, in all material respects, in accordance with
generally accepted accounting principles ("GAAP") consistently
applied, except as set forth therein and except that the
<PAGE>
<PAGE> 18 -- Exhibit 2.1 (Stock Purchase Agreement)
financial statements referred to below are not accompanied by
footnotes and the consolidating financial statements reflect
application of a materiality standard appropriate to the Company
and the Transferred Subsidiaries on a consolidated basis, the
consolidated and consolidating financial condition of the Company
and the Transferred Subsidiaries as at their respective dates and
the consolidated and consolidating results of their operations
for the periods covered thereby subject, except in the case of
annual financial statements, to year-end audit adjustments:
(i) unaudited consolidated and
consolidating balance sheet of the Company
and the Transferred Subsidiaries as at
January 2, 1994 and December 31, 1992 and
1991, and the Company's unaudited
consolidated and consolidating statements of
earnings and changes in financial position
for each of the three fiscal years then
ended;
(ii) unaudited consolidated and
consolidating balance sheet of the Company
and the Transferred Subsidiaries as at April
3, 1994 (the "Base Balance Sheet"), and the
Company's unaudited consolidated and
consolidating statement of earnings and
changes in financial position for the fiscal
quarter then ended (collectively, the "Base
Financial Statements"); and
(iii) unaudited consolidated and
consolidating balance sheets of the Company
and the Transferred Subsidiaries as at each
of May 1, and May 29, 1994, and the
Company's unaudited consolidated and
consolidating statements of earnings and
changes in financial position for each
fiscal month then ended (collectively, with
the Financial Statements to be delivered
pursuant to Section 8.1.3(a) hereof, the
"Interim Financial Statements").
<PAGE>
<PAGE> 19 -- Exhibit 2.1 (Stock Purchase Agreement)
Except as expressly specified therein, such Interim Financial
Statements include all adjustments, which consist only of normal
recurring accruals, necessary for such fair presentation.
5.7 Absence of Undisclosed Liabilities. Except as
disclosed on Schedule 5.7, as of April 3, 1994, neither the
Company nor any of the Transferred Subsidiaries had any debts,
liabilities, claims, losses, damages, commitments, deficiencies
or obligations (whether absolute, accrued, contingent or
otherwise) of any nature whatsoever, or any other debts,
liabilities or obligations relating to or arising out of any act,
transaction, circumstance or state of facts which occurred or
existed on or before April 3, 1994, whether or not then known,
due or payable, which are of a type that would be required to be
set forth on the Base Balance Sheet in accordance with GAAP and
have not been so set forth. This Section 5.7 shall not apply to
Taxes (as hereinafter defined).
5.8 Taxes. (a) "Taxes" shall mean all federal,
state, local and foreign taxes, including any interest or
penalties, imposed on or measured by income. "Group" shall mean,
individually and collectively, (i) Company, (ii) Seller, (iii)
the Transferred Subsidiaries and (iv) any individual, trust,
corporation, partnership or any other entity as to which Company
or the Transferred Subsidiaries may be liable for Taxes incurred
by such individual or entity either as a transferee, or pursuant
to Treasury Regulations Section 1.1502-6, or pursuant to any
<PAGE>
<PAGE> 20 -- Exhibit 2.1 (Stock Purchase Agreement)
other provision of federal, territorial, state, local or foreign
law or regulations.
(b) Seller, the Company, each of the Transferred
Subsidiaries, and any other subsidiary of Seller has filed (or
will file) within the time prescribed by law or regulations
(taking into account all available extensions) all required Tax
returns or reports ("Returns"). Each of Seller, the Company, the
Transferred Subsidiaries and any other subsidiary of Seller has
paid in full and on a timely basis all Taxes due and payable.
There is no audit, examination, deficiency or refund litigation
pending or threatened with respect to any Taxes of the Group that
could result in a determination that would have a Material
Adverse Effect (as defined in Section 10(c) hereof). All Taxes,
interest, additions and penalties due with respect to completed
and settled examinations or concluded litigation relating to it
have been paid in full or adequate provision has been made for
any such Taxes on the Base Balance Sheet (in each case in
accordance with GAAP). There are no liens for Taxes (other than
for current Taxes not yet due and payable) upon any assets of the
Group.
(c) Except as set forth in Schedule 5.8(c), no rulings
have been issued by or agreements entered into with any tax
authority with respect to the Company or any of the Transferred
Subsidiaries that could affect the Company or any of the
<PAGE>
<PAGE> 21 -- Exhibit 2.1 (Stock Purchase Agreement)
Transferred Subsidiaries for periods ending after the Closing
Date.
(d) Except as set forth in Schedule 5.8(d), neither
the Company nor any of the Transferred Subsidiaries (i) has
granted any power of attorney with respect to any matter relating
to Taxes which is currently in force or (ii) is a party to any
agreement providing for the allocation, sharing or
indemnification of Taxes.
(e) Except as set forth in Schedule 5.8(e), neither
the Company nor any of the Transferred Subsidiaries (i) has
assets which directly or indirectly secure any debt the interest
on which is tax-exempt under section 103(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), (ii) has assets
which constitute "tax-exempt use property" within the meaning of
section 168(h) of the Code, (iii) has to the knowledge of Seller
participated in an international boycott within the meaning of
section 999 of the Code or (iv) is a party to any agreement,
contract, arrangement or plan that has resulted or would result,
separately or in the aggregate, in the payment of any "excess
parachute payments" within the meaning of section 280G of the
Code or an excise tax to the recipient of such payment pursuant
to section 4999 of the Code.
(f) Seller is not a person other than a United States
person within the meaning of the Code.
<PAGE>
<PAGE> 22 -- Exhibit 2.1 (Stock Purchase Agreement)
(g) Seller represents it will file a consolidated
federal income tax return including the Company for the taxable
year immediately preceding the current taxable year and that
Seller is eligible to make an election under section 338(h)(10)
of the Code with respect to the Company.
(h) Seller shall make available to Purchaser all
returns filed by or on behalf of the Company and each Transferred
Subsidiary with respect to payroll and employee withholding
taxes, unemployment insurance, social security, sales and use
taxes, excise taxes, capital taxes, franchise taxes, gross
receipt taxes, occupation taxes, real and personal property
taxes, value added taxes, stamp taxes, transfer taxes, workers'
compensation taxes, taxes relating to Benefit Plans (as defined
in Section 5.18) and any other tax returns reasonably requested
by Purchaser.
5.9 Absence of Changes or Events. Except as set forth
in Schedule 5.9, since April 3, 1994 and prior to the date hereof
the Company and each of the Transferred Subsidiaries has
conducted its business only in the ordinary course consistent
with prior practice and none of them has:
(a) incurred any obligation or liability,
absolute, accrued, known or unknown, contingent or
otherwise, whether due or to become due, except in the
ordinary course of business and consistent with its
prior practice, and except obligations or liabilities,
in any case or in the aggregate, that have not had or
are not reasonably likely to result in any material
adverse change in the business, results of operations
<PAGE>
<PAGE> 23 -- Exhibit 2.1 (Stock Purchase Agreement)
or financial condition of the Company and the
Transferred Subsidiaries, taken as a whole, (a
"Material Adverse Effect");
(b) discharged or satisfied any liabilities,
obligations, claims, liens, mortgages, charges,
security interests or other encumbrances (collectively,
the "Encumbrances") (other than those then required to
be discharged or satisfied by their terms), or paid any
obligation or liability, absolute, accrued, contingent
or otherwise, whether due or to become due, other than
in the ordinary course of business and consistent with
its prior practice;
(c) except for a $5,000,000 cash dividend paid by
the Company to Seller in May 1994 and the dividend by
the Company of shares of TBHUK prior to the Closing,
declared or made any payment of dividends or other
distribution to its stockholder (other than to the
Company) or upon or in respect of any shares of its
capital stock, or purchased, retired or redeemed, or
obligated itself to purchase, retire or redeem, any of
its shares of capital stock;
(d) mortgaged, pledged or subjected to
Encumbrance any of its property, business or assets,
tangible or intangible, other than those Encumbrances
permitted under Section 5.12(a) hereof;
(e) sold, transferred, leased to others or
otherwise disposed of any of its assets, except in the
ordinary course of business consistent with prior
practice, or cancelled or compromised any debt or
claim, or waived or released any right of substantial
value, except in the ordinary course of business
consistent with prior practice;
(f) received any notice of termination of any
contract, lease or other agreement which, in any case
or in the aggregate, has had or is reasonably likely to
result in a Material Adverse Effect;
(g) transferred or granted any rights under, or
entered into any settlement regarding the breach or
infringement of, or entered into any agreement or
commitment relating to, any United States or foreign
license, patent, copyright, trademark, service mark,
trade name, invention or similar rights, or modified
any existing rights with respect thereto, except in the
ordinary course of business, consistent with prior
practice;
<PAGE>
<PAGE> 24 -- Exhibit 2.1 (Stock Purchase Agreement)
(h) made any change in the rate of compensation,
commission, bonus or other direct or indirect
remuneration payable or paid or agreed or orally
promised to pay, conditionally or otherwise, any bonus,
extra compensation, pension or severance or vacation
pay, or other payment under a Benefit Plan (as defined
in Section 5.18), to any director, officer, employee,
salesman, distributor or agent, other than in the
ordinary course of business consistent with its prior
practice;
(i) acquired any capital stock or other
securities of any corporation or any interest in any
business enterprise, or otherwise made any loan or
advance to or investment in any person, firm or
corporation, except in the ordinary course of business
consistent with prior practice;
(j) made any capital expenditures or capital
additions or betterments in excess of an aggregate of
$6,000,000;
(k) materially changed any of its material
banking or safe deposit arrangements;
(l) settled or agreed to settle or suffered any
materially adverse determination in any material
litigation, action or proceeding before any court or
governmental body;
(m) failed to replenish its inventories and
supplies in the ordinary course of business consistent
with its prior practice or made any change in its
selling, pricing, advertising or personnel practices
other than in the ordinary course of business;
(n) suffered any change, event or condition
which, in any case or in the aggregate, has had or is
reasonably likely to result in a Material Adverse
Effect, including, without limitation, any change
in revenues, costs or backlog, other than those
changes, events or conditions occurring as a result of
general economic or financial conditions or other
developments that are not unique to the Company and the
Transferred Subsidiaries but also have a significant
negative impact on the passive electronics components
industry;
(o) entered into any significant transaction,
contract or legally binding commitment other than in
<PAGE>
<PAGE> 25 -- Exhibit 2.1 (Stock Purchase Agreement)
the ordinary course of business, consistent with prior
practice;
(p) made any change in any method of accounting
or auditing practices except as required by GAAP or
generally accepted auditing standards or made any
change in depreciation or amortization policies or
rates adopted by it or made any change in its method of
carrying its inventory on its books;
(q) except as required by this Agreement, amended
its certificate of incorporation or by-laws or merged
with or into or consolidated with any other person or
changed in any manner the rights of its outstanding
capital stock or the character of its business;
(r) incurred any material damage, destruction or
loss to any of the Company's Assets (as hereinafter
defined) by reason of fire, explosion, earthquake,
accident, casualty, requisition or taking of property
by any government or any agency of any government,
flood, windstorm, embargo, riot, act of God or any
enemy, or other similar casualty or event (whether or
not the same has been insured against); or
(s) entered into any agreement or made any
legally enforceable commitment to take any of the types
of action described in subsections (a), (b), (c), (d),
(e), (g), (h), (i), (j), (k), (l), (m), (o), (p) or (q)
above.
5.10 Litigation. Except as set forth in Schedule
5.10, there is no claim, legal action, suit, arbitration,
governmental investigation or other legal or administrative
proceeding, nor any order, decree, writ, award or judgment in
progress, pending or in effect, or to the knowledge of Seller
threatened, against or relating to the Company or any of the
Transferred Subsidiaries, or their respective officers, directors
or employees (as such), properties, assets or business or the
transactions contemplated by this Agreement.
<PAGE>
<PAGE> 26 -- Exhibit 2.1 (Stock Purchase Agreement)
5.11 Compliance with Laws and Other Instruments.
(a) The Company and each of the Transferred Subsidiaries has
complied with all existing laws (other than laws relating to
Taxes, military specifications, Employee Benefits Plans, Labor
Laws and Environmental Laws which are dealt with specifically in
Sections 5.8, 5.11(b), 5.18, 5.19 and 5.20, hereof), rules,
regulations, ordinances, orders, judgments and decrees applicable
to them, except where the failure to comply has not had and is
not reasonably likely to result in a Material Adverse Effect.
Neither the ownership nor use of its properties nor the conduct
of its business by the Company or any of the Transferred
Subsidiaries conflicts with the rights of any other person, firm
or corporation or entity or violates, or with or without the
giving of notice or the passage of time, or both, will violate,
conflict with or result in a breach or default, right to
accelerate or loss of rights under, any term or provision of its
certificate of incorporation or by-laws, or, to the knowledge of
Seller, any order, judgment, restriction or decree to which the
Company or any Transferred Subsidiary is a party or by which it
is bound or affected or by which its properties may be bound or
affected. None of the Seller, the Company or any of the
Transferred Subsidiaries has received any notice of violation of
any applicable regulation, ordinance or other law, order or
regulation, whether foreign, domestic, federal, state or local,
which is applicable to the business, operations, properties or
assets of the Company or the Transferred Subsidiaries.
<PAGE>
<PAGE> 27 -- Exhibit 2.1 (Stock Purchase Agreement)
(b) The Company and each of the Transferred
Subsidiaries has complied with all specifications and other
requirements of any government or governmental agency, domestic
or foreign, applicable to the products manufactured by the
Company and each of the Transferred Subsidiaries and sold to such
government or agency. In addition, each of the Company and the
Transferred Subsidiaries has complied with all (i) government or
military specifications or requirements and Qualified Product
Lists published from time to time by the Defense Electronics
Supply Center which are applicable to products manufactured by
the Business (the "Qualified Product List") and (ii) established
reliability, testing, quality assurance or other similar
procedures and/or regulations (including, but not limited to,
procurement regulations relating to the failure to comply with
such procedures and/or regulations) of the U.S. Government
(including, but not limited to, the Department of Defense and
NASA) or any foreign government incorporating such standards
applicable to any products manufactured by the Business prior to
the Closing. None of Seller, the Company or any of the
Transferred Subsidiaries is subject to any debts, liabilities or
obligations, whether civil or criminal, relating to or arising
under any contract or subcontract as a result of a failure to
comply with the foregoing.
5.12 Title to and Condition of Properties.
(a) Subject to the next sentence, the Company and each of the
<PAGE>
<PAGE> 28 -- Exhibit 2.1 (Stock Purchase Agreement)
Transferred Subsidiaries has good (and with respect to the Fee
Properties, as hereinafter defined, marketable and insurable)
title to all the properties and assets reflected in Schedules
5.13 (a) and (c) (except property sold or retired after the date
hereof in the ordinary course of business, consistent with prior
practice) (collectively, the "Company's Assets"). None of the
Company's Assets is subject to any Encumbrance of any nature
whatsoever, direct or indirect, whether accrued, absolute,
contingent or otherwise, except (i) as expressly set forth in the
Base Balance Sheet as securing specific liabilities or as
otherwise expressly permitted by the terms hereof, or (ii) those
imperfections of title and encumbrances, if any, which (A) are
not substantial in character, amount or extent and do not detract
from the value of the properties of the Company taken as a whole
and (B) do not interfere with either the present and continued
use of such properties, taken as a whole, or the conduct of the
Business in the ordinary course.
(b) All of the properties and assets owned, leased or
used by the Company and the Transferred Subsidiaries, taken as a
whole, are in good operating condition and repair, ordinary wear
and tear excepted, and are suitable for the purposes used and are
adequate and sufficient for all current operations of the Company
and the Transferred Subsidiaries. There are no pending or, to
the knowledge of Seller or the Company, threatened condemnation,
eminent domain or annexation proceedings against any of such
<PAGE>
<PAGE> 29 -- Exhibit 2.1 (Stock Purchase Agreement)
properties and none of them or the improvements thereon violates
any applicable easement, deed restriction or other covenant,
restriction or agreement.
5.13 Schedules. Schedule 5.13 contains, as of the
date hereof, an accurate and complete list of:
(a) All real property (including
fixtures and improvements thereon) (i) owned
by the Company or any Transferred Subsidiary
or which is used by the Company or any
Transferred Subsidiary in connection with the
operation of its business, having a book
value at April 3, 1994, or (ii) leased under
leases providing for any annual rental, in
excess of $25,000.
(b) As of a date no earlier than
March 31, 1994, all of the Company's and the
Transferred Subsidiaries' receivables having
a book value at April 3, 1994 in excess of
$25,000 (which shall include accounts receiv-
able, loans receivable and any advances to
customers but shall not include any amounts
owing to or from Seller or any Transferred
Subsidiary), together with information as to
each such listed receivable that has been
outstanding for more than 60 days.
(c) All machinery, tools, equipment,
motor vehicles, rolling stock and other
tangible personal property (other than
inventory and supplies), owned, leased or
used by the Company or any Transferred
Subsidiary, except for items having a book
value at April 3, 1994, or original price or
leased under leases providing for an annual
rental of less than $10,000.
(d) All patents, patent applications,
patent licenses, trademarks, trademark regis-
trations, and applications therefor, service
marks, service names, trade names, brand
names, copyright registrations, and
applications therefor, wholly or partially
owned or held by the Company or any
<PAGE>
<PAGE> 30 -- Exhibit 2.1 (Stock Purchase Agreement)
Transferred Subsidiary or used in the
operation of the Business and material
thereto.
(e) All material fire, theft, property,
casualty, liability, workers' compensation,
directors and officers liability, surety
bonds, key man life insurance and other
insurance policies and binders insuring the
Company or any Transferred Subsidiary that
are currently in effect (the "Insurance"),
specifying with respect to each such policy
the name of the insurer, the risk insured
against, the limits of coverage, the deducti-
ble amount (if any), the premium rate and the
date through which coverage will continue by
virtue of premiums already paid.
(f) All manufacturers sales
representatives agreements, distributor
agreements (including franchises) or agree-
ments providing for the services of an inde-
pendent contractor providing for aggregate
payments in excess of $20,000 to which the
Company or any Transferred Subsidiary is a
party.
(g) Each contract with the United
States or any foreign government or any
agency or department of any thereof to which
the Company or any Transferred Subsidiary is
a party.
(h) All loan agreements, indentures,
mortgages, pledges, conditional sale or title
retention agreements, security agreements,
equipment obligations, guaranties, leases or
lease purchase agreements to which the
Company or any Transferred Subsidiary is a
party or by which it or any of its property
is bound having (in the case of any
indebtedness) a principal amount or providing
for (in the case of other agreements)
payments in excess of $100,000.
(i) All contracts, agreements and
binding commitments, whether or not fully
performed, pursuant to which the Company has
acquired, in the last three years from the
date hereof, capital stock or any other
securities of any corporation or any interest
<PAGE>
<PAGE> 31 -- Exhibit 2.1 (Stock Purchase Agreement)
in any business enterprise (other than any
such acquisition or interest in any
Transferred Subsidiary), or otherwise made
any loan or advance to or investment in any
person, firm or corporation (other than a
Transferred Subsidiary or to officers or
employees in the ordinary course of business,
consistent with prior practice).
(j) All other contracts or agreements,
to which the Company or any Transferred
Subsidiary is a party or by which it or any
of its property is bound involving payments
or receipts by the Company or any Transferred
Subsidiary, as the case may be, of more than
$250,000 in any single case and which are not
terminable by the Company or any Transferred
Subsidiary on 30 days' or less notice without
any penalty or consideration.
(k) The names of all directors and
officers of the Company and each Transferred
Subsidiary; the name of each bank in which
the Company or any Transferred Subsidiary has
an account or safe deposit box and the names
of all persons authorized to draw thereon or
have access thereto; and the names of all
persons, if any, holding tax or other powers
of attorney from the Company or any
Transferred Subsidiary.
All of the contracts, agreements, leases, licenses and commit-
ments required to be listed on Schedule 5.13 (other than those
which have been fully performed) as of the date hereof (i) are
valid, binding and enforceable against (A) the Company or a
Transferred Subsidiary, as the case may be, and (B) to Seller's
knowledge, the other party or parties thereto, as the case may
be, in accordance with their respective terms and (ii) are in
full force and effect. Except as specified in Schedule 5.13,
no contract, agreement, lease, license or binding commitment to
which the Company or any Transferred Subsidiary is a party
<PAGE>
<PAGE> 32 -- Exhibit 2.1 (Stock Purchase Agreement)
requires any consent or waiver to remain in full force and
effect as a result of the Closing. Except as disclosed in
Schedule 5.13, there is not thereunder any existing default by
the Company or any Transferred Subsidiary, or event which,
after notice or lapse of time, or both, would constitute a
default by the Company or any Transferred Subsidiary or result
in a right to accelerate or loss of rights by the Company or
any Transferred Subsidiary. None of the existing or completed
contracts of the Company or any Transferred Subsidiary is
subject to renegotiation with any governmental body. In
addition, except as disclosed on Schedule 5.13, no contract,
agreement, lease, license or commitment to which the Company or
any Transferred Subsidiary is a party contains any provision
that would alter or amend any of the terms thereof following
the Closing as a result of the transfer of the Stock or the
U.K. Shares pursuant hereto. True and complete copies of all
such contracts, agreements, leases, licenses and other
documents listed on Schedule 5.13 (together with any and all
amendments thereto) have been made available to Purchaser.
5.14 Insurance. (a) Each Insurance policy is in
full force and effect as of the date of this Agreement and will
be in full force and effect until the Closing Date (with
respect to any Benefit Plan as defined in Section 5.18, on the
Closing Date) and is with financially sound and reputable
<PAGE>
<PAGE> 33 -- Exhibit 2.1 (Stock Purchase Agreement)
insurers in accordance with normal industry practice including
self insurance.
(b) The Insurance provides adequate coverage for all
normal risks incident to the assets, properties and business
operations of the Company and the Transferred Subsidiaries.
(c) Except as set forth on Schedule 5.14 hereto,
Seller does not maintain any Insurance covering itself, its
direct and indirect subsidiaries or any affiliate that also
provides coverage for the Company and the Transferred
Subsidiaries.
(d) Seller has provided or made available to
Purchaser all workers' compensation ratings and unemployment
insurance ratings and contributions of the Company and each of
the Transferred Subsidiaries with respect to the employees of
the Company or Transferred Subsidiaries, as the case may be.
Except as disclosed on Schedule 5.14, neither Seller nor the
Company has any knowledge of any proposed increase therein or
knows of any conditions or circumstances (other than those
applicable to employees in such jurisdiction generally)
applicable to the Business which might result in such increase.
5.15 Patents, etc. Each of the Company and the
Transferred Subsidiaries owns or possesses the royalty free
licenses or other rights to use all copyrights, trademarks,
service marks, service names, trade names, patents, inventions,
<PAGE>
<PAGE> 34 -- Exhibit 2.1 (Stock Purchase Agreement)
trade secrets and other proprietary rights necessary to conduct
its business as it is presently operated. Neither the Company
nor any of the Transferred Subsidiaries is infringing upon or
otherwise acting adversely to any valid copyrights, trademarks,
trademark rights, service marks, service names, trade names,
patents, patent rights, inventions, licenses, trade secrets or
other legitimate proprietary rights owned by any other person
or persons, and there is no claim or action by any such person
pending, or to the knowledge of the Seller or the Company
threatened, with respect thereto. Except as disclosed on
Schedule 5.15, neither Seller nor any of its direct or indirect
subsidiaries (other than the Company and the Transferred
Subsidiaries) owns, or possesses licenses or other rights to
use, any valid copyrights, trademarks, service marks, service
names, trade names, patents, inventions, trade secrets and
other legitimate proprietary rights necessary for the conduct
of the Business.
5.16 No Guaranties. Except as disclosed on Schedule
5.16, and other than (a) Seller's guarantee of the obligations
and liabilities of the Company and the Transferred Subsidiaries
provided to Dun & Bradstreet, a copy of which guarantee is
attached hereto on Schedule 5.16 (the "D&B Letter"), (b) the
Company's guarantee of the obligations or liabilities of the
Transferred Subsidiaries and vice versa, (c) guarantees by the
Transferred Subsidiaries of obligations of other Transferred
<PAGE>
<PAGE> 35 -- Exhibit 2.1 (Stock Purchase Agreement)
Subsidiaries, and (d) endorsements for deposit or collection
made in the ordinary course, none of the obligations or
liabilities of the Company or any Transferred Subsidiary is
guaranteed by any other person, firm or corporation, nor has
the Company or any Transferred Subsidiary guaranteed or
otherwise become contingently liable for the obligations or
liabilities of any other person, firm or corporation.
5.17 Product Returns; Warranties. There are no
liabilities for product returns, warranty obligations or
product services other than those arising in the ordinary
course of business, consistent with Seller's and the Company's
historical practice relating to the Business. Except as
disclosed on Schedule 5.17, Seller has no knowledge of any
threatened claim for any (i) product returns, (ii) warranty
obligations, or (iii) product services, relating to the
Business. True and correct copies of the standard warranty
provided by Seller, the Company and the Transferred
Subsidiaries on sales orders and other related documents which
are delivered in connection with the Business have been made
available to Purchaser. Except as set forth on Schedule 5.17,
the Company's usual and customary practice is to include only
such standard warranty.
5.18 Employee Benefit Plans. (a) Schedule 5.18(a)
sets forth a full and complete list of all compensation and
benefit plans, programs and other arrangements, whether or not
<PAGE>
<PAGE> 36 -- Exhibit 2.1 (Stock Purchase Agreement)
in writing, maintained by or to which the Company or any
Transferred Subsidiary contributes on behalf of any employee of
the Company or any Transferred Subsidiary (an "Employee") or
any former employee of the Company or any Transferred
Subsidiary (a "Former Employee") (or any dependent or
beneficiary thereof) or with respect to which the Company or
any Transferred Subsidiary may have any liability or obligation
to an Employee or Former Employee (or any dependent or
beneficiary thereof), direct, indirect, contingent or
otherwise, including without limitation, employment,
consulting, independent contractor or deferred compensation
agreements, executive compensation, deferred compensation,
stock ownership, stock purchase, performance share, bonus and
other incentive plans, pension, profit sharing, savings, thrift
or retirement plans, employee stock ownership plans, life,
health, dental and disability plans, vacation, severance pay,
sick leave, tuition reimbursement and other benefit plans, and
any other employee benefit plan within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") (collectively, the "Benefit Plans"). True
and complete copies of all the Benefit Plans (including
summaries of any unwritten Benefit Plans) and any related trust
agreements, insurance and other contracts and other funding
arrangements, summary plan descriptions and summaries of
material modifications relating to each Benefit Plan, the three
most recent annual reports which have been filed with the
<PAGE>
<PAGE> 37 -- Exhibit 2.1 (Stock Purchase Agreement)
Internal Revenue Service and Department of Labor with respect
to each Benefit Plan required to file such reports, all
collective bargaining agreements pursuant to which a Benefit
Plan is maintained or contributions to a Benefit Plan are made,
and favorable determination letters issued since 1984 for each
Benefit Plan and related trust that is intended to satisfy the
qualification requirements of sections 401(a) and 501(a) of the
Code have been provided to Purchaser.
(b) Seller, the Company and the Transferred
Subsidiaries have complied with all applicable laws and
regulations relating to the Benefit Plans, including but not
limited to ERISA and the Code, and with the terms of the
Benefit Plans. The Company and each of the Transferred
Subsidiaries have filed within the time prescribed by law or
regulations all returns and reports required pursuant to ERISA
and the Code in connection with Benefit Plans and all such
returns and report are complete and accurate. Neither Seller,
the Company or any of the Transferred Subsidiaries, has made
any commitments with respect to the Benefit Plans other than in
accordance with a reasonable interpretation of the terms of the
Benefit Plans; there are no actions, suits or claims pending or
threatened against any Benefit Plan or the assets of any
Benefit Plan (other than routine claims for benefits) or
against any fiduciary of any Benefit Plan with respect to such
Benefit Plan; all payments due under or pursuant to the Benefit
<PAGE>
<PAGE> 38 -- Exhibit 2.1 (Stock Purchase Agreement)
Plans have been paid or are properly accrued and reflected on
the books and financial statements of Seller, the Company and
the Transferred Subsidiaries.
(c) Neither Seller, the Company nor the Transferred
Subsidiaries have entered into any contractual obligations (as
such term is used in the Company's Benefit Plans) limiting the
Company's or a Transferred Subsidiary's right to amend or
terminate any Benefit Plan. The Balance Sheet reflects all
employer contributions required to be made to all Benefit Plans
to date to the extent required to be so reflected under GAAP.
Except for the Thomas & Betts Employees Pension Plan ("Seller's
Defined Benefit Plan"), Thomas & Betts Corporation Supplemental
Executive Investment Plan ("Seller's Deferred Compensation
Plan") the Thomas & Betts Corporation Executive Retirement
Plan, the Thomas & Betts Corporation 1993 Management Stock
Ownership Plan, the Thomas & Betts Corporation 1990 Stock
Option Plan and the Thomas & Betts Corporation 1985 Stock
Option Plan (collectively, "Seller's Equity Plans"), the Thomas
& Betts Corporation Executive Life Insurance Plan and the
Thomas & Betts Corporation Travel Accident Plan, all Employees
are covered under benefit plans sponsored solely by the Company
or a Transferred Subsidiary. Prior to the Closing Date, Seller
will provide written notice to each Employee covered under an
employee benefit plan sponsored by Seller that his active
participation in such plan shall cease as of the Closing Date.
<PAGE>
<PAGE> 39 -- Exhibit 2.1 (Stock Purchase Agreement)
As of the Closing Date, with the exception of the plans listed
in the second preceding sentence, no Employee will be covered
under any employee benefit plan sponsored by Seller. Neither
Seller nor any Affiliate of Seller (other than the Company, the
Transferred Subsidiaries or Mr. Robert Paquette), participates
in a Benefit Plan sponsored by the Company or a Transferred
Subsidiary. On and after the Closing Date, neither the
Company, Transferred Subsidiaries nor Buyer will be under any
obligation to contribute to any employee benefit plan
maintained by Seller. Except for the Vitramon Incorporated
Retirement Trust ("Company's Defined Benefit Plan"), no Benefit
Plan sponsored by the Company or a Transferred Subsidiary
participates in a trust sponsored by any entity except the
Company or a Transferred Subsidiary.
(d) On or prior to the Closing Date, Seller
covenants and agrees to cause a trust to be established (the
"Vitramon Trust") to which the assets of the Company's Defined
Benefit Plan, currently held in the master trust established by
agreement between Seller and The Northern Trust Company
("Northern") dated June 1, 1982 (the "Master Trust"), shall be
transferred. Seller and Purchaser agree that they shall take
such actions as are appropriate in order for the transfer
described in the preceding sentence to be accomplished as
follows (subject to any modification to which the Seller and
Purchaser may mutually agree in writing):
<PAGE>
<PAGE> 40 -- Exhibit 2.1 (Stock Purchase Agreement)
(i) on the "Transfer Date", which shall be on or
before the Closing Date, cash equal to the value (as
determined by Northern as of June 30, 1994) of the
interest of the Company's Defined Benefit Plan in the
Master Trust (the "June Value") shall be transferred
from the Master Trust to the Vitramon Trust, and
(ii) as soon as practicable following July 31, 1994,
the amount by which the Final Transfer Amount (as
defined below) exceeds the June Value shall be
transferred from the Master Trust to the Vitramon
Trust or, if there is no such amount, the amount (if
any) by which the June Value exceeds the Final
Transfer Amount shall be transferred from the
Vitramon Trust to the Master Trust.
The Final Transfer Amount shall be:
(A) the June Value, appropriately adjusted for plan
distributions and administrative expenses, increased (or
decreased) by
(B) the investment gain (or loss) experienced by the
Master Trust (as determined by Northern) for the month of
July 1994 multiplied by the product of (x) a fraction the
numerator of which is the number of days in July 1994 that
preceded the Transfer Date and the denominator of which is
31 and (y) a fraction the numerator of which is the June
Value and the denominator of which is the value of the
<PAGE>
<PAGE> 41 -- Exhibit 2.1 (Stock Purchase Agreement)
assets of the Master Trust as of June 30, 1994 (as
determined by Northern).
(e) Each Benefit Plan which is not a plan qualified
under section 401(a) of the Code, but which is intended to meet
the requirements for tax-favored treatment under section 79,
104, 105 or 106 of the Code, complies in all respects with the
requirements of such section.
(f) Each Benefit Plan which is intended to be
"qualified" within the meaning of section 401(a) of the Code
(and the exempt trust thereunder) has been determined by the
Internal Revenue Service to satisfy the qualification
requirements of sections 401(a) and 501(a) of the Code and each
such Benefit Plan (and related trust) complies with such
qualification requirements without being aggregated with any
other employee benefit plan.
(g) No "reportable event" within the meaning of
section 4043(b) of ERISA has occurred with respect to the
Company's Defined Benefit Plan. The Pension Benefit Guaranty
Corporation ("PBGC") has not instituted proceedings to
terminate the Company's Defined Benefit Plan. The Company's
Defined Benefit Plan has no accumulated or waived funding
deficiency within the meaning of section 412 of the Code nor
has any extension of any amortization period within the meaning
of section 412 of the Code or 302 of ERISA been applied for
<PAGE>
<PAGE> 42 -- Exhibit 2.1 (Stock Purchase Agreement)
with respect thereto. All applicable premiums required to be
paid to the PBGC prior to the Closing Date with respect to the
Company's Defined Benefit Plan have been paid. No facts exist
with respect to the Company's Defined Benefit Plan which would
give rise to a termination proceeding which would result in
liability under section 4068 of ERISA or a lien on the assets
of the Company or a Transferred Subsidiary under section 4068
of ERISA on or prior to the Closing Date.
(h) With respect to each Benefit Plan, no party in
interest or disqualified person (as defined in section 3(14) of
ERISA and section 4975 of the Code, respectively) has at any
time engaged in a transaction which could subject Seller, the
Company or any Transferred Subsidiary, directly or indirectly,
to a Tax, penalty or liability for prohibited transactions
imposed by section 406 of ERISA or section 4975 of the Code.
No fiduciary (as defined in section 3(21) of ERISA) with
respect to any Benefit Plan has breached any of the
responsibilities or obligations imposed upon fiduciaries under
Title I of ERISA.
(i) During the seven-year period preceding the date
of this Agreement, neither Seller, the Company nor any
Transferred Subsidiary has ever contributed to, or withdrawn in
a complete or partial withdrawal from, any multiemployer plan
(within the meaning of Subtitle E of Title IV of ERISA) or
incurred contingent liability under section 4204 of ERISA.
<PAGE>
<PAGE> 43 -- Exhibit 2.1 (Stock Purchase Agreement)
(j) Except for the Vitramon, Incorporated Retiree
Medical Benefits Plan ("Retiree Medical Plan"), no Benefit Plan
sponsored by the Company or any Transferred Subsidiary, other
than the Company's Defined Benefit Plan, the Vitramon,
Incorporated Thrift Plan, and the Supplemental Retirement Plan
of Vitramon North America, provides for the payment of retiree
or post-termination benefits other than as required under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, or any similar state law. The Retiree Medical Plan
was amended effective January 1, 1993 and under the terms of
the Plan, all Former Employees who were eligible to enroll in
the Plan have done so and no other individual is or will be
eligible to enroll in the Retiree Medical Plan.
(k) Except as disclosed on Schedule 5.18(k), since
April 3, 1994 neither Seller, the Company nor any Transferred
Subsidiary has adopted any increase in benefits under a Benefit
Plan or agreed to the creation of any new benefits or any
increase in benefits under any Benefit Plan or change in
employee coverage which would increase the expense of
maintaining any such Benefit Plan or proposed any such actions
under circumstances in which it would reasonably be expected
that such proposal would be implemented.
(l) Except as disclosed on Schedule 5.18(l), the
consummation of the transactions contemplated by this Agreement
<PAGE>
<PAGE> 44 -- Exhibit 2.1 (Stock Purchase Agreement)
will not result in an increase in the amount of compensation or
benefits or accelerate the vesting or timing of payment of any
benefits or compensation payable in respect of any employee.
(m) No employee or former employee of Seller, the
Company or any Transferred Subsidiary will be entitled to any
severance benefits under the terms of any Benefit Plan solely
by reason of the consummation of the transactions contemplated
by this Agreement.
(n) Each of Seller, the Company and the Transferred
Subsidiaries has complied with the notice and continuation
requirements of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended, and the regulations thereunder,
applicable to it with respect to any Benefit Plan.
(o) During the seven-year period preceding the date
of this Agreement, no actual or contingent liability under
Title IV of ERISA, section 302 of ERISA or section 412 of the
Code to any person, including the PBGC (other than for
premiums), has been, and no such liability is reasonably
expected to be, incurred by Seller, the Company or any
Transferred Subsidiary with respect to any Benefit Plan, or
any other employee benefit plan (as defined in section 3(3) of
ERISA) currently or previously maintained or contributed to by
Seller, the Company, any Transferred Subsidiary or any "ERISA
Affiliate" (as hereinafter defined), as a result of, or arising
<PAGE>
<PAGE> 45 -- Exhibit 2.1 (Stock Purchase Agreement)
from, any events that have occurred prior to the date of this
Agreement or that will have occurred prior to or on the Closing
Date or by reason of the consummation of the transactions
contemplated by this Agreement. "ERISA Affiliate" means any
trade or business, whether or not incorporated, which together
with Seller, the Company or a Transferred Subsidiary, is
treated as a "single employer" within the meaning of section
414(b), (c), (m) or (o) of the Code or section 4001 of ERISA.
(p) No event has occurred prior to the date of this
Agreement and no condition presently exists with respect to the
Benefit Plans that would subject Purchaser, the Company or a
Transferred Subsidiary to any liability for any tax under
section 4971, 4972, 4975, 4976, 4977, 4978, 4979, 4979A, 4980,
4980B or 5000 of the Code, or to a fine under section 502(c) of
ERISA.
(q) Except as set forth on Schedule 5.18(q), no
leased employee (within the meaning of section 414(n) or (o) of
the Code) performs any services for Seller, the Company or any
Transferred Subsidiary with respect to the Business.
(r) Seller has delivered or made available to
Purchaser a claims run from one or more insurance brokers with
respect to workers compensation claims filed by employees of
the Company and the Transferred Subsidiaries during the period
from January 1, 1989 through April 30, 1994.
<PAGE>
<PAGE> 46 -- Exhibit 2.1 (Stock Purchase Agreement)
(s) No circumstances exist that could result in
Purchaser, the Company or a Transferred Subsidiary having any
liability, including but not limited to any successor
liability, with respect to any Benefit Plan that is or was
maintained by Seller or any "ERISA Affiliate" of Seller other
than the Company or a Transferred Subsidiary.
5.19 Labor Matters. (a) Each of the Company and
the Transferred Subsidiaries is in compliance with all
applicable laws respecting employment and employment practices,
terms and conditions of employment, and wages and hours, and is
not engaged in any unfair labor practice.
(b) Except as disclosed on Schedule 5.19(b), there
are no complaints or charges against the Company or any
Transferred Subsidiary pending or, to the knowledge of Seller,
threatened before the National Labor Relations Board or any
state, local or foreign labor agency involving or affecting the
Company or the Transferred Subsidiaries.
(c) There are no strikes, slowdowns, work stoppages,
or other labor troubles pending or, to the knowledge of Seller,
threatened with respect to the Employees and none of the above
has occurred or, to the knowledge of Seller, has been
threatened since April 3, 1994.
(d) There is no representation claim or petition
pending before the National Labor Relations Board and to the
<PAGE>
<PAGE> 47 -- Exhibit 2.1 (Stock Purchase Agreement)
knowledge of Seller no attempt to organize for collective
bargaining purposes is being made or is threatened respecting
the Employees.
(e) No collective bargaining agreement is currently
in effect or being negotiated by Seller, the Company or the
Transferred Subsidiaries with respect to the Employees; neither
Seller, the Company nor any of the Transferred Subsidiaries has
any obligation to negotiate any collective bargaining agreement
with respect to the Employees, and none of the Seller, the
Company and the Transferred Subsidiaries has encountered any
labor union organizing activity with respect to the Company and
each of the Transferred Subsidiaries.
(f) No charges with respect to or relating to the
Company or any of the Transferred Subsidiaries are pending
before the Equal Employment Opportunity Commission, or any
state, local or foreign agency responsible for the prevention
of unlawful employment practices.
(g) None of Seller, the Company or the Transferred
Subsidiaries has received notice of the intent of any federal,
state, local or foreign agency responsible for the enforcement
of labor or employment laws to conduct an investigation of or
relating to the Company or any of the Transferred Subsidiaries
and, to the knowledge of Seller, no such investigation is in
progress.
<PAGE>
<PAGE> 48 -- Exhibit 2.1 (Stock Purchase Agreement)
(h) Schedule 5.19 sets forth for each Employee whose
total compensation for the year ended January 2, 1994 exceeded
$75,000 the (A) employment date, (B) title or position, (C)
yearly salary rates and bonus, incentive payments for the year
ended January 2, 1994 and (D) accrued vacation and sick days
not taken.
5.20 Environmental Matters. (a) Except as set forth
on Schedule 5.20:
(i) The Company and the Transferred
Subsidiaries have obtained or applied for all
Environmental Permits, as defined below, as are
presently required for the lawful operation of the
Business.
(ii) The Company and the Transferred
Subsidiaries are (A) in compliance with all terms and
conditions of the Environmental Permits, and are in
compliance with and are not in default under any
Environmental Laws, as defined below, (B) not subject
to any court order or order of any federal, state or
local government body or agency with respect to any
Environmental Laws, and (C) have not received written
notice of a violation by or claim against the Company
under any Environmental Laws.
<PAGE>
<PAGE> 49 -- Exhibit 2.1 (Stock Purchase Agreement)
(iii) There have been no Releases by the Company
or any of the Transferred Subsidiaries in the conduct
of the Business of any Hazardous Substances (A) into,
on or under any of the properties owned or operated
(or formerly owned or operated) by the Company,
including those of the Transferred Subsidiaries or
(B) into, on or under any other properties,
including, without limitation, landfills in which
Hazardous Substances have been Released.
(iv) No properties have been used at any time by
the Company as a landfill or storage, treatment or
disposal site for any Hazardous Waste as defined
under RCRA.
(v) There is no known damaged or friable
asbestos or asbestos-containing material contained in
any of the buildings or structures covered by this
Agreement. There are no claims, suits or proceedings
by any employee pending or, to the knowledge of
Seller, threatened against either Company or any
Transferred Subsidiary and relating to the Company's
Assets or the Business that are premised on the
exposure to asbestos or asbestos-containing material.
(b) For purposes of this Agreement, the capitalized
terms used in this Agreement shall have the meanings set forth
<PAGE>
<PAGE> 50 -- Exhibit 2.1 (Stock Purchase Agreement)
below. When used herein, the singular includes the plural as
the context requires:
(i) "Environment" means all air, surface water,
groundwater, drinking water or land, including land
surface or subsurface.
(ii) "Environmental Laws" means all foreign,
federal, state or local environmental, land use,
health, chemical use, safety and sanitation laws,
statutes, ordinances, rules, regulations (including,
without limitation, with respect to the Business,
specific licenses, permits, authorizations,
directives, approvals, consents, court orders,
injunctions or decrees, orders or agreements with
governmental agencies) and codes, as in effect on the
date hereof, relating to health, safety or the
protection of the Environment and/or governing the
discharge of pollutants or the use, storage,
treatment, generation, transportation, processing,
handling, production or disposal of Hazardous
Substances, including but not limited to the Resource
Conservation and Recovery Act of 1976 as amended
("RCRA"), the Clean Air Act as amended, the
Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended, the Toxic
Substances Control Act as amended, the Occupational
<PAGE>
<PAGE> 51 -- Exhibit 2.1 (Stock Purchase Agreement)
Safety and Health Act of 1970 and state and foreign
statutes similar to or based upon the foregoing.
(iii) "Environmental Permits" means all
approvals, authorizations, consents, permits,
licenses, registrations and certificates required by
any applicable Environmental Laws relating to:
(A) pollution or protection of the Environment
including those relating to the emission, Release or
discharge of any Hazardous Substances into the
Environment, (B) the use, treatment, storage,
disposal, generation, transport or handling of
Hazardous Substances, or (C) the ownership, use,
operation, cleanup or remediation of the Fee
Properties or Leased Properties.
(iv) "Hazardous Substance" means, without
limitation, any flammable explosives, radon,
radioactive materials, urea formaldehyde foam
insulation, polychlorinated biphenyls, petroleum and
petroleum products (including but not limited to
waste petroleum and petroleum products), methane,
hazardous materials, hazardous wastes, pollutants,
contaminants and hazardous or toxic substances, as
defined in or regulated under any applicable
Environmental Laws.
<PAGE>
<PAGE> 52 -- Exhibit 2.1 (Stock Purchase Agreement)
(v) "Release" means any past or present
spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching,
dumping, or disposing of a Hazardous Substance into
the Environment.
(vi) "Site Conditions" means, with respect to
any real property, conditions of the Environment of
such property which (A) are in existence as of the
Closing Date or (B) become manifest after the Closing
Date, and have been caused by Releases of Hazardous
Substances to the Environment existing or occurring
at or prior to the Closing Date.
5.21 No Brokers; Absence of Certain Business
Practices. Except for Merrill Lynch & Co., whose fees,
commissions and expenses are the sole responsibility of Seller,
neither Seller, the Company, any Transferred Subsidiary nor any
of their respective officers, directors or Representatives (as
defined in Section 7(c)) has employed any investment banker,
business consultant, broker or finder or incurred any liability
for any investment banking, business consultant, brokerage or
finders' fee or commission in connection with the execution or
delivery of this Agreement or the consummation of the
transactions contemplated hereby. None of the Company, any
Transferred Subsidiary, or any officer, employee or agent of
the Company or any Transferred Subsidiary, nor, to the
<PAGE>
<PAGE> 53 -- Exhibit 2.1 (Stock Purchase Agreement)
knowledge of Seller, any other person acting on its or their
behalf, has, directly or indirectly, within the past five years
given or agreed to give any gift or similar benefit to any
representative of a customer or supplier or a governmental
employee for the purpose of obtaining or retaining the Business
which (i) is unlawful, (ii) if not given in the past, would
likely have had a Material Adverse Effect or (iii) if not
continued in the future, would be reasonably likely to result
in a Material Adverse Effect or would be reasonably likely to
subject the Company to suit or penalty in any private or
governmental litigation or proceeding.
5.22 Vitramon Brazil. Set forth on Schedule 5.22 is
an estimate of the out-of-pocket costs (including write offs of
assets at book value) net of reserves accrued therefor as of
May 29, 1994, necessary to terminate and discontinue the
operations of Vitramon do Brasil Ltda., a Brazilian limited
liability company and one of the Transferred Subsidiaries.
Seller estimates that such costs will not exceed $1.6 million
in the aggregate. Such estimate has been prepared in good
faith.
5.23 Disclosure. No representation or warranty by
Seller contained in this Agreement or in any Instrument
contains or will contain any untrue statement of a material
fact, or omits or will omit to state any material fact required
<PAGE>
<PAGE> 54 -- Exhibit 2.1 (Stock Purchase Agreement)
to make the statements herein or therein contained not
misleading.
6. Representations and Warranties by Purchaser.
Purchaser represents and warrants to Seller as follows:
6.1 Organization. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws
of Delaware and has all requisite corporate power and authority
to enter into this Agreement and to carry out the transactions
contemplated hereby.
6.2 Execution, Delivery and Performance of
Agreement. Neither the execution, delivery nor performance of
this Agreement by Purchaser will, with or without the giving of
notice or the passage of time, or both, conflict with, result
in a default, right to accelerate or loss of rights under, or
result in the creation of any lien, charge or encumbrance pur-
suant to, any provision of Purchaser's certificate of incorpor-
ation or by-laws or any franchise, mortgage, deed of trust,
lease, license, agreement, law, ordinance, rule or regulation
or any order, judgment or decree to which Purchaser is a party
or by which it is bound. Purchaser has full corporate power
and authority to enter into this Agreement and to carry out the
transactions contemplated hereby, all proceedings required to
be taken by Purchaser to authorize the execution, delivery and
performance of this Agreement have been properly taken and this
<PAGE>
<PAGE> 55 -- Exhibit 2.1 (Stock Purchase Agreement)
Agreement constitutes a valid and binding obligation of
Purchaser enforceable against Purchaser in accordance with its
terms.
6.3 Litigation. There is no suit in progress,
pending or in effect, or to the knowledge of Purchaser
threatened, against or relating to Purchaser in connection with
or relating to the transactions contemplated by this Agreement.
6.4 Governmental Approvals and Filings. Except for
filings pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, filings with the French government
and filings under the Connecticut Property Transfer Law,
Connecticut General Statutes sections 22a-134a to 22a-134e, including
"Form III," no consent, approval or action of, filing with or
notice to any governmental or regulatory authority on the part
of Purchaser is required in connection with the execution,
delivery and performance of this Agreement or the consummation
of the transactions contemplated hereby.
6.5 Purchase for Investment. The Stock and the U.K.
Shares will be acquired by Purchaser for its own account for
the purpose of investment, it being understood that the right
to dispose of such Stock shall be entirely within the
discretion of Purchaser. Purchaser will refrain from
transferring or otherwise disposing of any of the Stock, the
U.K. Shares, or any interest in the Stock or the U.K. Shares,
<PAGE>
<PAGE> 56 -- Exhibit 2.1 (Stock Purchase Agreement)
in such manner as to cause Seller to be in violation of the
registration requirements of the Securities Act of 1933, as
amended, or applicable state securities or blue sky laws.
6.6 No Brokers. Neither the Purchaser nor any of
its officers, directors or Representatives has employed any
investment banker, business consultant, broker or finder or
incurred any liability for any investment banking, business
consultant, brokerage or finders' fee or commission in
connection with the execution or delivery of this Agreement or
the consummation of the transactions contemplated hereby.
6.7 Financing. Purchaser knows of no reason why it
should not be able to obtain sufficient financing to pay the
Purchase Price and to make all other necessary payments of fees
and expenses in connection with the transactions contemplated
by this Agreement.
6.8 Breach. As of the date hereof, Purchaser has no
actual knowledge of any material (i) misrepresentation, (ii)
breach of warranty or (iii) nonfulfillment or failure to be
performed of any covenant or agreement by Seller in connection
with the consummation of the transactions contemplated hereby.
7. Conduct of Business Prior to Closing. (a)
Prior to the Closing, Seller shall cause the Company and each
of the Transferred Subsidiaries to conduct their business and
affairs only in the ordinary course and consistent with prior
<PAGE>
<PAGE> 57 -- Exhibit 2.1 (Stock Purchase Agreement)
practice and Seller shall cause the Company and each of the
Transferred Subsidiaries to use commercially reasonable efforts
to maintain, keep and preserve their assets and properties
taken as a whole in good condition and repair, ordinary wear
and tear excepted, and maintain insurance thereon in accordance
with present practices, and Seller will use, and shall cause
the Company to use, its commercially reasonable efforts to (i)
preserve the business and organization of the Company and the
Transferred Subsidiaries intact, (ii) keep available to
Purchaser, subject to removals and retirements in the ordinary
course, the services of the present employees, agents and
independent contractors of the Company and the Transferred
Subsidiaries, (iii) preserve for the benefit of Purchaser the
goodwill of suppliers, customers, landlords and others having
significant business relations with the Company and the
Transferred Subsidiaries and (iv) cooperate with Purchaser and
use reasonable efforts to assist Purchaser in obtaining the
consent of any landlord or other party to any lease or contract
with the Company or any of the Transferred Subsidiaries where
the consent of such landlord or other party may be required by
reason of the transactions contemplated hereby, all to the
extent the Company believes to be in the best interests of the
Company and the Transferred Subsidiaries. Without limiting the
generality of the foregoing, prior to the Closing and
subsequent to the date hereof, the Seller shall not allow the
<PAGE>
<PAGE> 58 -- Exhibit 2.1 (Stock Purchase Agreement)
Company nor any of the Transferred Subsidiaries to, without
Purchaser's prior written approval:
(i) change its certificate of incor-
poration or by-laws or merge or consolidate
or obligate itself to do so with or into
any other entity;
(ii) enter into any contract, agree-
ment, commitment or other understanding or
arrangement of the type required to be
listed under subsections (f), (g), (h), (i)
or (j) of Schedule 5.13 hereof;
(iii) adopt any new plan or
arrangement for the benefit of any employee
of the Company or any Transferred
Subsidiary or materially amend any Benefit
Plan or any benefit plan or arrangement
maintained by the Company or any
Transferred Subsidiary other than
amendments (A) required to be made under
applicable laws or regulations or (B) as
contemplated under the terms of this
Agreement;
(iv) other than actions taken by the
Company pursuant to Section 8.1.4(b),
perform, take any action or intentionally
incur or permit to exist any of the acts,
transactions, events or occurrences of the
type (A) described in subsections (a), (b),
(c) (other than a dividend by the Company
to Seller of the TBHUK shares owned by the
Company), (d), (e), (g), (i), (j), (k),
(l), (m), (o), (p) or (s) of Section 5.9
hereof which would have been inconsistent
with the representations and warranties set
forth therein had the same occurred after
April 3, 1994, and prior to the date
hereof, or (B) described in Section 5.3
hereof which would be required to be set
forth on Schedule 5.3 if it had taken place
during the past three years;
(v) grant any increase in the compen-
sation, commissions or bonus opportunities
payable to or to become payable to any
Employee, excluding any increases in the
<PAGE>
<PAGE> 59 -- Exhibit 2.1 (Stock Purchase Agreement)
ordinary course of business consistent with
prior practice;
(vi) enter into any new compensation
arrangement with any director, officer or
Employee or pay or agree to pay any
pension, retirement allowance or other
employee benefit to any director, officer
or Employee (whether past or present) or
declare, approve or make any deposit into
or contribution or payment to any Benefit
Plan, other than any such actions taken in
the normal course of business or which are
necessary in order to comply with
applicable law; or
(vii) increase the regularly scheduled hours
per week for any Employee if such increase would
result in such Employee becoming eligible to
participate in any Benefit Plan, other than any such
increase in the ordinary course of business
consistent with prior practice.
(b) In the event that during the period between the
date hereof and the Closing Date, all or any significant
portion of the properties of the Company or any Transferred
Subsidiary is damaged by fire or other casualty, Seller shall
promptly give notice thereof to Purchaser.
(c) Neither Seller, the Company, their respective
Affiliates nor any of the officers, directors, employees,
representatives or agents of, or professional advisors
(collectively, the "Representatives") to, Seller, the Company
or their respective Affiliates, shall, directly or indirectly,
solicit, initiate, participate in discussions with, provide any
information or assistance to (including, but not limited to,
affording access to the properties, books and records of the
<PAGE>
<PAGE> 60 -- Exhibit 2.1 (Stock Purchase Agreement)
Company or any of its subsidiaries or otherwise relating to the
Company's Assets or the Business) or enter into any agreement
or series of agreements with any person or persons (other than
Purchaser) concerning any transaction that would result,
directly or indirectly, in the transfer to any such person or
persons of control of the Business or any substantial part
thereof other than pursuant to this Agreement.
8. Covenants.
8.1 Covenants of Seller. Seller hereby covenants
and agrees as follows:
8.1.1 Access to Information, Documents and Premises.
Prior to the Closing and upon reasonable notice:
(a) Seller shall, and shall cause the Company and
each of the Transferred Subsidiaries to, give Purchaser
and Purchaser's Representatives full access, upon
reasonable prior notice and during normal business hours,
to the officers and other personnel of the Company and the
Transferred Subsidiaries and all properties, documents,
contracts, books, records and Returns of the Company and
the Transferred Subsidiaries (including, without
limitation, books and records relating to backlog, payroll
and personnel matters), but only to the extent that such
access does not unreasonably interfere with the business
and operations of the Company or any Transferred
<PAGE>
<PAGE> 61 -- Exhibit 2.1 (Stock Purchase Agreement)
Subsidiary, and will furnish or cause to be furnished to
Purchaser copies of such documents (certified by Seller's
officers if so requested) and such information with
respect to the Business, the Company's Assets and the
affairs of the Company and the Transferred Subsidiaries as
Purchaser may from time to time reasonably request, except
to the extent that furnishing any such information or data
would violate any law, regulation, order, contract or
license applicable to Seller, the Company or any
Transferred Subsidiary or by which any of their respective
assets and properties is bound.
(b) Seller shall, and shall cause the Company and
each of the Transferred Subsidiaries to, allow Purchaser
and Purchaser's Representatives to enter upon the real
properties of the Company and the Transferred Subsidiaries
upon reasonable prior notice and during normal business
hours, to conduct inspections of the real properties of
the Company and the Transferred Subsidiaries or to conduct
other studies, including, without limitation, monitoring
existing test wells and examining all documents, and such
other non-destructive tests as Purchaser may deem
necessary to determine the environmental condition of the
real properties of the Company and the Transferred
Subsidiaries, but only to the extent that such access does
not unreasonably interfere with the business and
<PAGE>
<PAGE> 62 -- Exhibit 2.1 (Stock Purchase Agreement)
operations of the Company or any Transferred Subsidiary
and does not involve sampling without Seller's written
consent; such inspection rights shall include Purchaser's
right to request information from the appropriate
governmental agencies to determine whether the real
properties of the Company and the Transferred Subsidiaries
are in compliance with all applicable laws, rules,
regulations, orders, decrees, judgments, injunctions,
notices or demand letters.
(c) Subject to Section 14(c) hereof, neither the
furnishing of any information to Purchaser pursuant to
this Section 8.1.1 or any other investigation by Purchaser
shall affect Purchaser's right to rely on any
representation or warranty made in this Agreement or in
any certificate furnished or to be furnished by Seller to
Purchaser in connection herewith or pursuant hereto.
8.1.2 Directors Authorization. At or prior to the
Closing, Seller will deliver to Purchaser a true, correct
and complete copy of the resolutions of the Board of
Directors of Seller approving the execution and delivery
of this Agreement and the consummation of all of the
transactions contemplated hereby, duly certified by an
officer of Seller.
<PAGE>
<PAGE> 63 -- Exhibit 2.1 (Stock Purchase Agreement)
8.1.3 Certain Additional and Pro Forma Financial
Information.
(a) No later than 15 business days following the end
of each fiscal month from July 3, 1994 to the Closing,
Seller shall deliver to Purchaser unaudited consolidated
and consolidating balance sheets of the Company and the
Transferred Subsidiaries as of the last day of the month
then ended and unaudited consolidated and consolidating
statements of earnings and changes in financial position
of the Company for the one month then ended (collectively,
with the Financial Statements described in Section
5.6(iii) hereof, the "Interim Financial Statements"). The
Interim Financial Statements will be prepared from the
books and records of the Company and the Transferred
Subsidiaries and will fairly present, in all material
respects, in accordance with GAAP consistently applied
except as set forth therein and except that such financial
statements will not be accompanied by footnotes, the
consolidated and consolidating financial condition of the
Company and the Transferred Subsidiaries as at their
respective dates and the consolidated results of their
operations for the periods covered thereby subject to
year-end adjustments. Such statements of earnings will
not contain any items of special or nonrecurring income or
loss, except as expressly specified therein to the extent
<PAGE>
<PAGE> 64 -- Exhibit 2.1 (Stock Purchase Agreement)
required by GAAP, and such interim financial statements
will include all adjustments necessary for such fair
presentation.
8.1.4 Elimination of Certain Liabilities. Prior to
Closing, Seller shall extinguish and release or arrange to
be released all liabilities as of the Closing Date of the
Company and the Transferred Subsidiaries identified on the
Base Balance Sheet as "Current Portion Long Term Debt,"
"Intercompany Payables," "Long Term Debt - T&B" and "Long
Term Debt - Comm" (excluding capitalized leases included
therein) from sources other than the Company's assets
except for $2,023,884 (plus (a) any additional interest
accruals thereon up to the Closing and (b) amounts paid by
Seller on the Company's behalf to third parties in the
ordinary course of business consistent with prior
practice) of "Intercompany Payables" that shall be paid
from the Company's assets. If the repayment of such
amount causes the Company to go into an overdraft
position, such overdraft will be for the account of
Purchaser.
8.2 Covenant of Purchaser Regarding Financing.
Purchaser hereby covenants and agrees that it shall use its
best efforts to obtain the necessary financing to enable
Purchaser to pay the Purchase Price for the Stock and the U.K.
Shares.
<PAGE>
<PAGE> 65 -- Exhibit 2.1 (Stock Purchase Agreement)
8.3 Covenants of Seller and Purchaser. Seller and
Purchaser hereby covenant and agree as follows (except pursuant
to Section 8.3.7, during the period before Closing):
8.3.1 Maintaining Representations and Warranties.
Each party hereto shall use its commercially reasonable
efforts to satisfy the conditions to the other party's
obligation to consummate the transactions contemplated by
this Agreement and shall refrain from taking any action
that could reasonably be expected to result in the
nonfulfillment of such conditions.
8.3.2 Facilitating the Transaction. Subject to the
terms and conditions herein provided, each of the parties
hereto agrees to use its respective commercially
reasonable efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the
transactions contemplated by this Agreement.
8.3.3 Changes in Representations and Warranties.
Each party hereto shall give the other party prompt
written notice of any known change in any of the
information contained in the representations and
warranties made in this Agreement or the Schedules
referred to herein which occurs prior to the Closing;
<PAGE>
<PAGE> 66 -- Exhibit 2.1 (Stock Purchase Agreement)
provided, however, that subject to Section 14(c) hereof,
neither the supplementing or amending of any Schedules by
Seller, nor the discovery of any matters by Purchaser in
the course of its investigations, shall be deemed to cure
any breach of any representation or warranty made in this
Agreement or such Schedules to have been disclosed as of
the date of this Agreement or to constitute any waiver by
Purchaser of any of its rights hereunder, and Purchaser
shall be entitled to rely on such representations or
warranties.
8.3.4 Title Insurance. (a) Purchaser has ordered
from Chicago Title Insurance Company (the "Title Company")
title insurance reports, certificates and/or commitments
(the "Title Commitment") for owner's title insurance
policies with respect to the real properties of the
Company set forth on Schedule 8.3.4 (the "Fee Properties")
and for leasehold title insurance policies with respect to
any real properties that constitute part of the Company's
Assets and are leased (the "Leased Properties") and has
furnished copies of such Title Commitment to Seller.
Within five (5) days after the date hereof, Purchaser
shall give Seller notice of any Encumbrances disclosed by
such Title Commitment that are not:
(i) an Encumbrance set forth on Schedule 8.3.4,
true and complete copies (or if copies are
<PAGE>
<PAGE> 67 -- Exhibit 2.1 (Stock Purchase Agreement)
unavailable, descriptions) of which have been made
available to Purchaser;
(ii) an Encumbrance (including but not limited
to easements, quasi-easements, restrictions, rights
of way, land use ordinances and zoning plans) that
does not materially detract from the value of or
materially interfere with the use, operation or
enjoyment of the Fee Properties or Leased Properties
as a whole in substantially the same manner as same
were used, operated or enjoyed by the Company on
April 3, 1994;
(iii) an Encumbrance for Taxes and assessments
not yet due and payable or being contested in good
faith;
(iv) mechanics', materialmen's, workers',
repairmen's, warehousemen's, carriers' liens and
other similar Encumbrances arising in the ordinary
course of business which, in the aggregate, do not
exceed $10,000;
(v) the standard exceptions to title that
appear as a part of Chicago Title Insurance Company's
printed form of title insurance policy and that are
not customarily removed by the Company furnishing an
affidavit of title (except that the foregoing shall
be limited to matters that would not result in loss
or removal of any improvements on the Fee Properties
or the Leased Properties);
(vi) Encumbrances reflected on the Balance
Sheet; and
(vii) any Encumbrance which, at no additional
cost to Purchaser, the Title Company shall have
agreed either to (A) affirmatively insure Purchaser
by endorsement or otherwise against the adverse
effect thereof (including the collection of such
Encumbrance or forfeiture or impairment of any rights
of Purchaser with respect to the affected Property),
or (B) omit such Encumbrance as an exception to the
title policy.
The matters described in clauses (i) through (vii) above
are referred to hereafter as "Permitted Encumbrances."
Seller shall use commercially reasonable efforts to
<PAGE>
<PAGE> 68 -- Exhibit 2.1 (Stock Purchase Agreement)
eliminate any Encumbrance of which Purchaser has given
notice that is not a Permitted Encumbrance (collectively,
"Title Defects") on or before the Closing Date. The
failure by Purchaser to give such notice shall be deemed a
waiver by Purchaser of Purchaser's rights with respect
thereto.
8.3.5 Replacement Insurance. Seller will cooperate
with Purchaser in obtaining, at Purchaser's expense,
replacement insurance policies, effective as of the
Closing Date, affording coverage to the Company and the
Transferred Subsidiaries comparable to that afforded by
the policies listed in Schedule 5.14.
8.3.6 Government Filings. Purchaser and Seller
shall promptly prepare and duly file appropriate
applications to obtain any consent, approval or
authorization of any governmental authority, domestic or
foreign, required to be obtained in connection with the
taking of any action contemplated by this Agreement. Each
of the parties will cooperate with each other, will
furnish such information and will take such further action
as may be required diligently to prosecute any such
required application and shall use its best efforts to
obtain any such consent, approval or authorization.
<PAGE>
<PAGE> 69 -- Exhibit 2.1 (Stock Purchase Agreement)
8.3.7 Cooperation and Records Retention.
(a) Seller and Purchaser shall (i) each provide the other
with such assistance as may reasonably be requested by the
other in connection with the preparation of any Return,
audit or other examination by any tax authority or
judicial or administrative proceedings relating to
liability for Taxes, (ii) each retain and provide the
other with any records or other information which may be
relevant to such Return, audit or examination, proceeding
or determination, and (iii) each provide the other with
any final determination of any such audit or examination,
proceeding or determination that affects any amount
required to be shown on any Return of the other for any
period. Purchaser shall, with Seller's assistance as may
reasonably be required, make the filing with the State of
Connecticut described in Section 6.4.
(b) Purchaser shall retain, and shall cause Company
to retain, and Seller shall retain, until the applicable
statutes of limitations (including any extensions) have
expired, copies of all Returns, supporting work schedules and
other records or information that may be relevant for all Tax
periods or portions thereof ending before or including the
Closing Date.
<PAGE>
<PAGE> 70 -- Exhibit 2.1 (Stock Purchase Agreement)
9. Taxes.
9.1 General. Seller shall, and shall cause the
Company to, prepare and timely file all Returns and amendments
thereto required to be filed by or for the Company and the
Transferred Subsidiaries for periods ending on or before the
Closing Date and timely pay all Taxes shown thereon as due and
payable. Purchaser will be given a reasonable opportunity to
review such Returns, and, at Seller's reasonable request, and
subject to Purchaser's review of such returns, Purchaser shall
cause the Company to sign such returns prepared by Seller for
pre-closing periods not due to be filed until after the Closing
Date to the extent the Company's signature is required by the
applicable law. Seller shall pay all Taxes of the Group
arising from or relating to the transactions contemplated by
this Agreement, including any Taxes resulting from the Section
338(h)(10) Election (as hereinafter defined). Any amount of
current domestic Taxes reserved for in the Base Balance Sheet
(including any additional current domestic Tax reserves accrued
between April 3, 1994 and the Closing Date) shall be paid by
the Company and the Transferred Subsidiaries to Seller prior to
the Closing Date. To appropriately apportion any Taxes
relating to a period that includes (but that would not, but for
this section, close on) the Closing Date, the parties hereto
will treat for all purposes the Closing Date as the last day of
a taxable period of the Company and each Transferred
<PAGE>
<PAGE> 71 -- Exhibit 2.1 (Stock Purchase Agreement)
Subsidiary, and such period shall be treated as a "Pre-Closing
Short Period" for purposes of this Agreement. All Taxes
attributable to the periods prior to and including the Closing
Date, including Taxes for a Pre-Closing Short Period, shall be
treated as "Pre-Closing Taxes" for purposes of this Agreement
and shall be payable by Seller, provided that Seller shall pay
any foreign Pre-Closing Taxes only if, and to the extent that,
those Taxes exceed current Tax Reserves of the Company and the
Transferred Subsidiaries for foreign Taxes. Foreign Taxes
attributable to a Pre-Closing Short Period will be determined
in accordance with the past Business Practices (defined below)
of the Company and the Transferred Subsidiaries and in
accordance with the applicable Tax rates in effect on the
Closing Date. For purposes of this paragraph, "Business
Practices" shall mean the past dividend policies and Tax
elections of the Company and the Transferred Subsidiaries.
Notwithstanding any other provision of this Agreement, Seller
shall have no liability for underaccrual of Taxes payable or an
overaccrual of Taxes receivable by any Transferred Subsidiary
resulting from a change of the past Business Practices of the
Company and the Transferred Subsidiaries following the Closing
Date. Seller shall file all Pre-Closing Short Period Tax
Returns. Purchaser shall prepare and timely file all returns
and reports required to be filed with respect to any transfer
and sales taxes arising from or relating to the transaction
contemplated by this Agreement. Seller shall have a reasonable
<PAGE>
<PAGE> 72 -- Exhibit 2.1 (Stock Purchase Agreement)
opportunity to review such returns or reports. Seller shall,
upon Purchaser's demand, reimburse Purchaser for one-half of
the amount of any such taxes.
9.2 Tax Sharing Agreements. All tax-sharing
agreements or similar arrangements with respect to or involving
the Company or the Transferred Subsidiaries shall be terminated
as to them prior to the Closing Date, and, after the Closing
Date, the Company or the Transferred Subsidiaries shall not be
bound thereby or have any liability thereunder for amounts due
in respect of periods prior to the Closing Date.
9.3 Elections. No new elections with respect to
Taxes, or any changes in current elections with respect to
Taxes, of the Company or the Transferred Subsidiaries which may
have an effect on the Company or the Transferred Subsidiaries
for periods ending after the Closing Date shall be made after
the date of this Agreement without the prior written consent of
Purchaser.
9.4 Tax Refunds. Seller shall be entitled to all
refunds with respect to Pre-Closing Taxes. If in any period
ending after the Closing Date the Company or any of the
Transferred Subsidiaries earns any credit or recognizes any
loss which cannot be applied against its tax liability for such
period, and is permitted by law to carry back such credit or
loss to a period ending on or prior to the Closing Date, and if
<PAGE>
<PAGE> 73 -- Exhibit 2.1 (Stock Purchase Agreement)
the Group receives a tax refund (whether actually received or
applied in reduction of any Taxes) for the period to which such
credit or loss is properly carried back, the benefit of which
the Group would not have had but for the carryback from the
Company or any Transferred Subsidiary, then Seller shall
promptly remit to Purchaser the amount of such tax refund. In
the event a tax benefit realized by Seller under this section
9.4 is later reduced upon a final determination by a taxing
authority, Purchaser shall promptly remit to Seller the amount
of such reduction in tax benefit upon Seller's written request
therefor. In connection with this Section 9.4, Seller and
Purchaser agree that they will cooperate with each other in
causing their respective affiliates and representatives to
promptly and timely proceed in connection with (i) the
preparation and filing of, and (ii) any administrative or
judicial proceedings involving, any return of tax or
information filed or required to be filed by or for the Group,
the Company, any Transferred Subsidiary or Purchaser.
9.5 Post-Closing Matters.
(a) Purchaser and the Company agree to give
Seller prompt written notice of receipt of oral or written
notice of any tax examinations, claims, settlements, proposed
adjustments or related matters that may affect Pre-Closing
Taxes. Seller shall have the right to sole control regarding
any audit or examination by any taxing authority, initiating
<PAGE>
<PAGE> 74 -- Exhibit 2.1 (Stock Purchase Agreement)
any claim for refund, filing any amended return, and
contesting, resolving and defending against any assessment,
notice of deficiency or other adjustment or proposed adjustment
relating to any Pre-Closing Taxes, except that with respect to
any matter that may affect the Taxes of Purchaser, the Company
or any Transferred Subsidiary for any period ending after the
Closing Date, Purchaser and the Company shall participate with
Seller in control of such matters.
(b) Purchaser and the Company shall file and
control any Returns required to be filed by the Company and the
Transferred Subsidiaries for periods ending after the Closing
Date (including Returns in jurisdictions that do not accept
Pre-Closing Short Period Tax Returns to be filed by Seller
pursuant to Section 9.1 hereof). Seller agrees that it shall
provide, and shall cause its accountants and other
Representatives to provide, to Purchaser on a timely basis the
information, including but not limited to all work papers and
records relating to the Company and the Transferred
Subsidiaries, that it or the accountants or other
Representatives have within their control and that may be
reasonably necessary or related to (i) the preparation of any
and all Returns, information returns and reports required to be
filed by Purchaser or the Company and (ii) audits or other tax
determinations or proceedings by or before governmental
agencies, such information to be provided in the form in which
<PAGE>
<PAGE> 75 -- Exhibit 2.1 (Stock Purchase Agreement)
it has in the past been maintained by Seller, its accountants
or other representative.
(c) Seller shall timely take any and all actions
necessary to effect elections with respect to the Company under
Code section 338(h)(10) (and the Treasury Regulations
promulgated thereunder) and any comparable provisions of state,
local or foreign law (collectively and separately, the "Section
338(h)(10) Election"). Purchaser shall be responsible for, and
control, the preparation and filing of such election. The
allocation of Purchase Price among the assets of the Company
shall be made in accordance with Code section 338 and 1060 and
any comparable provisions of state, local or foreign law, as
appropriate. The Purchase Price shall be allocated
consistently with the allocations in Section 2 of this Stock
Purchase Agreement, and Seller and Purchaser shall file in all
respects and for all purposes consistently with such
allocation. Seller shall execute and deliver to Purchaser such
documents or forms as are required by applicable law for an
effective Section 338(h)(10) Election.
10. Conditions Precedent to Purchaser's Obligations.
All obligations of Purchaser hereunder are subject, at the
option of Purchaser, to the fulfillment of each of the
following conditions at or prior to the Closing, and Seller
<PAGE>
<PAGE> 76 -- Exhibit 2.1 (Stock Purchase Agreement)
shall exert commercially reasonable efforts to cause each such
condition to be so fulfilled:
(a) The representations and warranties of Seller
contained herein and in any Instrument (i) taken as a whole
shall be true and correct when made, (ii) shall be deemed to
have been made again at and (except those which are made as of
a specific earlier date) as of the date of the Closing, and,
(iii) taken as a whole, shall then be true and correct, in each
case in all respects material to the business, results of
operations and financial condition of the Company and the
Transferred Subsidiaries taken as a whole.
(b) All covenants, agreements and obligations
required by the terms of this Agreement to be performed by
Seller at or before the Closing shall have been duly and
properly performed in all respects material to the business,
results of operations and financial condition of the Company
and the Transferred Subsidiaries taken as a whole.
(c) Since the date of this Agreement, except for
transactions to take place pursuant hereto at or before the
Closing, there shall not have occurred a Material Adverse
Effect, other than as a result of general economic or financial
conditions or other developments that are not unique to the
Company and the Transferred Subsidiaries but also have a
<PAGE>
<PAGE> 77 -- Exhibit 2.1 (Stock Purchase Agreement)
significant negative impact on the passive electronics
components industry.
(d) There shall be delivered to Purchaser a cer-
tificate executed by the President and Secretary of Seller and
the Company, dated the date of the Closing, certifying that the
conditions set forth in paragraphs (a), (b) and (c) of this
Section 10 have been fulfilled.
(e) All other Instruments required to be delivered
to Purchaser at or prior to the Closing shall have been so
delivered.
(f) Purchaser shall have received an opinion of
Seller's counsel, dated the date of the Closing, substantially
in accordance with Exhibit 10(f) annexed hereto.
(g) Seller and the Company shall have obtained the
permits, authorizations, consents, waivers and approvals
described in Section 5.4(b).
(h) Purchaser shall have available financing in an
amount sufficient to consummate the transaction contemplated
hereby, or the unavailability of such financing shall result
from the failure of one of the conditions of this Section 10
(or the identical condition in a loan agreement entered into by
Purchaser to obtain such financing) to be fulfilled at the time
of Closing.
<PAGE>
<PAGE> 78 -- Exhibit 2.1 (Stock Purchase Agreement)
(i) Purchaser shall have received written
resignations of all the directors and officers of the Company
and the Transferred Subsidiaries as shall have been requested
by Purchaser, or Seller shall have provided for their removal.
(j) There shall not have occurred prior to the
Closing and be continuing on the Closing Date: (i) the
declaration of any banking moratorium or suspension of payments
in respect of banks in the United States; (ii) any general
suspension of trading in, or limitation on prices for,
securities on any United States national securities exchange or
in the over-the-counter market; (iii) the commencement of a
war, armed hostilities or any other national or international
crisis directly or indirectly involving the United States; or
(iv) any limitation (whether or not mandatory) by any
governmental, regulatory or administrative agency or authority
on banks or other lending institutions in the United States.
11. Conditions Precedent to Seller's Obligations.
All obligations of Seller hereunder are subject, at the option
of Seller, to the fulfillment of each of the following
conditions at or prior to the Closing, and Purchaser shall
exert commercially reasonable efforts to cause each such
condition to be so fulfilled:
(a) All representations and warranties of Purchaser
contained herein or in any Instrument taken as a whole shall be
<PAGE>
<PAGE> 79 -- Exhibit 2.1 (Stock Purchase Agreement)
true and correct when made and shall be deemed to have been
made again at and as of the date of the Closing, and shall then
be true and correct in all material respects.
(b) All covenants, agreements and obligations
required by the terms of this Agreement to be performed by
Purchaser at or before the Closing shall have been duly and
properly performed in all material respects.
(c) There shall be delivered to Seller a certificate
executed by the Vice President and Secretary of Purchaser,
dated the date of the Closing, certifying that the conditions
set forth in paragraphs (a) and (b) of this Section 11 have
been fulfilled.
(d) All other documents required to be delivered by
Purchaser to Seller at or prior to the Closing shall have been
so delivered.
(e) Seller shall have received an opinion of Pur-
chaser's counsel, dated the date of the Closing, substantially
in accordance with Exhibit 11(e) annexed hereto.
12. Indemnification. (a) Seller hereby indemnifies
and agrees to hold Purchaser harmless from, against and in
respect of (and shall reimburse Purchaser for):
(i) any and all loss, liability or
damage suffered or incurred by Purchaser,
the Company or any Transferred Subsidiary
by reason of (A) any untrue representation
<PAGE>
<PAGE> 80 -- Exhibit 2.1 (Stock Purchase Agreement)
by Seller contained herein, (B) breach of
any warranty by Seller contained herein,
(C) nonfulfillment of any covenant or
agreement by Seller contained herein or in
any Instrument or (D) those environmental
matters described in Sections 12(b) and
12(c); and
(ii) any and all actions, suits, proceed-
ings, claims, demands, assessments, judgments,
penalties and fines, and reasonable out-of-
pocket costs and expenses, including, without
limitation, reasonable legal fees and expenses,
incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or
to oppose the imposition thereof, or in
enforcing this indemnity (collectively with the
amounts in (i) above, the "Costs").
Except as provided in Sections 12(b), 12(c), 12(m)
and 12(n), no amounts of indemnity shall be payable under
Sections 12(a)(i) and 12(a)(ii) until and only to the extent
that the aggregate dollar amount of all such Costs suffered or
incurred by Purchaser, the Company and any Transferred
Subsidiary (excluding such Costs indemnified under Sections
12(b), 12(c), 12(m) and 12(n)) exceeds $3,500,000 (the
"Basket"). The amount of money that Seller shall be obligated
to pay to Purchaser under this Section 12 shall not exceed
$19,000,000.
(b) Seller hereby indemnifies and agrees to hold
Purchaser harmless from, against and in respect of, and shall
reimburse Purchaser for one hundred percent (100%) of the Costs
suffered or incurred by Purchaser, the Company or any
<PAGE>
<PAGE> 81 -- Exhibit 2.1 (Stock Purchase Agreement)
Transferred Subsidiary relating to Environmental Laws, without
regard to the Basket with respect to:
(i) penalties, fines or other punitive
sanctions imposed upon Purchaser, the Company or any
Transferred Subsidiary by a governmental authority as
a result of non-compliance with Environmental Laws
prior to the Closing Date and up to the amount of
such fines that are allocable to the period prior to
the Closing Date to the extent that such penalties,
fines or other punitive sanctions are imposed with
respect to the operations of facilities owned by the
Company or any Transferred Subsidiary as of the
Closing Date; and
(ii) any liability under Environmental Laws
that may arise at any time for the off-site Release
of Hazardous Substances by the Company or any
Transferred Subsidiary provided that the Release that
is the basis of any such claim occurred prior to the
Closing Date. "Off-site Release" shall refer to
Releases on, at, under or about properties that are
not currently operated by the Company or any
Transferred Subsidiary as of the Closing Date.
(c) Seller hereby indemnifies and agrees to hold
Purchaser harmless from, against and in respect of and shall
reimburse Purchaser for (i) one hundred percent (100%) of the
Costs suffered or incurred by Purchaser, the Company or any
Transferred Subsidiary up to $1,000,000, (ii) fifty percent
(50%) of the Costs suffered or incurred by Purchaser, the
Company or any Transferred Subsidiary from $1,000,000 to
$13,000,000 and (iii) fifty percent (50%) of the Costs suffered
or incurred by Purchaser, the Company or any Transferred
Subsidiary in excess of $16,000,000 (subject, however, to
Seller's aggregate maximum indemnification of Purchaser of
<PAGE>
<PAGE> 82 -- Exhibit 2.1 (Stock Purchase Agreement)
$19,000,000 as set forth in Section 12(a) above) to the extent
attributable to the following:
(i) a breach of any representation in Section
5.20;
(ii) any Site Condition that existed before the
Closing Date at any facilities currently operated by
the Company or any Transferred Subsidiary, whether or
not disclosed in Schedule 5.20, that is required by a
governmental authority to be investigated, removed or
remediated, or is the basis of a third-party claim
against the Company or any Transferred Subsidiary;
and
(iii) all capitalized costs (other than the
Costs described in Section 12(b)) required to be
incurred by Purchaser, the Company or any Transferred
Subsidiary to ensure that the facilities owned or
operated by the Company or any Transferred Subsidiary
as of the Closing Date are capable of consistently
achieving compliance with the requirements of
Environmental Laws that are applicable and
enforceable as of the Closing Date (including the
Consent Order of December 1993) to achieve customary
output under normal operating conditions.
(d) Sections 12(b) and 12(c) constitute Purchaser's,
the Company's and each of the Transferred Subsidiary's
exclusive remedy relating to Costs suffered or incurred by them
arising in any way out of the Release of Hazardous Substances,
Site Conditions, breaches of representations in Section 5.20
hereof, third-party claims relating to Hazardous Substances, or
otherwise pursuant to or arising under Environmental Laws, and
Purchaser, the Company and the Transferred Subsidiaries are
hereby precluded from asserting (and hereby waive the right to
assert) any such claims against Seller or any of its
Affiliates, whether at law or in equity, for such matter.
<PAGE>
<PAGE> 83 -- Exhibit 2.1 (Stock Purchase Agreement)
Notwithstanding anything to the contrary contained in this
Agreement, no amounts of indemnity shall be payable under
Sections 12(b) and 12(c) for
(i) Costs to comply with future Environmental
Laws or current Environmental Laws which are not yet
effective or applicable to the Company;
(ii) Costs with respect to Releases or Site
Conditions first occurring after the Closing Date,
provided, however that to the extent that a Release
or Site Condition occurred prior to the Closing Date,
Costs shall be indemnified as provided in Section
12(c);
(iii) Costs which would otherwise be
indemnified under Section 12(b) or 12(c) but for
which proper accounting reserves have been
established by the Company on or prior to April 3,
1994; and
(iv) ordinary or usual costs associated with
the ongoing operation of the Business and not
specifically arising due to non-compliance with
Environmental Laws prior to the Closing Date
(including without limitation, the costs of
monitoring, sampling and analysis required under any
Environmental Permit, and the cost of disposal of
Hazardous Substances generated by the Company as a
result of ongoing operations).
(e) Purchaser hereby indemnifies and agrees to hold
Seller harmless from, against and in respect of (and shall on
demand reimburse Seller for):
(i) any and all loss, liability or damage
suffered or incurred by Seller by reason of any
untrue representation, breach of warranty or
nonfulfillment of any covenant or agreement by
Purchaser contained herein or in any Instrument
delivered to Seller pursuant hereto, as well as
by reason of the D&B Letter, solely as it
relates to the Company and any Transferred
Subsidiary;
<PAGE>
<PAGE> 84 -- Exhibit 2.1 (Stock Purchase Agreement)
(ii) Costs with respect to Releases and Site
Conditions occurring after the Closing Date,
including without limitation, those occurring in
connection with investigations, excavations or other
remediation activities addressing Releases or Site
Conditions that occurred or existed prior to the
Closing Date; and
(iii) any and all actions, suits,
proceedings, claims, demands, assessments,
judgments, penalties, fines, costs and
expenses, including, without limitation,
reasonable legal fees and expenses,
incident to any of the foregoing or
incurred in investigating or attempting to
avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
(f) No amounts of indemnity shall be payable under
Sections 12(e) for Purchaser's breach of any representation or
warranty contained in Section 6(i) until and only to the extent
that the dollar amount of all such losses, liabilities or
damages suffered or incurred by Seller exceeds $3,500,000. The
amount of money that Purchaser shall be obligated to pay Seller
under this Section 12 shall not exceed $19,000,000.
(g) Notwithstanding anything to the contrary
contained in this Agreement, neither party shall be liable to
the other party for any consequential damages resulting from
its misrepresentation, breach of warranty or failure to perform
any of its obligations under this Agreement.
(h) Notwithstanding anything to the contrary
contained in this Agreement, no amounts of indemnity shall be
<PAGE>
<PAGE> 85 -- Exhibit 2.1 (Stock Purchase Agreement)
payable as a result of any claim in respect of any Costs
arising under this Section 12:
(i) with respect to any claim for
indemnification hereunder, unless the Indemnified
Party has given the Indemnifying Party a Claim Notice
or Indemnity Notice, as applicable, with respect to
such claim, setting forth in reasonable detail the
specific facts and circumstances pertaining thereto,
(A) as soon as practical following the time at which
the Indemnified Party discovered such claim (except
to the extent the Indemnifying Party is not
prejudiced by any delay in the delivery of such
notice) and (B) in any event prior to the applicable
date as of which the indemnity with respect to such
claim expires under Section 14(b);
(ii) with respect to any Costs that the
Indemnified Party had an opportunity, but failed, in
good faith to mitigate, including but not limited to
its failure to use commercially reasonable efforts to
recover under a policy of insurance or under a
contractual right of set-off or indemnity, to the
extent that failure to so mitigate would result in a
reduction in damages recoverable under applicable
principles of contract law; or
(iii) with respect to any Costs suffered,
incurred or sustained by Purchaser or to which it
becomes subject, to the extent such Costs arise from
or were caused by actions taken or failed to be taken
by Purchaser or any of its Affiliates after the
Closing.
(i) All claims for indemnification by any
Indemnified Party under Section 12 will be asserted and
resolved as follows:
(i) In the event any claim or demand in respect
of which an Indemnified Party might seek indemnity
under Section 12 is asserted against or sought to be
collected from such Indemnified Party by an
individual, corporation, partnership, organization,
association, governmental or regulatory authority or
trust (a "Person") other than by Seller, Purchaser or
any Affiliate of Seller or Purchaser (a "Third Party
Claim"), the Indemnified Party shall deliver a Claim
<PAGE>
<PAGE> 86 -- Exhibit 2.1 (Stock Purchase Agreement)
Notice with reasonable promptness to the Indemnifying
Party. The Indemnifying Party will notify the
Indemnified Party as soon as practicable within the
Dispute Period whether the Indemnifying Party
disputes the liability to the Indemnified Party under
Section 12 and whether the Indemnifying Party
desires, at its sole cost and expense, except as
provided herein, to defend the Indemnified Party
against such Third Party Claim.
(A) If the Indemnifying Party notifies the
Indemnified Party within the Dispute Period that
the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third
Party Claim pursuant to this Section 12(i), then
the Indemnifying Party will have the right to
defend (with counsel reasonably satisfactory to
the Indemnified Party), at the sole cost and
expense of the Indemnifying Party, except as
provided herein, such Third Party Claim by all
appropriate proceedings, which proceedings will
be vigorously and diligently prosecuted by the
Indemnifying Party to a final conclusion or will
be settled at the discretion of the Indemnifying
Party, provided the Indemnifying Party pays any
judgment or settlement that results therefrom or
obtains a general release in favor of Purchaser,
the Company and the Transferred Subsidiaries or
otherwise with the consent of the Indemnified
Party, which consent shall not be unreasonably
withheld. The Indemnifying Party will have full
control of such defense and proceedings,
including any settlement thereof; provided,
however, that the Indemnified Party may, at the
sole cost and expense of the Indemnified Party,
except as provided herein, at any time prior to
the Indemnifying Party's delivery of the notice
referred to in the first sentence of this
Section 12(i)(A), file any motion, answer or
other pleadings or take any other action that
the Indemnified Party reasonably believes to be
necessary or appropriate to protect its
interests and not being materially prejudicial
to the Indemnifying Party (it being understood
and agreed that, except as provided in Section
12(i)(B) below, if an Indemnified Party takes
any such action that is materially prejudicial
and causes a final adjudication that is adverse
to the Indemnifying Party, the Indemnifying
Party will be relieved of its obligations
hereunder with respect to the portion of such
<PAGE>
<PAGE> 87 -- Exhibit 2.1 (Stock Purchase Agreement)
Third Party Claim prejudiced by the Indemnified
Party's action, in which case the Indemnified
Party and not the Indemnifying Party may
defend); and provided further, that if requested
by the Indemnifying Party, the Indemnified Party
will, at the sole cost and expense of the
Indemnifying Party except as provided herein,
cooperate with the Indemnifying Party and its
counsel in contesting any Third Party Claim that
the Indemnifying Party elects to contest, or, if
appropriate and related to the Third Party Claim
in question, in making any counterclaim against
the Person asserting the Third Party Claim, or
any cross-complaint against any Person (other
than the Indemnified Party or any of its
Affiliates). Notwithstanding the foregoing, and
subject to the next sentence, the Indemnified
Party may take over the control of the defense
or settlement of a Third Party Claim if it
irrevocably waives its right to indemnity under
Section 12 with respect to such Third Party
Claim. In the event, however, a Third Party
Claim is asserted that is reasonably likely to
materially adversely affect the continuing
operation of a material portion of the Company's
business, the Indemnified Party may notify the
Indemnifying Party within the Dispute Period
that the Indemnified Party elects to assume
joint control with the Indemnifying Party of the
defense or settlement of such Third Party Claim
(in which case the Indemnifying Party may not
have sole control and the Indemnifying Party and
the Indemnified Party shall cooperate with each
other reasonably and in good faith in such
defense, prosecution and settlement), and the
right to indemnification under this Section 12
shall remain in effect.
(B) If the Indemnifying Party fails to
notify the Indemnified Party within the Dispute
Period that the Indemnifying Party desires to
defend the Third Party Claim pursuant to this
Section 12(i), or if the Indemnifying Party
gives such notice but fails to prosecute
vigorously and diligently or settle the Third
Party Claim, of if the Indemnifying Party fails
to give any notice whatsoever within the Dispute
Period, then the Indemnified Party will have the
right to defend, at the sole cost and expense of
the Indemnifying Party, except as provided
herein, the Third Party Claim by all appropriate
<PAGE>
<PAGE> 88 -- Exhibit 2.1 (Stock Purchase Agreement)
proceedings, which proceedings will be
vigorously and diligently prosecuted by the
Indemnified Party to a final conclusion or will
be settled at the discretion of the Indemnified
Party (with the consent of the Indemnifying
Party, which consent shall not be unreasonably
withheld). The Indemnified Party will have full
control of such defense and proceedings,
including (except as provided in Section
12(i)(A)) any settlement thereof; provided,
however, that if requested by the Indemnified
Party, the Indemnifying Party will, at the sole
cost and expense of the Indemnifying Party,
except as provided herein, cooperate with the
Indemnified Party and its counsel in contesting
any Third Party Claim which the Indemnified
Party is contesting, or if appropriate and
related to the Third Party Claim in question, in
making any counterclaim against the Person
asserting the Third Party Claim, or any cross-
complaint against any Person (other than the
Indemnifying Party or any of its Affiliates).
Notwithstanding the foregoing provisions of this
Section 12(i)(B), if the Indemnifying Party has
notified the Indemnified Party within the
Dispute Period that the Indemnifying Party
disputes its liability hereunder to the
Indemnified Party with respect to such Third
Party Claim and if such dispute is resolved in
favor of the Indemnifying Party in the manner
provided in Section 12(i)(C) below, the
Indemnifying Party will not be required to bear
the costs and expenses of the Indemnified
Party's defense pursuant to this Section
12(i)(B) or of the Indemnifying Party's
participation therein at the Indemnified Party's
request, and the Indemnified Party will
reimburse the Indemnifying Party in full for all
reasonable costs incurred by the Indemnifying
Party in connection with such litigation. The
Indemnifying Party may participate in, but not
control, any defense or settlement controlled by
the Indemnified Party pursuant to this Section
12(i)(B), and the Indemnifying Party will bear
its own costs and expenses with respect to such
participation.
(C) If the Indemnifying Party notifies the
Indemnified Party that it does not dispute its
liability to the Indemnified Party with respect
to the Third Party Claim or fails to notify the
<PAGE>
<PAGE> 89 -- Exhibit 2.1 (Stock Purchase Agreement)
Indemnified Party within the Dispute Period
whether the Indemnifying Party disputes its
liability to the Indemnified Party with respect
to such Third Party Claim, the Costs in the
amount specified in the Claim Notice will be
conclusively deemed a liability of the
Indemnifying Party and the Indemnifying Party
shall pay the amount of such Costs to the
Indemnified Party on demand to the extent
provided herein. If the Indemnifying Party has
timely disputed its liability with respect to
such claim, the Indemnifying Party and the
Indemnified Party will proceed in good faith to
negotiate a resolution of such dispute, and if
not resolved through negotiations within the
Resolution Period, such dispute shall be
resolved by arbitration in accordance with
subsection (i) of Section 20. Upon any final
determination that the Indemnifying Party is not
liable with respect to such claim, the
Indemnified Party may take over the control of
the defense or settlement of such claim if it
irrevocably waives its right to indemnity under
Section 12.
(ii) In the event any Indemnified Party has a
claim under this Section 12 against any Indemnifying
Party that does not involve a Third Party Claim, the
Indemnified Party shall deliver an Indemnity Notice
with reasonable promptness to the Indemnifying Party.
If the Indemnifying Party notifies the Indemnified
Party that it does not dispute the claim described in
such Indemnity Notice or fails to notify the
Indemnified Party within the Dispute Period whether
the Indemnifying Party disputes the claim described
in such Indemnity Notice, the Costs in the amount
specified in the Indemnity Notice will be
conclusively deemed a liability of the Indemnifying
Party under this Section 12 and the Indemnifying
Party shall pay the amount of such Costs to the
Indemnified Party on demand to the extent provided
herein. If the Indemnifying Party has timely
disputed its liability with respect to such claim,
the Indemnifying Party and the Indemnified Party will
proceed in good faith to negotiate a resolution of
such dispute, and if not resolved through
negotiations within the Resolution Period, such
dispute shall be resolved by arbitration in
accordance with subsection (i) of Section 20.
<PAGE>
<PAGE> 90 -- Exhibit 2.1 (Stock Purchase Agreement)
(iii) In the event of any loss, liability or
damages resulting from a misrepresentation, breach of
warranty or nonfulfillment or failure to be performed
of any covenant or agreement contained in this
Agreement or in any Instrument, as to which an
Indemnified Party would be entitled to a claim of
indemnity under this Section 12 but for the fact that
the Costs suffered or incurred by Purchaser, the
Company or any Transferred Subsidiary do not exceed
$3,500,000 in the aggregate, such Indemnified Party
may nevertheless deliver a written notice to the
Indemnifying Party containing the information that
would be required in a Claim Notice or an Indemnity
Notice, as applicable, with respect to such Costs.
In the case of a Claim Notice, the provisions of
Section 12(i)(A) will be applicable. If the
Indemnifying Party notifies the Indemnified Party
that it does not dispute the claim described therein
or fails to notify the Indemnified Party within the
Dispute Period whether the Indemnifying Party
disputes the claim described in such Claim Notice or
Indemnity Notice, as the case may be, the Costs
specified in the notice will be conclusively deemed
to have been incurred by the Indemnified Party for
purposes of making the determination as to whether
the $3,500,000 threshold referred to above has been
met. If the Indemnifying Party has timely disputed
the claim described in such Claim Notice or Indemnity
Notice, as the case may be, the Indemnifying Party
and the Indemnified Party will proceed in good faith
to negotiate a resolution of such dispute, and if not
resolved through negotiations within the Resolution
Period, such dispute shall be resolved by arbitration
in accordance with subsection (i) of Section 20.
(iv) In the event of any claim, counterclaim or
crossclaim for indemnity under this Section 12, each
party agrees to give to the other party and its
Representatives reasonable access to the relevant
books, documents and records, and to cause its
officers, employees, agents and other representatives
to cooperate fully, in connection with the
prosecution or defense of such claim, counterclaim or
crossclaim, to the extent such requesting party
reasonably deems necessary in connection with its
rights and obligations under this Section 12.
(j) In case any event shall occur which would
otherwise entitle either party to assert a claim for
<PAGE>
<PAGE> 91 -- Exhibit 2.1 (Stock Purchase Agreement)
indemnification hereunder, no Costs shall be deemed to have
been sustained by such party to the extent of (i) the then
present value of any actual tax savings realized by such party
with respect thereto or (ii) any proceeds received by such
party from any insurance policies with respect thereto.
(k) To the extent permitted by law, the indemnities
set forth in this Section 12 shall be the exclusive remedies of
Purchaser and Seller for any misrepresentation, breach of
warranty or nonfulfillment or failure to be performed of any
covenant or agreement contained in this Agreement or any
Instrument delivered pursuant hereto, and, absent fraud, the
parties shall not be entitled to a rescission of this Agreement
or to any further indemnification rights or claims of any
nature whatsoever in respect thereof, all of which the parties
hereto hereby waive.
(l) Notwithstanding anything to the contrary
contained herein, the provisions of this Section 12 shall apply
only if the Closing takes place and the transactions
contemplated hereby are consummated.
(m) Notwithstanding anything to the contrary
contained in this Agreement, Seller shall continue to control
and shall indemnify and hold Purchaser harmless from (and shall
on demand reimburse Purchaser for) all Costs suffered or
incurred by Purchaser, the Company or any Transferred
<PAGE>
<PAGE> 92 -- Exhibit 2.1 (Stock Purchase Agreement)
Subsidiary relating to the action entitled Jean Barilla and
George Barilla v. Vitramon, Inc. et al. (and any amendment
thereof or any claim relating thereto) and none of the other
rights of Purchaser or the limitations on Seller's obligation
to indemnify and to hold Purchaser harmless from, against and
in respect of all Costs contained in this Section 12,
including, without limitation, the Basket, the $19,000,000
limitation on liabilities and the period of survival described
in Section 14, shall apply to the provisions of this Section
12(m).
(n) Notwithstanding anything to the contrary
contained in this Agreement, the Basket and the $19,000,000
limitation on liabilities shall not apply to any Costs suffered
or incurred by Purchaser, the Company or any Transferred
Subsidiary as a result of or arising out of a failure by Seller
to perform or fulfill each of its obligations to transfer money
or extinguish liabilities under Sections 5.18(d), 8.1.4 and
9.1.
(o) For purposes of this Section 12:
"Claim Notice" means written notification
pursuant to Section 12(i) of a Third Party Claim as to which
indemnity under this Section 12 is sought by an Indemnified
Party, enclosing a copy of all papers served, if any, and
specifying the nature and basis for such Third Party Claim and
<PAGE>
<PAGE> 93 -- Exhibit 2.1 (Stock Purchase Agreement)
for the Indemnified Party's claim against the Indemnifying
Party under this Section 12, together with the amount or, if
not then reasonably ascertainable, the estimated amount,
determined in good faith, of such Third Party Claim.
"Cut-off Date" means, with respect to any
representation, warranty, covenant or agreement contained in
this Agreement, the date on which such representation,
warranty, covenant or agreement ceases to survive as provided
in Section 14(b).
"Dispute Period" means the period ending 60 days
following receipt by the Indemnifying Party of either a Claim
Notice or an Indemnity Notice.
"Indemnified Party" means the party to this
Agreement claiming indemnification under any provision of this
Section 12.
"Indemnifying Party" means the party to this
Agreement against which a claim for indemnification is being
asserted under any provision of this Section 12.
"Indemnity Notice" means written notification
pursuant to Section 12(i)(ii) of a claim for indemnity under
this Section 12 by an Indemnified Party, specifying the nature
of and basis for such claim, together with the amount or, if
<PAGE>
<PAGE> 94 -- Exhibit 2.1 (Stock Purchase Agreement)
not then reasonably ascertainable, the estimated amount
determined in good faith, of such claim.
13. Termination. (a) This Agreement may be
terminated and the transactions contemplated hereby may be
abandoned prior to the Closing solely:
(i) by the mutual written consent of Purchaser and
Seller;
(ii) by Seller or Purchaser if the Closing Date
shall not have occurred on or before August 11, 1994;
provided, however, that the right to terminate this
Agreement under this clause (ii) shall not be available to
any party whose failure to fulfill any obligation under
this Agreement has been the cause of the failure of the
Closing Date to occur on or before such date; and
(iii) by Purchaser if on the Closing Date any of the
conditions provided for in Section 10 have not been met
and have not been waived by Purchaser, or by Seller if on
the Closing Date any of the conditions provided for in
Section 11 have not been met and have not been waived by
Seller.
(b) In the event of the termination and abandonment
of this Agreement pursuant to this Section 13, subject to
Section 13(c), this Agreement shall forthwith become void and
have no effect, without any liability on the part of any party
hereto or its Affiliates, directors, officers or stockholders
except the provisions with respect to expenses in Section 16
and confidentiality in Section 20 shall continue to apply
following any such termination.
(c) If Seller terminates this Agreement pursuant to
clauses (ii) or (iii) of Section 13(a) following a material
<PAGE>
<PAGE> 95 -- Exhibit 2.1 (Stock Purchase Agreement)
breach by Purchaser of the representations and warranties
contained in Section 6 taken as a whole, or a failure by
Purchaser to perform any material covenant or agreement in all
material respects, then Purchaser shall have 30 days from the
date of termination to provide conclusive evidence to Seller
that it is immediately able to cure the breach or perform the
covenant or agreement that gave rise to the termination. If
Purchaser is unable to give such conclusive evidence to Seller,
then Purchaser shall, within one business day after such
thirty-day period, pay to the Seller in cash a termination fee
of $7,500,000.
14. Nature and Survival of Representations and
Warranties. (a) Each representation, warranty, indemnity,
covenant and agreement made by Seller or Purchaser in this
Agreement or in any certificate delivered by or on behalf
Seller or Purchaser pursuant to this Agreement shall be deemed
the representation, warranty, indemnity, covenant and agreement
of Seller or Purchaser, as the case may be.
(b) The representations and warranties of Seller
contained in Sections 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 5.9,
5.11(a), 5.12, 5.13 (excluding 5.13(b)), 5.14, 5.16, 5.17,
5.21, 5.22, and in Section 5.23 to the extent it relates to the
foregoing Sections, and of Purchaser contained in Article 6,
and the other covenants and agreements of the parties relating
thereto to be performed prior to Closing, shall survive the
<PAGE>
<PAGE> 96 -- Exhibit 2.1 (Stock Purchase Agreement)
Closing Date and shall expire on December 31, 1994 (except that
Seller's representation contained in Section 5.16 relating to
the D&B Letter shall expire three months following the Closing
Date). The representations and warranties of Seller contained
in Sections 5.10, 5.11(b), 5.15, 5.18, 5.19 and 5.20, and in
Section 5.23 to the extent it relates to the foregoing
Sections, and the other covenants and agreements of Seller
relating thereto to be performed prior to the Closing shall
survive the Closing Date and shall expire on the second
anniversary of the Closing Date. Notwithstanding the
foregoing, Purchaser's right to claim indemnification for
Seller's obligations under Section 12(c) shall expire on the
second anniversary of the Closing Date and Purchaser's right to
claim indemnification for Seller's obligations under Section
12(b) shall expire on the seventh anniversary of the Closing
Date, whether or not such obligations arise out of a breach of
a representation or warranty contained in Section 5.20. The
representations and warranties of Seller contained in Section
5.8 and in Section 5.23 hereof to the extent it relates to
Section 5.8 hereof, and the other covenants and agreements of
Seller relating thereto to be performed prior to the Closing,
shall survive the Closing Date and shall expire thirty days
following the expiration of the relevant statute of limitation.
The representations and warranties of Seller contained in
Section 5.13(b) shall not survive the Closing. Seller's right
to claim indemnification for Purchaser's obligations under
<PAGE>
<PAGE> 97 -- Exhibit 2.1 (Stock Purchase Agreement)
Section 12(e)(ii) and, to the extent it relates thereto,
Section 12(e)(iii), shall expire on the second anniversary of
the Closing Date.
(c) In the event that at or prior to Closing,
Purchaser obtains actual knowledge of a misrepresentation,
breach of warranty or nonfulfillment or failure to be performed
of a covenant or agreement by Seller (a "Breach"), then the
following procedures shall apply:
(i) If such Breach was disclosed by Seller to
Purchaser, such disclosure shall (A) set forth in
reasonable detail the specific facts and
circumstances relating to the Breach to the extent
known to Seller and (B) contain a representation and
warranty by Seller that such Breach would not result
in non-satisfaction of the conditions set forth in
Sections 10(a) or (b) of this Agreement, as the case
may be.
(ii) If such Breach was disclosed by Purchaser
to Seller, such disclosure shall (A) set forth in
reasonable detail the specific facts and
circumstances relating to the Breach to the extent
known to Purchaser and (B) contain a demand that
Seller represent and warrant that (x) it did not have
actual knowledge of the Breach prior to signing this
Agreement and (y) such Breach would not result in
non-satisfaction of the conditions set forth in
Sections 10(a) or (b) of this Agreement, as the case
may be.
(iii) If Seller does not provide all of the
representations and warranties specified in clauses
(i) or (ii) above, then Purchaser may elect either to
(A) terminate the Agreement pursuant to Section 13(a)
hereof or (B) proceed to Closing, in which case it
shall waive its right to seek indemnity from Seller
for any loss, liability or damage resulting from the
Breach following the Closing.
(iv) If Seller makes all the representations
and warranties specified in clauses (i) or (ii)
<PAGE>
<PAGE> 98 -- Exhibit 2.1 (Stock Purchase Agreement)
above, then Purchaser shall be required to proceed to
Closing, but shall retain all of its rights with
respect to obtaining indemnification from Seller for
any loss, liability or damage resulting from the
Breach.
(v) If Purchaser obtains actual knowledge of a
Breach and Seller does not have actual knowledge
thereof, then if Purchaser fails to notify Seller of
such Breach pursuant to clause (ii) above, Purchaser
shall be deemed to have waived such Breach.
(vi) The representations and warranties made by
Seller pursuant to clauses (i) and (ii) above shall
survive the Closing Date and shall expire six months
after the date of this Agreement; provided, however,
that this provision shall not otherwise affect
Purchaser's rights under Sections 12 and 14(b) of
this Agreement.
15. Notices. Any notice or consent hereunder shall
be in writing and hand delivered or sent by registered or
certified mail, return receipt requested, or by Federal Express
or other similar courier service or by facsimile, as follows:
if to Seller:
Thomas & Betts Corporation
1555 Lynnfield Road
Memphis, Tennessee 38119
Attn: President
Fax: 901-685-1988
with a copy to:
Thomas & Betts Corporation
1555 Lynnfield Road
Memphis, Tennessee 38119
Attn: Vice President-General Counsel
Fax: 901-680-5960
<PAGE>
<PAGE> 99 -- Exhibit 2.1 (Stock Purchase Agreement)
and
Milbank, Tweed, Hadley & McCloy
One Chase Manhattan Plaza
New York, New York 10005
Attn: Lawrence Lederman, Esq.
Fax: 212-530-5219
if to Purchaser:
Vishay Intertechnology, Inc.
63 Lincoln Highway
Malvern, Pennsylvania 19355
Attn: Avi D. Eden, Esq.
Fax: 215-296-0657
with a copy to:
Kramer, Levin, Naftalis, Nessen, Kamin & Frankel
919 Third Avenue
New York, New York 10022
Attn: Scott S. Rosenblum, Esq.
Fax: 212-688-2119
or at such other address (or to such other person's attention)
as shall be specified by like notice. Any notice shall be
deemed to have been duly given to the party to whom it is
directed upon actual receipt by such party (or its agent for
notices hereunder). Notwithstanding the foregoing, notice sent
by recognized overnight carrier shall be conclusively presumed
to have been received when signed by a representative of the
recipient and notice sent by fax transmission shall be
conclusively deemed to have been received upon receipt of
answerback confirmation.
16. Legal and Other Costs. (a) In the event that
any party (the "Defaulting Party") defaults in its obligations
under this Agreement and, as a result thereof, the other party
<PAGE>
<PAGE> 100 -- Exhibit 2.1 (Stock Purchase Agreement)
(the "Non-Defaulting Party") seeks to enforce its rights
hereunder against the Defaulting Party, then, in addition to
all damages and other remedies to which the Non-Defaulting
Party is entitled hereunder by reason of such default, the
Defaulting Party shall promptly pay to the Non-Defaulting Party
an amount equal to all reasonable costs and expenses (including
reasonable attorneys' fees) paid or incurred by the Non-
Defaulting Party in connection with such enforcement, subject
to the limitations of Section 12 hereof.
(b) In the event that the Non-Defaulting Party is
entitled to receive an amount of money by reason of the
Defaulting Party's default hereunder, then, in addition to such
amount of money, the Defaulting Party shall promptly pay to the
Non-Defaulting Party a sum equal to interest on such amount of
money accruing at the rate of 1.5% per month (but if such rate
is not permitted under the laws of the State of New York, then
at the highest rate which is permitted to be paid under the
laws of the State of New York) during the period between the
date such payment should have been made hereunder and the date
of the actual payment thereof.
(c) Except as provided in this Section 16 or
otherwise in this Agreement, each party hereto shall pay its
own legal, accounting and other expenses in connection with the
preparation, negotiation, execution and delivery of this
<PAGE>
<PAGE> 101 -- Exhibit 2.1 (Stock Purchase Agreement)
Agreement and the consummation of the transactions contemplated
hereby.
17. Public Announcements. At all times at or before
the Closing, Seller and Purchaser will not issue or make any
reports, statements or releases to the public or generally to
the employees, customers, suppliers or other persons to whom
the Company and the Transferred Subsidiaries sell goods or
provide services or with whom the Company and the Transferred
Subsidiaries otherwise have significant business relationships
with respect to this Agreement or the transactions contemplated
hereby without the consent of the other, which consent shall
not be unreasonably withheld. If either party is unable to
obtain the approval of its public report, statement or release
from the other party and such report, statement or release is,
in the opinion of legal counsel to such party, required by law
in order to discharge such party's disclosure obligations, then
such party may make or issue the legally required report,
statement or release and promptly furnish the other party with
a copy thereof. Seller and Purchaser will also obtain the
other party's prior approval, which approval shall not be
unreasonably withheld, of any press release to be issued
immediately following the execution of this Agreement or the
Closing hereunder with respect to the transactions contemplated
by this Agreement.
<PAGE>
<PAGE> 102 -- Exhibit 2.1 (Stock Purchase Agreement)
18. Scope of Representations and Warranties.
Neither party makes any representation and warranties
whatsoever, express or implied, except for those
representations and warranties (a) contained in this Agreement,
in the Exhibits and Schedules hereto and in the Closing
Certificates to be delivered pursuant to Sections 10(d) and
11(c) hereto or (b) explicitly identified by the person making
such representation, as a representation and warranty under
this Agreement in any other agreement, document, certificate or
instrument delivered in connection herewith (collectively,
"Instrument").
19. Non-Competition.
19.1 Covenant. (a) Seller hereby agrees that for
a period of five years following the Closing Date (the
"Restricted Period") neither the Seller nor any of its
subsidiaries, whether acting individually or through any joint
venture or one or more third parties, shall:
(i) own, manage, operate, control, or engage in
the ownership, management, operation or control of or
have any interest in, as a stockholder, partner or
otherwise, any business, entity or enterprise that
engages in the Business within the Territory (as
hereinafter defined) during the Restricted Period;
<PAGE>
<PAGE> 103 -- Exhibit 2.1 (Stock Purchase Agreement)
(ii) interfere in any material respect with any
contractual relationship of the Business with any
customer or supplier of the Business; or
(iii) solicit the employment of any person who
at the time is, or at any time within the prior three
months shall have been, an employee of the Business
(other than one who resigns voluntarily prior to any
such solicitation or is terminated by the Business
after the Closing Date).
(b) Notwithstanding anything to the contrary
contained herein, this agreement is not intended to and shall
not be construed as prohibiting Seller or any of its Affiliates
from:
(i) purchasing products of the Business
for such Person's own use;
(ii) acquiring the beneficial ownership of
less than 5% of the equity securities of any
publicly traded corporation; or
(iii) acquiring any business, entity or
enterprise which, as an incidental portion of
its business, engages in the Business, provided,
however, that Seller promptly divests itself of
such portion following the acquisition thereof.
<PAGE>
<PAGE> 104 -- Exhibit 2.1 (Stock Purchase Agreement)
(c) For purposes of this Agreement, the "Territory"
shall mean any state or territory of the United States and any
foreign country or any foreign territory.
19.2 Confidentiality. Seller acknowledges that
certain information relating to the Business is confidential
and that such information is a special, valuable and major
asset of the Business, and that wrongful use or disclosure of
any such confidential information would cause Purchaser
immediate and irreparable harm. Seller hereby agrees that
during the Restricted Period, it will not, and will cause its
officers, employees, agents, representatives, subsidiaries and
other Affiliates not to disclose to others, directly or
indirectly, any confidential information relating to the
Business (including, without limitation, any confidential
information relating to programs, techniques or work products,
any trade secrets, any reports, recommendations or conclusions
or any information as to present or future business plans or
finances, or with respect to any products, services, suppliers,
customers or prospective customers relating to the Business)
without the prior written consent of the Purchaser (a) except
as may be necessary to comply with any applicable law,
governmental order or regulation (and in any such case only
after affording the Purchaser the opportunity to review the
text of such disclosure before it is made) and (b) except for
<PAGE>
<PAGE> 105 -- Exhibit 2.1 (Stock Purchase Agreement)
information which is or becomes publicly available other than
as a result of a breach by Seller of the provisions hereof.
19.3 Remedies. Seller hereby acknowledges,
represents and warrants to Purchaser that the provisions of
Sections 19.1 and 19.2 are reasonable in all respects and
necessary and appropriate to protect the legitimate business
interests of Purchaser in connection with the Business. The
parties acknowledge that any breach or violation, or threatened
breach or violation, of any provision of such Sections may
cause Purchaser immediate and irreparable harm that cannot be
adequately compensated by money damages. In any such event,
Purchaser shall, in addition to all other rights or remedies
available at law or in equity, be entitled to obtain any
injunctive relief without having to prove the inadequacy of the
available remedies at law or any actual damages to restrain any
breach or violation, or threatened breach or violation, of such
Sections by Seller. Any remedy sought or obtained by Purchaser
shall not be considered either exclusive or a waiver of the
rights of Purchaser or any other person to assert any other
remedies they have in law or equity. In any proceeding upon a
motion for any such injunctive relief, Seller's ability to
answer in damages shall not be a bar, or be interposed as a
defense, to the granting of such injunctive relief against
Seller.
<PAGE>
<PAGE> 106 -- Exhibit 2.1 (Stock Purchase Agreement)
19.4 Non-Competition Severability. If any provision
of this Section 19 is determined to be invalid, unenforceable
or excessive in scope by any court or other body of competent
jurisdiction, such provision shall be ineffective only to the
most limited extent so as not to render the agreement not to
compete unenforceable, and the remaining provisions shall
remain in full force and effect as if this Section 19 had been
constructed with the invalid, unenforceable or excessive
provision so limited.
20. Miscellaneous. (a) This Agreement and the
letter agreement dated May 27, 1994 between Seller and
Purchaser (the "Confidentiality Agreement") constitute the
entire agreement of the parties with respect to the subject
matter hereof and thereof, supersede all prior understandings,
whether written or oral, with respect thereto and may not be
modified, amended or terminated except by a written agreement
specifically referring to this Agreement or the Confidentiality
Agreement, as the case may be, signed by all of the parties
hereto. Nothing herein expressed or implied is intended to or
shall be construed to confer upon or give any Person other than
the parties hereto, their successors or permitted assigns, any
rights or remedies under or by reason of this Agreement.
(b) No waiver of any provision hereof or of any
breach or default hereunder shall be considered valid unless in
a writing specifically identifying such provision, breach or
<PAGE>
<PAGE> 107 -- Exhibit 2.1 (Stock Purchase Agreement)
default and signed by the party giving such waiver, and no such
waiver shall be deemed a waiver of any other provision or any
subsequent breach or any other default of the same or similar
nature.
(c) Neither this Agreement nor any right, interest
or obligation hereunder may be assigned by either party without
the prior consent of the other, and any attempt to do so will
be void, except that Purchaser may assign its rights and
delegate the performance of its obligations hereunder to a
directly or indirectly wholly-owned subsidiary that agrees in
writing to be bound by all the terms hereof, but no such
assignment or delegation shall relieve Purchaser of its
obligations hereunder.
(d) The section and paragraph headings contained
herein are for the purposes of convenience only and are not
intended to define or limit the contents of said sections or
paragraphs, or otherwise affect the meaning or interpretation
of this Agreement.
(e) Each party hereto shall cooperate, shall take
such further action and shall execute and deliver such further
documents as may be reasonably requested by any other party in
order to carry out the provisions and purposes of this
Agreement.
<PAGE>
<PAGE> 108 -- Exhibit 2.1 (Stock Purchase Agreement)
(f) This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one
original.
(g) This Agreement and all amendments thereof shall
be governed by and construed in accordance with the law of the
State of New York applicable to contracts made and to be
performed entirely therein.
(h) Should any provision of this Agreement be
determined to be invalid, it shall be severed from this
Agreement and the remaining provisions hereof shall remain in
full force and effect as if this Agreement had been executed
with the invalid portion eliminated.
(i) Any dispute or controversy arising with respect
to a claim of indemnification hereunder, including, without
limitation, any dispute concerning the scope of this
arbitration clause, shall be settled by arbitration in New York
City by a panel of three arbitrators in accordance with the
rules of the American Arbitration Association. Judgment upon
the award rendered by the arbitrators shall be final,
conclusive and binding on the parties and may be entered in and
enforced to the fullest extent of the law by any court having
jurisdiction thereof, and the parties hereby consent to the
jurisdiction of the New York courts for this purpose.
<PAGE>
<PAGE> 109 -- Exhibit 2.1 (Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first
above written.
THOMAS & BETTS CORPORATION
By: /s/ James D. Hay
---------------------------
Name: James D. Hay
Title: Vice President-
General Counsel
VISHAY INTERTECHNOLOGY, INC.
By: /s/ Felix Zandman
---------------------------
Name: Felix Zandman
Title: President, Chief
Executive Officer
<PAGE>
<PAGE>
<PAGE> 1 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Execution Copy
_________________________________________________________________
_________________________________________________________________
AMENDED AND RESTATED VISHAY INTERTECHNOLOGY, INC.
$302,500,000 REVOLVING CREDIT AND TERM
LOAN AGREEMENT
DATED AS OF JULY 18, 1994
COMERICA BANK, AS AGENT
NATIONSBANK OF NORTH CAROLINA, N.A., AS CO-AGENT
BERLINER HANDELS-UND FRANKFURTER BANK KGAA
AND SIGNET BANK/MARYLAND, AS LEAD MANAGERS
_________________________________________________________________
_________________________________________________________________
<PAGE>
<PAGE> 2 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
TABLE OF CONTENTS
-----------------
Page
----
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . 1
1.1 "Absolute Rate" . . . . . . . . . . . . . . . 1
1.2 "Absolute Rate Bid Advance" . . . . . . . . . 1
1.3 "Absolute Rate Interest Period" . . . . . . . 2
1.4 "Accumulated Funding Deficiency". . . . . . . 2
1.5 "Acquisition Loan(s)" . . . . . . . . . . . . 2
1.6 "Activation Fee". . . . . . . . . . . . . . . 2
1.7 "Adjusted Total Indebtedness" . . . . . . . . 2
1.8 "Advance(s)". . . . . . . . . . . . . . . . . 2
1.9 "Affiliate" . . . . . . . . . . . . . . . . . 2
1.10 "Agent" . . . . . . . . . . . . . . . . . . . 3
1.11 "Agent's Correspondent" . . . . . . . . . . . 3
1.12 "Agent's Fees". . . . . . . . . . . . . . . . 3
1.13 "Alternate Base Rate" . . . . . . . . . . . . 3
1.14 "Alternative Currency". . . . . . . . . . . . 3
1.15 "Applicable Fee Percentage" . . . . . . . . . 4
1.16 "Applicable Interest Rate". . . . . . . . . . 4
1.17 "Applicable Margin" . . . . . . . . . . . . . 4
1.18 "Assignment Agreement". . . . . . . . . . . . 4
1.19 "Banks" . . . . . . . . . . . . . . . . . . . 4
1.20 "Bid Acknowledgment". . . . . . . . . . . . . 4
1.21 "Bid Advance" . . . . . . . . . . . . . . . . 4
1.22 "Bid Borrowing Request" . . . . . . . . . . . 4
1.23 "Bid Lender(s)" . . . . . . . . . . . . . . . 4
1.24 "Bid Notes" . . . . . . . . . . . . . . . . . 5
1.25 "Bid Offer" . . . . . . . . . . . . . . . . . 5
1.26 "Bridge Loan" . . . . . . . . . . . . . . . . 5
1.27 "Business Day". . . . . . . . . . . . . . . . 5
1.28 "Capital Expenditures". . . . . . . . . . . . 5
1.29 "Closing Fee" . . . . . . . . . . . . . . . . 5
1.30 "Collateral". . . . . . . . . . . . . . . . . 5
1.31 "Commitment Letter" . . . . . . . . . . . . . 5
1.32 "Company" . . . . . . . . . . . . . . . . . . 6
1.33 "Contractual Obligation". . . . . . . . . . . 6
1.34 "Consolidated" or "Consolidating" . . . . . . 6
1.35 "Covenant Compliance Report". . . . . . . . . 6
1.36 "Current Dollar Equivalent" . . . . . . . . . 6
1.37 "Dale Electronics". . . . . . . . . . . . . . 6
1.38 "Default" . . . . . . . . . . . . . . . . . . 7
1.39 "Defined Contribution Plan" . . . . . . . . . 7
1.40 "Deutsche Marks". . . . . . . . . . . . . . . 7
1.41 "DM Loan Agreement" . . . . . . . . . . . . . 7
1.42 "DM Loan Documents" . . . . . . . . . . . . . 7
1.43 "DM Revolving Credit" and "DM Term Loan". . . 7
1.44 "Dollar Amount" . . . . . . . . . . . . . . . 7
1.45 "Dollars" and the sign "$". . . . . . . . . . 7
1.46 "Domestic Advance". . . . . . . . . . . . . . 8
<PAGE>
<PAGE> 3 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
TABLE OF CONTENTS
-----------------
(Continued)
Page
----
1.47 "Domestic Guaranty" . . . . . . . . . . . . . 8
1.48 "Domestic Subsidiaries" . . . . . . . . . . . 8
1.49 "Draloric". . . . . . . . . . . . . . . . . . 8
1.50 "EBITDA". . . . . . . . . . . . . . . . . . . 8
1.51 "Environmental Auditors". . . . . . . . . . . 8
1.52 "Environmental Audits". . . . . . . . . . . . 8
1.53 "Equity Offering" . . . . . . . . . . . . . . 9
1.54 "ERISA" . . . . . . . . . . . . . . . . . . . 9
1.55 "ERISA Affiliate" . . . . . . . . . . . . . . 9
1.56 "Eurocurrency Adjusted Rate". . . . . . . . . 9
1.57 "Eurocurrency Bid Advance". . . . . . . . . . 10
1.58 "Eurocurrency Bid Margin" . . . . . . . . . . 10
1.59 "Eurocurrency-based Advance". . . . . . . . . 10
1.60 "Eurocurrency-based Rate" . . . . . . . . . . 10
1.61 "Eurocurrency-Interest Period". . . . . . . . 10
1.62 "Eurocurrency Lending Office" . . . . . . . . 10
1.63 "Event of Default". . . . . . . . . . . . . . 10
1.64 "Excess Cash Flow". . . . . . . . . . . . . . 10
1.65 "Federal Funds Effective Rate". . . . . . . . 11
1.66 "Fees". . . . . . . . . . . . . . . . . . . . 11
1.67 "Fixed Charge Coverage Ratio" . . . . . . . . 11
1.68 "Fixed Rate". . . . . . . . . . . . . . . . . 11
1.69 "Fixed Rate Option" . . . . . . . . . . . . . 12
1.70 "Fixed Rate Election" . . . . . . . . . . . . 12
1.71 "Foreign Subsidiaries". . . . . . . . . . . . 12
1.72 "GAAP". . . . . . . . . . . . . . . . . . . . 12
1.73 "Guaranties". . . . . . . . . . . . . . . . . 12
1.74 "Hazardous Material". . . . . . . . . . . . . 12
1.75 "Hazardous Material Law(s)" . . . . . . . . . 12
1.76 "Hereof", "hereto", "hereunder" . . . . . . . 12
1.77 "HLT Determination" . . . . . . . . . . . . . 12
1.78 "Indebtedness". . . . . . . . . . . . . . . . 13
1.79 "Intercompany Loan" . . . . . . . . . . . . . 13
1.80 "Intercompany Loans, Advances or
Investments" . . . . . . . . . . . . . . . . 13
1.81 "Interest Expense". . . . . . . . . . . . . . 13
1.82 "Interest Period" . . . . . . . . . . . . . . 13
1.83 "Internal Revenue Code" . . . . . . . . . . . 14
1.84 "Joint Venture" . . . . . . . . . . . . . . . 14
1.85 "Leverage Ratio". . . . . . . . . . . . . . . 14
1.86 "Lien". . . . . . . . . . . . . . . . . . . . 14
1.87 "Loan Agreements" . . . . . . . . . . . . . . 14
1.88 "Loan Documents". . . . . . . . . . . . . . . 14
1.89 "Majority Banks". . . . . . . . . . . . . . . 15
1.90 "Material Property" . . . . . . . . . . . . . 15
1.91 "Moody's Rating". . . . . . . . . . . . . . . 15
<PAGE>
<PAGE> 4 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
TABLE OF CONTENTS
-----------------
(Continued)
Page
----
1.92 "Multiemployer Plan". . . . . . . . . . . . . 15
1.93 "Net Income". . . . . . . . . . . . . . . . . 15
1.94 "Net Income Adjustment" . . . . . . . . . . . 16
1.95 "New Banks" . . . . . . . . . . . . . . . . . 16
1.96 "Non-Amortizing Term Loan". . . . . . . . . . 16
1.97 "Notes" . . . . . . . . . . . . . . . . . . . 16
1.98 "Operating Income". . . . . . . . . . . . . . 16
1.99 "PBGC". . . . . . . . . . . . . . . . . . . . 16
1.100 "Pension Plan(s)" . . . . . . . . . . . . . . 16
1.101 "Percentage". . . . . . . . . . . . . . . . . 16
1.102 "Permitted Borrower(s)" . . . . . . . . . . . 17
1.103 "Permitted Borrowers Guaranty". . . . . . . . 17
1.104 "Permitted Company Encumbrances". . . . . . . 17
1.105 "Permitted Currencies". . . . . . . . . . . . 17
1.106 "Permitted Encumbrances". . . . . . . . . . . 17
1.107 "Permitted Encumbrances of the
Subsidiaries". . . . . . . . . . . . . . . . 18
1.108 "Permitted Transfer". . . . . . . . . . . . . 18
1.109 "Permitted Transferee". . . . . . . . . . . . 19
1.110 "Person". . . . . . . . . . . . . . . . . . . 19
1.111 "Prime Rate". . . . . . . . . . . . . . . . . 19
1.112 "Prime-based Advance" . . . . . . . . . . . . 19
1.113 "Prime-based Rate". . . . . . . . . . . . . . 19
1.114 "Prior Agreements". . . . . . . . . . . . . . 19
1.115 "Prior Banks" . . . . . . . . . . . . . . . . 19
1.116 "Prior DM Agreement". . . . . . . . . . . . . 19
1.117 "Prior Loan Agreement". . . . . . . . . . . . 20
1.119 "Prohibited Transaction". . . . . . . . . . . 20
1.120 "Rating Level". . . . . . . . . . . . . . . . 20
1.121 "Rating Level 1". . . . . . . . . . . . . . . 20
1.122 "Rating Level 2". . . . . . . . . . . . . . . 20
1.123 "Rating Level 3". . . . . . . . . . . . . . . 20
1.124 "Rating Level 4". . . . . . . . . . . . . . . 20
1.125 "Reference Banks" . . . . . . . . . . . . . . 20
1.126 "Request for Advance" . . . . . . . . . . . . 20
1.127 "Request for Term Loan Advance and Rate
Request" . . . . . . . . . . . . . . . . . . 20
1.128 "Required Consummation Date". . . . . . . . . 20
1.129 "Revalidation Date" . . . . . . . . . . . . . 21
1.130 "Revolving Credit". . . . . . . . . . . . . . 21
1.131 "Revolving Credit Aggregate Commitment" . . . 21
1.132 "Revolving Credit Commitment Fee" . . . . . . 21
1.133 "Revolving Credit Designated Portion" . . . . 21
1.134 "Revolving Credit Facility Fee" . . . . . . . 21
1.135 "Revolving Credit Maturity Date". . . . . . . 21
1.136 "Revolving Credit Maximum Amount" . . . . . . 21
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1.137 "Revolving Credit Notes". . . . . . . . . . . 21
1.138 "Roederstein" . . . . . . . . . . . . . . . . 21
1.139 "Roederstein Loan Agreement". . . . . . . . . 21
1.140 "Roederstein Loan Documents". . . . . . . . . 22
1.141 "Seller". . . . . . . . . . . . . . . . . . . 22
1.142 "S & P Rating". . . . . . . . . . . . . . . . 22
1.143 "Shares", "share capital", "capital stock",
"stock" . . . . . . . . . . . . . . . . . . . 22
1.144 "Significant Domestic Subsidiaries" . . . . . 22
1.145 "Significant Foreign Subsidiaries". . . . . . 22
1.146 "Significant Subsidiaries". . . . . . . . . . 22
1.147 "Single Employer Plan". . . . . . . . . . . . 22
1.148 "Stockholder's Equity". . . . . . . . . . . . 22
1.149 "Stock Option Plan" . . . . . . . . . . . . . 22
1.150 "Stock Option Plan Debt". . . . . . . . . . . 23
1.151 "Stock Purchase Agreement". . . . . . . . . . 23
1.152 "Sublimit". . . . . . . . . . . . . . . . . . 23
1.153 "Subsidiary(ies)" . . . . . . . . . . . . . . 23
1.154 "Tangible Net Worth". . . . . . . . . . . . . 23
1.155 "Target Company". . . . . . . . . . . . . . . 24
1.156 "Target Company Acquisition". . . . . . . . . 24
1.157 "Target Company Loan Agreement" . . . . . . . 24
1.158 "Target Company Loan Documents" . . . . . . . 25
1.159 "Term Loan" . . . . . . . . . . . . . . . . . 25
1.160 "Term Loan Maturity Date" . . . . . . . . . . 25
1.161 "Term Notes". . . . . . . . . . . . . . . . . 25
1.162 "Vishay Guaranty" . . . . . . . . . . . . . . 25
1.163 "Vishay Israel" . . . . . . . . . . . . . . . 25
1.164 "Vishay Stock Plans". . . . . . . . . . . . . 25
1.165 "Vitramon Acquisition, Inc.". . . . . . . . . 25
1.166 "VBG" . . . . . . . . . . . . . . . . . . . . 25
1.167 "Yield Maintenance Payment" . . . . . . . . . 25
2. REVOLVING CREDIT; BID ADVANCES . . . . . . . . . . . 26
2.1 Commitment. . . . . . . . . . . . . . . . . . 26
2.2 Accrual of Interest and Maturity. . . . . . . 26
2.3 Requests for and Refundings and Conversions
of Advances.. . . . . . . . . . . . . . . . . 27
2.4 Disbursement of Advances. . . . . . . . . . . 28
2.5 Bid Advances. . . . . . . . . . . . . . . . . 30
2.6 Prime-based Interest Payments.. . . . . . . . 36
2.7 Absolute Rate and Eurocurrency-based
Interest Payments.. . . . . . . . . . . . . . 37
2.8 Interest Payments on Conversions. . . . . . . 37
2.9 Interest on Default.. . . . . . . . . . . . . 37
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2.10 Determination, Denomination and
Redenomination of Alternative Currency
Advances. . . . . . . . . . . . . . . . . . . 38
2.11 Prepayment. . . . . . . . . . . . . . . . . . 38
2.12 Prime-based Advance in Absence of Election
or Upon Default.. . . . . . . . . . . . . . . 39
2.13 Revolving Credit Facility Fee.. . . . . . . . 39
2.14 Revolving Credit Commitment Fee.. . . . . . . 40
2.15 Currency Appreciation; Sublimits; Mandatory
Reduction of Indebtedness.. . . . . . . . . . 40
2.16 Optional Reduction or Termination of
Revolving Credit Maximum Amount.. . . . . . . 42
2.17 Revolving Credit Designated Portion.. . . . . 43
2.18 Activation of Designated Portion. . . . . . . 43
2.19 Extension of Revolving Credit Maturity
Date. . . . . . . . . . . . . . . . . . . . . 44
2.20 Revolving Credit as Renewal; Application of
Advances Thereafter.. . . . . . . . . . . . . 44
3. TERM LOAN. . . . . . . . . . . . . . . . . . . . . . 45
3.1 Commitment. . . . . . . . . . . . . . . . . . 45
3.2 Repayment of Principal Until Term Loan
Maturity Date.. . . . . . . . . . . . . . . . 45
3.3 Excess Cash Flow Recapture. . . . . . . . . . 46
3.4 Accrual of Interest.. . . . . . . . . . . . . 46
3.5 Prime-based Interest Payments.. . . . . . . . 46
3.6 Eurocurrency-based Interest Payments. . . . . 47
3.7 Interest Payments on Conversions. . . . . . . 47
3.8 Interest on Default.. . . . . . . . . . . . . 47
3.9 Requests for and Refundings and Conversions
of Advances.. . . . . . . . . . . . . . . . . 48
3.10 Disbursement of Advances. . . . . . . . . . . 50
3.11 Fixed Rate Election.. . . . . . . . . . . . . 51
3.12 Prime-based Advance in Absence of Election
or Upon Default.. . . . . . . . . . . . . . . 53
3.13 Prepayment. . . . . . . . . . . . . . . . . . 53
3.14 Purpose.. . . . . . . . . . . . . . . . . . . 54
4. MARGIN ADJUSTMENTS; HLT DETERMINATION; SPECIAL
LIMITATION . . . . . . . . . . . . . . . . . . . . . 55
4.1 Margin Adjustments. . . . . . . . . . . . . . 55
4.2 HLT Determination.. . . . . . . . . . . . . . 55
4.3 Special Limitation. . . . . . . . . . . . . . 56
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5. CONDITIONS.. . . . . . . . . . . . . . . . . . . . . 57
5.1 Execution of Notes, this Agreement and the
other Loan Documents. . . . . . . . . . . . . 57
5.2 Corporate Authority.. . . . . . . . . . . . . 57
5.3 Vishay Guaranty.. . . . . . . . . . . . . . . 57
5.4 Domestic Guaranty.. . . . . . . . . . . . . . 58
5.5 Permitted Borrowers Guaranty. . . . . . . . . 58
5.6 Representations and Warranties -- All
Parties.. . . . . . . . . . . . . . . . . . . 58
5.7 Compliance with Certain Documents and
Agreements. . . . . . . . . . . . . . . . . . 58
5.8 Opinion of Counsel. . . . . . . . . . . . . . 58
5.9 Company's Certificate.. . . . . . . . . . . . 58
5.10 Payment of Agents' and Other Fees.. . . . . . 59
5.11 Other Documents and Instruments.. . . . . . . 59
5.12 Continuing Conditions.. . . . . . . . . . . . 59
6. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 60
6.1 Corporate Authority.. . . . . . . . . . . . . 60
6.2 Due Authorization - Company.. . . . . . . . . 60
6.3 Due Authorization -- Subsidiaries.. . . . . . 60
6.4 Title to Material Property. . . . . . . . . . 61
6.5 Encumbrances. . . . . . . . . . . . . . . . . 61
6.6 Subsidiaries. . . . . . . . . . . . . . . . . 61
6.7 Taxes.. . . . . . . . . . . . . . . . . . . . 61
6.8 No Defaults.. . . . . . . . . . . . . . . . . 61
6.9 Enforceability of Agreement and Loan
Documents -- Company. . . . . . . . . . . . . 61
6.10 Enforceability of Loan Documents -- Other
Parties.. . . . . . . . . . . . . . . . . . . 62
6.11 Non-contravention -- Company. . . . . . . . . 62
6.12 Non-contravention -- Other Parties. . . . . . 62
6.13 No Litigation -- Company. . . . . . . . . . . 62
6.14 No Litigation -- Other Parties. . . . . . . . 63
6.15 Consents, Approvals and Filings, Etc. . . . . 63
6.16 Agreements Affecting Financial Condition. . . 64
6.17 No Investment Company; No Margin Stock. . . . 64
6.18 ERISA.. . . . . . . . . . . . . . . . . . . . 64
6.19 Environmental Matters and Safety Matters. . . 65
6.20 Conditions Affecting Business or
Properties. . . . . . . . . . . . . . . . . . 66
6.21 Accuracy of Information.. . . . . . . . . . . 67
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7. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . 67
7.1 Preservation of Existence, Etc. . . . . . . . 67
7.2 Keeping of Books. . . . . . . . . . . . . . . 67
7.3 Reporting Requirements. . . . . . . . . . . . 67
7.4A Tangible Net Worth. . . . . . . . . . . . . . 69
7.4B Tangible Net Worth. . . . . . . . . . . . . . 70
7.5A Leverage Ratio. . . . . . . . . . . . . . . . 70
7.5B Leverage Ratio. . . . . . . . . . . . . . . . 70
7.6 Fixed Charge Coverage Ratio.. . . . . . . . . 71
7.7 Inspections.. . . . . . . . . . . . . . . . . 71
7.8 Taxes.. . . . . . . . . . . . . . . . . . . . 72
7.9 Further Assurances. . . . . . . . . . . . . . 72
7.10 Insurance.. . . . . . . . . . . . . . . . . . 72
7.11 Indemnification.. . . . . . . . . . . . . . . 72
7.12 Governmental and Other Approvals. . . . . . . 72
7.13 Compliance with Contractual Obligations and
Laws. . . . . . . . . . . . . . . . . . . . . 73
7.14 ERISA.. . . . . . . . . . . . . . . . . . . . 73
7.15 Environmental Matters.. . . . . . . . . . . . 74
7.16 Delivery of Sfernice Authority Documents. . . 75
7.17 Joinder of Guarantors . . . . . . . . . . . . 75
8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . 76
8.1 Capital Structure, Business Objects or
Purpose.. . . . . . . . . . . . . . . . . . . 76
8.2 Limitations on Fundamental Changes. . . . . . 76
8.3 Guaranties. . . . . . . . . . . . . . . . . . 77
8.4 Indebtedness. . . . . . . . . . . . . . . . . 77
8.5 Liens.. . . . . . . . . . . . . . . . . . . . 77
8.6 Dividends.. . . . . . . . . . . . . . . . . . 78
8.7 Investments.. . . . . . . . . . . . . . . . . 78
8.8 Accounts Receivable.. . . . . . . . . . . . . 80
8.9 Transactions with Affiliates. . . . . . . . . 80
8.10 Operations of Vishay Israel.. . . . . . . . . 80
8.11 Prohibition Against Certain Restrictions. . . 80
8.12 Amendment of Stock Purchase Agreement.. . . . 80
9. DEFAULTS . . . . . . . . . . . . . . . . . . . . . . 81
9.1 Events of Default.. . . . . . . . . . . . . . 81
9.2 Exercise of Remedies. . . . . . . . . . . . . 83
9.3 Rights Cumulative.. . . . . . . . . . . . . . 84
9.4 Waiver by Company of Certain Laws.. . . . . . 84
9.5 Waiver of Defaults. . . . . . . . . . . . . . 84
9.6 Cross-Default.. . . . . . . . . . . . . . . . 84
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10. PAYMENTS, RECOVERIES AND COLLECTIONS.. . . . . . . . 85
10.1 Payment Procedure.. . . . . . . . . . . . . . 85
10.2 Application of Proceeds.. . . . . . . . . . . 87
10.3 Pro-rata Recovery.. . . . . . . . . . . . . . 87
10.4 Deposits and Accounts.. . . . . . . . . . . . 88
11. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS.. . 88
11.1 Reimbursement of Prepayment Costs.. . . . . . 88
11.2 Eurocurrency Lending Office.. . . . . . . . . 88
11.3 Availability of Alternative Currency. . . . . 89
11.4 Refunding Advances in Same Currency.. . . . . 89
11.5 Circumstances Affecting Eurocurrency-based
Rate Availability.. . . . . . . . . . . . . . 89
11.6 Laws Affecting Eurocurrency-based Advance
Availability. . . . . . . . . . . . . . . . . 90
11.7 Increased Cost of Eurocurrency-based
Advances. . . . . . . . . . . . . . . . . . . 90
11.8 Indemnity.. . . . . . . . . . . . . . . . . . 92
11.9 Judgment Currency.. . . . . . . . . . . . . . 92
11.10 Other Increased Costs.. . . . . . . . . . . . 92
12. AGENT. . . . . . . . . . . . . . . . . . . . . . . . 93
12.1 Appointment of Agent. . . . . . . . . . . . . 93
12.2 Deposit Account with Agent. . . . . . . . . . 94
12.3 Exculpatory Provisions. . . . . . . . . . . . 94
12.4 Successor Agents. . . . . . . . . . . . . . . 94
12.5 Loans by Agent. . . . . . . . . . . . . . . . 95
12.6 Credit Decisions. . . . . . . . . . . . . . . 95
12.7 Notices by Agent. . . . . . . . . . . . . . . 95
12.8 Agent's Fees. . . . . . . . . . . . . . . . . 95
12.9 Nature of Agency. . . . . . . . . . . . . . . 95
12.10 Actions; Confirmation of Agent's Authority
to Act in Event of Default. . . . . . . . . . 96
12.11 Authority of Agent to Enforce Notes and This
Agreement.. . . . . . . . . . . . . . . . . . 96
12.12 Indemnification.. . . . . . . . . . . . . . . 96
12.13 Knowledge of Default. . . . . . . . . . . . . 97
12.14 Agent's Authorization; Action by Banks. . . . 97
12.15 Enforcement Actions by the Agent. . . . . . . 97
12.16 Co-Agent and Lead Managers. . . . . . . . . . 98
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13. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 98
13.1 Accounting Principles.. . . . . . . . . . . . 98
13.2 Consent to Jurisdiction.. . . . . . . . . . . 98
13.3 Law of Michigan.. . . . . . . . . . . . . . . 99
13.4 Interest. . . . . . . . . . . . . . . . . . . 99
13.5 Closing Costs; Other Costs. . . . . . . . . . 99
13.6 Notices.. . . . . . . . . . . . . . . . . . .100
13.7 Further Action. . . . . . . . . . . . . . . .100
13.8 Successors and Assigns; Assignments and
Participations. . . . . . . . . . . . . . . .100
13.9 Indulgence. . . . . . . . . . . . . . . . . .104
13.10 Counterparts. . . . . . . . . . . . . . . . .104
13.11 Amendment and Waiver. . . . . . . . . . . . .104
13.12 Taxes and Fees. . . . . . . . . . . . . . . .105
13.13 Confidentiality.. . . . . . . . . . . . . . .105
13.14 Withholding Taxes.. . . . . . . . . . . . . .106
13.15 Effective Upon Execution. . . . . . . . . . .106
13.16 Severability. . . . . . . . . . . . . . . . .106
13.17 Table of Contents and Headings. . . . . . . .107
13.18 Construction of Certain Provisions. . . . . .107
13.19 Independence of Covenants.. . . . . . . . . .107
13.20 Reliance on and Survival of Various
Provisions. . . . . . . . . . . . . . . . . .107
13.21 Release of Guaranties.. . . . . . . . . . . .107
13.22 Release of Collateral under Prior Loan
Agreements. . . . . . . . . . . . . . . . . .108
13.23 Complete Agreement. . . . . . . . . . . . . .108
EXHIBITS
FORM OF REQUEST FOR ADVANCE . . . . . . . . . . . . . . . .A
FORM OF REVOLVING CREDIT NOTE -- COMPANY. . . . . . . . .B-1
FORM OF REVOLVING CREDIT NOTE -- PERMITTED BORROWER . . .B-2
FORM OF BID BORROWING REQUEST . . . . . . . . . . . . . .C-1
FORM OF BID OFFER . . . . . . . . . . . . . . . . . . . .C-2
FORM OF BID ACKNOWLEDGMENT. . . . . . . . . . . . . . . .C-3
FORM OF BID NOTE. . . . . . . . . . . . . . . . . . . . .C-4
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EXHIBITS (continued)
FORM OF TERM NOTE . . . . . . . . . . . . . . . . . . . . .D
FORM OF REQUEST FOR TERM LOAN ADVANCE AND RATE REQUEST. . .E
FORM OF FIXED RATE ELECTION . . . . . . . . . . . . . . . .F
PERCENTAGES . . . . . . . . . . . . . . . . . . . . . . . .G
SUBLIMIT. . . . . . . . . . . . . . . . . . . . . . . . . .H
FORM OF ASSIGNMENT AGREEMENT. . . . . . . . . . . . . . . .I
<PAGE>
<PAGE> 12 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made as of the 18th day
of July, 1994, among Comerica Bank, successor by merger to
Manufacturers Bank, N.A., formerly known as Manufacturers National
Bank of Detroit, NationsBank of North Carolina, N.A., formerly
known as NCNB National Bank of North Carolina, Berliner Handels-und
Frankfurter Bank KGaA, Signet Bank/Maryland, formerly known as
Union Trust Company of Maryland, CoreStates Bank, N.A., formerly
known as and continuing to do business under the name of The
Philadelphia National Bank, Bank Hapoalim, B.M., ABN AMRO Bank N.V.
New York Branch, Credit Lyonnais New York Branch, Meridian Bank,
Bank Leumi le-Israel, B.M. and Credit Suisse (individually, "Bank",
and collectively "Banks") Comerica Bank, as agent for the Banks (in
such capacity, "Agent") and Vishay Intertechnology, Inc., a
Delaware corporation ("Company").
RECITALS:
A. Company has requested that the Banks: (i) amend, renew
and extend to it and to additional parties designated herein as the
"Permitted Borrowers" revolving credit in an aggregate amount of up
to Two Hundred Million Dollars ($200,000,000), such revolving
credit to constitute an amendment, renewal and increase of the
revolving credit extended pursuant to that certain Amended and
Restated Vishay Intertechnology, Inc. $170,000,000 Revolving Credit
and Term Loan Agreement dated as of January 10, 1992, as amended
("Prior Loan Agreement"), executed and delivered among the Prior
Banks (as defined below), Company and Agent, and (ii) renew
additional credit in the form of the Term Loan (as defined below)
in an aggregate amount of up to One Hundred Two Million Five
Hundred Thousand Dollars ($102,500,000), previously extended by the
Prior Banks under the Prior Loan Agreement, on the terms and
conditions set forth herein.
B. Pursuant to the Commitment Letter (as defined below),
the Banks are prepared to amend, renew, extend and increase such
credit as aforesaid, but only upon the terms and conditions set
forth in this Agreement.
NOW THEREFORE, COMPANY, AGENT AND THE BANKS AGREE:
1. DEFINITIONS
For the purposes of this Agreement the following terms will
have the following meanings:
1.1 "Absolute Rate" shall have the meaning ascribed to such
term under Section 2.5(c) hereof.
1.2 "Absolute Rate Bid Advance" shall mean any Bid Advance
bearing interest at an Absolute Rate.
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<PAGE> 13 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
1.3 "Absolute Rate Interest Period" shall mean, with
respect to any Absolute Rate Bid Advance, the period (consisting of
a whole number of days) commencing on (and including) the date such
Bid Advance is made, and ending not less than seven (7) days and
not more than thirty (30) days thereafter (but in no event later
than the Revolving Credit Maturity Date), as selected by the
Company in its Bid Borrowing Request.
1.4 "Accumulated Funding Deficiency" shall mean an
"accumulated funding deficiency" as defined in Section 412 of the
Internal Revenue Code or Section 302 of ERISA.
1.5 "Acquisition Loan(s)" shall mean the Non-amortizing
Term Loan and the Bridge Loan.
1.6 "Activation Fee" shall mean the fee payable by Company
to Agent, for distribution to the Banks based on their respective
Percentages, in connection with each activation of the Revolving
Credit Designated Portion under Section 2.18 hereof, in the amount
of .03125% times that portion of the Revolving Credit Designated
Portion thereby activated.
1.7 "Adjusted Total Indebtedness" shall mean, with respect
to Company and its Consolidated Subsidiaries, as of the last day of
any period of four consecutive fiscal quarters, the sum, without
duplication, of (a) the average of the aggregate outstanding
principal amounts of (i) Advances of the Revolving Credit and Bid
Advances outstanding as of the last day of each fiscal quarter
during such period and (ii) any other revolving credit or other
short-term indebtedness of the Company and its Subsidiaries during
such period outstanding as of the last day of each fiscal quarter
during such period, (b) the aggregate outstanding principal amount
of all long-term indebtedness of the Company and its Subsidiaries
on such date, (c) all other interest-bearing indebtedness of the
Company and its Subsidiaries, whether short-term or long-term, on
such date, and (d) the aggregate amount of future minimum lease
payments due and payable under operating leases during such period,
in each case determined in accordance with GAAP.
1.8 "Advance(s)" shall mean, as the context may indicate,
a borrowing requested by Company or by the Permitted Borrowers, and
made by Banks under Section 2.1 of this Agreement, or requested by
Company and made by a Bank or Banks under Section 2.5 of this
Agreement or requested by the Company and made by the Banks under
Section 3.1 of this Agreement, as the case may be, including
without limitation any readvance, refunding or conversion of such
borrowing pursuant to Section 2.3, 2.5 or 3.9, hereof, and shall
include, as applicable, an Absolute Rate Bid Advance, a Euro-
currency-based Advance and a Prime-based Advance.
1.9 "Affiliate" shall mean, with respect to any Person, any
other Person or group acting in concert in respect of the Person
<PAGE>
<PAGE> 14 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with such
Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person or group of
Persons, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies
of such Person, whether through the ownership of voting securities
or by contract or otherwise.
1.10 "Agent" shall mean Comerica Bank, a Michigan banking
corporation, successor by merger to Manufacturers Bank, N.A., or
any successor appointed in accordance with Section 12.4 hereof.
1.11 "Agent's Correspondent" shall mean:
(a) for Advances in DM, Chemical Bank Frankfurt,
Frankfurt, Germany;
(b) for Advances in Y, Sumitomo Bank, Tokyo, Japan;
(c) for Advances in Sterling, Barclays Bank plc.,
London, Great Britain;
(d) for Advances in FF, Banque Nationale de Paris,
Paris, France;
(e) for Advances in Eurodollars, Agent's Grand
Cayman Branch (or for the account of said branch office, at
Agent's main office in Detroit, Michigan, United States);
or at such other bank or banks as Agent may from time to time
designate by written notice to Company, the Permitted Borrowers and
the Banks.
1.12 "Agent's Fees" shall mean those fees and expenses
required to be paid by Company to Agent under Section 12.8 hereof.
1.13 "Alternate Base Rate" shall mean, for any day, an
interest rate per annum equal to the Federal Funds Effective Rate
in effect on such day, plus one-half percent (1/2%).
1.14 "Alternative Currency" shall mean each of the following
Euro-currencies, as applicable hereunder: French Francs ("FF"), Yen
("Y"), Deutsche Marks ("DM"), British Pounds Sterling ("Sterling")
and, subject to availability and to the terms and conditions of
this Agreement, such other freely convertible foreign currencies
(which, when referred to herein or in any of the Loan Documents,
shall be referred to using the currency codes in effect from time
to time under ISO International Standard 4217, or any such
successor publication or standard) as requested by the Company or
<PAGE>
<PAGE> 15 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
the Permitted Borrowers and acceptable to Agent and the Banks, in
their reasonable discretion.
1.15 "Applicable Fee Percentage" shall mean, as of any date
of determination thereof, the applicable percentage used to
calculate the fees due and payable hereunder, determined by
reference to the appropriate columns in the Pricing Matrix attached
to this Agreement as Schedule 4.1.
1.16 "Applicable Interest Rate" shall mean the Absolute
Rate, the Eurocurrency-based Rate or the Prime-based Rate, as
selected by Company or a Permitted Borrower from time to time
subject to the terms and conditions of this Agreement, and, if
elected by the Company pursuant to Section 3.11 hereof (with
respect to the Term Loan), the Fixed Rate.
1.17 "Applicable Margin" shall mean, as of any date of
determination thereof, (i) with respect to the Revolving Credit and
the Term Loan, the applicable interest rate margin, determined by
reference to the appropriate columns in the Pricing Matrix attached
to this Agreement as Schedule 4.1, and (ii) with respect to
Eurocurrency Bid Advances, the Eurocurrency Bid Margin.
1.18 "Assignment Agreement" shall have the meaning ascribed
to such term in Section 13.8(c) hereof.
1.19 "Banks" shall mean Comerica Bank, successor by merger
to Manufacturers Bank, N.A., formerly known as Manufacturers
National Bank of Detroit ("Comerica"), NationsBank of North
Carolina, N.A., formerly known as NCNB National Bank of North
Carolina ("NationsBank"), Berliner Handels-und Frankfurter Bank
KGaA ("BHF"), Signet Bank/Maryland, formerly known as Union Trust
Company of Maryland ("Signet"), Bank Hapoalim, B.M., CoreStates
Bank, N.A., formerly known as and continuing to do business under
the name of Philadelphia National Bank, ABN AMRO Bank N.V. New York
Branch, Credit Lyonnais New York Branch ("Credit Lyonnais"),
Meridian Bank, Bank Leumi le-Israel, B.M., Credit Suisse, and any
assignee which becomes a Bank pursuant to Section 13.8(c) hereof.
1.20 "Bid Acknowledgment" shall have the meaning ascribed to
such term in Section 2.5(e) hereof.
1.21 "Bid Advance" shall mean any Advance under Section 2.5
hereof, and shall include Absolute Rate Bid Advances and
Eurocurrency Bid Advances.
1.22 "Bid Borrowing Request" shall have the meaning ascribed
to such term in Section 2.5(b) hereof.
1.23 "Bid Lender(s)" shall mean each of the Banks, other
than any Bank which notifies Company and Agent in writing (so long
<PAGE>
<PAGE> 16 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
as it has no Bid Offer outstanding) that it does not wish to fund
Bid Advances under Section 2.5 hereof.
1.24 "Bid Notes" shall have the meaning ascribed to such
term in Section 2.5(g) hereof.
1.25 "Bid Offer" shall mean an offer by a Bid Lender to make
a Bid Advance in accordance with Section 2.5(c) hereof.
1.26 "Bridge Loan" shall mean the bridge loan in an
aggregate amount not to exceed One Hundred Million Dollars
($100,000,000) to be advanced by the Banks to the Company pursuant
to the Target Company Loan Agreement.
1.27 "Business Day" shall mean any day on which commercial
banks are open for domestic and international business (including
dealings in foreign exchange) in Detroit, London, New York and
(except with respect to any Prime-based Advances) Frankfurt am
Main, and if funds are to be paid or made available in any
Alternative Currency, on such day in the place where such funds are
to be paid or made available.
1.28 "Capital Expenditures" shall mean, without duplication,
any amounts paid or accrued for a period in respect of any purchase
or other acquisition for value of fixed or capital assets; provided
that, in no event shall Capital Expenditures include amounts
expended in respect of normal repair and maintenance of plant
facilities, machinery, fixtures and other like capital assets
utilized in the ordinary conduct of business (to the extent such
amounts would not be capitalized in preparing a balance sheet
determined in accordance with GAAP).
1.29 "Closing Fee" shall mean the remaining installment of
the up-front fee in the amount of $558,750 to be paid by Company to
the Agent and distributed to the Banks pursuant to the Commitment
Letter (and Section II of the Summary of Terms and Conditions
attached thereto), subject to a reduction in the aggregate amount
of $192,000 in the event, on or before the date of this Agreement
(by written notice to Agent), Company has cancelled the Banks'
commitments for funding the Acquisition Loans (such fee reduction
to be allocated among the Banks in accordance with the Commitment
Letter and the Summary of Terms and Conditions, as aforesaid).
1.30 "Collateral" shall mean all property or rights in which
a security interest, mortgage, lien or other encumbrance for the
benefit of the Banks (but expressly excluding any and all
guaranties) was granted or arose, under or in connection with the
Prior Loan Agreements, or otherwise, to secure the Indebtedness.
1.31 "Commitment Letter" shall mean that certain commitment
letter dated June 28, 1994 and issued to the Company by the Agent,
for itself and for and on behalf of the Banks, with respect to the
<PAGE>
<PAGE> 17 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
credit to be amended, renewed, increased and/or extended under the
terms and conditions of this Agreement, the DM Loan Agreement, the
Roederstein Loan Agreement and the Target Company Loan Agreement.
1.32 "Company" shall mean Vishay Intertechnology, Inc., a
Delaware corporation.
1.33 "Contractual Obligation" shall mean, as to any Person,
any provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a
party or by which it or any of its property is bound.
1.34 "Consolidated" or "Consolidating" shall, when used with
reference to any financial information pertaining to (or when used
as a part of any defined term or statement pertaining to the
financial condition of) Company and its Subsidiaries mean the
accounts of Company and its Subsidiaries determined on a
consolidated or consolidating basis, as the case may be, all
determined as to principles of consolidation and, except as
otherwise specifically required by the definition of such term or
by such statements, as to such accounts, in accordance with GAAP,
applied on a consistent basis and consistent with the financial
statements, if any, as at and for the fiscal year ended December
31, 1993.
1.35 "Covenant Compliance Report" shall mean the report to
be furnished by the Company to the Agent, on a form prescribed by
Agent and certified by the chief financial officer of the Company
pursuant to Section 7.3(c), hereof, as to whether the Company and
its Subsidiaries are in compliance with the financial covenants
contained in Sections 7.4 through 7.6, inclusive, of this
Agreement, in which report the Company shall set forth its
calculations and the resultant ratios or financial tests determined
thereunder.
1.36 "Current Dollar Equivalent" shall mean at any date,
with respect to any Advance in an Alternative Currency, the amount
of Dollars which is equivalent to the then outstanding principal
amount of such Advance at the most favorable spot exchange rate
determined by the Agent to be available to it for the sale of
Dollars for such Alternative Currency at approximately 11:00 A.M.
(Detroit time) two (2) Business Days after such date. Alternative
Currency equivalents of Advances in Dollars (to the extent used
herein) shall be determined by Agent in a manner consistent
herewith.
1.37 "Dale Electronics" shall mean Dale Electronics, Inc.,
a Delaware corporation and the wholly-owned Subsidiary of Dale
Holdings, Inc., a Delaware corporation.
<PAGE>
<PAGE> 18 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
1.38 "Default" shall mean any event which, with the giving
of notice or the passage of time, or both, would constitute an
Event of Default under this Agreement.
1.39 "Defined Contribution Plan" shall mean each Employee
Benefit Plan (as defined in Section 3(3) of ERISA) which is an
individual account plan or a defined contribution plan as defined
in Section 3(34) of ERISA.
1.40 "Deutsche Marks" and the sign "DM" shall mean lawful
money of the Federal Republic of Germany.
1.41 "DM Loan Agreement" shall mean that certain Amended and
Restated Draloric/VBG DM 40,000,000 Revolving Credit and DM
9,506,000 Term Loan Agreement, dated as of the date hereof, among
VBG, the Banks and Agent, as amended from time to time.
1.42 "DM Loan Documents" shall mean the DM Loan Agreement,
and all notes, guaranties and other security or loan documents
executed by VBG or any of the Permitted Borrowers pursuant to or in
connection with the DM Loan Agreement.
1.43 "DM Revolving Credit" and "DM Term Loan" shall mean the
Revolving Credit and the Term Loan, respectively, as extended by
the Banks to VBG pursuant to the DM Loan Documents (and as defined
therein).
1.44 "Dollar Amount" shall mean (i) with respect to each
Advance made or carried (or to be made or carried) in Dollars, the
principal amount thereof and (ii) with respect to each Advance made
or carried (or to be made or carried) in an Alternative Currency,
the amount of Dollars which is equivalent to the principal amount
of such Advance at the most favorable spot exchange rate determined
by the Agent to be available to it for the sale of Dollars for such
Alternative Currency at approximately 11:00 A.M. (Detroit time) two
(2) Business Days before such Advance is made (or to be made), as
such Dollar Amount may be adjusted from time to time pursuant to
Section 2.15 or 4.3 hereof. When used with respect to any
Alternative Currency portion of an Advance being repaid or
remaining outstanding at any time or with respect to any other sum
expressed in an Alternative Currency, "Dollar Amount" shall mean
the amount of Dollars which is equivalent to the principal amount
of such Advance, or the amount so expressed in such Alternative
Currency, at the most favorable spot exchange rate determined by
the Agent to be available to it for the sale of Dollars for such
Alternative Currency at the relevant time. Alternative Currency
amounts of Advances made, carried or expressed in Dollars (to the
extent used herein) shall be determined by Agent in a manner
consistent herewith.
1.45 "Dollars" and the sign "$" shall mean lawful money
of the United States of America.
<PAGE>
<PAGE> 19 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
1.46 "Domestic Advance" shall mean any Advance other than a
Eurocurrency-based Advance.
1.47 "Domestic Guaranty" shall mean that certain amended and
restated guaranty agreement containing the unconditional guaranties
of borrowings hereunder by Company and the Permitted Borrowers, by
VBG under the DM Loan Documents, and by VBG under the Roederstein
Loan Documents, and of borrowings by Company under the Target
Company Loan Documents, executed and delivered by the Significant
Domestic Subsidiaries to the Banks as of the date hereof, as
amended from time to time.
1.48 "Domestic Subsidiaries" shall mean those Subsidiaries
of the Company which are chartered or incorporated under the laws
of the United States of America, or any state, territory,
possession or any political subdivision thereof.
1.49 "Draloric" shall mean Draloric Electronic, GmbH, a
German corporation, formerly known as Vishay Electronic, GmbH.
1.50 "EBITDA" shall mean, of any Person, for any period, the
Net Income of such Person for such 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 such
Net Income all on a consolidated basis: (a) Interest Expense, (b)
any non-cash expenses and charges, (c) total income tax expense,
(d) depreciation expense, (e) the expense associated with
amortization of intangible and other assets, (f) non-cash
provisions for reserves for discontinued operations, (g) any
extraordinary, unusual or non-recurring gains or losses or charges
or credits, (h) any gain or loss associated with the sale or write-
down of assets and (i) any gain or loss accounted for by the equity
method of accounting (except in the case of income to the extent of
the amount of cash dividends or cash distributions paid to the
Company or any Subsidiary by the entity accounted for by the equity
method of accounting).
1.51 "Environmental Auditors" shall mean, when selected or
retained by the Company, such counsel, engineering or testing firms
or other experienced, reputable environmental consultants
reasonably acceptable to Agent and the Banks, and when selected or
retained by Agent hereunder, such counsel, engineering or testing
firms or other experienced, reputable environmental consultants
satisfactory to Agent and the Banks.
1.52 "Environmental Audits" shall mean environmental audits
covering each parcel of real property located in the United States
of America and owned by the Target Company on the date of closing
under the Stock Purchase Agreement and also covering all
environmental claims or liabilities of or affecting the Seller
under Hazardous Material Laws of the United States of America,
generally, which, upon the Target Company Acquisition, could affect
<PAGE>
<PAGE> 20 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
the Company or any of its Subsidiaries, such audits to be performed
by the Environmental Auditors, disclosing, in each case (other than
as approved in writing by Agent and the Banks subsequent to the
date hereof), no environmental condition for which material
remedial action could be required by any governmental agency and no
material violation of Hazardous Material Laws, and otherwise in
form and substance satisfactory to Agent and the Banks.
1.53 "Equity Offering" shall mean the issuance and sale for
cash, on or after the date hereof, by Company or any of its
Subsidiaries of additional capital stock or other equity interests.
1.54 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, or any successor act or code, and
the regulations in effect from time to time thereunder.
1.55 "ERISA Affiliate" shall mean any trade or business
(whether or not incorporated) which is under common control with
the Company within the meaning of Section 4001 of ERISA or is part
of a group which includes the Company and would be treated as a
single employer under Section 414 of the Internal Revenue Code, and
any Domestic Subsidiary.
1.56 "Eurocurrency Adjusted Rate" shall mean the quotient
of:
(i) the per annum interest rate at which Agent's
Eurocurrency Lending Office (or with respect
to a Bid Advance, if applicable, the
Eurocurrency Lending Office of the applicable
Bid Lender funding such Bid Advance) offers
deposits in the relevant eurocurrency to
United States regional prime banks in the
eurocurrency market in an amount comparable to
the relevant Eurocurrency-based Advance and
for a period equal to the relevant
Eurocurrency-Interest Period at approximately
11:00 A.M. Detroit time (or, in the case of a
Bid Advance, local time of the applicable Bid
Lender) two (2) Business Days prior to the
first day of such Eurocurrency-Interest
Period, divided by
(ii) a percentage equal to 100% minus the maximum
rate on such date at which Agent (or, in the
case of a Bid Advance, the applicable Bid
Lender) is required to maintain reserves on
`Eurocurrency Liabilities' as defined in and
pursuant to Regulation D of the Board of
Governors of the Federal Reserve System or, if
such regulation or definition is modified, and
as long as Agent (or, in the case of a Bid
<PAGE>
<PAGE> 21 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Advance, the applicable Bid Lender) is
required to maintain reserves against a
category of liabilities which includes
eurocurrency deposits or includes a category
of assets which includes eurocurrency loans,
the rate at which such reserves are required
to be maintained on such category,
such sum to be rounded upward, if necessary, to the nearest whole
multiple of 1/16th of 1%.
1.57 "Eurocurrency Bid Advance" shall mean any Bid Advance
bearing interest at the Eurocurrency-based Rate.
1.58 "Eurocurrency Bid Margin" shall have the meaning
ascribed to such term in Section 2.5(c) hereof.
1.59 "Eurocurrency-based Advance" shall mean any Advance
(including a Bid Advance) which bears interest at the Eurocurrency-
based Rate.
1.60 "Eurocurrency-based Rate" shall mean a per annum
interest rate which is the Applicable Margin (subject in each case,
if applicable, to adjustment under Section 4.1 hereof) above (or
below) the Eurocurrency Adjusted Rate.
1.61 "Eurocurrency-Interest Period" shall mean an Interest
Period of one, two, three or six months (or, with respect to
Advances of the Revolving Credit, any lesser or greater number of
days agreed to in advance by Company, Agent and the Banks) as
selected by Company or by a Permitted Borrower, as applicable, for
a Eurocurrency-based Advance pursuant to Section 2.3 hereof, or as
offered by a Bid Lender and selected by Company pursuant to Section
2.5 hereof or as selected by Company for a Eurocurrency-based
Advance pursuant to Section 3.10 hereof.
1.62 "Eurocurrency Lending Office" shall mean, (a) with
respect to the Agent, Agent's office located at its Grand Caymans
Branch or such other branch of Agent, domestic or foreign, as it
may hereafter designate as its Eurocurrency Lending Office by
notice to Company, the Permitted Borrowers and the Banks and (b) as
to each of the Banks, the office, branch or affiliate of such Bank
as it may hereafter designate as its Eurocurrency Lending Office by
written notice to Company and Agent.
1.63 "Event of Default" shall mean each of the Events of
Default specified in Section 9.1 hereof.
1.64 "Excess Cash Flow" shall mean for any fiscal year
(using the terms contained in the Company's Consolidated financial
statements for its fiscal year ending December 31, 1993 and the
sources and uses statement contained in Company's 10-K Report filed
<PAGE>
<PAGE> 22 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
with the Federal Securities and Exchange Commission in respect of
such period), net cash provided by operating activities for such
fiscal year, less purchase of property and equipment for such
fiscal year, less principal payments on long-term debt for such
fiscal year (including all principal payments based on Excess Cash
Flow made on the Term Loan under Section 3.4 hereof, on the
Roederstein Term Loan under the Roederstein Loan Agreement or on
the Non-Amortizing Term Loan under the Target Company Loan
Agreement, if any, during such fiscal year, but excluding all
payments on the Revolving Credit, the revolving credit advanced to
VBG under the DM Loan Agreement or any other revolving loan
facility utilized at any time by Company or any of its
Subsidiaries), all calculated based upon Company's annual
Consolidated financial statements required to be delivered to Agent
and the Banks under Section 7.3(b) hereof.
1.65 "Federal Funds Effective Rate" shall mean, for any day,
a fluctuating interest rate per annum equal to the weighted average
of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of
recognized standing selected by it.
1.66 "Fees" shall mean the Revolving Credit Commitment Fee,
the Revolving Credit Facility Fee, the Closing Fee, the Activation
Fee and the Agent's Fees.
1.67 "Fixed Charge Coverage Ratio" shall mean a ratio, (i)
the numerator of which shall be equal to the Operating Income plus
depreciation and amortization (determined in accordance with GAAP),
minus Capital Expenditures during the preceding 12 months (or, for
any period shorter than 12 months, minus Capital Expenditures over
the preceding 12 months divided by 12, times the number of months
in such shorter period) and (ii) the denominator of which shall be
the Interest Expense of such entity for such period.
1.68 "Fixed Rate" shall mean the per annum fixed rate of
interest for the Term Loan established by the Agent under Section
3.11 hereof, such rate to be based on (a) an average of the funding
cost of each of the Reference Banks on that date which is three (3)
Business Days prior to the effective date of the Company's election
of the Fixed Rate Option (subject to Section 3.11 hereof), as
determined by each such Reference Bank in the interbank swap market
for the weighted average life of the Term Loan then remaining, plus
(b) the Applicable Margin which would then be in effect for
Eurocurrency-based Rate Advances of the Term Loan if the Company
had selected such rate, subject to any applicable margin adjustment
under Section 4.1 hereof, giving immediate effect thereto based on
<PAGE>
<PAGE> 23 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
the most current quarterly financial statement delivered by the
Company under Section 7.3(b) or 7.3(c) hereof, as the case may be.
1.69 "Fixed Rate Option" shall mean the Company's right,
subject to and in accordance with Section 3.11 hereof, to elect the
Fixed Rate as the Applicable Interest Rate for the Term Loan.
1.70 "Fixed Rate Election" shall mean the Company's written
election of the Fixed Rate as the Applicable Interest Rate for the
Term Loan, submitted by the Company under Section 3.11 hereof, in
the form attached hereto as Exhibit "F."
1.71 "Foreign Subsidiaries" shall mean all of the Company's
Subsidiaries other than the Domestic Subsidiaries.
1.72 "GAAP" shall mean generally accepted accounting
principles in the United States of America, as in effect from time
to time, applied on a consistent basis.
1.73 "Guaranties" shall mean the Vishay Guaranty, the
Domestic Guaranty, and the Permitted Borrowers Guaranty.
1.74 "Hazardous Material" shall mean and include any
hazardous, toxic or dangerous waste, substance or material defined
as such in (or for purposes of) the Hazardous Material Laws.
1.75 "Hazardous Material Law(s)" shall mean all laws, codes,
ordinances, rules, regulations, orders, decrees and directives
issued by any federal, state, local, foreign or other governmental
or quasi-governmental authority or body (or any agency,
instrumentality or political subdivision thereof) pertaining to
Hazardous Material on or about any Material Property or any portion
thereof including, without limitation, those relating to soil,
surface, subsurface ground water conditions and the condition of
the ambient air; any so-called "superfund" or "superlien" law; and
any other federal, state, foreign or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now
or at any time hereafter in effect.
1.76 "Hereof", "hereto", "hereunder" and similar terms shall
refer to this Agreement and not to any particular paragraph or
provision of this Agreement.
1.77 "HLT Determination" shall mean any determination by the
Agent or by the Majority Banks, or by applicable federal or state
regulatory authorities (including without limitation any central
bank or other governmental body having jurisdiction over any of the
Banks) that the Indebtedness (or any specific loan facility or
portion thereof pursuant to this Agreement or the other Loan
Agreements) would be classified as a "highly-leveraged transaction"
<PAGE>
<PAGE> 24 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
or an "HLT" under applicable federal or state law, regulations or
guidelines in effect from time to time, provided that (a), with any
determination of HLT status by Agent or the Majority Banks, Agent
shall have given Company not less than thirty (30) days prior
written notice of such determination, accompanied by a certificate
setting forth the basis for such determination (which shall be
presumed correct absent manifest error) and (b) with respect to any
determination of HLT status by a federal or state regulatory
authority, Agent shall have given written notice thereof to
Company, accompanied by a copy of such determination (if in
writing).
1.78 "Indebtedness" shall mean all indebtedness and
liabilities, whether direct or indirect, absolute or contingent,
owing by Company or any of the Permitted Borrowers to the Banks (or
any of them) or to the Agent, in any manner and at any time, under
this Agreement or the Loan Documents, whether evidenced by the
Notes, arising under the DM Loan Agreement (or any promissory notes
issued thereunder), the Roederstein Loan Agreement (or any
promissory notes issued thereunder), the Target Company Loan
Agreement (or any promissory notes issued thereunder), the Vishay
Guaranty, the Domestic Guaranty, the Permitted Borrowers Guaranty,
or otherwise, due or hereafter to become due, now owing or that may
hereafter be incurred by the Company, any of the Permitted
Borrowers or any of the Subsidiaries to, or acquired by, the Banks
(or any of them) or by Agent, and any judgments that may hereafter
be rendered on such indebtedness or any part thereof, with interest
according to the rates and terms specified, or as provided by law,
and any and all consolidations, amendments, renewals, replacements
or extensions of any of the foregoing.
1.79 "Intercompany Loan" shall mean any loan (or advance in
the nature of a loan) by the Company or any 100% Subsidiary to
another 100% Subsidiary, provided that each such loan or advance is
subordinated in right of payment and priority to the Indebtedness
on terms and conditions satisfactory to Agent and the Majority
Banks.
1.80 "Intercompany Loans, Advances or Investments" shall
mean any Intercompany Loan, and any advance or investment by the
Company or any 100% Subsidiary (including without limitation any
guaranty of obligations or indebtedness to third parties) to or in
another 100% Subsidiary.
1.81 "Interest Expense" shall mean, for any person and with
respect to any period, the sum of the amount of interest paid or
accrued in respect of such period, determined in accordance with
GAAP.
1.82 "Interest Period" shall mean either an Absolute Rate
Interest Period or a Eurocurrency-Interest Period commencing on the
day an Absolute Rate Bid Advance or a Eurocurrency-based Advance,
<PAGE>
<PAGE> 25 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
as the case may be, is made, or on the effective date of an
election of the Absolute Rate under Section 2.5 hereof or the
Eurocurrency-based Rate made under Section 2.3, 2.5 or 3.9, hereof,
provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the
next succeeding Business Day, except that as to a
Eurocurrency-Interest Period, if the next succeeding Business
Day falls in another calendar month, the Eurocurrency-Interest
Period shall end on the next preceding Business Day, and when
a Eurocurrency-Interest Period begins on a day which has no
numerically corresponding day in the calendar month during
which such Eurocurrency-Interest Period is to end, it shall
end on the last Business Day of such calendar month, and
(b) no Interest Period shall extend beyond the then
effective maturity date of the Note or Notes to which such
Interest Period is to apply.
1.83 "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time, and the regulations
promulgated thereunder.
1.84 "Joint Venture" shall mean any corporation,
partnership, association, joint stock company, business trust or
other combined enterprise, other than a Consolidated Subsidiary, in
which (or to which) the Company or any of its Subsidiaries has made
a loan, investment or advance or has an ownership stake or
interest, whether in the nature of Share Capital or otherwise.
1.85 "Leverage Ratio" shall mean, with respect to the
Company and its Consolidated Subsidiaries, as of the last day of
any period of four consecutive fiscal quarters, the ratio of (a)
Adjusted Total Indebtedness of the Company and its Consolidated
Subsidiaries as of such day to (b) EBITDA of the Company and its
Consolidated Subsidiaries for such period.
1.86 "Lien" shall mean any pledge, assignment,
hypothecation, mortgage, security interest, deposit arrangement,
option, trust receipt, conditional sale or title retaining
contract, sale and leaseback transaction, or any other type of
lien, charge or encumbrance, whether based on common law, statute
or contract.
1.87 "Loan Agreements" shall mean this Agreement, the DM
Loan Agreement, the Roederstein Loan Agreement and the Target
Company Loan Agreement.
1.88 "Loan Documents" shall mean collectively, this
Agreement, the Notes, the Guaranties, the DM Loan Documents, the
Roederstein Loan Documents, the Target Company Loan Documents and
<PAGE>
<PAGE> 26 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
any other documents, instruments or agreements executed pursuant to
or in connection with any such document, this Agreement, the DM
Loan Agreement, the Roederstein Loan Agreement, or the Target
Company Loan Agreement, as such documents may be amended from time
to time.
1.89 "Majority Banks" shall mean at any time Banks holding
66-2/3% of the aggregate principal amount of the Indebtedness then
outstanding under this Agreement and the other Loan Documents
(excluding any Bid Notes issued under this Agreement or the DM Loan
Agreement except upon the occurrence and during the continuance of
an Event of Default, provided that Indebtedness under any such Bid
Notes shall not be included for purposes of Section 9.2(w) hereof),
or, if no such Indebtedness is then outstanding, Banks holding 66-
2/3% of the Percentages.
1.90 "Material Property" shall mean any property, whether
personal or real, owned, leased or otherwise used by the Company or
any of its Subsidiaries or the Permitted Borrowers which is
material to the operations of the Company and its Subsidiaries,
taken as a whole, or which is material to the operations of Company
or any of the Significant Subsidiaries.
1.91 "Moody's Rating" shall mean the rating by Moody's
Investors Services, Inc. (or any successor thereto) ("Moody's") of
Company's long-term, senior unsecured debt.
1.92 "Multiemployer Plan" shall mean any Pension Plan which
is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
1.93 "Net Income" shall mean for any period the net income
(or the net deficit if expenses and charges exceed revenues and
other proper income credits) for such period taken as one
accounting period, determined in the following manner:
(a) The gross revenues and other proper income
credits shall be computed for such period determined in
accordance with GAAP, provided that in any event there shall
not be included in such gross revenues and income credits any
of the following items: (i) any proceeds of any insurance
policy or (ii) any gain arising from any write-up of assets or
from the acquisition or retirement or sale of securities of
any corporation or any other gain of an extraordinary nature.
(b) From the amount of such gross revenues and
other proper income credits for such period determined as
provided in the preceding clause (a) there shall be deducted
an amount equal to the aggregate of all expenses and other
proper income charges for such period determined in accordance
with GAAP (provided, however, that there shall be no deduction
in respect of compensation expense for employee stock options
which would otherwise be required under GAAP pursuant to
<PAGE>
<PAGE> 27 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
currently proposed or subsequently enacted FASB rules or the
federal Securities and Exchange Commission), but in any event
including (without in any respect limiting the generality of
the foregoing) the following items: (i) all interest and
rental charges; (ii) amortization of debt discount and expense
and amortization of all other deferred charges properly
subject to amortization; (iii) provision for all taxes in
respect of property and in respect of revenues, income, excess
profits or otherwise; (iv) provision for all contingency
reserves, whether general or special; and (v) provision for
depreciation, depletion, obsolescence and/or amortization
(including depreciation and amortization of leasehold
improvements) in amounts in the aggregate not less than those
actually charged on its books and, if not yet actually charged
on such books, then in amounts not less than the amounts which
would be charged in accordance with GAAP.
1.94 "Net Income Adjustment" shall mean that amount to be
added to the Tangible Net Worth Floor under Section 7.4A and 7.4B
hereof consisting of fifty percent (50%) of Company's Consolidated
Net Income for each of Company's fiscal years ending on and after
December 31, 1997 (in each case, if a positive number), on a
cumulative basis.
1.95 "New Banks" shall mean Credit Lyonnais and Credit
Suisse.
1.96 "Non-Amortizing Term Loan" shall mean that certain non-
amortizing term loan in an aggregate amount not to exceed One
Hundred Million Dollars ($100,000,000) to be advanced by the Banks
to the Company pursuant to the Target Company Loan Agreement.
1.97 "Notes" shall mean the Revolving Credit Notes, the Bid
Notes or the Term Notes, or any or all of the Revolving Credit
Notes, the Bid Notes and the Term Notes, as the context indicates,
and in the absence of such indication, all such notes.
1.98 "Operating Income" shall mean, for any period, the sum
of (i) Net Income, (ii) the net of interest income and Interest
Expense and (iii) the provision for all taxes in respect of
revenues, income or excess profits, all determined in accordance
with GAAP.
1.99 "PBGC" shall mean the Pension Benefit Guaranty
Corporation under ERISA, or any successor corporation.
1.100 "Pension Plan(s)" shall mean all employee pension
benefit plans of Company, any ERISA Affiliate or the Permitted
Borrowers, as defined in Section 3(2) of ERISA.
1.101 "Percentage" shall mean, with respect to any Bank, its
percentage share, as set forth on Exhibit "G", hereto, of the
<PAGE>
<PAGE> 28 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Revolving Credit, and/or the Term Loan, as the context indicates,
as such Exhibit may be revised from time to time by Agent in
accordance with Section 13.8(d) hereof.
1.102 "Permitted Borrower(s)" shall mean VBG and Draloric;
provided however that the aggregate Advances of the Revolving
Credit available to Company and the Permitted Borrowers hereunder
shall be subject at all times to the applicable Sublimit and to the
Revolving Credit Maximum Amount and to the other terms and
conditions hereof.
1.103 "Permitted Borrowers Guaranty" shall mean that certain
unconditional guaranty of the Indebtedness of the Permitted
Borrowers hereunder, of VBG under the DM Loan Documents, and of VBG
under the Roederstein Loan Documents, executed and delivered by the
Significant Foreign Subsidiaries to the Banks as of the date
hereof, as amended from time to time.
1.104 "Permitted Company Encumbrances" shall mean, in
addition to Permitted Encumbrances, those liens and encumbrances of
the Company identified in Schedule 1.104, hereto.
1.105 "Permitted Currencies" shall mean Dollars or any
Alternative Currency.
1.106 "Permitted Encumbrances" shall mean, with respect to
any Person:
(a) the liens and encumbrances granted under or
established by this Agreement or the Loan Documents;
(b) liens for taxes not yet due and payable or
which are being contested in good faith by appropriate
proceedings diligently pursued, provided that such provision
for the payment of all such taxes known to such Person has
been made on the books of such Person as may be required by
GAAP;
(c) mechanics', materialmen's, banker's, carriers',
warehousemen's and similar liens and encumbrances arising in
the ordinary course of business and securing obligations of
such Person that are not overdue for a period of more than 60
days or are being contested in good faith by appropriate
proceedings diligently pursued, provided that in the case of
any such contest (i) any proceedings commenced for the
enforcement of such liens and encumbrances shall have been
duly suspended; and (ii) such provision for the payment of
such liens and encumbrances has been made on the books of such
Person as may be required by GAAP;
(d) liens arising in connection with worker's
compensation, unemployment insurance, old age pensions
<PAGE>
<PAGE> 29 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(subject to the applicable provisions of this Agreement) and
social security benefits which are not overdue or are being
contested in good faith by appropriate proceedings diligently
pursued, provided that in the case of any such contest (i) any
proceedings commenced for the enforcement of such liens shall
have been duly suspended; and (ii) such provision for the
payment of such liens has been made on the books of such
Person as may be required by GAAP; and
(e) (i) liens incurred in the ordinary course of
business to secure the performance of statutory obligations
arising in connection with progress payments or advance
payments due under contracts with the United States or any
foreign government or any agency thereof entered into in the
ordinary course of business and (ii) liens incurred or
deposits made in the ordinary course of business to secure the
performance of statutory obligations, bids, leases, fee and
expense arrangements with trustees and fiscal agents and other
similar obligations (exclusive of obligations incurred in
connection with the borrowing of money, any lease-purchase
arrangements or the payment of the deferred purchase price of
property), provided that full provision for the payment of all
such obligations set forth in clauses (i) and (ii) has been
made on the books of such Person as may be required by GAAP;
and
(f) any minor imperfections of title, including but
not limited to easements, covenants, rights-of-way or other
similar restrictions, which, either individually or in the
aggregate do not materially adversely affect the present or
future use of the property to which they relate, which would
have a material adverse effect on the sale or lease of such
property, or which would render title thereto unmarketable.
1.107 "Permitted Encumbrances of the Subsidiaries" shall
mean, in addition to Permitted Encumbrances, those liens and
encumbrances of the Subsidiaries identified in Schedule 1.107,
hereto.
1.108 "Permitted Transfer" shall mean (i) any disposition of
inventory or worn out or obsolete machinery, equipment or other
such personal property in the ordinary course of business, (ii) any
transfer by Company or its Subsidiaries to Vishay Israel or its
wholly-owned direct subsidiaries of machinery and equipment
acquired from Sprague Technologies, Inc., or Sprague Electric
Company, Inc. (and/or the subsidiaries or affiliates of such
parties) in the amount (valued on the basis of the book value of
such property on the date of acquisition thereof) of up to Fifteen
Million Dollars ($15,000,000) in the aggregate with all other such
transfers (subsequent to such acquisition); (iii) any transfer by
VBG, Draloric or Roederstein to Vishay Israel or its wholly-owned
direct subsidiaries of machinery and equipment acquired pursuant to
<PAGE>
<PAGE> 30 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
the Company's acquisition of Roederstein in the amount (valued on
the basis of the book value of such property as of September 30,
1992) of up to DM 20,000,000 (or the Current Dollar Equivalent
thereof) in the aggregate with all other such transfers (subsequent
to such acquisition) and (iv) any transfer by the Company or its
Subsidiaries to Vishay Israel or its wholly-owned direct
subsidiaries of machinery and equipment acquired pursuant to the
Target Company Acquisition in the amount (valued on the basis of
the book value of such property on the date of the Target Company
Acquisition) of up to Fifteen Million Dollars ($15,000,000) in the
aggregate with all other such transfers (subsequent to such
acquisition); provided that, both before and after any such
transfer), no Default or Event of Default (whether or not related
to such transfer, has occurred and is continuing under this
Agreement or any of the other Loan Documents.
1.109 "Permitted Transferee" shall mean a "Permitted
Transferee" as defined in the Company's current Certificate of
Incorporation, and any subsequent amendment of the definition of
such term approved by the Majority Banks.
1.110 "Person" shall mean an individual, corporation,
partnership, trust, incorporated or unincorporated organization,
joint venture, joint stock company, or a government or any agency
or political subdivision thereof or other entity of any kind.
1.111 "Prime Rate" shall mean the per annum interest rate
established by Agent as its prime rate for its borrowers as such
rate may vary from time to time, which rate is not necessarily the
lowest rate on loans made by Agent at any such time.
1.112 "Prime-based Advance" shall mean an Advance which bears
interest at the Prime-based Rate.
1.113 "Prime-based Rate" shall mean that rate of interest
which is the greater of (i) the Prime Rate or (ii) the Alternate
Base Rate, plus in each case the Applicable Margin (subject in each
case, if applicable, to adjustment under Section 4.1 hereof).
1.114 "Prior Agreements" shall mean the Prior Loan Agreement,
the Prior DM Agreement and the Prior Roederstein Agreement.
1.115 "Prior Banks" shall mean the Banks, other than the New
Banks.
1.116 "Prior DM Agreement" shall mean that certain Amended
and Restated Draloric Electronic, GmbH DM 42,375,000 Revolving
Credit and DM 57,036,000 Term Loan Agreement dated as of January
10, 1992 among VBG, the Prior Banks and Agent, as amended, which
loan agreement has been amended and restated in its entirety by the
DM Loan Agreement.
<PAGE>
<PAGE> 31 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
1.117 "Prior Loan Agreement" shall mean that certain Amended
and Restated Vishay Intertechnology, Inc. $170,000,000 Revolving
Credit and Term Loan Agreement dated as of January 10, 1992 among
Company, the Prior Banks and Agent, as amended, which Prior Loan
Agreement is amended and restated in its entirety by this
Agreement.
1.118 "Prior Roederstein Agreement" shall mean that certain
Roederstein DM 104,315,990.20 Term Loan Agreement dated as of
January 29, 1993 among Company, VBG, the Prior Banks and Agent, as
amended, which loan agreement has been amended and restated in its
entirety by the Roederstein Loan Agreement.
1.119 "Prohibited Transaction" shall mean any transaction
involving a Pension Plan which constitutes a "prohibited
transaction" under Section 406 of ERISA or Section 4975 of the
Internal Revenue Code.
1.120 "Rating Level" shall mean Rating Level 1, 2, 3 or 4 as
then in effect hereunder.
1.121 "Rating Level 1" shall mean an S & P rating of BBB+ (or
higher) and a Moody's rating of Baa1 (or higher).
1.122 "Rating Level 2" shall mean an S & P rating of BBB (or
higher) and a Moody's rating of Baa2 (or higher).
1.123 "Rating Level 3" shall mean an S & P rating of BBB- (or
higher) and a Moody's rating of Baa3 (or higher).
1.124 "Rating Level 4" shall mean the rating level (if any)
which exists whenever the Company does not qualify for Rating Level
1, Rating Level 2 or Rating Level 3.
1.125 "Reference Banks" shall mean Comerica, NationsBank and
BHF, or such other Banks as may be agreed to constitute the
"Reference Banks" by Company, Agent and the Majority Banks.
1.126 "Request for Advance" shall mean a Request for Advance
issued by Company or by one of the Permitted Borrowers and
countersigned by the Company under Section 2.3 of this Agreement in
the form annexed hereto as Exhibit "A".
1.127 "Request for Term Loan Advance and Rate Request" shall
mean a Request for an Advance of the Term Loan issued by the
Company under Section 3.9 of this Agreement in the form annexed
hereto as Exhibit "E".
1.128 "Required Consummation Date" shall mean July 29, 1994,
or such later date as may be approved in writing by each of the
Banks.
<PAGE>
<PAGE> 32 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
1.129 "Revalidation Date" shall mean the last day of the
calendar quarter which ends at least sixty (60) days following the
date of the Target Company Acquisition.
1.130 "Revolving Credit" shall mean the revolving credit loan
to be advanced to the Company or the Permitted Borrowers by the
Banks pursuant to Section 2.1, hereof, in an aggregate amount,
subject to the terms hereof, not to exceed Two Hundred Million
Dollars ($200,000,000).
1.131 "Revolving Credit Aggregate Commitment" shall mean, as
of the applicable date of determination, the Revolving Credit
Maximum Amount minus the Revolving Credit Designated Portion.
1.132 "Revolving Credit Commitment Fee" shall mean the
commitment fee payable to Agent for distribution to the Banks
pursuant to Section 2.14, hereof.
1.133 "Revolving Credit Designated Portion" shall mean that
portion of the Revolving Credit Aggregate Commitment, not to exceed
One Hundred Million Dollars ($100,000,000) in the aggregate
(subject to reduction under Section 2.16 hereof), designated by
Company as not immediately available for borrowing hereunder in
accordance with and subject to Section 2.17 hereof.
1.134 "Revolving Credit Facility Fee" shall mean the facility
fee payable to Agent for distribution to the Banks pursuant to
Section 2.13 hereof.
1.135 "Revolving Credit Maturity Date" shall mean the earlier
to occur of (i) December 31, 1997, as such date may be extended
from time to time pursuant to Section 2.19 hereof, and (ii) the
date on which the Revolving Credit Maximum Amount shall be
terminated pursuant to Section 2.16 or 9.2 hereof.
1.136 "Revolving Credit Maximum Amount" shall mean Two
Hundred Million Dollars ($200,000,000), less any reductions in the
Revolving Credit Maximum Amount under Section 2.16 hereof.
1.137 "Revolving Credit Notes" shall mean the Notes described
in Section 2.1, hereof, made or to be made by Company or the
Permitted Borrowers to each of the Banks in the form annexed to
this Agreement as Exhibit "B-1" or "B-2", as the case may be, as
such Notes may be amended, renewed, replaced or extended from time
to time.
1.138 "Roederstein" shall mean Roederstein Spezialfabriken
fur Bauelemente der Elektronik und Kondensatoren der
Starkstromtechnik GmbH, a German corporation.
1.139 "Roederstein Loan Agreement" shall mean that certain
Roederstein DM 104,315,990.20 Term Loan Agreement dated as of the
<PAGE>
<PAGE> 33 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
date hereof, among Company, VBG, the Banks and Agent, as amended
from time to time.
1.140 "Roederstein Loan Documents" shall mean the Roederstein
Loan Agreement and all notes, and other loan documents (or any
assignments thereof) executed by Company, VBG or any of its
Subsidiaries pursuant to or in connection with the Roederstein Loan
Agreement, as such documents may be amended from time to time.
1.141 "Seller" shall mean Thomas & Betts Corporation, a New
Jersey Corporation.
1.142 "S & P Rating" shall mean the rating by Standard &
Poor's Corporation (or any successor thereto) ("S&P") of Company's
long-term, senior unsecured debt.
1.143 "Shares", "share capital", "capital stock", "stock" and
words of similar import shall mean and refer to the equity capital
interest under applicable law of any Person in a corporation,
howsoever such interest is created or arises, whether such capital
consists of common stock, preferred stock or preference shares, or
other stock, and whether such capital is evidenced by a
certificate, share register entry or otherwise.
1.144 "Significant Domestic Subsidiaries" shall mean those
Domestic Subsidiaries identified on Schedule 1.144 hereto.
1.145 "Significant Foreign Subsidiaries" shall mean those
Foreign Subsidiaries identified on Schedule 1.145 hereto.
1.146 "Significant Subsidiaries" shall mean the Significant
Domestic Subsidiaries and the Significant Foreign Subsidiaries.
1.147 "Single Employer Plan" shall mean any Pension Plan
other than a Multiemployer Plan.
1.148 "Stockholder's Equity" shall mean (i) legal capital
consisting of common or preferred stock, (ii) paid-in capital to
the extent of the excess over par or stated value paid for capital
stock and that created by a corporate readjustment and (iii)
retained earnings consisting of cumulative Net Income reduced by
dividends declared or paid.
1.149 "Stock Option Plan" shall mean that certain 1986
Employee Stock Plan of Dale Electronics, adopted by the Board of
Directors of Dale Electronics on February 27, 1986, and approved by
the Board of Directors of the Company on February 27, 1986,
pursuant to which Dale Electronics may, so long as no Default or
Event of Default shall have occurred and be continuing, distribute
stock in the Company to certain of the executive officers and
employees of Dale Electronics and the Company, as such plan may be
amended from time to time.
<PAGE>
<PAGE> 34 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
1.150 "Stock Option Plan Debt" shall mean indebtedness issued
by Dale Electronics to the Company in exchange for stock in the
Company to be distributed pursuant to the Stock Option Plan,
provided that (i) no payments of principal or interest may be made
under such indebtedness so long as this Agreement or any of the
Loan Documents remains outstanding, and (ii) such indebtedness
shall be subordinated to the Indebtedness in all respects.
1.151 "Stock Purchase Agreement" shall mean that certain
Stock Purchase Agreement entered into between Seller (and certain
of its subsidiaries), as sellers, and the Company, as purchaser,
dated as of July 12, 1994, as amended (subject to the terms
hereof), from time to time.
1.152 "Sublimit" shall mean the maximum aggregate amount of
Advances of the Revolving Credit available at any time to each of
the Permitted Borrowers hereunder, as set forth on Exhibit "H"
hereto.
1.153 "Subsidiary(ies)" shall mean any other corporation,
association, joint stock company, or business trust of which more
than fifty percent (50%) of the outstanding voting stock is owned
either directly or indirectly by Company or one or more of its
Subsidiaries or by Company and one or more of its Subsidiaries, or
the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by Company
and/or its Subsidiaries. "100% Subsidiary(ies)" shall mean any of
the Company's Subsidiaries whose stock (other than directors' or
qualifying shares to the extent required under applicable law) is
owned 100% by any other 100% Subsidiary and/or the Company, and
shall also include Vishay Israel.
1.154 "Tangible Net Worth" shall mean as at the time any
determination thereof is to be made, the total of all assets
appearing on a balance sheet of such entity prepared in accordance
with GAAP, after adding thereto (a) the Interest Expense for the
applicable period which has been accrued, but not paid, and (b) any
unearned deferred compensation resulting from stock compensation
plans for the Company and its Subsidiaries and, following the
Target Company Acquisition, the Target Company and its Subsidiaries
(provided that such plans are substantially similar to the stock
compensation plans in effect at the Company and Dale Electronics as
of the date hereof), excluding the effects of the currency
translation adjustment and of the pension adjustment under the
additional minimum liability section of FASB 87, and deducting
therefrom (without duplication of deductions):
(c) the book amount of intangible assets including,
without limitation, such items as goodwill, trademarks, trade
names, copyrights, patents, licenses and rights in any
intangible assets, and unamortized debt discount and expense;
<PAGE>
<PAGE> 35 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(d) all reserves, including, without limitation,
reserves for doubtful accounts, liabilities, fixed or
contingent, deferred income taxes, depreciation, depletion,
obsolescence, amortization, insurance and inventory valuation,
carried by such entity and not deducted from assets and all
other proper reserves which in accordance with GAAP should be
set aside in connection with the business conducted by such
entity;
(e) the amount, if any, at which any shares of
stock of such entity or any of its Subsidiaries appear upon
the asset side of a consolidated balance sheet of such entity
and its Subsidiaries;
(f) the amount, if any, at which the stock or
securities of or loans or advances to any entity (other than
a Subsidiary of such entity), which are not readily marketable
appear upon the asset side of such balance sheet;
(g) all prepaid expenses and deferred charges;
(h) the indebtedness and other liabilities of such
entity appearing on a balance sheet of such entity prepared in
accordance with GAAP;
(i) any minority interest in the shares of stock
and surplus of any Subsidiary of such entity;
(j) any excess cost of acquisition of shares of any
Subsidiary over the book value of the assets of such
Subsidiary attributable to such shares at the date of such
acquisition or on account of any excess of the book value of
the assets of any Subsidiary acquired subsequent to the date
of such an acquisition by any entity attributable to any
shares of such Subsidiary at the date of acquisition of such
shares over the cost of acquisition of such shares; and
(k) any items not included in subdivisions (c)
through (j) above which would be treated as intangibles under
GAAP.
1.155 "Target Company" shall mean Vitramon, Incorporated, a
Delaware corporation.
1.156 "Target Company Acquisition" shall mean the acquisition
by the Company, subject to the terms hereof, of all of the issued
and outstanding shares of stock of the Target Company for the price
and on the terms set forth in the Stock Purchase Agreement.
1.157 "Target Company Loan Agreement" shall mean that certain
$200,000,000 Target Company Loan Agreement dated as of the date
<PAGE>
<PAGE> 36 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
hereof among Company, the Banks and Agent, as amended from time to
time.
1.158 "Target Company Loan Documents" shall mean the Target
Company Loan Agreement, and all notes and other loan documents
executed by Company or any of its Subsidiaries pursuant to or in
connection with the Target Company Loan Agreement, as such
documents may be amended from time to time.
1.159 "Term Loan" shall mean the renewal term loan to be
advanced by the Banks to the Company pursuant to Section 3.1
hereof, in an aggregate amount of One Hundred Two Million Five
Hundred Thousand Dollars ($102,500,000).
1.160 "Term Loan Maturity Date" shall mean, December 31,
2000.
1.161 "Term Notes" shall mean the term notes described in
Section 3.1 hereof, made by Company to each of the Banks in the
form annexed to this Agreement as Exhibit "D".
1.162 "Vishay Guaranty" shall mean that certain amended and
restated guaranty of all of the Indebtedness outstanding from each
of the Permitted Borrowers, whether hereunder, under the DM Loan
Documents, the Roederstein Loan Documents or otherwise, executed
and delivered by the Company to the Agent, on behalf of the Banks,
as of the date hereof, as amended from time to time.
1.163 "Vishay Israel" shall mean Vishay Israel Limited, a
corporation organized under the laws of Israel and a Subsidiary of
the Company.
1.164 "Vishay Stock Plans" shall mean that certain 1986
Employee Stock Plan of Vishay Intertechnology, Inc., adopted by the
board of directors of the Company on February 27, 1986, as such
plan may be amended from time to time, and the Stock Option Plan,
and any successor plans thereto.
1.165 "Vitramon Acquisition, Inc." shall mean Vishay
Acquisition Holding Corp., a Delaware corporation, whose name will
be changed to Vishay Vitramon Holding Corp. following the Target
Company Acquisition.
1.166 "VBG" shall mean Vishay Beteiligungs GmbH, a German
corporation, formerly known as Draloric Electronic GmbH.
1.167 "Yield Maintenance Payment" shall mean the yield
maintenance payment required to be paid by the Company under
Section 3.13(b) hereof in connection with any prepayment of the
Term Loan following the Company's Fixed Rate Election hereunder.
<PAGE>
<PAGE> 37 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
2. REVOLVING CREDIT; BID ADVANCES
2.1 Commitment. Subject to the terms and conditions of this
Agreement, each Bank severally and for itself alone agrees to make
Advances of the Revolving Credit in any one or more of the
Permitted Currencies to the Company or to any of the Permitted
Borrowers from time to time on any Business Day during the period
from the effective date hereof until (but excluding) the Revolving
Credit Maturity Date in an aggregate amount, based on the Dollar
Amount of any Advances outstanding in Dollars and the Current
Dollar Equivalent of any Advances outstanding in Alternative
Currencies, not to exceed at any one time outstanding each such
Bank's Percentage of the Revolving Credit Aggregate Commitment.
Except as provided in Section 2.12, for purposes of this Agreement,
Advances in Alternative Currencies shall be determined, denominated
and redenominated as set forth in Section 2.10 hereof. All of the
Advances of the Revolving Credit hereunder shall be evidenced by
Revolving Credit Notes made by Company or the Permitted Borrowers
to each of the Banks in the form attached hereto as Exhibit "B-1"
or "B-2", as the case may be, subject to the terms and conditions
of this Agreement. Advances of the Revolving Credit shall be
subject to the following additional conditions and limitations:
(a) No Permitted Borrower shall be entitled to
request an Advance of the Revolving Credit hereunder after it
ceases to be a 100% Subsidiary of the Company.
(b) The maximum aggregate amount of Advances of the
Revolving Credit available to each of the Permitted Borrowers at
any time hereunder, shall not exceed, for Advances in Dollars, the
Dollar Amount of the Sublimit applicable to such Permitted
Borrower, and for Advances in Alternative Currencies, the Current
Dollar Equivalent of the applicable Sublimit.
2.2 Accrual of Interest and Maturity. The Revolving Credit
Notes, and all principal and interest outstanding thereunder, shall
mature and become due and payable in full on the Revolving Credit
Maturity Date, and each Advance evidenced by the Revolving Credit
Notes from time to time outstanding hereunder shall, from and after
the date of such Advance, bear interest at its Applicable Interest
Rate. The amount and date of each Advance, its Applicable Interest
Rate, its Interest Period, and the amount and date of any repayment
shall be noted on the Agent's records, which records will be
conclusive evidence thereof, absent manifest error; provided,
however, that any failure by the Agent to record any such
information shall not relieve the Company or any Permitted Borrower
of its obligation to repay the outstanding principal amount of such
Advance, all interest accrued thereon and any amount payable with
respect thereto in accordance with the terms of this Agreement and
the Loan Documents.
<PAGE>
<PAGE> 38 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
2.3 Requests for and Refundings and Conversions of
Advances. Company or any of the Permitted Borrowers (with the
countersignature of Company hereunder) may request an Advance of
the Revolving Credit, refund any Advance of the Revolving Credit in
the same type of Advance of the Revolving Credit or convert any
Advance of the Revolving Credit to any other type of Advance of the
Revolving Credit only after delivery to Agent of a Request for
Advance executed by an authorized officer of Company or of a
Permitted Borrower (with the countersignature of an authorized
officer of the Company), subject to the following and to the
remaining provisions hereof:
(a) each such Request for Advance shall set forth
the information required on the Request for Advance form
annexed hereto as Exhibit "A", including without limitation:
(i) the proposed date of Advance, which must be a
Business Day;
(ii) whether the Advance is a refunding or
conversion of an outstanding Advance;
(iii) whether such Advance is to be a Prime-based
Advance, or a Eurocurrency-based Advance, and,
except in the case of a Prime-based Advance,
the first Interest Period applicable thereto;
and
(iv) in the case of a Eurocurrency-based Advance,
the Permitted Currency in which such Advance
is to be made.
(b) each such Request for Advance shall be
delivered to Agent by 12 noon (Detroit time) four (4) Business
Days prior to the proposed date of Advance, except in the case
of a Prime-based Advance, for which the Request for Advance
must be delivered by 11 a.m. on such proposed date;
(c) the principal amount (or Dollar Amount of the
principal amount, if such Advance of the Revolving Credit is
being initially funded in an Alternative Currency) of such
requested Advance, plus the principal amount of all other
Advances of the Revolving Credit then outstanding hereunder
(using the Current Dollar Equivalent of any such Advances
outstanding in any Alternative Currency, determined pursuant
to the terms hereof as of the date of such requested Advance),
plus the aggregate principal amount of Bid Advances
outstanding hereunder, plus the aggregate principal amount of
Bid Advances requested but not yet advanced hereunder
(determined as aforesaid), shall not exceed the Revolving
Credit Aggregate Commitment;
<PAGE>
<PAGE> 39 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(d) the principal amount of such Advance, plus the
amount of any other outstanding Advance of the Revolving
Credit under this Agreement to be then combined therewith
having the same Applicable Interest Rate and Interest Period,
if any, shall be (i) in the case of a Prime-based Advance at
least One Million Dollars ($1,000,000) and (ii) in the case of
a Eurocurrency-based Advance at least Five Million Dollars
($5,000,000) or the equivalent thereof in an Alternative
Currency, and at any one time there shall not be in effect
more than (x) for Advances of the Revolving Credit in Dollars,
two (2) Applicable Interest Rates and Interest Periods, and
(y) for Advances of the Revolving Credit in any Alternative
Currency (other than eurodollars), one (1) Applicable Interest
Rate and Interest Period for each such currency;
(e) a Request for Advance, once delivered to Agent,
shall not be revocable by Company or any Permitted Borrower;
(f) each Request for Advance shall constitute and
include a certification by the Company as of the date thereof
that:
(i) both before and after the Advance, the
obligations of the Company, its Subsidiaries
and the Permitted Borrowers set forth in this
Agreement and the Loan Documents to which such
Persons are parties are valid, binding and
enforceable obligations of the Company, its
Subsidiaries and the Permitted Borrowers, as
the case may be;
(ii) all conditions to Advances of the Revolving
Credit have been satisfied, and shall remain
satisfied to the date of Advance;
(iii) there is no Default or Event of Default in
existence, and none will exist upon the making
of the Advance;
(iv) the representations and warranties contained
in this Agreement and the Loan Documents are
true and correct in all material respects and
shall be true and correct in all material
respects as of the making of the Advance; and
(v) the execution of the Request for Advance will
not violate the material terms and conditions
of any material contract, agreement or other
borrowing of Company or any of the Permitted
Borrowers.
2.4 Disbursement of Advances.
<PAGE>
<PAGE> 40 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(a) Upon receiving any Request for Advance from
Company or any of the Permitted Borrowers under Section 2.3
hereof, Agent shall promptly notify each Bank by wire, telex
or by telephone (confirmed by wire, telecopy or telex) of the
amount and currency of such Advance to be made and the date
such Advance is to be made by said Bank pursuant to its
Percentage of the Advance. Unless such Bank's commitment to
make Advances hereunder shall have been suspended or
terminated in accordance with this Agreement, each Bank shall
make available the amount of its Percentage of the Advance in
immediately available funds in the currency of the Advance to
Agent, as follows:
(i) for Domestic Advances, at the office of Agent
located at One Detroit Center, 500 Woodward
Avenue, Detroit, Michigan 48226, not later
than 2:00 p.m. (Detroit time) on the date of
such Advance; and
(ii) for Eurocurrency-based Advances, at the
Agent's Correspondent for the account of the
Eurocurrency Lending Office of the Agent, not
later than 12 noon (the time of the Agent's
Correspondent) on the date of such Advance.
(b) Subject to submission of an executed Request
for Advance by Company or one of the Permitted Borrowers (with
the countersignature of the Company as aforesaid) without
exceptions noted in the compliance certification therein,
Agent shall make available to Company or to the applicable
Permitted Borrower, as the case may be, the aggregate of the
amounts so received by it from the Banks in like funds and
currencies:
(i) for Domestic Advances, not later than 4:00
p.m. (Detroit time) on the date of such
Advance by credit to an account of Company or
the applicable Permitted Borrower maintained
with Agent or to such other account or third
party as Company or the applicable Permitted
Borrower may reasonably direct; and
(ii) for Eurocurrency-based advances, not later
than 4:00 p.m. (the time of the Agent's
Correspondent) on the date of such Advance, by
credit to an account of Company or the
applicable Permitted Borrower maintained with
Agent's Correspondent or to such other account
or third party as Company or the applicable
Permitted Borrower may reasonably direct.
<PAGE>
<PAGE> 41 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(c) Agent shall deliver the documents and papers
received by it for the account of each Bank to such Bank or
upon its order. Unless Agent shall have been notified by any
Bank prior to the date of any proposed Advance that such Bank
does not intend to make available to Agent such Bank's
Percentage of the Advance, Agent may assume that such Bank has
made such amount available to Agent on such date and in such
currency, as aforesaid and may, in reliance upon such
assumption, make available to Company or to the applicable
Permitted Borrower, as the case may be, a corresponding
amount. If such amount is not in fact made available to Agent
by such Bank, as aforesaid, Agent shall be entitled to recover
such amount on demand from such Bank. If such Bank does not
pay such amount forthwith upon Agent's demand therefor, the
Agent shall promptly notify Company and Company shall pay such
amount to Agent. Agent shall also be entitled to recover from
such Bank or Company, as the case may be, interest on such
amount in respect of each day from the date such amount was
made available by Agent to Company to the date such amount is
recovered by Agent, at a rate per annum equal to:
(i) in the case of such Bank, with respect to
Domestic Advances, the Federal Funds Effective
Rate, and with respect to Eurocurrency-based
Advances, Agent's aggregate marginal cost
(including the cost of maintaining any
required reserves or deposit insurance and of
any fees penalties, overdraft charges or other
costs or expenses incurred by Agent as a
result of such failure to deliver funds
hereunder) of carrying such amount; and
(ii) in the case of Company or a Permitted
Borrower, the rate of interest then applicable
to such Advance of the Revolving Credit.
The obligation of any Bank to make any Advance hereunder shall
not be affected by the failure of any other Bank to make any
Advance hereunder, and no Bank shall have any liability to the
Company or any of its Subsidiaries, the Agent, any other Bank,
or any other party for another Bank's failure to make any loan
or Advance hereunder.
2.5 Bid Advances.
(a) Bid Advances. Company may request Bid Offers from the
Bid Lenders to make Bid Advances in Dollars in accordance with this
Section 2.5 from time to time on any Business Day prior to the
Revolving Credit Maturity Date ("Bid Advance(s)"); provided,
however, that after giving effect to each Bid Advance and all other
Advances of the Revolving Credit requested to be made on such date,
the aggregate outstanding Advances of the Revolving Credit and Bid
<PAGE>
<PAGE> 42 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Advances shall not exceed the Revolving Credit Aggregate
Commitment. Each Bid Advance shall mature, and the principal amount
thereof shall be due and payable by the Company, on the last day of
the Interest Period applicable thereto, provided, that no Bid
Advance may mature or be payable on a day later than the Revolving
Credit Maturity Date. In no event whatsoever shall any outstanding
Bid Advance be deemed to reduce, modify or affect any Bank's
commitment to make Advances of the Revolving Credit, based upon its
Percentage. All Bid Lenders, or any lesser number thereof
(including any Bid Lender individually), may, but shall not be
obligated to, make Bid Offers so requested, and the Company may,
but shall not be obligated to, accept any Bid Lender's Bid Offer,
subject to the terms hereof.
(b) Bid Requests. Company may request from all Bid Lenders
a Bid Advance by telephonic notice to the Agent (which notice shall
be immediately confirmed by a facsimile Bid Borrowing Request (each
a "Bid Borrowing Request") in the form of Exhibit "C-1" attached
hereto) not later than 10:00 a.m. (Detroit time) at least one (1)
Business Day prior to the date for such proposed Bid Advance in the
case of an Absolute Rate Bid Advance, and not later than 10:00 a.m.
(Detroit time) at least five (5) Business Days prior to the date
for such proposed Bid Advance borrowing in the case of a
Eurocurrency Bid Advance, in each case specifying:
(i) the date (which must be a Business Day) and
aggregate amount of the proposed Bid Advance (which shall be
in a minimum aggregate principal amount of Fifteen Million
Dollars ($15,000,000) and an integral multiple of One Million
Dollars ($1,000,000);
(ii) whether the Bid Offers requested are to be for
Absolute Rate Bid Advances or Eurocurrency Bid Advances, or
both; and
(iii) the duration of the Interest Period or Interest
Periods applicable thereto, up to a maximum of three (3) such
Interest Periods.
The Agent shall promptly (but in any event no later than 5:00 p.m.
(Detroit time), on the same day of receipt of the Bid Borrowing
Request) notify each Bid Lender by telephone (confirmed by
facsimile) of each Bid Borrowing Request. The Company shall not
request any Bid Advance within ten (10) Business Days after the
date of any other Bid Borrowing Request or Bid Advance. Company may
not request the refunding or conversion of any outstanding Advance
(whether a Bid Advance or an Advance of the Revolving Credit) as a
Bid Advance.
(c) Bid Offers.
<PAGE>
<PAGE> 43 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(i) If any Bid Lender, in its sole discretion,
elects to offer to make a Bid Advance to the Company as part
of a proposed Bid Advance, it shall deliver by telephone
(confirmed by facsimile promptly on the same day) to the Agent
before 10:15 a.m. (Detroit time) on the date of such proposed
Bid Advance in the case of an Absolute Rate Bid Advance and
before 10:30 a.m. (Detroit time) four (4) Business Days prior
to the date of such proposed Bid Advance in the case of a
Eurocurrency Bid Advance, a Bid Offer, in the form of Exhibit
"C-2" attached hereto ("Bid Offer"), specifying:
(A) the amount and Interest Period of each Bid
Advance which such Bid Lender would be willing to make
as part of such proposed Bid Advance, which amount
shall be in a minimum principal amount of Five Million
Dollars ($5,000,000) and in an integral multiple of One
Million Dollars ($1,000,000), may not exceed the
aggregate amount of the proposed Bid Advance as
requested by the Company in connection with such Bid
Advance, but may exceed such Bid Lender's Percentage of
the Revolving Credit Aggregate Commitment, and which
Interest Period shall be the Interest Period specified
by the Company in the Bid Borrowing Request with
respect to such Bid Advance;
(B) in the event the Company requests an Absolute
Rate Bid Advance, the rate of interest per annum
offered by such Bid Lender in its sole discretion with
respect to such Bid Advance (rounded to the nearest
1/16th of 1%) (the "Absolute Rate") offered for each
such Absolute Rate Bid Advance; and
(C) in the event the Company requests a
Eurocurrency Bid Advance, the margin offered by such
Bid Lender in its sole discretion with respect to such
Bid Advance above or below the Eurocurrency Adjusted
Rate expressed as a percentage (rounded to the nearest
1/16th of 1%) (the "Eurocurrency Bid Margin") to be
added to or subtracted from the applicable Eurocurrency
Adjusted Rate for the Interest Period for each such
Eurocurrency Bid Advance.
Notwithstanding the foregoing, Bid Offers submitted by Agent
(in its capacity as a Bank) may be submitted, and may only be
submitted, if the Agent notifies Company of the terms of such
Bid Offer (and the content thereof) not later than (x) 15
minutes prior to the deadline for the other Bid Lenders, in
the case of an Absolute Rate Bid Advance and (y) 30 minutes
prior to the deadline for the other Bid Lenders, in the case
of Eurocurrency Bid Advance. Agent agrees to use good faith
diligent efforts in formulating any such Bid Offers hereunder,
not to review any Bid Offers submitted by other Bid Lenders.
<PAGE>
<PAGE> 44 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(ii) Bid Offers shall be irrevocable, subject to the
terms and conditions of this Agreement. If a Bid Offer is
determined by the Agent (whose determination shall be
conclusive in the absence of manifest error) to:
(A) be not substantially in the form of Exhibit C-
2 attached hereto;
(B) omit any required information;
(C) be conditional or qualified in any respect;
(D) propose terms other than or in addition to
those set forth in the related Bid Borrowing
Request;
(E) not have been delivered to the Agent in
accordance with the time periods specified
herein; or
(F) be otherwise inconsistent with the provisions
hereof,
the Agent will reject the offer made by such Bid Offer and give
telephonic notice (confirmed by facsimile) of such rejection to the
Bid Lender which submitted such Bid Offer. Promptly thereafter,
and in any case, no later than 10:30 a.m. (Detroit time) on the
date of the proposed Bid Advance in the case of an Absolute Rate
Bid Advance and 11:00 a.m. (Detroit time) four (4) Business Days
prior to the date of the proposed Bid Advance in the case of a
Eurocurrency Bid Advance, the Agent will give telephonic notice
(confirmed by facsimile) to the Company of all conforming Bid
Offers and the terms thereof.
(d) Acceptance by the Company of Bid Offers. The Company
shall, before 11:00 a.m. (Detroit time) on the date of the proposed
Bid Advance in the case of an Absolute Rate Bid Advance and noon
(Detroit time) four (4) Business Days prior to the date of the
proposed Bid Advance in the case of a Eurocurrency Bid Advance, in
its sole discretion, either:
(i) irrevocably cancel the Bid Borrowing Request
that requested such Bid Advance by giving the Agent telephonic
notice confirmed promptly thereafter by facsimile) to that
effect; or
(ii) irrevocably accept one or more of the Bid
Offers by giving telephonic notice to the Agent of the amount
of the Bid Advance to be made on such date, specifying (A) the
amount of each Bid Advance to be made by each Bid Lender as
part of such Bid Advance, which amount shall not be greater
than the amount offered by such Bid Lender in its Bid Offer,
<PAGE>
<PAGE> 45 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(B) the Interest Period with respect thereto, and (C) the
Absolute Rate with respect to each Absolute Rate Bid Advance
and the Eurocurrency Bid Margin with respect to each
Eurocurrency Bid Advance;
provided, however, that:
(A) the Company shall accept Bid Lenders' conforming
Bid Offers only on the basis of ascending Absolute
Rates or Eurocurrency Bid Margins and shall not accept
any Bid Lender's conforming Bid Offer to make a Bid
Advance at a particular Absolute Rate or Eurocurrency
Bid Margin for a particular Interest Period if the
Company has decided to reject any other Bid Lender's
conforming Bid Offer to make a Bid Advance with the
same Interest Period at a lower Absolute Rate or
Eurocurrency Bid Margin, as the case may be;
(B) the aggregate principal amount of all Bid Offers
accepted by the Company shall not, after giving effect
to all reductions made pursuant to proviso (C) of this
Section 2.5 (d)(ii) below, exceed the principal amount
specified in the Bid Borrowing Request;
(C) if the Company shall accept any Bid Offer to
make a Bid Advance at a particular Absolute Rate or
Eurocurrency Bid Margin, as the case may be, for a
particular Interest Period, then the Company shall
accept all offers to make Bid Advances at such Absolute
Rate or Eurocurrency Bid Margin, as the case may be,
for the same Interest Period; provided, however, that,
if Bid Offers are made by two or more Bid Lenders at
the same Absolute Rates or Eurocurrency Bid Margins
(with respect to the related Interest Period(s)) as the
case may be, for a greater aggregate principal amount
than the amount in respect of which such Bid Offers are
accepted for the related Interest Period, the principal
amount of Bid Advances in respect of which such Bid
Offers are accepted shall be allocated by the Agent
among such Bid Lenders as nearly as possible (and in
such multiples, not greater than One Million Dollars
($1,000,000), as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such
Bid Offers. Each Bid Lender acknowledges and agrees
that any Bid Offer submitted by such Bid Lender may be
modified in accordance with this clause (C), and no
such modification shall constitute a rejection of such
Bid Offer. Determinations by Agent of the amounts of
Bid Advances hereunder shall be conclusive in the
absence of manifest error.
<PAGE>
<PAGE> 46 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Subject to the foregoing requirements, the Company may accept or
reject, at the Company's sole discretion, the offer to make Bid
Advances contained in any Bid Offer. Each notice given by the
Company pursuant to this Section 2.5(d) shall be irrevocable.
Failure by the Company to accept a Bid Offer in accordance with the
provisions of this Section 2.5(d) shall constitute a rejection of
such Bid Offer.
(e) Acknowledgment of Bid Borrowings. Promptly after
acceptance of a Bid Offer by the Company pursuant to Section 2.5(d)
(ii) hereof:
(i) in any case no later than 11:30 a.m. (Detroit time)
on the date of such Bid Advance in the case of an Absolute
Rate Bid Advance and 1:00 p.m. (Detroit time) four (4)
Business Days prior to the date of such Bid Advance in the
case of a Eurocurrency Bid Advance, the Company shall deliver
by facsimile to the Agent a Bid Acknowledgment in
substantially the form of Exhibit "C-3" hereto ("Bid
Acknowledgment") confirming, with respect to each Bid Advance
to be made to the Company, the Interest Period, the amount of
the borrowing and the Absolute Rate or Eurocurrency Bid
Margin, as the case may be, therefor; and
(ii) in any case no later than noon (Detroit time) on
the date of the proposed Bid Borrowing in the case of an
Absolute Rate Bid Advance and 2:00 p.m. (Detroit time) four
(4) Business Days prior to the date of such Bid Advance in the
case of a Euro-currency Bid Advance, the Agent will give
telephonic notice to each Bid Lender of each Interest Period,
amount of the borrowing, and the Absolute Rate or Eurocurrency
Bid Margin, as the case may be, so accepted by the Company.
(f) Bid Advance Funding. At or before 2:00 p.m. (Detroit
time) on the Business Day specified for each Bid Advance in the
case of an Absolute Rate Bid Advance and noon (Detroit time) on the
Business Day of such Bid Advance in the case of a Eurocurrency Bid
Advance, each Bid Lender whose Bid Offer in respect thereof the
Company accepted pursuant to Section 2.5(d)(ii) hereof shall
deposit with the Agent same day funds in an amount equal to the
principal amount of such Bid Lender's Bid Advance. Such deposit
will be made to an account which the Agent shall from time to time
specify by notice to the Bid Lenders. To the extent same day funds
are received from such Bid Lenders, the Agent shall make such same
day funds available to the Company by wire transfer to the accounts
which Company shall have specified in its Bid Acknowledgment. No
Bid Lender's obligation to make any Bid Advance shall be affected
by any other Bid Lender's failure to make any Bid Advance.
Unless Agent shall have received notice from a Bid Lender
prior to the date of funding of such Bid Lender's Bid Advance
accepted by the Company that such Bid Lender will not make
<PAGE>
<PAGE> 47 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
available to the Agent such Bid Lender's share of such Bid Advance,
Agent may assume that such Bid Lender has made such share available
to Agent on the date of such Bid Advance in accordance with this
subparagraph (f) and Agent may (but under no circumstances shall be
required to do so), in reliance upon such assumption, make
available to Company on such date a corresponding amount. If and
to the extent that such Bid Lender shall not have so made such
share available to Agent in accordance with the terms hereof, such
Bid Lender and Company severally agree to repay to Agent forthwith
upon demand such corresponding amount, together with interest
thereon, for each day from the date such amount is made available
to Company until the date such amount is repaid to Agent, at (i) in
the case of Company, a rate per annum equal to the Prime-based Rate
and (ii) in the case of such Bid Lender, the Federal Funds
Effective Rate. If such Bid Lender shall repay to Agent such
corresponding amount, such amount so repaid shall constitute such
Bid Lender's portion of the Bid Advance included in such Bid
Advance for purposes of this Agreement.
Promptly after each Bid Advance, and in any case no later than
the immediately succeeding Business Day, the Agent will deliver to
each of the Banks, a copy of the Bid Acknowledgment, specifying the
date and amount of such Bid Advance, the amounts of the Bid
Advances which comprise such borrowing and the Interest Period(s)
thereof and the Absolute Rate(s) or Eurocurrency Bid Margin(s) as
the case may be, accepted. Furthermore, upon the request of any
Bank from time to time hereunder, the Agent will provide summaries
to such Bank of all Bid Offers received in response to any Bid
Borrowing Request.
(g) Bid Notes. The Bid Advances of each Bid Lender shall
be evidenced by a promissory note in the form of Exhibit "C-4"
attached hereto ("Bid Notes"), with appropriate insertions and
shall be payable to the order of such Bid Lender, shall be dated as
of the date of this Agreement, shall set forth the maximum
principal amount of the aggregate Bid Advances which may be made by
such Bid Lender and shall mature, subject to the terms hereof, on
the Revolving Credit Maturity Date. Each Bid Lender shall record
in its records, or at its option on the schedule attached to its
Bid Note, the date and amount of each Bid Advance made by such Bid
Lender, the Applicable Interest Rate with respect to each Bid
Advance, each repayment thereof and the dates on which each
Interest Period for such Bid Advance shall begin and end. The
aggregate unpaid principal amount so recorded shall be conclusive
evidence of the principal amount owing and unpaid on such Bid Note,
absent manifest error. The failure to so record any such amount or
any error in so recording any such amount shall not, however, limit
or otherwise affect the obligations of the Company hereunder or
under any such Bid Note.
2.6 Prime-based Interest Payments. Interest on the unpaid
balance of all Prime-based Advances from time to time outstanding
<PAGE>
<PAGE> 48 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
shall accrue from the date of such Advance to the Revolving Credit
Maturity Date (and until paid), at a per annum interest rate equal
to the Prime-based Rate, and shall be payable in immediately
available funds quarterly commencing on September 30, 1994, and on
the last day of each calendar quarter thereafter. Interest accruing
at the Prime-based Rate shall be computed on the basis of a 360 day
year and assessed for the actual number of days elapsed, and in
such computation effect shall be given to any change in the
interest rate resulting from a change in the Prime-based Rate on
the date of such change in the Prime-based Rate.
2.7 Absolute Rate and Eurocurrency-based Interest Payments.
Interest on each Absolute Rate Advance and each 1 month, 2 month
and 3 month Eurocurrency-based Advance shall accrue at its
Applicable Interest Rate and shall be payable in immediately
available funds on the last day of the Interest Period applicable
thereto. Interest shall be payable on each 6 month Eurocurrency-
based Advance outstanding from time to time, at intervals of 3
months, as the case may be, after the first day of the applicable
Interest Period, and shall also be payable on the last day of the
Interest Period applicable thereto. Interest accruing at the
Absolute Rate or the Eurocurrency-based Rate shall be computed on
the basis of a 360 day year and assessed for the actual number of
days elapsed from the first day of the Interest Period applicable
thereto to but not including the last day thereof. Interest due on
any Advance made in an Alternative Currency shall be paid in such
Alternative Currency.
2.8 Interest Payments on Conversions. Notwithstanding
anything to the contrary in the preceding sections, all accrued and
unpaid interest on any Advance converted pursuant to Section 2.3
hereof shall be due and payable in full on the date such Advance is
converted.
2.9 Interest on Default. In the event and so long as any
Event of Default shall exist under this Agreement, interest shall
be payable daily on all Advances of the Revolving Credit and all
Bid Advances from time to time outstanding at a per annum rate
equal to the Applicable Interest Rate, plus three percent (3%) for
the remainder of the then existing Interest Period, if any, and at
all other such times, with respect to Domestic Advances from time
to time outstanding, at a per annum rate equal to the Prime-based
Rate plus three percent (3%), and, with respect to Eurocurrency-
based Advances from time to time outstanding, (i) at a per annum
rate calculated by the Agent, (or, in the case of a Eurocurrency
Bid Advance, by the applicable Bid Lender having funded such
Advance) whose determination shall be conclusive absent manifest
error, on a daily basis, equal to three percent (3%) above the
interest rate per annum at which one (1) day deposits (or, if such
amount due remains unpaid for more than three (3) Business Days,
then for such other period of time as the Agent (or the applicable
Bid Lender, as aforesaid) may elect which shall in no event be
<PAGE>
<PAGE> 49 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
longer than six (6) months) in the relevant eurocurrency in the
amount of such overdue payment due to the Agent (or the applicable
Bid Lender, as aforesaid) are offered by the Eurocurrency Lending
Office for the applicable period determined as provided above, or
(ii) if at any such time such deposits are not offered by the
Eurocurrency Lending Office, then at a rate per annum equal to
three percent (3%) above the rate determined by the Agent (or the
applicable Bid Lender, as aforesaid) to be its aggregate marginal
cost (including the cost of maintaining any required reserves or
deposit insurance) of carrying the amount of such Eurocurrency-
based Advance.
2.10 Determination, Denomination and Redenomination of
Alternative Currency Advances. Whenever, pursuant to any provision
of this Agreement:
(a) an Advance of the Revolving Credit is initially
funded, as opposed to any refunding or conversion thereof, in an
Alternative Currency, the amount to be advanced hereunder will be
the equivalent in such Alternative Currency of the Dollar Amount of
such Advance;
(b) an existing Advance of the Revolving Credit
denominated in an Alternative Currency is to be refunded, in whole
or in part, with an Advance denominated in the same Alternative
Currency, the amount of the new Advance shall be continued in the
amount of the Alternative Currency so refunded;
(c) an existing Advance of the Revolving Credit
denominated in an Alternative Currency is to be converted, in whole
or in part, to an Advance denominated in another Alternative
Currency, the amount of the new Advance shall be that amount of the
Alternative Currency of the new Advance which may be purchased,
using the most favorable spot exchange rate determined by Agent to
be available to it for the sale of Dollars for such other
Alternative Currency at approximately (11:00 a.m.) (Detroit time)
two (2) Business Days prior to the last day of the Eurocurrency
Interest Period applicable to the existing Advance, with the Dollar
Amount of the existing Advance, or portion thereof being converted;
and
(d) an existing Advance denominated in an
Alternative Currency is to be converted, in whole or in part, to an
Advance denominated in Dollars, the amount of the new Advance shall
be the Dollar Amount of the existing Advance, or portion thereof
being converted (determined as aforesaid).
2.11 Prepayment. Company or the applicable Permitted
Borrower may prepay all or part of the outstanding balance of any
Prime-based Advance(s) under the Revolving Credit Notes at any time
(subject to not less than one (1) Business Day's notice to Agent),
provided that the principal amount of any partial prepayment shall
<PAGE>
<PAGE> 50 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
be at least Five Hundred Thousand Dollars ($500,000) and the
aggregate principal balance of Prime-based Advance(s) remaining
outstanding shall be at least One Million Dollars ($1,000,000).
Company or the applicable Permitted Borrower (if applicable) may
prepay all or part of any Absolute Rate Bid Advance or
Eurocurrency-based Advance (subject to not less than three (3)
Business Day's notice to Agent) only on the last day of the
Interest Period therefor, provided that (i) in the case of Bid
Advances, there shall be no partial prepayment (such Advances to be
prepaid only in full) and (ii) in the case of Eurocurrency-based
Advances of the Revolving Credit, the amount of any such partial
prepayment shall be at least One Million Dollars ($1,000,000), or
the equivalent thereof in an Alternative Currency, and the unpaid
portion of such Advance which is refunded or converted under
Section 2.3 shall be at least Five Million Dollars ($5,000,000) or
the equivalent thereof in an Alternative Currency. Any prepayment
made in accordance with this Section shall be without premium,
penalty or prejudice to the right to reborrow under the terms of
this Agreement. Any other prepayment of all or any portion of the
Revolving Credit or of any Bid Advance shall be subject to Section
11.1, hereof, but otherwise without premium, penalty or prejudice.
2.12 Prime-based Advance in Absence of Election or Upon
Default. If, as to any outstanding Eurocurrency-based Advance of
the Revolving Credit, Agent has not received payment on the last
day of the Interest Period applicable thereto, or does not receive
a timely Request for Advance meeting the requirements of Section
2.3 with respect to the refunding or conversion of an Advance of
the Revolving Credit, or, subject to Section 2.9, hereof, if on
such day a Default or an Event of Default shall have occurred and
be continuing, the principal amount thereof which is not then
prepaid in the case of a Eurocurrency-based Advance shall be
converted automatically to a Prime-based Advance and the Agent
shall thereafter promptly notify Company of said action. If a
Eurocurrency-based Advance converted hereunder is payable in an
Alternative Currency, the Prime-based Advance shall be in an amount
equal to the Dollar Amount of such Eurocurrency-based Advance at
such time and the Agent (or, with respect to any Eurocurrency-based
Bid Advance in an Alternative Currency, the applicable Bid Lender)
shall use said Prime-based Advance to fund payment of the
Alternative Currency obligation, all subject to the provisions of
Section 2.15. The Company shall reimburse Agent and each of the
Banks on demand for any costs incurred by the Agent resulting from
the conversion pursuant to this Section 2.12 of Eurocurrency-based
Advances payable in an Alternative Currency to Prime-based
Advances.
2.13 Revolving Credit Facility Fee. From the date hereof to
the Revolving Credit Maturity Date, the Company shall pay to the
Agent, for distribution to the Banks pro rata, a Revolving Credit
Facility Fee consisting of the Applicable Fee Percentage per annum,
calculated on a daily basis, times the Revolving Credit Aggregate
<PAGE>
<PAGE> 51 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Commitment then in effect hereunder, regardless of the aggregate
amount of Advances of the Revolving Credit or Bid Advances
outstanding from time to time.
The Revolving Credit Facility Fee shall be payable quarterly in
arrears commencing September 30, 1994, and on the last day of each
calendar quarter thereafter and at the Revolving Credit Maturity
Date, and shall be computed on the basis of a year of three hundred
sixty (360) days and assessed for the actual number of days
elapsed, giving immediate effect to any changes in the Applicable
Fee Percentage. Whenever any payment of the Revolving Credit
Facility Fee shall be due on a day which is not a Business Day, the
date for payment thereof shall be extended to the next Business
Day. Upon receipt of such payment, Agent shall make prompt payment
to each Bank of its share of the Revolving Credit Facility Fee
based upon its respective Percentage. The Revolving Credit Facility
Fee shall not be refundable under any circumstances.
2.14 Revolving Credit Commitment Fee. From the date hereof
to the Revolving Credit Maturity Date, the Company shall pay to the
Agent, for distribution to the Banks (as set forth below), a
Revolving Credit Commitment Fee equal to the sum of
(a) .0625% per annum times the daily average amount
by which the Revolving Credit Aggregate Commitment then in effect
hereunder exceeds the Dollar Amount of the principal amount
outstanding from time to time under the Revolving Credit, plus the
aggregate daily amount of Bid Advances outstanding from time to
time hereunder, determined, if any Advance in an Alternative
Currency is outstanding, as of the last day of each Interest Period
(but otherwise computed on a daily basis); and
(b) the Applicable Fee Percentage per annum, times
the Revolving Credit Designated Portion in effect under Section
2.17 hereof during such period, calculated on a daily basis.
The Revolving Credit Commitment Fee shall be payable quarterly in
arrears commencing on September 30, 1994, and on the last day of
each calendar quarter thereafter and at the Revolving Credit
Maturity Date, and shall be computed on the basis of a year of
three hundred sixty (360) days and assessed for the actual number
of days elapsed. Whenever any payment of the Revolving Credit
Commitment Fee shall be due on a day which is not a Business Day,
the date for payment thereof shall be extended to the next Business
Day. Upon receipt of such payment Agent shall make prompt payment
to each Bank of its share of the Revolving Credit Commitment Fee
based upon its respective Percentage. It is expressly understood
that the Revolving Credit Commitment Fee shall not be refundable
under any circumstances.
2.15 Currency Appreciation; Sublimits; Mandatory Reduction
of Indebtedness. (a) If at any time and for any reason, the
<PAGE>
<PAGE> 52 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
aggregate principal amount (tested in the manner set forth below)
of all Advances of the Revolving Credit hereunder to the Company
and to the Permitted Borrowers made in Dollars and the aggregate
Current Dollar Equivalent of all Advances hereunder to the Company
and to the Permitted Borrowers in any Alternative Currency as of
such time, plus the aggregate principal amount of Bid Advances
outstanding hereunder as of such time, exceeds the Revolving Credit
Aggregate Commitment, the Company and the Permitted Borrowers
shall:
(i) if otherwise entitled to do so under Section
2.18 hereof, activate a sufficient amount of
the Revolving Credit Designated Portion to
eliminate any such excess; and
(ii) if (and to the extent) necessary to eliminate
such excess, immediately repay that portion of
the Indebtedness then carried as a Prime-based
Advance, if any, by the Dollar amount of such
excess, and/or reduce any pending request for
an Advance in Dollars on such day by the
Dollar Amount of such excess, to the extent
thereof; and
(iii) if (and to the extent) necessary to eliminate
such excess, on the last day of each Interest
Period of any Absolute Rate Bid Advance or
Eurocurrency-based Advance outstanding as of
such time, until the necessary reductions of
Indebtedness under this Section 2.15(a) have
been fully made, repay the Indebtedness
carried in such Advances and/or reduce any
requests for refunding or conversion of such
Advances submitted (or to be submitted) by the
Company or any of the Permitted Borrowers in
respect of such Advances, by the Amount in
Dollars or the Applicable Alternative
Currency, as the case may be, of such excess,
to the extent thereof.
The Company's compliance with this Section 2.15(a) shall be tested
on a daily or other basis satisfactory to Agent in its sole
discretion, provided that at any time while the aggregate Advances
of the Revolving Credit available to be borrowed hereunder equal or
exceed Ten Million Dollars ($10,000,000), the Company's compliance
with this Section 2.15(a) shall be tested as of the last day of
each calendar quarter.
(b) If at any time and for any reason the aggregate
principal amount (tested in the manner set forth below) of all
Advances of the Revolving Credit hereunder to a Permitted Borrower
made in Dollars and the aggregate Current Dollar Equivalent of all
<PAGE>
<PAGE> 53 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Advances hereunder to such Permitted Borrower in any Alternative
Currency as of such time, exceeds the Sublimit applicable to such
Permitted Borrower, the Company or such Permitted Borrower shall
(i) immediately repay that portion of the Indebtedness outstanding
to such Permitted Borrower then carried as a Prime-based Advance,
if any, by the Dollar Amount of any such excess and/or reduce on
such day any pending request for an Advance in Dollars submitted by
such Permitted Borrower by the Dollar Amount of such excess, to the
extent thereof; and (ii) on the last day of each Interest Period of
any Eurocurrency-based Advance outstanding to such Permitted
Borrower as of such time, until the necessary reductions of
Indebtedness under this Section 2.15(b) have been fully made, repay
such Indebtedness carried in such Advances and/or reduce any
requests for refunding or conversion of such Advances submitted (or
to be submitted) by such Permitted Borrower in respect of such
Advances, by the Amount in Dollars or the applicable Alternative
Currency, as the case may be, of any remaining excess, to the
extent thereof. Each Permitted Borrower's compliance with this
Section 2.15(b) shall be tested on a daily or other basis
satisfactory to Agent in its sole discretion, provided that at any
time while the unused portion of the applicable Sublimit then in
effect exceeds Five Million Dollars ($5,000,000), compliance with
this Section 2.15(b) shall be tested as of the last day of each
calendar quarter.
2.16 Optional Reduction or Termination of Revolving Credit
Maximum Amount. Provided that no Default or Event of Default has
occurred and is continuing, the Company may upon not less than ten
(10) Business Days' prior written notice to the Agent, permanently
reduce the Revolving Credit Maximum Amount in whole at any time, or
in part from time to time, without premium or penalty, provided
that: (i) each partial reduction of the Revolving Credit Maximum
Amount shall be in an aggregate amount equal to Five Million
Dollars ($5,000,000) or an integral multiple thereof; (ii) each
reduction shall be accompanied by the payment of the Revolving
Credit Commitment Fee, if any, accrued to the date of such
reduction; (iii) the Company shall prepay in accordance with the
terms hereof the amount, if any, by which the aggregate unpaid
principal amount of Revolving Credit Notes, plus the aggregate
principal amount of Bid Advances then outstanding, exceeds the
amount of the Revolving Credit Aggregate Commitment then in effect
(taking into account any reductions thereof resulting from such
reductions in the Revolving Credit Maximum Amount), together with
interest thereon to the date of prepayment; and (iv) if the
termination or reduction of the Revolving Credit Maximum Amount
requires the prepayment of an Absolute Rate Bid Advance or a
Eurocurrency-based Advance, the termination or reduction may be
made only on the last Business Day of the then current Interest
Period applicable to such Absolute Rate Bid Advance or
Eurocurrency-based Advance Loan. Reductions of the Revolving Credit
Maximum Amount (and any accompanying prepayments of the Revolving
Credit Notes) shall reduce each Bank's portion thereof
<PAGE>
<PAGE> 54 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
proportionately, based upon the applicable percentage (and any
accompanying prepayments shall be distributed by Agent to each Bank
in accordance with such Bank's Percentage thereof), and shall be
permanent and irrevocable, and not available for reinstatement by
or readvance to the Company or the Permitted Borrowers. The amount
of any reductions of the Revolving Credit Maximum Amount under this
Section 2.16 shall first be applied to reduce the maximum amount of
the Revolving Credit Maximum Amount which may be designated as the
Revolving Credit Designated Portion hereunder, before being applied
to reduce the Revolving Credit Aggregate Commitment then in effect.
2.17 Revolving Credit Designated Portion. The Company may at
any time and from time to time, upon at least five (5) Business
Days' prior written notice to the Agent, subject to any prior
activations of the Revolving Credit Designated Portion which shall
remain in effect for a period of not less than thirty (30)
consecutive days in accordance with Section 2.18 hereof, designate
a portion of the Revolving Credit Maximum Amount up to a maximum of
One Hundred Million Dollars ($100,000,000) at any time in the
aggregate so designated (subject to reduction under Section 2.16
hereof), as not presently available for borrowing hereunder,
provided that (i) each such designation shall be in an aggregate
amount equal to at least Five Million Dollars ($5,000,000) or more,
in increments of One Million Dollars ($1,000,000); (ii) each such
designation shall be accompanied by the payment of the Revolving
Credit Commitment Fee, if any, accrued to the date of such
designation; (iii) the Company shall prepay in accordance with the
terms hereof the amount, if any, by which the aggregate unpaid
principal amount of Revolving Credit Notes, plus the aggregate
principal amount of Bid Advances outstanding hereunder, exceeds the
amount of the Revolving Credit Aggregate Commitment, taking into
account the aforesaid designation under this Section 2.17, together
with interest thereon to the date of prepayment; and (iv) if the
designation under this Section 2.17 requires the prepayment of an
Absolute Rate Bid Advance or a Eurocurrency-based Advance, such
designation may be effective only on the last Business Day of the
then current Interest Period(s) applicable to such Absolute Rate
Bid Advance or Eurocurrency-based Advance. The Revolving Credit
Aggregate Commitment shall be reduced by the aggregate amount so
designated under this Section 2.17 as the Revolving Credit
Designated Portion, upon the effective date of each such
designation.
2.18 Activation of Designated Portion. Provided that no
Default or Event of Default has occurred and is continuing, Company
may, upon not less than ten (10) Business Days' prior written
notice to the Agent, elect to activate all or any part of the
Revolving Credit Designated Portion, provided that each such
activation shall be in an aggregate amount equal to at least Ten
Million Dollars ($10,000,000), or more in increments of One Million
Dollars ($1,000,000) and provided further that, on or before the
requested date for activation, Company shall pay to the Agent, for
<PAGE>
<PAGE> 55 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
distribution to the Banks based on their respective Percentages,
the Activation Fee. Each activation of the Revolving Credit
Designated Portion shall remain in effect (and shall not be reduced
by a subsequent designation under Section 2.17 hereof) for a period
of not less than 30 consecutive days. Upon the effectiveness of any
activation of the Revolving Credit Designated Portion under this
Section 2.18, the Revolving Credit Designated Portion shall
decrease by the amount so activated and the Revolving Credit
Aggregate Commitment shall increase by the amount so activated.
2.19 Extension of Revolving Credit Maturity Date. Provided
that no Default or Event of Default has occurred and is continuing,
Company may, by written notice to Agent and each Bank (which notice
shall be irrevocable and which shall not be deemed effective unless
actually received by Agent and each Bank) prior to May 18th, but
not before April 18th, of each year, request that the Banks extend
the then applicable Revolving Credit Maturity Date to a date that
is one year later than the Revolving Credit Maturity Date then in
effect (each such request, a "Request"). Each Bank shall, not
later than thirty (30) calendar days following the date of its
receipt of the Request, give written notice to the Agent stating
whether such Bank is willing to extend the Revolving Credit
Maturity Date as requested. If Agent has received the aforesaid
written approvals of such Request from each of the Banks, then,
effective upon the date of Agent's receipt of all such written
approvals from the Banks, as aforesaid, the Revolving Credit
Maturity Date shall be so extended for an additional one year
period, the term Revolving Credit Maturity Date shall mean such
extended date and Agent shall promptly notify the Company that such
extension has occurred. If (i) any Bank gives the Agent written
notice that it is unwilling to extend the Revolving Credit Maturity
Date as requested or (ii) any Bank fails to provide written
approval to Agent of such a Request within thirty (30) calendar
days of the date of Agent's receipt of the Request, then (x) the
Banks shall be deemed to have declined to extend the Revolving
Credit Maturity Date, (y) the then-current Revolving Credit
Maturity Date shall remain in effect (with no further right on the
part of Company to request extensions thereof under this Section
2.19) and (z) the commitments of the Banks to make Advances of the
Revolving Credit hereunder shall terminate on the Revolving Credit
Maturity Date then in effect, and Agent shall promptly notify
Company thereof.
2.20 Revolving Credit as Renewal; Application of Advances
Thereafter. The Revolving Credit Notes issued by the Company and
the Permitted Borrowers shall constitute renewal and replacement
evidence of all present indebtedness of Company and the Permitted
Borrowers to the Prior Banks and to Agent outstanding as of the
date hereof under the Prior Loan Agreement, and the notes issued
pursuant thereto. Thereafter, Advances of the Revolving Credit, and
Bid Advances, shall be available, subject to the terms hereof, to
fund working capital needs or other general corporate purposes of
<PAGE>
<PAGE> 56 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
the Company and the Permitted Borrowers. Advances of the Revolving
Credit, and Bid Advances, shall not be available to fund, directly
or indirectly, the Target Company Acquisition or the payment of any
transfer taxes, stamp duties, brokerage fees transfer taxes or
other costs and expenses resulting directly or indirectly from such
acquisition.
3. TERM LOAN
3.1 Commitment. Subject to the terms and conditions of this
Agreement, each Bank, severally and for itself alone, agrees to
advance to the Company, in a single Advance in Dollars concurrently
with the execution and delivery of this Agreement, sums not to
exceed in the aggregate such Bank's respective Percentage of the
Term Loan. Advances of the Term Loan shall be evidenced by Term
Notes executed and delivered by the Company to each of the Banks
concurrently herewith in the form attached hereto as Exhibit "D"
(with appropriate insertions acceptable to the Banks in form and
substance) and in the face amount of each Bank's respective
Percentage thereof.
3.2 Repayment of Principal Until Term Loan Maturity Date.
Until the Term Loan Maturity Date, when the entire unpaid principal
balance of the Term Loan and all accrued interest and other sums
outstanding thereon shall be paid in full (subject to the terms
hereof), the principal Indebtedness evidenced by the Term Notes
shall be repaid on the following dates and in the following amounts
(irrespective of and in addition to any principal payments
hereunder based on Excess Cash Flow, but taking into account any
optional prepayments hereunder):
(a) on December 31, 1994, the sum of Five Million
Dollars ($5,000,000);
(b) commencing on March 31, 1995, and on the last day
of each calendar quarter thereafter through December 31, 1996,
the sum of Two Million Five Hundred Thousand Dollars
($2,500,000);
(c) commencing on March 31, 1997, and on the last day
of each calendar quarter thereafter through December 31, 1997,
the sum of Three Million Seven Hundred Fifty Thousand Dollars
($3,750,000);
(d) commencing on March 31, 1998, and on the last day
of each calendar quarter thereafter through December 31, 1999,
the sum of Five Million Dollars ($5,000,000); and
(e) commencing on March 31, 2000, and on the last day
of each calendar quarter thereafter through December 31, 2000,
the sum of Five Million Six Hundred Twenty-Five Thousand
Dollars ($5,625,000);
<PAGE>
<PAGE> 57 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
There shall be no readvance or reborrowing of any principal
reductions of the Term Loan.
3.3 Excess Cash Flow Recapture. Until the Company's
election of the Fixed Rate in accordance with Section 3.11 hereof,
the Term Loan shall be subject to additional required principal
reductions in the Dollar Amount of fifty percent (50%) of Excess
Cash Flow, to be applied pro rata to the Term Notes issued by the
Company (based on the principal amounts outstanding under such
Notes at the time any such payments are made hereunder), payable in
respect of each calendar year (or portion thereof) from 1994
through 1999, on the earlier of (i) the respective dates of
Company's delivery of financial statements for such calendar years
under Section 7.3(b) hereof or (ii) May 31st of the succeeding
year, as applicable, commencing on May 31, 1995 and on each May
31st thereafter until the Term Loan Maturity Date.
Principal reductions based on Excess Cash Flow shall be in addition
to scheduled principal payments under Section 3.2 hereof, as the
case may be, or any optional prepayments made prior thereto, and
shall be applied against principal installments due hereunder in
the inverse order of their maturity. There shall be no readvance or
re-borrowing of any principal reductions of the Term Loan
hereunder. If the Applicable Interest Rate for the Term Loan then
in effect is the Fixed Rate, principal reductions based on Excess
Cash Flow otherwise required under this Section 3.3 shall be
applied first, against the Roederstein Term Loan and, next, against
the Non-amortizing Term Loan, but only to the extent of the
respective principal balances then outstanding thereunder, and
shall no longer be required to be applied to the Term Loan
hereunder.
3.4 Accrual of Interest. Each Advance of Indebtedness
evidenced by the Term Notes from time to time outstanding hereunder
shall, from and after the date of such Advance, bear interest at
its Applicable Interest Rate. The amount and date of each Advance,
its Applicable Interest Rate, its Interest Period, and the amount
and date of any repayment shall be noted on Agent's records, which
records will be conclusive evidence thereof, absent manifest error.
3.5 Prime-based Interest Payments. Interest on the unpaid
balance of Indebtedness evidenced by the Term Notes which is funded
or carried as a Prime-based Advance from time to time shall accrue
from the date of such Advance to the Term Loan Maturity Date (or
until refunded, converted or paid), at a per annum interest rate
equal to the Prime-based Rate, and shall be payable in immediately
available funds quarterly commencing on the last day of the
calendar quarter in which the Advance under the applicable Term
Notes is made, and continuing on the last day of each calendar
quarter thereafter until the Term Loan Maturity Date. Interest
accruing at the Prime-based Rate shall be computed on the basis of
a 360-day year and assessed for the actual number of days elapsed,
<PAGE>
<PAGE> 58 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
and in such computation effect shall be given to any change in the
interest rate resulting from a change in the Prime-based Rate on
the date of such change in the Prime-based Rate.
3.6 Eurocurrency-based Interest Payments. Interest on
Indebtedness evidenced by the Term Notes which is funded or carried
as a 1-month, 2-month and 3-month Eurocurrency-based Advance from
time to time shall accrue at its Applicable Interest Rate and shall
be payable in immediately available funds on the last day of the
Interest Period applicable thereto. Interest on Indebtedness
evidenced by the Term Notes which is funded or carried as a 6-month
Eurocurrency-based Advance outstanding from time to time shall be
payable in immediately available funds at intervals of 3 months
after the first day of the applicable Interest Period, and on the
last day of the applicable Interest Period. Interest accruing at
the Eurocurrency-based Rate shall be computed on the basis of a
360-day year and assessed for the actual number of days elapsed
from the first day of the Interest Period applicable thereto to,
but not including, the last day thereof.
3.7 Interest Payments on Conversions. Notwithstanding
anything to the contrary in the preceding Sections, all accrued and
unpaid interest on any Advance of the Term Loan converted pursuant
to Section 3.9 hereof shall be due and payable in full on the date
such Advance of the Term Loan is converted.
3.8 Interest on Default. In the event and so long as any
Event of Default shall exist under any Term Note or under this
Agreement, interest shall be payable daily on all Advances
evidenced by the Term Notes from time to time outstanding at a per
annum rate equal to the Applicable Interest Rate, plus three
percent (3%) for the remainder of the then existing Interest
Period, if any, and at all other such times, with respect to
Domestic Advances from time to time outstanding, at a per annum
rate equal to the Prime-based Rate plus three percent (3%), and,
with respect to Eurocurrency-based Advances from time to time
outstanding under the Term Notes, (i) at a per annum rate
calculated by the Agent, whose determination shall be conclusive
absent manifest error, on a daily basis, equal to three percent
(3%) above the interest rate per annum at which one (1) day
deposits (or, if such amount due remains unpaid for more than three
(3) Business Days, then for such other period of time as the Agent
may elect which shall in no event be longer than six (6) months) in
the relevant eurocurrency in the amount of such overdue payment due
to the Agent are offered by the Eurocurrency Lending Office for the
applicable period determined as provided above, or (ii) if at any
such time such deposits are not offered by the Eurocurrency Lending
Office, then at a rate per annum equal to three percent (3%) above
the rate determined by the Agent to be its aggregate marginal cost
(including the cost of maintaining any required reserves or deposit
insurance) of carrying the amount of such Eurocurrency Advance.
<PAGE>
<PAGE> 59 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
3.9 Requests for and Refundings and Conversions of
Advances. Company may request the Advance of the Term Loan and,
until the exercise of the Fixed Rate Option, refund any Advance of
the Term Loan in the same type of Advance or convert any Advance of
the Term Loan to any other type of Advance of the Term Loan only
after delivery to Agent of a Request for Term Loan Advance and Rate
Request executed by an authorized officer of Company and subject to
the following:
(a) each such Request for Term Loan Advance and
Rate Request shall set forth the information required on the
Request for Advance form annexed hereto as Exhibit "E",
including without limitation:
(i) the proposed date of Advance, which must be a
Business Day;
(ii) whether the Advance is a refunding or
conversion of an outstanding Advance; and
(iii) whether such Advance is to be a Prime-based
Advance or a Eurocurrency-based Advance, and,
except in the case of a Prime-based Advance,
the first Interest Period applicable thereto.
(b) each such Request for Term Loan Advance and
Rate Request shall be delivered to Agent by 12 Noon (Detroit
time) four (4) Business Days prior to the proposed date of
Advance, except in the case of a Prime-based Advance, for
which the Request for Advance must be delivered by 11 a.m. on
the proposed date of Advance;
(c) the principal amount of such Advance, plus the
amount of any other outstanding Indebtedness evidenced by the
Term Notes to be then combined therewith having the same
Applicable Interest Rate and Interest Period, if any, shall be
(i) in the case of a Prime-based Advance at least One Million
Dollars ($1,000,000) and (ii) in the case of a Eurocurrency-
based Advance at least Five Million Dollars ($5,000,000);
(d) no Advance shall have an Interest Period ending
after the Term Loan Maturity Date, and, notwithstanding any
provision hereof to the contrary, Company shall be required to
select Interest Periods for sufficient portions of the Term
Loan (or maintain sufficient portions thereof as a Prime-based
Advance) such that the Company may make its required principal
payments hereunder on a timely basis and otherwise in
accordance with Sections 3.2 and 3.3, above.
(e) upon completion of the Advance there shall be
no more than one (1) Interest Period and two (2) Applicable
<PAGE>
<PAGE> 60 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Interest Rates (including the Prime-based Rate) with respect
to Indebtedness evidenced by the Term Notes;
(f) a Request for Term Loan Advance and Rate
Request, once delivered to Agent, shall not be revocable by
Company;
(g) each Request for Term Loan Advance and Rate
Request shall constitute and include a certification by the
Company as of the date thereof that:
(i) both before and after the Advance, the
obligations of the Company and its
Subsidiaries set forth in this Agreement and
the Loan Documents to which such Persons are
parties are valid, binding and enforceable
obligations of the Company, its Subsidiaries
and the Permitted Borrowers, as the case may
be;
(ii) all conditions to Advances of the Term Loan
have been satisfied, and shall remain
satisfied to the date of Advance;
(iii) there is no Default or Event of Default in
existence, and none will exist upon the making
of the Advance;
(iv) the representations and warranties contained
in this Agreement and the Loan Documents are
true and correct in all material respect and
shall be true and correct in all material
respects as of the making of the Advance; and
(v) the execution of the Request for Advance will
not violate the material terms and conditions
of any material contract, agreement or other
borrowing of Company or any of its
Subsidiaries;
(h) each Request for Term Loan Advance and Rate
Request shall be accompanied by such documents, instruments
and other materials required hereunder or otherwise necessary
to evidence satisfaction of all conditions to Advances of the
Term Loan.
In the event with respect to any Advance Company shall fail to
timely exercise its option in accordance with this Section 3.9,
then the principal amount thereof which is not then prepaid shall
be converted to a Prime-based Advance in accordance with Section
3.12 hereof (Agent to notify Company promptly of the occurrence
thereof).
<PAGE>
<PAGE> 61 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
3.10 Disbursement of Advances.
(a) Upon receiving any Request for Term Loan
Advance and Rate Request from Company in compliance with
Section 3.9 hereof, Agent shall promptly notify each Bank by
wire, telex or by telephone (confirmed by wire, telecopy or
telex) of the amount of such Advance to be made and the date
such Advance is to be made by said Bank pursuant to its
Percentage of the Advance. Unless such Bank's commitment to
make Advances hereunder shall have been suspended or
terminated in accordance with this Agreement, each Bank shall
make available to Agent the amount of its Percentage of the
Advance in immediately available funds, as follows:
(i) for Prime-based Advances, at the office of
Agent located at One Detroit Center, 500
Woodward Avenue, Detroit, Michigan 48226, not
later than 2:00 p.m. (Detroit time) on the
date of such Advance; and
(ii) for Eurocurrency-based Advances, at the
Agent's Correspondent for the account of the
Eurocurrency Lending Office of the Agent, not
later than 12 Noon (the time of the Agent's
Correspondent) on the date of such Advance.
(b) Subject to submission of an executed Request
for Term Loan Advance and Rate Request by Company without
exceptions noted in the compliance certification therein,
Agent shall make available to Company the aggregate of the
amounts, in Dollars, so received by it from the Banks in like
funds:
(i) for Prime-based Advances, not later than 4:00
p.m. (Detroit time) on the date of such
Advance by deposit to an account of the
Company maintained with Agent, or to such
other account or third party as Company may
reasonably direct;
(ii) for Eurocurrency-based Advances, not later
than 4:00 p.m. (the time of the Agent's
Correspondent) on the date of such Advance, by
deposit to an account of the Company
maintained with Agent's Correspondent, or to
such other account or third party as Company
may reasonably direct.
(c) Agent shall deliver the documents and papers
received by it for the account of each Bank to such Bank or
upon its order. Unless Agent shall have been notified by any
Bank prior to the date of any proposed Advance that such Bank
<PAGE>
<PAGE> 62 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
does not intend to make available to Agent such Bank's
Percentage of the Advance, Agent may assume that such Bank has
made such amount available to Agent on such date, as aforesaid
and may, in reliance upon such assumption, make available to
Company a corresponding amount. If such amount is not in fact
made available to Agent by such Bank, as aforesaid, Agent
shall be entitled to recover such amount on demand from such
Bank. If such Bank does not pay such amount forthwith upon
Agent's demand therefor, the Agent shall promptly notify
Company and Company shall pay such amount to Agent. Agent
shall also be entitled to recover from such Bank or Company,
as the case may be, interest on such amount in respect of each
day from the date such amount was made available by Agent to
Company to the date such amount is recovered by Agent, at a
rate per annum equal to:
(i) in the case of such Bank, with respect to
Prime-based Advances, the Federal Funds
Effective Rate, and with respect to
Eurocurrency-based Advances, Agent's aggregate
marginal cost (including the cost of
maintaining any required reserves or deposit
insurance and of any fees, penalties,
overdraft charges or other costs or expenses
incurred by Agent as a result of such failure
to deliver funds hereunder) of carrying such
amount; and
(ii) in the case of Company, the rate of interest
then applicable to the Term Loan.
The obligation of any Bank to make any Advance hereunder shall
not be affected by the failure of any other Bank to make any
Advance hereunder, and no Bank shall have any liability to the
Company or its Subsidiaries, the Agent, any other Bank, or any
other party for another Bank's failure to make any loan or
Advance hereunder.
3.11 Fixed Rate Election. (a) The Fixed Rate Election shall
set forth the information required on the Fixed Rate Election form
attached hereto as Exhibit "F" and shall constitute Company's
certification that the conditions required under subparagraph (c),
below, have been satisfied and that Company is entitled to elect
the Fixed Rate hereunder;
(b) The Fixed Rate Election shall be delivered to Agent
by 11:00 a.m. (Detroit time) not less than five (5) nor
greater than ten (10) Business Days prior to the proposed
effective date of such election, and once delivered to Agent
by the Company, shall not be revocable by Company;
<PAGE>
<PAGE> 63 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(c) In order for the Fixed Rate to become effective,
the following conditions shall be satisfied by the Company
(unless waived by the Banks) on or before the proposed
effective date of the Fixed Rate Election, and shall remain
satisfied on the actual effective date thereof:
(i) As of the proposed effective date of
the Fixed Rate Election, and as of the
actual effective date thereof, no
Eurocurrency-based Rate Advance of the
Term Loan shall be outstanding;
(ii) All accrued interest outstanding under
the Term Notes as of the effective date
of the Fixed Rate Election has been paid
and discharged in full;
(iii) both before and after the effective date
of such election, the obligations of
Company set forth in this Agreement are
valid, binding and enforceable
obligations of Company;
(iv) there is no Default or Event of Default
in existence, and none will exist upon
the effective date of such election;
and
(v) the execution of such election will not
violate the terms and conditions of any
material contract, agreement or other
borrowing of Company or any of its
Subsidiaries;
(d) Subject to the foregoing, the Fixed Rate Election
shall become effective (and the Fixed Rate shall become the
Applicable Interest Rate for the Term Loan) on the proposed
effective date of the Fixed Rate Election, as specified by the
Company, whereupon Agent will notify Company and the Banks
promptly of the Fixed Rate established by it hereunder. If a
Fixed Rate Election has been submitted by Company hereunder,
the Prime-base Rate shall be the only rate available to
Company for the refunding or conversion of outstanding
Advances of the Term Loan after such submission.
(e) Company shall be entitled to deliver only one
Fixed Rate Election for the Term Loan while this
Agreement is in effect, and once so elected, the Fixed
Rate shall, subject to the terms hereof, remain the
Applicable Interest Rate for the Term Loan so long as the
Term Loan is outstanding hereunder.
<PAGE>
<PAGE> 64 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(f) Interest accruing at the Fixed Rate shall be
payable in immediately available funds quarterly
commencing on the last day of the calendar quarter in
which the Fixed Rate Election shall have been made by the
Company, and continuing on the last day of each calendar
quarter thereafter until the Term Loan Maturity Date,
shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed. In the
event and so long as any Event of Default shall exist
under any Term Note or under this Agreement or any of the
other Loan Documents, interest shall be payable daily on
the Indebtedness evidenced by the Term Notes from time to
time outstanding at a per annum rate equal to the Fixed
Rate, plus three percent (3%).
3.12 Prime-based Advance in Absence of Election or Upon
Default. If, as to any outstanding Eurocurrency-based Advance,
Agent has not received payment on the last day of the Interest
Period applicable thereto, or does not receive a timely Request for
Term Loan Advance and Rate Request meeting the requirements of
Section 3.9 with respect to the refunding or conversion of such
Advance, or if on such day a Default or Event of Default shall have
occurred and be continuing, the principal amount thereof which is
not then prepaid in the case of a Eurocurrency-based Advance shall
be converted automatically to a Prime-based Advance and the Agent
shall thereafter promptly notify Company of said action.
3.13 Prepayment. (a) Company may prepay all or part of the
outstanding balance of any Prime-based Advance(s) under its Term
Notes at any time (subject to not less than one (1) Business Day's
notice to Agent), provided that the amount of any partial
prepayment by such party shall be at least One Million Dollars
($1,000,000) and the aggregate balance of Prime-based Advance(s)
remaining outstanding on such Notes shall be at least Five Hundred
Thousand Dollars ($500,000). Company may prepay all or part of any
Eurocurrency-based Advance (subject to not less than three (3)
Business Days' notice to Agent) only on the last day of the
Interest Period applicable thereto, provided that the amount of any
such partial prepayment by such party shall be at least One Million
Dollars ($1,000,000), and the unpaid portion of such Advance which
is refunded or converted by such party under Section 3.9 hereof
shall be at least Five Million Dollars ($5,000,000). Furthermore,
no such prepayment may be made using funds advanced, directly or
indirectly, by the Banks under this Agreement or the DM Loan
Agreement. Upon Agent's request in connection with any prepayment,
Company shall provide evidence satisfactory to the Majority Banks
that the source of funding for such prepayment consists of new
equity, surplus cash (not the result of any Advance under this
Agreement) or otherwise was not derived, directly or indirectly,
from any Advance hereunder. Any prepayment made in accordance with
this Section shall be applied against principal installments due
hereunder in the inverse order of their maturity, and shall be
<PAGE>
<PAGE> 65 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
without premium or penalty (subject to Section 10 hereof), but
there shall be no readvance or reborrowing of any principal
reductions of the Term Loan (whether or not such principal
reductions constitute prepayments).
(b) Once the Fixed Rate becomes the applicable Interest
Rate for the Term Loan hereunder, at its option and upon not less
than five (5) business days prior written notice to Agent, Company
may prepay the principal balance outstanding under the Term Loan in
whole or in part (in amounts of not less than Five Million Dollars
($5,000,000) only upon payment to the Agent, for distribution to
the Banks pro rata, of a Yield Maintenance Payment in an amount
calculated by Agent to make the Banks whole (to the extent of the
interest which would have been earned by the Banks but for the
occurrence of such prepayment) on the basis of the discounted net
present values of the interest payments that would otherwise be
payable on the principal amount of the Term Loan being prepaid,
after taking into account the amount of interest which would be
payable on each interest payment due date if the principal amount
being repaid were reinvested at the Current Market Rate (defined
below).
As used herein, "Current Market Rate" shall mean a per annum
interest rate equal to one-half percentage point (.5%) above the
rate reasonably determined by Agent (based on quotations from
established dealers) to be in effect two (2) days prior to the
repayment date in the secondary market for United States Treasury
Securities of a comparable amount and with a comparable term to
maturity as the principal amount being prepaid hereunder. For
purposes of computation, the discount rate for each computation
will be the Current Market Rate for the relevant principal
installment.
Upon any involuntary prepayment of the Term Loan hereunder, whether
by acceleration, or otherwise, the Company shall pay to Agent, for
distribution to the Banks pro rata, a Yield Maintenance Payment in
an amount equal to the Yield Maintenance Payment which would have
been due and payable hereunder if the Company had voluntarily
elected to prepay the Term Loan (in an amount equal to such
involuntary prepayment) on such date of involuntary prepayment. Any
partial prepayments hereunder shall be applied to payments due
under the Term Loan in the inverse order of their maturities.
3.14 Purpose. The Term Notes to be issued by Company
hereunder shall constitute renewal and replacement evidence of all
present Indebtedness of the Company for the Term Loan under the
Prior Loan Agreement.
<PAGE>
<PAGE> 66 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
4. MARGIN ADJUSTMENTS; HLT DETERMINATION; SPECIAL
LIMITATION
4.1 Margin Adjustments. Adjustments to the Applicable
Margin, based on Schedule 4.1, shall be implemented as follows:
(i) Such Margin adjustments shall be given
prospective effect only, effective (A) as to all Prime-based
Advances outstanding hereunder, immediately upon required date of
delivery of the financial statements required to be delivered under
Section 7.3(b) and 7.3(c) hereof establishing applicability of the
appropriate adjustments, if any, or on the obtaining and/or any
change in the Rating Level then in effect, as applicable and (B) as
to each Eurocurrency-based Advance outstanding hereunder, effective
upon the expiration of the applicable Interest Period(s), if any,
in effect on (x) the required date of delivery of the latest of
such financial statements required to be delivered hereunder during
such Interest Period(s) or (y) the date of the obtaining and/or any
change in the Rating Level in effect hereunder, as applicable, in
each case with no retroactivity or claw-back.
(ii) With respect to Eurocurrency-based Advances
outstanding hereunder, an adjustment hereunder, after becoming
effective, shall remain in effect only through the end of the
applicable Interest Period(s) for such Eurocurrency-based Advances
if any; provided, however, that upon the delivery of quarterly
financial statements demonstrating any change in the Leverage Ratio
or the obtaining and/or change in the Rating Level then in effect,
as aforesaid, or the occurrence of any other event which under the
terms hereof causes such adjustment no longer to be applicable,
then any such subsequent adjustment or no adjustment, as the case
may be, shall be effective (and said pricing shall thereby be
adjusted up or down, as applicable) with the commencement of each
Interest Period following such change or event, all in accordance
with the preceding subparagraph.
4.2 HLT Determination. In the event at any time (whether
before or after the funding of the Acquisition Loans) of an HLT
Determination, the Agent, the Banks and the Company shall commence
negotiations in good faith to agree upon whether and, if so, the
extent to which fees, interest rates and/or margins hereunder
should be increased so as to reflect such HLT Determination and to
compensate the Banks and Agent for additional costs, expenses
and/or fees which result from or are associated with any such HLT
Determination, including without limitation any costs resulting
from any requirement that additional capital be allocated to the
Indebtedness, or any portion thereof. If Company and the Majority
Banks agree that fees, interest rates and/or margins should be
increased, and agree on the amount of such increase or increases,
this Agreement may be amended to give effect to such increase or
increases as provided in Section 13.11 hereof. If Company and
Majority Banks fail to agree on whether and, if so, the extent to
<PAGE>
<PAGE> 67 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
which fees, interest rates and/or margins hereunder should be
increased within 60 days after notice to Company of an HLT
Determination as herein provided, then (i) the Agent shall, if
requested by the Majority Banks, by written notice to the Company
terminate the commitments of the Banks to fund and/or maintain
Advances of the Revolving Credit and the DM Revolving Credit, and
if still outstanding, any commitment to fund Advances of the
Acquisition Loans, and such commitments shall thereupon terminate,
(ii) Company shall be obligated to repay all outstanding
Indebtedness at the end of the Interest Period applicable thereto
and (iii) the Company may, at its option, on at least ten Business
Days' written notice to the Agent (which shall promptly notify the
Banks thereof) prepay all Indebtedness outstanding hereunder and
under the other Loan Agreements by paying the aggregate principal
amount thereof, together, with all accrued interest thereon to the
date of prepayment; provided that, if the Company prepays any Fixed
Rate Advance or Advances carried at the Eurocurrency-based Rate,
the Absolute Rate, or any comparable rate, pursuant to this Section
4.2, Company shall compensate the Banks for any resulting funding
losses as provided in Section 11.1 hereof. Subject to compliance
by Company and the Permitted Borrowers with this Section 4.2, the
Banks acknowledge that an HLT Determination shall not constitute a
Default or an Event of Default hereunder.
4.3 Special Limitation. In the event, as a result of
increases in the value of any of the Alternative Currencies against
the Dollar or for any other reason, the obligation of any of the
Banks to advance additional funds hereunder and under the other
Loan Agreements (taking into account the Dollar Amount of the
Indebtedness outstanding from time to time under the other Loan
Agreements, and any other Indebtedness required to be aggregated
under 12 USCA 84, as amended, the regulations promulgated
thereunder, or other, similar applicable law) is determined by such
Bank to exceed its then applicable legal lending limit under 12
USCA 84, as amended, and the regulations promulgated thereunder, or
other, similar applicable laws, the amount of additional funds
which such Bank shall be obligated to advance hereunder and under
the other Loan Agreements shall immediately be reduced to the
maximum amount which such Bank may legally advance (as determined
by such Bank), the obligation of each of the remaining Banks
hereunder shall be proportionately reduced, based on the applicable
Percentages, and, to the extent necessary under such laws and
regulations (as determined by each of the Banks, with respect to
the applicability of such laws and regulations to itself), the
Company shall reduce, or cause to be reduced, complying to the
extent practicable with the remaining provisions hereof, the
Indebtedness outstanding hereunder or under the other Loan
Agreements by an amount sufficient to comply with such maximum
amounts. Upon any such reduction in the obligations of the Banks
under this Section 4.3, Company shall have the right, subject to
the terms and conditions of this Agreement (but subsequent to
Company's compliance with its obligation to reduce the Indebtedness
<PAGE>
<PAGE> 68 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
outstanding hereunder), to add to the Banks providing financing
hereunder a bank reasonably acceptable to the Agent for the purpose
of restoring the shortfall created by the reduction in such
obligations of the Banks.
5. CONDITIONS. The obligations of Banks to make Advances
or loans pursuant to this Agreement are subject to the following
conditions, provided however that Section 5.1 through 5.11 below
shall only apply to the initial Advances or loans hereunder:
5.1 Execution of Notes, this Agreement and the other Loan
Documents. The Company and each of the Permitted Borrowers, as
applicable, shall have executed and delivered to the Agent for the
account of each Bank, the Revolving Credit Notes, the Bid Notes and
the Term Notes, as applicable, this Agreement (including all
schedules, exhibits, certificates, opinions, financial statements
and other documents to be delivered pursuant hereto) and the other
Loan Documents, and, as applicable, such Revolving Credit Notes,
Bid Notes, Term Notes, this Agreement and the other Loan Documents
shall be in full force and effect.
5.2 Corporate Authority. Agent shall have received, with a
counterpart thereof for each Bank: (i) certified copies of
resolutions of the Board of Directors of the Company and each of
the Permitted Borrowers evidencing approval of the form of this
Agreement and the Notes and authorizing the execution and delivery
thereof and the borrowing of Advances hereunder; (ii) (A) certified
copies of the Company's, and the Significant Subsidiaries' articles
of incorporation and bylaws or other constitutional documents
certified as true and complete as of a recent date by the
appropriate official of the jurisdiction of incorporation of each
such entity (or, if unavailable in such jurisdiction, by a
responsible officer of such entity); and (B) a certificate of good
standing from the state or other jurisdictions of the Company's
incorporation, and from the applicable states of incorporation or
other jurisdictions of the Permitted Borrowers and the Significant
Subsidiaries and from every state or other jurisdiction in which
the Company, any of the Permitted Borrowers or any of the
Subsidiaries is qualified to do business, if issued by such
jurisdictions, subject to the limitations (as to qualification and
authorization to do business) contained in Section 6.1, hereof.
5.3 Vishay Guaranty. As security for all Indebtedness of
the Company and the Permitted Borrowers to the Banks hereunder and
under the other Loan Documents, the Company agrees to furnish,
execute and deliver to Agent, or cause to be furnished, executed
and delivered to Agent, prior to or concurrently with the initial
borrowing hereunder, in form and substance satisfactory to Agent
and the Banks and supported by appropriate resolutions in certified
form authorizing same, the Vishay Guaranty.
<PAGE>
<PAGE> 69 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
5.4 Domestic Guaranty. The Company agrees to furnish,
execute and deliver to Agent, or cause to be furnished, executed
and delivered to Agent, prior to or concurrently with the initial
borrowing hereunder, in form and substance satisfactory to Agent
and the Banks and supported by appropriate resolutions in certified
form authorizing same, as security for all Indebtedness of the
Company and the Permitted Borrowers as set forth therein, the
Domestic Guaranty.
5.5 Permitted Borrowers Guaranty. The Company agrees to
furnish, execute and deliver to Agent, or cause to be furnished,
executed and delivered to Agent, prior to or concurrently with the
initial borrowing hereunder, in form and substance satisfactory to
Agent and the Banks and supported by appropriate resolutions in
certified form authorizing same, as security for all the
Indebtedness of the Permitted Borrowers as set forth therein (but
not as security for the Indebtedness of the Company), the Permitted
Borrowers Guaranty.
5.6 Representations and Warranties -- All Parties. The
representations and warranties made by the Company, the Permitted
Borrowers or any other party to any of the Loan Documents under
this Agreement or any of the Loan Documents (excluding the Banks),
and the representations and warranties of any of the foregoing
which are contained in any certificate, document or financial or
other statement furnished at any time hereunder or thereunder or in
connection herewith or therewith 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 date of the making of the
initial Advance hereunder.
5.7 Compliance with Certain Documents and Agreements. The
Company, and each of the Permitted Borrowers (and any of their
respective Subsidiaries or Affiliates) shall have each performed
and complied with all agreements and conditions contained in this
Agreement, the Loan Documents, or any agreement or other document
executed thereunder and required to be performed or complied with
by each of them (as of the applicable date) and none of such
parties shall be in default in the performance or compliance with
any of the terms or provisions hereof or thereof.
5.8 Opinion of Counsel. The Company shall furnish Agent
prior to the initial Advance under this Agreement, and with signed
copies for each Bank, opinions of counsel given upon the express
instructions of the Company, dated the date hereof, and covering
such matters as required by and otherwise satisfactory in form and
substance to the Agent and each of the Banks.
5.9 Company's Certificate. The Agent shall have received,
with a signed counterpart for each Bank, a certificate of a
responsible senior officer of Company, dated the date of the making
of the initial Advances hereunder, stating that the conditions of
<PAGE>
<PAGE> 70 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
paragraphs 5.1, 5.6, 5.7, and 5.12(a) through (c) hereof have been
fully satisfied.
5.10 Payment of Agents' and Other Fees. Company shall have
paid to the Agent the remaining installment of the Closing Fee (for
distribution to the Banks hereunder), and to the Agent, the Agent's
Fees and all costs and expenses required hereunder.
5.11 Other Documents and Instruments. The Agent shall have
received, with a photocopy for each Bank, such other instruments
and documents as the Majority Banks may reasonably request in
connection with the making of the Loans hereunder, and all such
instruments and documents shall be satisfactory in form and
substance to the Majority Banks.
5.12 Continuing Conditions. The obligations of the Banks to
make any of the Advances or loans under this Agreement, including
but not limited to the initial Advances of the Revolving Credit or
Advances of Term Loans hereunder, shall be subject to the following
continuing conditions:
(a) No Default or Event of Default shall have
occurred and be continuing as of the making of the proposed
Advance;
(b) There shall have been no material adverse
change in the condition (financial or otherwise), properties,
business, results or operations of the Company or its Subsidiaries
(taken as a whole) from December 31, 1993 (or any subsequent
December 31st, if the Agents determine, with the concurrence of the
Majority Banks, based on the Company's financial statements for
such subsequent fiscal year that no material adverse change has
occurred during such year, such determination being made solely for
purposes of determining the applicable date under this paragraph)
to the date of the proposed Advance hereunder;
(c) The representations and warranties contained in
this Agreement and the Loan Documents are true and correct in all
material respects as of the making of the applicable Advance; and
(d) All documents executed or submitted pursuant
hereto shall be satisfactory in form and substance (consistent with
the terms hereof) to Agent and its counsel and to each of the
Banks; Agent and its counsel and each of the Banks and their
respective counsel shall have received all information, and such
counterpart originals or such certified or other copies of such
materials, as Agent or its counsel and each of the Banks and their
respective counsel may reasonably request; and all other legal
matters relating to the transactions contemplated by this Agreement
(including, without limitation, matters arising from time to time
as a result of changes occurring with respect to any statutory,
<PAGE>
<PAGE> 71 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
regulatory or decisional law applicable hereto) shall be
satisfactory to counsel to Agent and counsel to each of the Banks.
6. REPRESENTATIONS AND WARRANTIES
Company and each of the Permitted Borrowers (by their delivery
of Revolving Credit Notes hereunder) represent and warrants and
such representations and warranties shall be deemed to be
continuing representations and warranties during the entire life of
this Agreement:
6.1 Corporate Authority. The Company and each of the
Subsidiaries (excluding the foreign Subsidiaries of the Target
Company until the Revalidation Date) is a corporation duly
organized and existing in good standing under the laws of the
applicable jurisdiction of organization, charter or incorporation;
it, and each of the Subsidiaries (excluding the foreign
Subsidiaries of the Target Company until the Revalidation Date)is
duly qualified and authorized to do business as a corporation or
foreign corporation in each jurisdiction where the character of its
assets or the nature of its activities makes such qualification
necessary, except where such failure to qualify and be authorized
to do business will not have a material adverse impact on the
Company and its Subsidiaries, taken as a whole.
6.2 Due Authorization - Company. Execution, delivery and
performance of this Agreement, the Loan Documents, the Stock
Purchase Agreement, and any other documents and instruments
required under this Agreement, and the issuance of the Notes by the
Company are within its corporate powers, have been duly authorized,
are not in contravention of law or the terms of the Company's
Certificate of Incorporation or Bylaws, and, except as have been
previously obtained or as referred to in Section 6.15, below, do
not require the consent or approval, material to the transactions
contemplated by this Agreement, the Loan Documents, or the Stock
Purchase Agreement, of any governmental body, agency or authority.
6.3 Due Authorization -- Subsidiaries. Execution, delivery
and performance of the Loan Documents and all other documents and
instruments executed and delivered under or in connection with this
Agreement or the Loan Documents by each of the Permitted Borrowers
and the Significant Subsidiaries are within the corporate powers,
have been duly authorized, are not in contravention of law or the
terms of articles of incorporation or bylaws or other organic
documents of the parties thereto, as applicable, and, except as
have been previously obtained (or as referred to in Section 6.15,
below), do not require the consent or approval, material to the
transactions contemplated by this Agreement, the Loan Documents, or
the Stock Purchase Agreement, of any governmental body, agency or
authority.
<PAGE>
<PAGE> 72 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
6.4 Title to Material Property. Each of the Company, the
Permitted Borrowers and the Subsidiaries (excluding the domestic
and foreign subsidiaries of the Target Company until the
Revalidation Date) has good and valid title to the Material
Property owned by it.
6.5 Encumbrances. There are no security interests in,
Liens, mortgages or other encumbrances on and no financing
statements on file with respect to any property of Company or any
of the Subsidiaries, except for those Liens permitted under Section
8.5 hereof.
6.6 Subsidiaries. As of the date of this Agreement, there
are no directly or indirectly owned Subsidiaries of the Company,
except for those Subsidiaries identified in Schedule 6.6, attached
hereto.
6.7 Taxes. The Company and its Subsidiaries (excluding the
foreign subsidiaries of the Target Company until the Revalidation
Date) each has filed on or before their respective due dates, all
federal, state and foreign tax returns which are required to be
filed or has obtained extensions for filing such tax returns and is
not delinquent in filing such returns in accordance with such
extensions and has paid all taxes which have become due pursuant to
those returns or pursuant to any assessments received by any such
party, as the case may be, to the extent such taxes have become
due, except to the extent such tax payments are being actively
contested in good faith by appropriate proceedings and with respect
to which adequate provision has been made on the books of the
Company or its Subsidiaries, as applicable, as may be required by
GAAP.
6.8 No Defaults. There exists no default under the
provisions of any instrument evidencing any permitted debt of the
Company or its Subsidiaries (excluding the foreign subsidiaries of
the Target Company until the Revalidation Date) or connected with
any of the Permitted Company Encumbrances, or the Permitted
Encumbrances of the Subsidiaries, or of any agreement relating
thereto, except where such default would not have a material
adverse effect on the Company and its Subsidiaries taken as a whole
and would not violate this Agreement or any of the Loan Documents
according to the terms thereof.
6.9 Enforceability of Agreement and Loan Documents --
Company. This Agreement, each of the Loan Documents to which the
Company is a party, including without limitation the Vishay
Guaranty, the Stock Purchase Agreement and all other certificates,
agreements and documents executed and delivered by Company under or
in connection herewith or therewith have each been duly executed
and delivered by their respective duly authorized officers and
constitute the valid and binding obligations of the Company,
enforceable in accordance with their respective terms, except as
<PAGE>
<PAGE> 73 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
enforcement thereof may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting
the enforcement of creditor's rights, generally and by general
principles of equity (whether enforcement is sought in a proceeding
in equity or at law).
6.10 Enforceability of Loan Documents -- Other Parties. The
Loan Documents, and all certificates, documents and agreements
executed in connection therewith by the Subsidiaries or any one of
them, including without limitation the Domestic Guaranty and the
Permitted Borrowers Guaranty, as the case may be, have each been
duly executed and delivered by the respective duly authorized
officers of such parties and constitute the valid and binding
obligations of such parties, enforceable in accordance with their
respective terms, except as enforcement thereof may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting the enforcement of creditor's rights,
generally and by general principles of equity (whether enforcement
is sought in a proceeding in equity or at law).
6.11 Non-contravention -- Company. The execution, delivery
and performance of this Agreement and the Loan Documents and any
other documents and instruments required under or in connection
with this Agreement by the Company are not in contravention of the
terms of any indenture, material agreement or material undertaking
to which the Company is a party or by which it or its properties
are bound or affected, except to the extent such terms have been
waived or are not material to the transactions contemplated by this
Agreement, the Loan Documents or the Stock Purchase Agreement.
6.12 Non-contravention -- Other Parties. The execution,
delivery and performance of those Loan Documents signed by any of
the Subsidiaries, and any other documents and instruments required
under or in connection with this Agreement by any of the
Subsidiaries are not in contravention of the terms of any
indenture, material agreement or material undertaking to which any
of such parties is a party or by which it or its properties are
bound or affected, except to the extent such terms have been waived
or are not material to the transaction contemplated by this
Agreement, the Loan Documents or the Stock Purchase Agreement.
6.13 No Litigation -- Company. There is no suit, action,
proceeding, including, without limitation, any bankruptcy
proceeding, or governmental investigation pending against or, to
the best knowledge of the Company, threatened or otherwise
affecting the Company (other than any suit, action or proceeding in
which the Company is the plaintiff and in which no counterclaim or
cross-claim against Company has been filed), nor has the Company or
any of its officers or directors been subject to any suit, action,
proceeding or governmental investigation as a result of which any
such officer or director is or may be entitled to indemnification
by Company, except as otherwise disclosed in Schedule 6.13 attached
<PAGE>
<PAGE> 74 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
hereto and except for miscellaneous suits, actions and proceedings
which have a reasonable likelihood of being adversely determined,
and which suits, if resolved adversely to the Company would not in
the aggregate have a material adverse effect on the Company and its
Subsidiaries, taken as a whole. Except as so disclosed, there is
not outstanding against the Company any judgment, decree,
injunction, rule, or order of any court, government, department,
commission, agency, instrumentality or arbitrator, nor, to the best
knowledge of the Company, is the Company in violation of any
applicable law, regulation, ordinance, order, injunction, decree or
requirement of any governmental body or court where such violation
would have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
6.14 No Litigation -- Other Parties. There is no suit,
action, proceeding (other than any suit, action or proceeding in
which any such party is the plaintiff and in which no counterclaim
or cross-claim against any such party has been filed), including,
without limitation, any bankruptcy proceeding, or governmental
investigation pending against or, to the best knowledge of the
Company, threatened or otherwise affecting any of the Subsidiaries
(excluding the foreign Subsidiaries of the Target Company until the
Revalidation Date), nor has any such party or any of its officers
or directors been subject to any suit, action, proceeding or
governmental investigation as a result of which any such officer or
director is or may be entitled to indemnification by such party,
except as otherwise disclosed in Schedule 6.14 attached hereto and
except for miscellaneous suits, actions and proceedings which have
a reasonable likelihood of being adversely determined, which suits,
if resolved adversely to such party, would not in the aggregate
have a material adverse effect on the Company and its Subsidiaries,
taken as a whole. Except as so disclosed, there is not outstanding
against any such party any judgment, decree, injunction, rule, or
order of any court, government, department, commission, agency,
instrumentality or arbitrator nor, to the best knowledge of the
Company, is any such party in violation of any applicable law,
regulation, ordinance, order, injunction, decree or requirement of
any governmental body or court where such violation would have a
material adverse effect on the Company and its Subsidiaries, taken
as a whole.
6.15 Consents, Approvals and Filings, Etc. Except as have
been previously obtained and, until consummation of the Target
Company Acquisition, except for receipt of all necessary approvals
of the Target Company Acquisition (or any matter arising therefrom
or in connection therewith), no authorization, consent, approval,
license, qualification or formal exemption from, nor any filing,
declaration or registration with, any court, governmental agency or
regulatory authority or any securities exchange or any other person
or party (whether or not governmental) is required in connection
with the execution, delivery and performance: (i) by the Company,
of this Agreement, any of the Loan Documents to which it is a
<PAGE>
<PAGE> 75 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
party, the Stock Purchase Agreement, or any other documents or
instruments to be executed and or delivered by the Company in
connection therewith or herewith; and (ii) by each of the Permitted
Borrowers, of the Loan Documents to which it is a party. All such
authorizations, consents, approvals, licenses, qualifications,
exemptions, filings, declarations and registrations which have
previously been obtained or made, as the case may be, are in full
force and effect and are not the subject of any attack, or to the
knowledge of the Company, threatened attack (in any material
respect) by appeal or direct proceeding or otherwise.
6.16 Agreements Affecting Financial Condition. Neither the
Company nor any of its Subsidiaries (excluding the foreign
subsidiaries of the Target Company until the Revalidation Date) is
party to any agreement or instrument or subject to any charter or
other corporate restriction which materially adversely affects the
financial condition or operations of the Company and its
Subsidiaries, taken as a whole.
6.17 No Investment Company; No Margin Stock. Neither the
Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, directly or indirectly, in the
business of extending credit for the purpose of purchasing or
carrying margin stock. None of the proceeds of any of the Loans
will be used by the Company or any of the Subsidiaries to purchase
or carry margin stock or will be made available by the Company or
any of the Subsidiaries in any manner to any other Person to enable
or assist such Person in, purchasing or carrying margin stock.
Terms for which meanings are provided in Regulation U of the Board
of Governors of the Federal Reserve System or any regulations
substituted therefor, as from time to time in effect, are used in
this paragraph with such meanings. Neither the Company nor any of
its Subsidiaries is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
6.18 ERISA. Neither a reportable event within the meaning of
Section 4043 of ERISA and the regulations thereunder which is
material to the Company and its Subsidiaries taken as a whole
(herein, a "Reportable Event") nor an Accumulated Funding
Deficiency (herein as defined in Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with
respect to any Pension Plan. Each Pension Plan has complied in all
material respects with the applicable provisions of ERISA and the
Code and any applicable regulations thereof (and, if applicable,
any comparable foreign law provisions), except to the extent that
any noncompliance, individually or in the aggregate, would not have
a material adverse effect upon the Company and its Subsidiaries,
taken as a whole. No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Pension Plan has
arisen, during such five-year period. The present value of all
accrued benefits under each Single Employer Plan maintained by the
<PAGE>
<PAGE> 76 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Company or any ERISA Affiliate did not, as of the last annual
valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Pension
Plan allocable to such accrued benefits. Neither the Company nor
any ERISA Affiliate has had a complete or partial withdrawal from
any Multiemployer Plan within the five year period prior to the
date of this Agreement, nor does the Company or any ERISA Affiliate
presently intend to completely or partially withdraw from any
Multiemployer Plan, and neither the Company nor any ERISA Affiliate
would become subject to fines, penalties or any other liability
under ERISA if the Company or any ERISA Affiliate were to withdraw
completely from all Multiemployer Plans as of the valuation date
most closely preceding the date of this Agreement. To the best of
Company's knowledge, no such Multiemployer Plan is in bankruptcy or
reorganization or insolvent. There is no pending or, to the best
of Company's knowledge, threatened litigation or investigation
questioning the form or operation of any Pension Plan, nor is there
any basis for any such litigation or investigation which if
adversely determined could have a material adverse effect upon the
Company and its Subsidiaries, taken as a whole, as of the valuation
date most closely preceding the date of this Agreement.
6.19 Environmental Matters and Safety Matters. (a) The
Company and each Subsidiary (excluding foreign subsidiaries of the
Target Company until the Revalidation Date) is in compliance with
all federal, state, provincial and local laws, ordinances and
regulations relating to safety and industrial hygiene or to the
environmental condition, including without limitation all
applicable Hazardous Materials Laws in jurisdictions in which the
Company or any such Subsidiary owns or operates, a facility or
site, or arranges for disposal or treatment of hazardous
substances, solid waste, or other wastes, accepts for transport any
hazardous substances, solid wastes or other wastes or holds any
interest in real property or otherwise, except for matters which,
individually or in the aggregate, would not have a material adverse
effect upon the financial condition or business of the Company and
its Subsidiaries, taken as a whole.
(b) All federal, state, provincial, local and
foreign permits, licenses and authorizations required for present
or (to the best of the Company's knowledge) past use of the
facilities and other properties or activities of the Company and
each Subsidiary (excluding foreign subsidiaries of the Target
Company until the Revalidation Date) have been obtained, are
presently in effect, and there is and has been full compliance with
all such permits, licenses or authorizations, except, in all cases,
where the failure to comply with the foregoing would not have a
material adverse effect on the Company and its Subsidiaries taken
as a whole.
(c) No demand, claim, notice, suit (in law or
equity), action, administrative action, investigation or inquiry
<PAGE>
<PAGE> 77 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(including, without limitation, the listing of any property by any
domestic or foreign governmental entity which identifies sites for
remedial, clean-up or investigatory action) whether brought by any
governmental authority, private person or entity or otherwise,
arising under, relating to or in connection with any applicable
Hazardous Materials Laws is pending or, to the best of the
Company's knowledge, threatened against the Company or any of its
Subsidiaries (excluding foreign subsidiaries of the Target Company
until the Revalidation Date), any real property in which the
Company or any such Subsidiary holds or, to the best of the
Company's knowledge, has held an interest or any present or, to the
best of the Company's knowledge, past operation of the Company or
any such Subsidiary, except for such matters which, individually or
in the aggregate, would not have a material adverse effect on the
financial condition or business of the Company and its
Subsidiaries, taken as a whole.
(d) Neither the Company nor any of its Subsidiaries
(excluding foreign subsidiaries of the Target Company until the
Revalidation Date), whether with respect to present or, to the best
of the Company's knowledge, past operations or properties, (i) is,
to the best of the Company's knowledge, the subject of any federal
or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic substances, radioactive
materials, hazardous wastes or related materials into the
environment, (ii) has received any notice of any toxic substances,
radioactive materials, hazardous waste or related materials in, or
upon any of its properties in violation of any applicable Hazardous
Materials Laws, or (iii) knows of any basis for any such
investigation or notice, or for the existence of such a violation,
except for such matters which, individually or in the aggregate,
would not have a material adverse effect on the financial condition
or business of the Company and its Subsidiaries, taken as a whole.
(e) No release, threatened release or disposal of
hazardous waste, solid waste or other wastes is occurring or has
occurred on, under or to any real property in which the Company or
any of its Subsidiaries (excluding foreign subsidiaries of the
Target Company until the Revalidation Date) holds any interest or
performs any of its operations, in violation of any applicable
Hazardous Materials Laws, except for any such matters which,
individually or in the aggregate, would not have a material adverse
effect on the financial condition or business of the Company and
its Subsidiaries, taken as a whole.
6.20 Conditions Affecting Business or Properties. Neither
the respective businesses nor the properties of Company or any of
its Subsidiaries (excluding the foreign Subsidiaries of the Target
Company until the Revalidation Date) is affected by any fire,
explosion, accident, strike, lockout or other dispute, drought,
storm, hail, earthquake, embargo, Act of God or other casualty
(whether or not covered by insurance), which materially adversely
<PAGE>
<PAGE> 78 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
affects, or if such event or condition were to continue for more
than ten (10) additional days could be likely to materially
adversely affect, any such business or property of Company and its
Subsidiaries, taken as a whole.
6.21 Accuracy of Information. Each of the Company's audited
or unaudited financial statements previously furnished to Agents
and the Banks by the Company prior to the date of this Agreement,
is complete and correct in all material respects and fairly
presents the financial condition of the Company and its
Subsidiaries, taken as a whole, and the results of their operations
for the periods covered thereby; any projections of operations for
future years previously furnished by Company to Agents or the Banks
have been prepared as the Company's good faith estimate of such
future operations, taking into account all relevant facts and
matters known to Company; since December 31, 1993 there has been no
material adverse change in the financial condition of the Company
or its Subsidiaries, taken as a whole; neither the Company, nor any
of its Subsidiaries (excluding the Foreign Subsidiaries of the
Target Company until the Revalidation Date) has any contingent
obligations (including any liability for taxes) not disclosed by or
reserved against in the December 31, 1993 balance sheet which is
likely to have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
7. AFFIRMATIVE COVENANTS
Company covenants and agrees that it will, and, as applicable,
it will cause its Subsidiaries to, so long as any of the Banks are
committed to make any Advances under this Agreement and thereafter
so long as any Indebtedness remains outstanding under this
Agreement:
7.1 Preservation of Existence, Etc. Except as otherwise
specifically permitted hereunder, preserve and maintain its
corporate existence and such of its rights, licenses, and
privileges as are material to the business and operations conducted
by it; and qualify and remain qualified to do business in each
jurisdiction in which such qualification is material to the
business and operations or ownership of properties, in each case of
the Company and its Subsidiaries, taken as a whole.
7.2 Keeping of Books. Keep proper books of record and
account in which full and correct entries shall be made of all of
its financial transactions and its assets and businesses so as to
permit the presentation of financial statements prepared in
accordance with GAAP.
7.3 Reporting Requirements. Furnish Agent with copies for
each Bank:
<PAGE>
<PAGE> 79 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(a) as soon as possible, and in any event within
three calendar days after becoming aware of the occurrence of
each Default or Event of Default, a written statement of the
chief financial officer of the Company (or in his absence, a
responsible senior officer) setting forth details of such
Event of Default or event and the action which the Company has
taken or has caused to be taken or proposes to take or cause
to be taken with respect thereto;
(b) as soon as available, and in any event within
one hundred twenty (120) days after and as of the end of each
of Company's fiscal years, a detailed Consolidated audit
report of Company certified to by independent certified public
accountants satisfactory to Banks together with an unaudited
Consolidating report of Company and its Subsidiaries certified
by an authorized officer of Company as to consistency (with
prior financial reports and accounting periods), accuracy and
fairness of presentation;
(c) as soon as available, and in any event within
sixty (60) days after and as of the end of each quarter,
excluding the last quarter of each fiscal year, (i)
Consolidated and Consolidating balance sheet and statement of
profit and loss and surplus reconciliation of Company and its
Subsidiaries certified by an authorized officer of Company as
to consistency (with prior financial reports and accounting
periods), accuracy and fairness of presentation and (ii) a
Covenant Compliance Report (provided that the Company shall
also deliver to Agent a Covenant Compliance Report, upon the
request of Agent, with any Request for Advance hereunder, or
otherwise at the reasonable request of Agent);
(d) as soon as possible, and in any event within
three calendar days after becoming aware (i) of any material
adverse change in the financial condition of the Company, any
of its Subsidiaries or any of the Permitted Borrowers, a
certificate of the chief financial officer of Company (or in
his absence, a responsible senior officer) setting forth the
details of such change or (ii) of the taking by the Internal
Revenue Service or any foreign taxing jurisdiction of a tax
position (verbal or written) which could have a materially
adverse effect upon the Company or any of its Subsidiaries (or
any such tax position taken by the Company or any of its
Subsidiaries) setting forth the details of such position and
the financial impact thereof;
(e)(i) the financial reports of VBG and its
Subsidiaries, in accordance with the DM Loan Agreement; (ii)
so long as any material obligations of the Seller under the
Stock Purchase Agreement are outstanding, the financial
reports of the Seller, if and to the extent provided to the
Company, as and when received; and (iii), as soon as
<PAGE>
<PAGE> 80 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
available, and in any event, within sixty (60) days after the
date hereof, opening balance sheets and other financial
reports of each of the Subsidiaries certified as aforesaid;
(f)(i) as soon as available, the Company's 8-K, 10-Q
and 10-K Reports filed with the federal Securities and
Exchange Commission, and in any event, with respect to the 10-
Q Report, within sixty (60) days of the end of each of the
Company's fiscal quarters, and with respect to the 10-K
Report, within one hundred twenty (120) days after and as of
the end of each of Company's fiscal years; (ii), as soon as
available, copies of all filings, reports or other documents
filed by the Company or any of its Subsidiaries with the
federal Securities and Exchange Commission or other federal
regulatory or taxing agencies or authorities in the United
States, or comparable agencies or authorities in England,
Canada, France, Germany, the Netherlands or Israel, or any
stock exchanges in such jurisdictions; and (iii) as soon as
available, so long as any obligations of the Seller under the
Stock Purchase Agreement are outstanding, the 8-K (to the
extent provided to or received by the Company), 10-Q, 10-K and
all other filings by the Seller with the federal Securities
and Exchange Commission;
(g) promptly as issued, all press releases, notices
to shareholders and all other material communications
transmitted (i) by the Company or any of its Subsidiaries or
(ii) by the Seller, so long as any obligations of the Seller
under the Stock Purchase Agreement are outstanding (but only
to the extent such communications are provided to the Company)
to the general public or to the trade or industry in which the
Company or the Seller, as the case may be, is engaged; and
(h) promptly, and in form to be satisfactory to
Agent and the requesting Bank or Banks, such other information
as Agent or any of the Banks (acting through Agent) may
request from time to time.
7.4A Tangible Net Worth. Until the Equity Offering,
maintain, and cause its Subsidiaries to maintain, Tangible Net
Worth which on a Consolidated basis will at no time be less than:
(a) from the date hereof to December 30, 1994, One Hundred
Fifty Million Dollars ($150,000,000);
(b) from December 31, 1994 to December 30, 1995, One
Hundred Seventy Five Million Dollars ($175,000,000);
and
(c) from December 31, 1995 to December 30, 1996, Two
Hundred Ten Million Dollars ($210,000,000);
<PAGE>
<PAGE> 81 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(d) from December 31, 1996 to December 30, 1997, Three
Hundred Fifty Million Dollars ($350,000,000); and
(e) from and after December 31, 1997, Three Hundred Fifty
Million Dollars ($350,000,000), plus the Net Income
Adjustment.
7.4B Tangible Net Worth. From and after the Equity Offering,
maintain, and cause its Subsidiaries to maintain, Tangible Net
Worth which on a Consolidated basis will at no time be less than:
(a) from the date hereof to December 30, 1994, Two Hundred
Fifty Million Dollars ($250,000,000);
(b) from December 31, 1994 to December 30, 1995, Two
Hundred Seventy Five Million Dollars ($275,000,000);
and
(c) from December 31, 1995 to December 30, 1996, Three
Hundred Ten Million Dollars ($310,000,000);
(d) from December 31, 1996 to December 30, 1997, Three
Hundred Fifty Million Dollars ($350,000,000); and
(e) from and after December 31, 1997, Three Hundred Fifty
Million Dollars ($350,000,000), plus the Net Income
Adjustment.
7.5A Leverage Ratio. Until the Equity Offering, maintain,
and cause its Subsidiaries to maintain, a Leverage Ratio which on
a Consolidated basis will at no time exceed:
(a) from the date hereof to December 30, 1994, 3.95 to 1.0;
(b) from December 31, 1994, to December 30, 1995, 3.65 to
1.0;
(c) from December 31, 1995, to December 30, 1996, 2.85 to
1.0;
(d) from December 31, 1996 to December 30, 1997, 2.0 to
1.0; and
(e) from and after December 31, 1997, 1.75 to 1.0.
7.5B Leverage Ratio. From and after the Equity Offering,
maintain, and cause its Subsidiaries to maintain, a Leverage Ratio
which on a Consolidated basis will at no time exceed:
(a) from the date hereof to December 30, 1994, 3.60 to 1.0;
<PAGE>
<PAGE> 82 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(b) from December 31, 1994, to December 30, 1995, 3.10 to
1.0;
(c) from December 31, 1995, to December 30, 1996, 2.40 to
1.0;
(d) from December 31, 1996 to December 30, 1997, 2.0 to
1.0; and
(e) from and after December 31, 1997, 1.75 to 1.0.
7.6 Fixed Charge Coverage Ratio. Maintain, and cause its
Subsidiaries to maintain, Fixed Charge Coverage Ratio which on a
Consolidated basis will at no time be less than:
(a) from the date hereof to December 30, 1994, 2.0
to 1.0;
(b) from December 31, 1994 to December 30, 1995,
2.15 to 1.0; and
(c) from December 31, 1995 to December 30, 1996,
3.25 to 1.0; and
(d) from and after December 31, 1996, 4.0 to 1.0.
7.7 Inspections. Permit Agent and each Bank, through their
authorized attorneys, accountants and representatives to examine
Company's and each of the Subsidiaries' books, accounts, records,
ledgers and assets and properties of every kind and description
wherever located at all reasonable times during normal business
hours, upon oral or written request of Agent; and permit Agent and
each Bank or their authorized representatives, at reasonable times
and intervals, to visit all of its offices, discuss its financial
matters with its officers and independent certified public
accountants, and by this provision Company authorizes such
accountants to discuss the finances and affairs of Company and its
Subsidiaries (provided that Company is given an opportunity to
participate in such discussions) and examine any of its or their
books and other corporate records. An examination of the records or
properties of Company or any of its Subsidiaries may require
revealment of proprietary and/or confidential data and information,
and the Agent and each of the Banks agrees upon request of the
inspected party to execute a confidentiality agreement
(satisfactory to Agent or the inspecting Bank, as the case may be,
and such party) on behalf of the Agent or such inspecting Bank and
all parties making such inspections or examinations under its
authorization; provided however that such confidentiality agreement
shall not prohibit Agent from revealing such information to Banks
or prohibit the inspecting Bank from revealing such information to
Agent or another Bank.
<PAGE>
<PAGE> 83 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
7.8 Taxes. Pay and discharge all taxes and other
governmental charges, and all material contractual obligations
calling for the payment of money, before the same shall become
overdue, unless and to the extent only that such payment is being
contested in good faith by appropriate proceedings and is reserved
for, as required by GAAP on its balance sheet, or where the failure
to pay any such matter could not have a material adverse effect on
the Company and its Subsidiaries, taken as a whole.
7.9 Further Assurances. Execute and deliver or cause to be
executed and delivered within a reasonable time following Agent's
request, and at the Company's expense, such other documents or
instruments as Agent may reasonably require to effectuate more
fully the purposes of this Agreement or the Other Loan Documents.
7.10 Insurance. Maintain insurance coverage on its physical
assets and against other business risks in such amounts and of such
types as are customarily carried by companies similar in size and
nature, consistent with prudent business judgment and then current
practice.
7.11 Indemnification. With respect to the Company, indemnify
and save each Agent and the Banks harmless from all reasonable
loss, cost, damage, liability or expenses, including reasonable
attorneys' fees and disbursements, incurred by each of the Agents
and the Banks by reason of an Event of Default or enforcing the
obligations of the Company or the Permitted Borrowers under this
Agreement, the Prior Agreements or the other Loan Documents, or in
the prosecution or defense of any action or proceeding concerning
any matter growing out of or connected with this Agreement, the
Prior Agreements or any of the other Loan Documents or any
mortgage, stock pledge or security agreement released by Agents or
the Banks from time to time hereunder or under the Prior
Agreements, other than resulting from the gross negligence or
willful misconduct of Agent or the Banks; and, with respect to each
of the Permitted Borrowers, indemnify and save each Agent and the
Banks harmless from all reasonable loss, cost, damage, liability or
expenses, including reasonable attorneys' fees and disbursements,
incurred by each of the Agents and the Banks with respect to a
Permitted Borrower by reason of an Event of Default or enforcing
the obligations of the Permitted Borrowers under this Agreement,
the Prior Agreements or the other Loan Documents or in the
prosecution or defense of any action or proceeding concerning any
matter growing out of or connected with this Agreement, the Prior
Agreements or any of the other Loan Documents or any mortgage,
stock pledge or security agreement released by Agents or the Banks
from time to time hereunder or under the Prior Agreements, other
than resulting from the gross negligence or willful misconduct of
Agent or the Banks.
7.12 Governmental and Other Approvals. Apply for, obtain
and/or maintain in effect, as applicable, all material
<PAGE>
<PAGE> 84 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
authorizations, consents, approvals, licenses, qualifications,
exemptions, filings, declarations and registrations (whether with
any court, governmental agency, regulatory authority, securities
exchange or otherwise) which are necessary in connection with the
execution, delivery and performance: (i) by the Company, of this
Agreement, the Loan Documents, or any other documents or
instruments to be executed and/or delivered by the Company in
connection therewith or herewith; and (ii) by each of the
Significant Subsidiaries, of this Agreement and the Loan Documents.
7.13 Compliance with Contractual Obligations and Laws.
Comply in all material respects with all Contractual Obligations,
and with all applicable laws, rules, regulations and orders of any
governmental authority, whether federal, state, local or foreign
(including without limitation Hazardous Materials Laws), in effect
from time to time, except to the extent that failure to comply
therewith could not reasonably be expected to have, individually or
in the aggregate, a material adverse effect on the business,
operations, property or financial or other condition of the Company
or the Permitted Borrowers and their respective Subsidiaries, taken
as a whole, and could not reasonably be expected to materially
adversely affect the ability of the Company or any of the
Significant Subsidiaries to perform their respective obligations
under any of the Loan Documents to which they are a party.
7.14 ERISA. Comply in all material respects with all
requirements imposed by ERISA as presently in effect or hereafter
promulgated or the Internal Revenue Code (or comparable laws in
applicable jurisdictions outside the United States of America
relating to foreign Pension Plans) and promptly notify Banks upon
the occurrence of any of the following events:
(a) the termination of any Pension Plan pursuant to
Subtitle C of Title IV of ERISA or otherwise (other than any
defined contribution plan not subject to Section 412 of the Code
and any Multiemployer Plan);
(b) the appointment of a trustee by a United States
District Court to administer any Pension Plan pursuant to ERISA;
(c) the commencement by the PBGC, or any successor
thereto, of any proceeding to terminate any Pension Plan;
(d) the failure of the Company or any ERISA
Affiliate to make any payment in respect of any Pension Plan
required under Section 412 of the Internal Revenue Code;
(e) the withdrawal of the Company or any ERISA
Affiliate from any Multiemployer Plan;
(f) the occurrence of an Accumulated Funding
Deficiency or a Reportable Event; or
<PAGE>
<PAGE> 85 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(g) the occurrence of a Prohibited Transaction
which could have a material adverse effect upon the Company and its
Subsidiaries, taken as a whole.
7.15 Environmental Matters.
(a) (i) Not permit any of its property (whether real or
personal, or any portion thereof) to be involved in the use,
generation, manufacture, storage, disposal or transportation of
Hazardous Material, except in compliance with Hazardous Material
Laws, and (ii) keep and maintain all of its other property (whether
real or personal, and any portion thereof) in compliance with, and
shall not cause or permit any activity at or condition of the
Collateral, or any of its other property (whether real or personal,
or any portion thereof) to be in violation of any Hazardous
Material Laws, unless the failure to comply therewith or violation
thereof will not materially adversely affect the Company and its
Subsidiaries, taken as a whole.
(b) Promptly notify the Agent in writing of: (i) any and
all enforcement, cleanup, removal or other governmental or
regulatory actions instituted or completed pursuant to any
applicable Hazardous Material Laws; (ii) any and all claims made by
any Person against the Company, any of its Subsidiaries, the
Permitted Borrowers or the Seller, or any of its other property
(whether real or personal, or any portion thereof) relating to
damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Material (provided that, until the
Target Company Acquisition, notification to Agent of claims against
the Seller shall not be required except for claims of which Company
has actual knowledge) which could reasonably be expected to have a
material adverse effect on the Company and its Subsidiaries, taken
as a whole; and (iii) Company's discovery of any occurrence or
condition on any real property or fixtures constituting a part of,
adjoining or in the vicinity of any of its property that could
cause any such property (or any part thereof) to be subject to any
material restrictions on the ownership, occupancy, transferability
or use thereof under any Hazardous Material Laws. The Agent, on
behalf of the Banks, shall have the right to join and participate
in, as a party if it or they so elect, any legal proceedings or
actions initiated in connection with any of the matters described
in subparagraphs (b) (i) or (b) (ii), above, and the Company agrees
to pay the Agent's reasonable attorneys fees in connection
therewith.
(c) Take any material remedial action as may be required
under applicable law in response to the presence of any Hazardous
Material on, under, or about any of its property (whether real or
personal, or any part thereof), and, pursuant thereto, may enter
into settlement agreements, consent decrees, or other compromises
in respect of any of the matters described in subparagraphs (b) (i)
through (iii), above, provided that, in each case, Company has
<PAGE>
<PAGE> 86 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
given Banks not less than thirty (30) days prior written notice
thereof.
(d) From and after the Target Company Acquisition, with
respect to the properties and operations of the Target Company,
commence and diligently proceed to completion with the necessary
remedial, corrective or other actions identified in the
Environmental Audits, as applicable, or as required under the Stock
Purchase Agreement, and cause the Seller (to the extent of its
obligations under the Stock Purchase Agreement) to do so, according
to the time periods specified therein, or if no time periods are so
specified, as soon as reasonably practicable; provided that
Company's obligations under this subparagraph (d) shall not reduce
or otherwise affect Company's other obligations hereunder.
(e) If the Target Company Acquisition is consummated,
provide Agent, at Company's sole expense (with copies for each of
the Banks and for Agent's counsel) on an annual basis so long as
this Agreement remains in effect, commencing on June 30, 1995 (and
on June 30th of each calendar year thereafter so long as any
obligations of the Seller or of Company or any of its Subsidiaries
shall remain outstanding under the Stock Purchase Agreement), with
reports of its internal environmental staff or its Environmental
Auditors as to the status of compliance by the parties thereto with
the environmental provisions of the Stock Purchase Agreement and
the Company's compliance with Section 7.15(d) hereof.
(f) Agent may retain (on its own behalf and on behalf of
the Banks, but at Company's sole expense) such Environmental
Auditors as reasonably necessary to evaluate and/or confirm
Company's environmental responses, reports or other matters,
including Company's compliance with Hazardous Material Laws
generally, under this Section 7.15, or elsewhere herein.
7.16 Delivery of Sfernice Authority Documents. Deliver to
Agent, on or before August 15, 1994, (a) certified copies of the
resolutions of the Board of Directors of Sfernice, S.A. authorizing
(and, to the extent necessary, ratifying) the execution and
delivery by Sfernice of the Permitted Borrowers Guaranty and (b)
such other certificates, instruments or other documents, consents,
authorizations or opinions of counsel reasonably requested by Agent
or the Majority Banks in connection therewith.
7.17 Joinder of Guarantors. Within ten (10) Business Days
from the date of the consummation of the Target Company
Acquisition, cause the Target Company and Vitramon Acquisition,
Inc. to become guarantors under, and for all purposes of, the Loan
Agreements and the Domestic Guaranty, by executing and delivering
the joinder agreement attached to the Domestic Guaranty, and to
deliver or cause to be delivered to Agent such supporting
documentation, including without limitation corporate authority
<PAGE>
<PAGE> 87 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
items, certificates and opinions of counsel, as reasonably required
by Agent and the Majority Banks.
8. NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Banks
are committed to make any Advances under this Agreement and
thereafter so long as any Indebtedness remains outstanding, it will
not, and it will not allow its Subsidiaries, without the prior
written consent of the Majority Banks, to:
8.1 Capital Structure, Business Objects or Purpose. Except
as otherwise specifically permitted under this Agreement,
(a) purchase, acquire or redeem any of its capital
stock, except for non-vested stock granted to participants
under the Vishay Stock Plans;
(b) make any material change in its capital
structure or general business objects or purpose or enter into
any business, directly or through any Subsidiary, except for
those businesses in which the Company and its Subsidiaries are
engaged on the date of this Agreement or other businesses in
the electronic components industry or which are directly
related thereto.
8.2 Limitations on Fundamental Changes. Enter into any
transaction of acquisition, merger, consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation
or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all, substantially all or any material part
of its property, business or assets, or make any material change in
its present method of conducting business, except:
(a) any Subsidiary may be merged or consolidated
with or into the Company (so long as Company shall be the
continuing or surviving corporation) or with or into any one or
more of the Permitted Borrowers (so long as a Permitted Borrower
shall be the continuing or surviving corporation);
(b) any Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company;
(c) any Domestic Subsidiary may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to any other Domestic
Subsidiary which is a 100% Subsidiary and any Foreign Subsidiary
may sell, lease, transfer or otherwise dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to any Domestic
<PAGE>
<PAGE> 88 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Subsidiary or to any other Foreign Subsidiary, provided that such
Subsidiary is a 100% Subsidiary;
(d) any Person other than a Subsidiary may merge or
consolidate with and into the Company or any 100% Subsidiary so
long as (i) the Company or such 100% Subsidiary shall be the
surviving corporation and (ii) immediately before and immediately
after giving effect to such merger or consolidation, no Default or
Event of Default shall have occurred and be continuing; and
(e) any Permitted Transfers.
8.3 Guaranties. Guarantee, endorse, or otherwise become
liable for or upon the obligations of others, except by endorsement
of cash items for deposit in the ordinary course of business and
except for (i) the Vishay Guaranty, (ii) the Domestic Guaranty;
(iii) the Permitted Borrowers Guaranty, and (iv) guaranties of
indebtedness as set forth on Schedule 8.3 attached hereto or as
permitted under Section 8.7(d) and (e) hereof.
8.4 Indebtedness. Become or remain obligated for any
indebtedness for borrowed money, or for any indebtedness incurred
in connection with the acquisition of any property, real or
personal, tangible or intangible, except:
(a) Indebtedness to Banks (or their Affiliates)
hereunder;
(b) Other indebtedness to third parties
(specifically excluding Subsidiaries, Affiliates or Joint Ventures)
issued and at all times maintained on a pari passu basis with the
Indebtedness (or on a basis subordinate thereto), provided that
such indebtedness be issued pursuant to documentation containing
covenants not more restrictive in the aggregate than the covenants
contained in this Agreement (as determined by the Company in its
reasonable discretion) and provided further, however, that
immediately before and immediately after such indebtedness is
incurred (giving effect thereto), no Default or Event of Default
has occurred and is continuing. For purposes of this Section 8.4,
the granting of Liens which are permitted under Section 8.5 hereof,
shall not be deemed to constitute the entry into more restrictive
covenants or to be other than on a pari passu basis; and
(c) Intercompany Loans, but only to the extent
permitted under the other applicable terms and limitations of this
Agreement, including but not limited to Section 8.7 hereof.
8.5 Liens. Permit or suffer any Lien to exist on any of its
properties, real, personal or mixed, tangible or intangible,
whether now owned or hereafter acquired, except:
<PAGE>
<PAGE> 89 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(a) any Lien subsequently granted by Company or any
Subsidiary in favor of Agent on behalf of Banks;
(b) purchase money security interests in fixed
assets to secure purchase money indebtedness otherwise permitted
hereunder, provided that such security interest is created
substantially contemporaneously with the acquisition of such fixed
assets and does not extend to any property other than the fixed
assets so financed, and provided further that the aggregate amount
of all such purchase money indebtedness which is secured by a
purchase money security interest outstanding at any time hereunder
shall not exceed five percent (5%) of Company's Tangible Net Worth;
(c) any lien securing third-party indebtedness
assumed pursuant to any acquisition conducted in compliance with
this Agreement, provided that such lien is limited to the property
so acquired and was not entered into, extended or renewed in
contemplation of such acquisition; and
(d) Permitted Company Encumbrances and Permitted
Encumbrances of the Subsidiaries.
8.6 Dividends. Declare or pay any dividends on or make any
other distribution with respect to (whether by reduction of
Stockholder's Equity or otherwise) any shares of its capital stock,
except for stock dividends and except for (a) cash dividends by any
100% Subsidiary to the Company or any other 100% Subsidiary
(excluding Vishay Israel) (b) cash dividends by VBG which are
reinvested in VBG by its shareholders in compliance with Section
8.7 hereof and (c) cash dividends by Draloric which are reinvested
in Draloric by VBG in compliance with Section 8.7, hereof.
8.7 Investments. Make or allow to remain outstanding any
investment (whether such investment shall be of the character of
investment in shares of stock, evidences of indebtedness or other
securities or otherwise) in, or any loans or advances to, any
Person, firm, corporation or other entity or association, other
than:
(a) Company's current stock ownership interests in
the Subsidiaries;
(b) Subject to Section 8.1(b) hereof, additional
cash investment in VBG by its shareholders or in Draloric by VBG,
which is applied by VBG or Draloric, as the case may be,
concurrently with such investment to reduce its Indebtedness under
this Agreement, the DM Loan Agreement or the Roederstein Loan
Agreement in substantially the amount of such additional
investment;
<PAGE>
<PAGE> 90 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(c) The investments, loans and/or advances in or to
Subsidiaries set forth on Schedule 8.7 hereto (in addition to any
other matters set forth in this Section 8.7);
(d) Intercompany Loans, Advances, or Investments
without regard to any repayment of such loans, advances, or
investments (other than the repayment or recovery of capital or
principal), in an aggregate amount at any time outstanding not to
exceed (absent the consent of the Majority Banks), exclusive of the
investments permitted under subsections (a) and (b) of this Section
8.7, but including any such loans, advances or investments
permitted under any other provision of this Agreement, Fifteen
Percent (15%) of Tangible Net Worth;
(e) loans, advances or investments (without regard
to any repayment of such loans, advances or investments, other than
the repayment of capital or principal) to any Joint Venture or
Subsidiary which does not constitute a 100% Subsidiary, including
without limitation (i) loans, advances or investments permitted
under any other provision of this Agreement and (ii) guaranties by
the Company or any Subsidiary (valued on the basis of the aggregate
amount of such indebtedness covered by a guaranty) of third-party
indebtedness of any such Joint Venture or non-100% Subsidiary, in
an aggregate amount at any time not to exceed five percent (5%) of
Tangible Net Worth;
(f) (i) the Target Company Acquisition, subject to
the terms and conditions of this Agreement and (ii) foreign
currency investments and other hedging instruments intended solely
to protect the Company from foreign currency fluctuations directly
related to the Target Company Acquisition;
(g) commercial paper with a minimum rating of "A-1"
(or better) by S&P or "P-1" (or better) by Moody's, full faith and
credit direct obligations of the United States of America or, with
respect to the Foreign Subsidiaries, of the central government of
the applicable jurisdiction, or any agency thereof, certificates of
deposit, and other short term investments (each of a duration of
one year or less), and interest rate swaps, foreign currency
investments and other hedging instruments in the ordinary course of
business or otherwise entered into with any Person in order to
obtain interest rate protection with respect to any Indebtedness
hereunder or under the other Loan Agreements (subject to compliance
with the other terms and conditions hereof), maintained by the
Company or any of its Subsidiaries consistent with the present
investment practices of such parties (as classified in the current
financial statements of such parties);
(h) other short term investments (excluding
investments in Subsidiaries, Affiliates or Joint Ventures) made or
maintained by any Foreign Subsidiary outside of the United States
of America in the ordinary course of its business, consistent with
<PAGE>
<PAGE> 91 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
the present investment practices of the Company and its
Subsidiaries as of the date hereof (generally, and as to the
individual and aggregate amounts and other terms thereof); and
(i) investments, whether by acquisition of shares
of Capital Stock, indebtedness or other obligations or security of,
any Person (other than a Subsidiary or an Affiliate) which is a
customer of the Company or any Subsidiary, which investment was
made in exchange for amounts owed by such customer to the Company
or any Subsidiary (and incurred in the ordinary course of business)
or as an advance on the provision of goods and services in the
ordinary course of business.
In valuing any investments, loans and advances for the purpose of
applying the limitations set forth in this Section 8.7 (except as
otherwise expressly provided herein), such investments, loans and
advances shall be taken at the original cost thereof, without
allowance for any subsequent write-offs or appreciation or
depreciation therein, but less any amount repaid or recovered on
account of capital or principal.
8.8 Accounts Receivable. Sell or assign any account, note
or trade acceptance receivable, except to Agent on behalf of the
Banks.
8.9 Transactions with Affiliates. Enter into any
transaction with any of its or their stockholders or officers or
its or their affiliates, except in the ordinary course of business
and on terms not less favorable than would be usual and customary
in similar transactions between Persons dealing at arm's length.
8.10 Operations of Vishay Israel. Permit the normal
manufacturing or other operations of Vishay Israel (or of Company
or any of its other Subsidiaries conducted in Israel) to be
interrupted, stopped or delayed for any period of fourteen (14)
consecutive days, excluding regularly scheduled vacations and
holidays in the ordinary course of such operations.
8.11 Prohibition Against Certain Restrictions. Enter into or
otherwise become subject to any agreement or arrangement (excluding
this Agreement) with any lender or other third party (i) which
prohibits, restricts or otherwise limits the ability of Company to
make loans, advances or investments to its Subsidiaries or which
prohibits, restricts or otherwise limits the ability of any
Subsidiary to make loans, advances or investments in any other
Subsidiary or (ii) which prohibits, restricts or otherwise limits
the execution, delivery or performance by Company or any Subsidiary
of any guaranty, indemnity or similar undertaking in favor of Agent
or the Banks.
8.12 Amendment of Stock Purchase Agreement. Amend, modify or
otherwise alter (or suffer to be amended, modified or altered) any
<PAGE>
<PAGE> 92 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
of the material terms and conditions of the Stock Purchase
Agreement, or waive (or permit to be waived) any provision thereof
in any material respect, without the prior written approval of
Agent and the Majority Banks. For purposes of the Stock Purchase
Agreement, any increase in the price stated therein, and any change
in or waiver of conditions contained therein which are required
under or necessary for compliance with this Agreement or the other
Loan Documents shall (without reducing the scope of this Section
8.13) be deemed to be material.
9. DEFAULTS
9.1 Events of Default. Any of the following events is an
"Event of Default":
(a) non-payment of the principal or interest, when
due, under any of the Notes issued hereunder, in accordance
with the terms thereof;
(b) Default in the payment of any money by Company
or any of the Permitted Borrowers under this Agreement (other
than as set forth in subsection (a), above), or by VBG under
the DM Loan Agreement or by Company or VBG under the
Roederstein Loan Agreement or by the Company under the Target
Company Loan Agreement (other than, in each case, as set forth
therein), within three (3) days of the date the same is due
and payable;
(c) default in the observance or performance of any
of the other conditions, covenants or agreements set forth in
this Agreement or any of the Loan Documents by any party
thereto (provided that, with respect to the covenants set
forth in Sections 7.8, 7.10, 7.12, 7.13 and 7.14 hereof, such
event has continued for thirty (30) consecutive days) or the
occurrence of any other default or Event of Default, as the
case may be hereunder or thereunder;
(d) any representation or warranty made by Company
or any of the Permitted Borrowers herein or in any instrument
submitted pursuant hereto or by any other party to the Loan
Documents proves untrue in any material adverse respect when
made; provided that, with respect to any misrepresentation or
breach of warranty arising subsequent to the date hereof under
Sections 6.7, 6.8, 6.13 through 6.15 and 6.18 of this
Agreement solely by virtue of the nature of the
representations and warranties hereunder as continuing, (i) as
to Section 6.8, hereof, any applicable cure period existing in
respect of such matters shall have expired and (ii) as to the
remaining Sections of this Agreement specified in this
subparagraph (d), such misrepresentation or breach of warranty
hereunder shall have continued for a period of thirty (30)
consecutive days;
<PAGE>
<PAGE> 93 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(e) any provision of the Vishay Guaranty, the
Domestic Guaranty or the Permitted Borrowers Guaranty shall at
any time for any reason (other than in accordance with its
terms or the terms of this Agreement) cease to be valid and
binding and enforceable against the Company or the Significant
Subsidiaries, as applicable, or the validity, binding effect
or enforceability thereof shall be contested by any Person, or
the Company or any of the Significant Subsidiaries shall deny
that it has any or further liability or obligation under the
Vishay Guaranty, the Domestic Guaranty or the Permitted
Borrowers Guaranty, as applicable, or the Vishay Guaranty, the
Domestic Guaranty or the Permitted Borrowers Guaranty shall be
terminated, invalidated or set aside or in any way cease to
give or provide to the Banks and the Agent the benefits
purported to be created thereby;
(f) default in the payment of any other obligation
of Company, its Subsidiaries or the Permitted Borrowers for
borrowed money in excess of One Million Dollars ($1,000,000)
(or the Alternative Currency equivalent thereof), individually
or in the aggregate, resulting in the acceleration thereof
prior to its expressed maturity;
(g) the rendering of any judgment or judgments for
the payment of money in excess of the sum of One Million
Dollars ($1,000,000) (or the Alternative Currency equivalent
thereof) in the aggregate against Company, any of its
Subsidiaries or any of the Permitted Borrowers, and such
judgments shall remain unpaid, unvacated, unbonded or unstayed
by appeal or otherwise for a period of thirty (30) consecutive
days, except as covered by adequate insurance with a reputable
carrier and an action is pending in which an active defense is
being made with respect thereto;
(h) any Person shall engage in any Prohibited
Transaction involving any Pension Plan, (ii) any Accumulated
Funding Deficiency, whether or not waived, shall exist with
respect to any Pension Plan or any Lien in favor of the PBGC
or a Pension Plan shall arise on the assets of the Company or
any ERISA Affiliate, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or
to terminate, any Single Employer Plan, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of
ERISA or (v) the Company or any ERISA Affiliate shall, or in
the reasonable opinion of the Majority Banks is likely to,
incur any liability in connection with a withdrawal from, or
the insolvency, bankruptcy or reorganization of, a
Multiemployer Plan and in each case in clauses (i) through (v)
above, (x) a period of sixty (60) days, or more, has elapsed
from the occurrence of such event or condition and (y) such
event or condition, together with all other such events or
<PAGE>
<PAGE> 94 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
conditions, if any, could reasonably be expected to subject
the Company or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition
of the Company and its Subsidiaries taken as a whole;
(i) (A) any one Person or group of Persons acting
in concert shall acquire or control, directly or indirectly,
whether by ownership, proxy, voting trust or otherwise, forty
percent (40%) or more of the voting power of the issued and
outstanding stock of Company, other than (x) any Person or
group of Persons beneficially owning, directly or indirectly,
as of the date hereof capital stock of the Company with 40% or
more of such voting power or (y) any Permitted Transferee; or
(B) individuals who constitute the Continuing Directors cease
for any reason to constitute at least a majority of the
Company's directors (for purposes of this Section 9.1(i)(B),
"Continuing Director" means any director who is currently a
director and any director who is nominated or elected by a
majority of Continuing Directors who are then directors);
(j) If a creditors' committee shall have been
appointed for the business of Company or any of its
Subsidiaries; or if Company or any of its Subsidiaries shall
have made a general assignment for the benefit of creditors or
shall have been adjudicated bankrupt, or shall have filed a
voluntary petition in bankruptcy or for reorganization or to
effect a plan or arrangement with creditors or shall fail to
pay its debts generally as such debts become due in the
ordinary course of business (except as contested in good faith
and for which adequate reserves are made in such party's
financial statements); or shall file an answer to a creditor's
petition or other petition filed against it, admitting the
material allegations thereof for an adjudication in bankruptcy
or for reorganization; or shall have applied for or permitted
the appointment of a receiver or trustee or custodian for any
of its property or assets; or such receiver, trustee or
custodian shall have been appointed for any of its property or
assets (otherwise than upon application or consent of Company,
or any of its Subsidiaries) and such appointment has not been
dismissed or stayed within thirty (30) days from the date of
appointment or if an order for relief or otherwise approving
any petition for reorganization of Company or any of its
Subsidiaries shall be entered and shall not be dismissed or
stayed within thirty (30) days from the date of entry thereof.
9.2 Exercise of Remedies. If an Event of Default has
occurred and is continuing hereunder: (w) the Agent shall, if
directed to do so by the Majority Banks, declare the Banks'
commitments to lend hereunder shall immediately and automatically
terminated; (x) the Agent shall, if directed to do so by the
Majority Banks, declare the entire unpaid principal Indebtedness,
<PAGE>
<PAGE> 95 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
including the Notes, immediately due and payable, without
presentment, notice or demand, all of which are hereby expressly
waived by Company and the Permitted Borrowers; (y) upon the
occurrence of any Event of Default specified in subsection 9.1 (j),
above, and notwithstanding the lack of any declaration by Agent
under preceding clauses (w) or (x), the entire unpaid principal
Indebtedness, including the Notes, shall become automatically due
and payable; and (z) the Agent shall, if directed to do so by the
Majority Banks or the Banks, as applicable (subject to the terms
hereof), exercise any remedy permitted by this Agreement, the Loan
Documents or law.
9.3 Rights Cumulative. No delay or failure of Agent and/or
Banks in exercising any right, power or privilege hereunder shall
affect such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise thereof, or
the exercise of any other power, right or privilege. The rights of
Banks under this Agreement are cumulative and not exclusive of any
right or remedies which Banks would otherwise have.
9.4 Waiver by Company of Certain Laws. To the extent
permitted by applicable law, Company and each of the Permitted
Borrowers hereby agree to waive, and do hereby absolutely and
irrevocably waive and relinquish the benefit and advantage of any
valuation, stay, appraisement, extension or redemption laws now
existing or which may hereafter exist, which, but for this
provision, might be applicable to any sale made under the judgment,
order or decree of any court, on any claim for interest on the
Notes, and further hereby irrevocably agrees to waive the right to
trial by jury with respect to any and all actions or proceedings in
which Agent or the Banks (or any of them), on one hand, and the
Company or any of the Permitted Borrowers, on the other hand, are
parties, whether or not such actions or proceedings arise out of
this Agreement or the Loan Documents, or otherwise. These waivers
have been voluntarily given, with full knowledge of the
consequences thereof.
9.5 Waiver of Defaults. No Event of Default shall be waived
by the Banks except in a writing signed by an officer of the Agent
in accordance with Section 13.11 hereof. No single or partial
exercise' of any right, power or privilege hereunder, nor any delay
in the exercise thereof, shall preclude other or further exercise
of the Banks' rights by Agent. No waiver of any Default or Event of
Default shall extend to any other or further Default or Event of
Default. No forbearance on the part of the Agent or any Bank in
enforcing any of the Banks' rights shall constitute a waiver of any
of their rights. Company and each of the Permitted Borrowers
expressly agrees that this Section may not be waived or modified by
the Banks or Agent by course of performance, estoppel or otherwise.
9.6 Cross-Default. In addition to the other Events of
Default specified herein, any failure to perform and discharge when
<PAGE>
<PAGE> 96 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
due, after allowance for any applicable cure period, any of the
obligations, covenants and agreements required to be performed
under the provisions of any instruments evidencing or securing any
other present and future borrowings of Company or any of the
Permitted Borrowers from the Banks (or from Agent) in renewal or
extension of, or related to this Agreement or any of the Loan
Documents shall be an Event of Default under the provisions of this
Agreement entitling Agent, with the consent of the Majority Banks,
(without notice or any cure period except as expressly provided
herein or therein) to exercise any and all rights and remedies
provided hereby. Any Event of Default under this Agreement or under
any of the Loan Documents shall also constitute a default under all
other instruments securing this or any other present or future
borrowings, or any agreements in relation thereto, entitling Agent
and the Banks to exercise any and all rights and remedies provided
therein.
10. PAYMENTS, RECOVERIES AND COLLECTIONS.
10.1 Payment Procedure.
(a) All payments by Company and/or by any of the
Permitted Borrowers of principal of, or interest on, the
Revolving Credit Notes, the Term Notes or of any Fees, shall
be made without setoff or counterclaim on the date specified
for payment under this Agreement not later than 11:00 a.m.
(Detroit time) in Dollars in immediately available funds to
Agent, for the ratable account of the Banks, at Agent's office
located at One Detroit Center, Detroit, Michigan 48226, in
respect of Domestic Advances. Payments made in respect of any
Advance in any Alternative Currency shall be made in such
Alternative Currency in immediately available funds for the
account of Agent's Eurocurrency Lending Office, at the Agent's
Correspondent, for the ratable account of the Banks, not later
than 11:00 a.m. (the time of Agent's Correspondent). Upon
receipt of each such payment, the Agent shall make prompt
payment to each Bank, or, in respect of Eurocurrency-based
Advances, such Bank's Eurocurrency Lending Office, in like
funds and currencies, of all amounts received by it for the
account of such Bank.
(b) Unless the Agent shall have been notified by
the Company prior to the date on which any payment to be made
by the Company or the applicable Permitted Borrower is due
that the Company or the applicable Permitted Borrower does not
intend to remit such payment, the Agent may, in its
discretion, assume that the Company has remitted such payment
when so due and the Agent may, in reliance upon such
assumption, make available to each Bank on such payment date
an amount equal to such Bank's share of such assumed payment.
If the Company or the applicable Permitted Borrower has not in
fact remitted such payment to the Agent, each Bank shall
<PAGE>
<PAGE> 97 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
forthwith on demand repay to the Agent in the applicable
currency the amount of such assumed payment made available to
such Bank, together with the interest thereon, in respect of
each day from and including the date such amount was made
available by the Agent to such Bank to the date such amount is
repaid to the Agent at a rate per annum equal to (i) for
Domestic Advances, the Federal Funds Effective Rate (daily
average), as the same may vary from time to time, and (ii)
with respect to Eurocurrency-based Advances, Agent's aggregate
marginal cost (including the cost of maintaining any required
reserves or deposit insurance and of any fees, penalties,
overdraft charges or other costs or expenses incurred by
Agent) of carrying such amount.
(c) Whenever any payment to be made hereunder
(other than payments in respect of any Eurocurrency-based
Advance) shall otherwise be due on a day which is not a
Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be
included in computing interest, if any, in connection with
such payment. Whenever any payment of principal of, or
interest on, a Eurocurrency-based Advance shall be due on a
day which is not a Business Day the date of payment thereof
shall be extended to the next succeeding Business Day unless
as a result thereof it would fall in the next calendar month,
in which case it shall be shortened to the next preceding
Business Day and, in the case of a payment of principal,
interest thereon shall be payable for such extended or
shortened time, if any.
(d) Except as otherwise provided in this Agreement
or the other Loan Documents (and subject to the terms and
conditions thereof), all payments by the Company of principal
of, or interest on, the Bid Notes shall be made to the
applicable Bank in Dollars without setoff or counterclaim on
the dates and other terms provided in such Notes.
(e) All payments to be made by the Company or any
of the Permitted Borrowers under this Agreement or any of the
Notes (including without limitation payments under the Bid
Notes) shall be made without set-off or counterclaim, as
aforesaid, and without deduction for or on account of any
present or future withholding or other taxes of any nature
imposed by any governmental authority or of any political
subdivision thereof or any federation or organization of which
such governmental authority may at the time of payment be a
member, unless Company or any of the Permitted Borrowers, as
the case may be, is compelled by law to make payment subject
to such tax. In such event, Company and the applicable
Permitted Borrowers shall:
<PAGE>
<PAGE> 98 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(i) pay to the Agent, or cause the applicable
Permitted Borrowers to pay to Agent, for
Agent's own account and/or, as the case may
be, for the account of the Banks (and, in the
case of Bid Advances, pay to the applicable
Bid Lender which funded such Advances) such
additional amounts as may be necessary to
ensure that the Agent and/or such Bank or
Banks receive a net amount in the applicable
Permitted Currency equal to the full amount
which would have been receivable had payment
not been made subject to such tax; and
(ii) remit such tax to the relevant taxing
authorities according to applicable law, and
send to the Agent or the applicable Bid
Lender, as the case may be, such certificates
or certified copy receipts as the Agent or
such Bid Lender shall reasonably require as
proof of the payment by the Company or the
applicable Permitted Borrower, of any such
taxes payable by the Company or any Permitted
Borrower.
As used herein, the terms "tax", "taxes" and "taxation"
include all existing taxes, levies, imposts, duties, charges, fees,
deductions and withholdings and any restrictions or conditions
resulting in a charge together with interest thereon and fines and
penalties with respect thereto which may be imposed by reason of
any violation or default with respect to the law regarding such
tax, assessed as a result of or in connection with the transactions
in any Alternative Currency hereunder, or the payment and or
receipt of funds in any Alternative Currency hereunder, or the
payment or delivery of funds into or out of any jurisdiction other
than the United States (whether assessed against Company, any of
the Permitted Borrowers, Agent or any of the Banks).
10.2 Application of Proceeds. Notwithstanding anything to
the contrary in this Agreement, upon the occurrence and during the
continuance of any Event of Default, any offsets or voluntary
payments by the Company, any of the Permitted Borrowers or others
and any other sums received or collected in respect of the
Indebtedness, shall be applied, first, to the Notes pro rata, based
on the aggregate Indebtedness then outstanding thereunder (or in
such other order and manner as determined by all of the Banks,
next, to any other Indebtedness on a pro rata basis (as aforesaid),
and then, if there is any excess, to the Company or the applicable
Permitted Borrower, as the case may be.
10.3 Pro-rata Recovery. If any Bank shall obtain any payment
or other recovery (whether voluntary, involuntary, by application
of offset or otherwise) on account of principal of, or interest on,
<PAGE>
<PAGE> 99 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
any of the Revolving Credit Notes or Term Notes in excess of its
pro rata share of payments then or thereafter obtained by all Banks
upon principal of and interest on all such Revolving Credit Notes
or Term Notes, such Bank shall purchase from the other Banks such
participations in the Revolving Credit Notes and Term Notes held by
them as shall be necessary to cause such purchasing Bank to share
the excess payment or other recovery ratably in accordance with the
Percentage held by each of them in such Notes; provided, however,
that if all or any portion of the excess payment or other recovery
is thereafter recovered from such purchasing holder, the purchase
shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
10.4 Deposits and Accounts. In addition to and not in
limitation of any rights of any Bank or other holder of any of the
Notes under applicable law, each Bank and each other such holder
shall, upon acceleration of the Indebtedness under the Notes and
without notice or demand of any kind, have the right to appropriate
and apply to the payment of the Notes owing to it (whether or not
then due) any and all balances, credits, deposits, accounts or
moneys of Company or any of the Permitted Borrowers then or
thereafter with such Bank or other holder; provided, however, that
any such amount so applied by any Bank or other holder on any of
the Notes owing to it shall be subject to the provisions of Section
10.3, hereof.
11. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS.
11.1 Reimbursement of Prepayment Costs. As to any Absolute
Rate Advance or Eurocurrency-based Advance, if any prepayment
thereof shall occur, whether by Company or any of the Permitted
Borrowers, on any day other than the last day of an Interest Period
(whether pursuant to this Agreement or by acceleration, or
otherwise), or if the rate applicable to such Advance shall be
changed during any Interest Period pursuant to this Agreement,
Company and the applicable Permitted Borrower shall reimburse each
of the Banks on demand for any costs incurred by such Banks as a
result of the timing thereof, including but not limited to any net
costs incurred in liquidating or employing deposits from third
parties. Each Bank demanding reimbursement under this Section 11.1
shall deliver to Company a certificate setting forth the basis for
determining such costs, which certificate shall be conclusively
presumed correct save for manifest error.
11.2 Eurocurrency Lending Office. For any Advance to which
the Eurocurrency-based Rate is applicable, if Agent or a Bank, as
applicable, shall designate a Eurocurrency Lending Office which
maintains books separate from those of the rest of Agent, Agent or
such Bank, as the case may be, shall have the option of maintaining
and carrying the relevant Advance on the books of such Eurocurrency
Lending Office.
<PAGE>
<PAGE> 100 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
11.3 Availability of Alternative Currency. The Agent and the
Banks shall not be required to make any Advance requested to be
made in an Alternative Currency if, at any time prior to making
such Advance, the Agent or the Banks (after consultation with
Agent) shall determine, in its sole discretion, that (i) deposits
in the applicable Alternative Currency in the amounts and
maturities required to fund such Advance will not be available to
the Agent and the Banks; (ii) a fundamental change has occurred in
the foreign exchange or interbank markets with respect to the
applicable Alternative Currency (including, without limitation,
changes in national or international financial, political or
economic conditions or currency exchange rates or exchange
controls); or (iii) it has become otherwise materially impractical
for the Agent or the Banks, as applicable, to make such Advance in
the applicable Alternative Currency. The Agent or the applicable
Bank, as the case may be, shall promptly notify the Company and
Banks of any such determination.
11.4 Refunding Advances in Same Currency. If pursuant to any
provisions of this Agreement, the Company or any of the Permitted
Borrowers repays one or more Advances and on the same day borrows
an amount in the same currency, the Agent (or the applicable Bank,
in the case of a Bid Advance) shall apply the proceeds of such new
borrowing to repay the principal of the Advance or Advances being
repaid and only an amount equal to the difference (if any) between
the amount being borrowed and the amount being repaid shall be
remitted by the Agent to the Company or the Permitted Borrowers, or
by the Company or the Permitted Borrowers to the Agent, as the case
may be.
11.5 Circumstances Affecting Eurocurrency-based Rate
Availability. If with respect to any Interest Period Agent or the
Banks (after consultation with Agent) shall determine that, by
reason of circumstances affecting the foreign exchange and
interbank markets generally, deposits in Eurodollars or in any
applicable Alternative Currency, as the case may be, in the
applicable amounts are not being offered to the Agent for such
Interest Period, then Agent shall forthwith give notice thereof to
the Company. Thereafter, until Agent notifies Company and the
Permitted Borrowers that such circumstances no longer exist, (i)
the obligation of Banks to make Eurocurrency-based Advances, as the
case may be (other than in any applicable Alternative Currency with
respect to which deposits are available, as required hereunder),
and the right of Company to convert an Advance to or refund an
Advance as a Eurocurrency-based Advance, as the case may be (other
than in any applicable Alternative Currency with respect to which
deposits are available, as required hereunder), shall be suspended,
and (ii) the Company shall repay in full (or cause to be repaid in
full) the then outstanding principal amount of each such
Eurocurrency-based Advance covered hereby in the applicable
Alternative Currency, together with accrued interest thereon, any
amounts payable under Section 11.8, hereof, and all other amounts
<PAGE>
<PAGE> 101 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
payable hereunder on the last day of the then current Interest
Period applicable to such Advance. Upon the date for repayment as
aforesaid and unless Company notifies Agent to the contrary within
two (2) Business Days after receiving a notice from Agent pursuant
to this Section, such outstanding principal amount shall be
converted to a Prime-based Advance as of the last day of such
Interest Period.
11.6 Laws Affecting Eurocurrency-based Advance Availability.
If, after the date hereof, the introduction of, or any change in,
any applicable law, rule or regulation or in the interpretation or
administration thereof by any governmental authority charged with
the interpretation or administration thereof, or compliance by any
of the Banks (or any of their respective Eurocurrency Lending
Offices) with any request or directive (whether or not having the
force of law) of any such authority, shall make it unlawful or
impossible for any of the Banks (or any of their respective
Eurocurrency Lending Offices) to honor its obligations hereunder to
make or maintain any Advance with interest at the Eurocurrency-
based Rate, or in an Alternative Currency, such Bank shall
forthwith give notice thereof to Company and to Agent. Thereafter,
(a) the obligations of Banks to make Eurocurrency-based Advances or
Advances in any such Alternative Currency and the right of Company
to convert an Advance or refund an Advance as a Eurocurrency-based
Advance or as an Advance in any such Alternative Currency shall be
suspended and thereafter Company may select as Applicable Interest
Rates or as Alternative Currencies only those which remain
available and which are permitted to be selected hereunder, and (b)
if any of the Banks may not lawfully continue to maintain an
Advance to the end of the then current Interest Period applicable
thereto as a Eurocurrency-based Advance or in such Alternative
Currency, the applicable Advance shall immediately be converted to
a Prime-based Advance (in the Dollar Amount thereof) and the Prime-
based Rate shall be applicable thereto for the remainder of such
Interest Period. For purposes of this Section, a change in law,
rule, regulation, interpretation or administration shall include,
without limitation, any change made or which becomes effective on
the basis of a law, rule, regulation, interpretation or
administration presently in force, the effective date of which
change is delayed by the terms of such law, rule, regulation,
interpretation or administration.
11.7 Increased Cost of Eurocurrency-based Advances. If the
adoption after the date hereof, or any change after the date hereof
in, any applicable law, rule or regulation of any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Agent or
any of the Banks (or any of their respective Eurocurrency Lending
Offices) with any request or directive (whether or not having the
force of law) made by any such authority, central bank or
comparable agency after the date hereof:
<PAGE>
<PAGE> 102 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(a) shall subject any of the Banks (or any of their
respective Eurocurrency Lending Offices) to any tax, duty or
other charge with respect to any Advance or any Note or shall
change the basis of taxation of payments to any of the Banks
(or any of their respective Eurocurrency Lending Offices) of
the principal of or interest on any Advance or any Note or any
other amounts due under this Agreement in respect thereof
(except for changes in the rate of tax on the overall net
income of any of the Banks or any of their respective
Eurocurrency Lending Offices imposed by the jurisdiction in
which such Bank's principal executive office or Eurocurrency
Lending Office is located); or
(b) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by any of the
Banks (or any of their respective Eurocurrency Lending
Offices) or shall impose on any of the Banks (or any of their
respective Eurocurrency Lending Offices) or the foreign
exchange and interbank markets any other condition affecting
any Advance or any of the Notes;
and the result of any of the foregoing is to increase the costs to
any of the Banks of maintaining any part of the Indebtedness
hereunder as a Eurocurrency-based Advance or as an Advance in any
Alternative Currency or to reduce the amount of any sum received or
receivable by any of the Banks under this Agreement or under the
Notes in respect of a Eurocurrency-based Advance or any Advance in
an Alternative Currency, whether with respect to Advances to
Company or to any of the Permitted Borrowers, then such Bank shall
promptly notify Agent (or, in the case of a Bid Advance, shall
notify Company directly, with a copy of such notice to Agent), and
Agent (or such Bank, as aforesaid) shall promptly notify Company of
such fact and demand compensation therefor and, within fifteen (15)
days after such notice, Company agrees to pay to such Bank such
additional amount or amounts as will compensate such Bank or Banks
for such increased cost or reduction. Agent will promptly notify
Company of any event of which it has knowledge which will entitle
Banks to compensation pursuant to this Section, or which will cause
Company to incur additional liability under Section 10.1(e) hereof,
provided that Agent shall incur no liability whatsoever to the
Banks or Company in the event it fails to do so. A certificate of
Agent (or such Bank, if applicable) setting forth the basis for
determining such additional amount or amounts necessary to
compensate such Bank or Banks shall be conclusively presumed to be
correct save for manifest error. For purposes of this Section, a
change in law, rule, regulation, interpretation, administration,
request or directive shall include, without limitation, any change
made or which becomes effective on the basis of a law, rule,
regulation, interpretation, administration, request or directive
<PAGE>
<PAGE> 103 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
presently in force, the effective date of which change is delayed
by the terms of such law, rule, regulation, interpretation,
administration, request or directive.
11.8 Indemnity. The Company will indemnify Agent and each of
the Banks against any loss or expense which may arise or be
attributable to the Agent's and each Bank's obtaining, liquidating
or employing deposits or other funds acquired to effect, fund or
maintain the Advances (a) as a consequence of any failure by the
Company or any of the Permitted Borrowers to make any payment when
due of any amount due hereunder in connection with an Absolute Rate
Advance or a Eurocurrency-based Advance, (b) due to any failure of
the Company or any of the Permitted Borrowers to borrow on a date
specified therefor in a Request for Advance or Bid Acknowledgment
(c) due to any payment or prepayment of any Absolute Rate Bid
Advance or Eurocurrency-based Advance on a date other than the last
day of the Interest Period for such Advance. Such loss or expense
shall be calculated based upon the present value, as applicable, of
payments due from the Company or any of the Permitted Borrowers
with respect to a deposit obtained by the Agent or any of the Banks
in order to fund such Advance to the Company or to any of the
Permitted Borrowers. The Agent's and each Bank's, as applicable,
calculations of any such loss or expense shall be furnished to the
Company and shall be conclusive, absent manifest error.
11.9 Judgment Currency. The obligation of the Company and of
the Permitted Borrowers to make payments of the principal of and
interest on the Notes and any other amounts payable hereunder in
the currency specified for such payment herein or in the Notes
shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into
any other currency, except to the extent that such tender or
recovery shall result in the actual receipt by each of the Banks of
the full amount of the particular Permitted Currency expressed to
be payable herein or in the Notes. The Agent (or the applicable
Bank, in the case of a Bid Advance) shall, using all amounts
obtained or received from the Company and from Permitted Borrowers
pursuant to any such tender or recovery in payment of principal of
and interest on the Notes, promptly purchase the applicable
Permitted Currency at the most favorable spot exchange rate
determined by the Agent to be available to it. The obligation of
the Company and of the Permitted Borrowers to make payments in the
applicable Permitted Currency shall be enforceable as an
alternative or additional cause of action solely for the purpose of
recovering in the applicable Permitted Currency the amount, if any,
by which such actual receipt shall fall short of the full amount of
the Permitted Currency expressed to be payable herein or in the
Notes.
11.10 Other Increased Costs. In the event that at any time
after the date of this Agreement any change in law such as
described in Section 11.7 hereof, shall, in the opinion of the
<PAGE>
<PAGE> 104 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Agent or any of the Banks (as certified to Agent in writing by such
Bank) require that the Revolving Credit or any other Indebtedness
or commitment under this Agreement or any of the other Loan
Agreements be treated as an asset or otherwise be included for
purposes of calculating the appropriate amount of capital to be
maintained by each of the Banks or any corporation controlling such
Banks, as the case may be, the Agent shall notify the Company. The
Company and the Agent shall thereafter negotiate in good faith an
agreement to increase the Revolving Credit Commitment Fee or other
fees payable to the Agent, for the benefit of the Banks under this
Agreement, which in the opinion of the Agent, will adequately
compensate the Banks for the costs associated with such change in
law. If such increase is approved in writing by the Company within
thirty (30) days from the date of the notice to the Company from
the Agent, the Revolving Credit Commitment Fee or other fees (if
applicable) payable by the Company under this Agreement shall,
effective from the date of such agreement, include the amount of
such agreed increase. If the Company and the Agent are unable to
agree on such an increase within thirty (30) days from the date of
the notice to the Company, the Company shall have the option,
exercised by written notice to the Agent within forty-five (45)
days from the date of the aforesaid notice to the Company from the
Agent, to terminate the Revolving Credit or other commitments if
applicable, in which event, all sums then outstanding to Banks and
to Agent hereunder shall be due and payable in full. If (a) the
Company and the Agent fail to agree on an increase in the Revolving
Credit Commitment Fee or other fees (if applicable), or (b) the
Company fails to give timely notice that it has elected to exercise
its option to terminate the Revolving Credit or other commitments,
if applicable, as set forth above, then the Revolving Credit and
such other commitments shall automatically terminate as of the last
day of the aforesaid forty-five (45) day period, in which event all
sums then outstanding to Banks and to Agent hereunder shall be due
and payable in full.
12. AGENT
12.1 Appointment of Agent. Each Bank and the holder of each
Note appoints and authorizes Agent to act on behalf of such Bank or
holder under the Loan Documents and to exercise such powers
hereunder and thereunder as are specifically delegated to or
required of Agent by the terms hereof and thereof, together with
such powers as may be reasonably incidental thereto. Each Bank
agrees (which agreement shall survive any termination of this
Agreement) to reimburse Agent for all reasonable out-of-pocket
expenses (including in-house and outside attorneys' fees) incurred
by Agent hereunder or in connection herewith or with any Default or
Event of Default or in enforcing the obligations of Company or the
Permitted Borrowers under this Agreement or the other Loan
Documents or any other instrument executed pursuant hereto, and for
which Agent is not reimbursed by Company, pro rata according to
such Bank's Percentage. Agent shall not be required to take any
<PAGE>
<PAGE> 105 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
action under the Loan Documents, or to prosecute or defend any suit
in respect of the Loan Documents, unless indemnified to its
satisfaction by the Banks against loss, costs, liability and
expense. If any indemnity furnished to Agent shall become impaired,
it may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given.
12.2 Deposit Account with Agent. Each of Company and the
Permitted Borrowers hereby authorizes Agent to charge its general
deposit account, if any, maintained with Agent for the amount of
any principal, interest, or other amounts or costs due under this
Agreement when the same becomes due and payable under the terms of
this Agreement or the Revolving Credit Notes or the Term Notes, or
any Bid Notes payable to Agent.
12.3 Exculpatory Provisions. Agent agrees to exercise its
rights and powers, and to perform its duties, as Agent hereunder
and under the Loan Documents in accordance with its usual customs
and practices in bank-agency transactions, but only upon and
subject to the express terms and conditions of Section 12, hereof
(and no implied covenants or other obligations shall be read into
this Agreement against the Agent); neither Agent nor any of its
directors, officers, employees or agents shall be liable to any
Bank for any action taken or omitted to be taken by it or them
under this Agreement or any document executed pursuant hereto, or
in connection herewith or therewith, except for its or their own
willful misconduct or gross negligence, nor be responsible for any
recitals or warranties herein or therein made by any other Person,
nor for the effectiveness, enforceability, validity or due
execution (other than its own due execution and delivery) of this
Agreement or any document executed pursuant hereto, or any security
thereunder, nor to make any inquiry respecting the performance by
Company, any of its Subsidiaries or any of the Permitted Borrowers
of its obligations hereunder or thereunder. Nor shall Agent have,
or be deemed to have, a fiduciary relationship with any Bank by
reason of this Agreement. Agent shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice,
consent, certificate, statement or writing which it believes to be
genuine and to have been presented by a proper person.
12.4 Successor Agents. Agent may resign as such at any time
upon at least 30 days prior notice to Company and all Banks. If
Agent at any time shall resign or if the office of Agent shall
become vacant for any other reason, Majority Banks shall, by
written instrument, appoint a successor Agent (satisfactory to such
Majority Banks) which shall thereupon become Agent hereunder and
shall be entitled to receive from the prior Agent such documents of
transfer and assignment as such successor Agent may reasonably
request. Such successor Agent shall succeed to all of the rights
and obligations of the retiring Agent as if originally named. The
retiring or removed Agent shall duly assign, transfer and deliver
to such successor Agent all moneys at the time held by the retiring
<PAGE>
<PAGE> 106 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
or removed Agent hereunder after deducting therefrom its expenses
for which it is entitled to be reimbursed. Upon such succession of
any such successor Agent, the retiring agent shall be discharged
from its duties and obligations hereunder, except for its gross
negligence or willful misconduct arising prior to its retirement
hereunder, and the provisions of this Section 12 shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
12.5 Loans by Agent. Agent shall have the same rights and
powers with respect to the credit extended by it and the Notes held
by it as any Bank and may exercise the same as if it were not
Agent, and the term "Bank" and, when appropriate, "holder" shall
include Agent in its individual capacity.
12.6 Credit Decisions. Each Bank acknowledges that it has,
independently of Agent and each other Bank and based on the
financial statements of Company and its Subsidiaries and such other
documents, information and investigations as it has deemed
appropriate, made its own credit decision to extend credit
hereunder from time to time. Each Bank also acknowledges that it
will, independently of Agent and each other Bank and based on such
other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions
as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any document
executed pursuant hereto.
12.7 Notices by Agent. Agent shall give prompt notice to
each Bank of its receipt of each notice or request required or
permitted to be given to Agent by Company pursuant to the terms of
this Agreement and shall promptly distribute to the Banks any
reports received from the Company or any of its Subsidiaries or the
Permitted Borrowers under the terms hereof, or other material
information or documents received by Agent, in its capacity as
Agent, from the Company, its Subsidiaries or the Permitted
Borrowers.
12.8 Agent's Fees. Commencing on September 30, 1994, and on
each succeeding anniversary date thereof until the Indebtedness has
been repaid and no commitment to fund any loan hereunder is
outstanding, the Company shall pay to Agent an annual agency fee
set forth (or to be set forth from time to time) in a letter
agreement between Company and Agent. The Agent's Fees described in
this Section 12.8 shall not be refundable under any circumstances.
12.9 Nature of Agency. The appointment of Agent as agent is
for the convenience of Banks, Company and the Permitted Borrowers
in making Advances of the Revolving Credit, the Term Loan or any
other Indebtedness of Company or the Permitted Borrowers hereunder,
and collecting fees and principal and interest on the Indebtedness.
No Bank is purchasing any Indebtedness from Agent and this
<PAGE>
<PAGE> 107 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Agreement is not intended to be a purchase or participation
agreement.
12.10 Actions; Confirmation of Agent's Authority to Act in
Event of Default. Subject to the terms and conditions of this
Agreement and to the direction of the Majority Banks, Agent is
hereby expressly authorized to act in all litigation and in all
other respects as the representative of the Banks where Agent
considers it to be necessary or desirable in order to carry out the
purposes of this Agreement or the Loan Documents. Without
necessarily accepting service of process or designating Agent to do
so in its stead, each Bank hereby agrees with each other Bank and
with Agent, without intending to confer or conferring any rights on
any other party, (a) that it shall be bound by any litigation
brought by or against Agent by the Company, any Subsidiary or any
other party in connection with the Indebtedness or any other
rights, duties or obligations arising hereunder or under this
Agreement or the Loan Documents and (b) that it now irrevocably
waives the defense of procedural impediment or failure to name or
join such Bank as an indispensable party; provided however that
each Bank reserves the right, subject to applicable law, to
intervene or otherwise appear in such litigation, and to retain its
own counsel in connection therewith. In conducting such litigation
hereunder on behalf of the Banks, Agent shall, subject to the terms
hereof, accept the direction of the Majority Banks or all Banks, as
the case may be and shall at all times be indemnified by the Banks
as provided in Sections 12.1 and 12.12 hereof. Agent shall
undertake to give each Bank prompt notice of any litigation
commenced against Agent and/or the Banks with respect to this
Agreement, the Loan Agreement or the Loan Documents or any matter
referred to herein or therein.
12.11 Authority of Agent to Enforce Notes and This Agreement.
Each Bank, subject to the terms and conditions of this Agreement
(including without limitation Sections 12.10, 12.14 and 12.15
hereof), authorizes the Agent with full power and authority as
attorney-in-fact to institute and maintain actions, suits or
proceedings for the collection and enforcement of the Notes and to
file such proofs of debt or other documents as may be necessary to
have the claims of the Banks allowed in any proceeding relative to
the Company, any of its Subsidiaries, any of the Permitted
Borrowers or its creditors or affecting its properties, and to take
such other actions which Agent considers to be necessary or
desirable for the protection, collection and enforcement of the
Notes, this Agreement or the other Loan Documents.
12.12 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such, to the extent not reimbursed by the
Company, pro rata according to their respective Percentages, from
and against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed
<PAGE>
<PAGE> 108 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
on, incurred by, or asserted against the Agent in any way relating
to or arising out of this Agreement or any of the other Loan
Documents or any action taken or omitted to be taken or suffered in
good faith by the Agent hereunder, provided that no Bank shall be
liable for any portion of any of the foregoing items resulting from
the gross negligence or willful misconduct of the Agent or any of
its officers, employees, directors or agents.
12.13 Knowledge of Default. It is expressly understood and
agreed that the Agent shall be entitled to assume that no Default
or Event of Default has occurred and is continuing, unless the
officers of the Agent immediately responsible for matters
concerning this Agreement shall have actual (rather than
constructive) knowledge of such occurrence or shall have been
notified in writing by a Bank that such Bank considers that a
Default or an Event of Default has occurred and is continuing, and
specifying the nature thereof. Upon obtaining actual knowledge of
any Default or Event of Default as described above, the Agent shall
promptly, but in any event within three (3) Business Days after
obtaining knowledge thereof, notify each Bank of such Default or
Event of Default and the action, if any, the Agent proposes be
taken with respect thereto.
12.14 Agent's Authorization; Action by Banks. Except as
otherwise expressly provided herein, whenever the Agent is
authorized and empowered hereunder on behalf of the Banks to give
any approval or consent, or to make any request, or to take any
other action on behalf of the Banks (including without limitation
the exercise of any right or remedy hereunder or under the other
Loan Documents), the Agent shall be required to give such approval
or consent, or to make such request or to take such other action
only when so requested in writing by the Majority Banks or the
Banks, as applicable hereunder. Action that may be taken by
Majority Banks or all of the Banks, as the case may be (as provided
for hereunder) may be taken (i) pursuant to a vote at a meeting
(which may be held by telephone conference call) as to which all of
the Banks have been given reasonable advance notice, or (ii)
pursuant to the written consent of the requisite Percentages of the
Banks as required hereunder, provided that all of the Banks are
given reasonable advance notice of the requests for such consent.
12.15 Enforcement Actions by the Agent. Except as otherwise
expressly provided under this Agreement or in any of the other Loan
Documents and subject to the terms hereof, Agent will take such
action, assert such rights and pursue such remedies under this
Agreement and the other Loan Documents as the Majority Banks or all
of the Banks, as the case may be (as provided for hereunder), shall
direct. Except as otherwise expressly provided in any of the Loan
Documents, Agent will not (and will not be obligated to) take any
action, assert any rights or pursue any remedies under this
Agreement or any of the other Loan Documents in violation or
contravention of any express direction or instruction of the
<PAGE>
<PAGE> 109 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Majority Banks or all of the Banks, as the case may be (as provided
for hereunder). Agent may refuse (and will not be obligated) to
take any action, assert any rights or pursue any remedies under
this Agreement or any of the other Loan Documents in the absence of
the express written direction and instruction of the Majority Banks
or all of the Banks, as the case may be (as provided for
hereunder). In the event Agent fails, within a commercially
reasonable time, to take such action, assert such rights, or pursue
such remedies as the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall direct in conformity
with this Agreement, the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall have the right to
take such action, to assert such rights, or pursue such remedies on
behalf of all of the Banks unless the terms hereof otherwise
require the consent of all the Banks to the taking of such actions
(in which event all of the Banks must join in such action). Except
as expressly provided above or elsewhere in this Agreement or the
other Loan Documents, no Bank (other than the Agent, acting in its
capacity as Agent) shall be entitled to take any enforcement action
of any kind under any of the Loan Documents.
Co-Agent and Lead Managers. NationsBank has been
designated by the Company as "Co-Agent" and BHF and Signet have
been designated by the Company as "Lead Managers" under this
Agreement. Other than its rights and remedies as a Bank hereunder,
each such Co-Agent and Lead Manager shall have no administrative,
collateral or other rights or responsibilities, provided, however,
that each such Co-Agent and Lead Manager shall be entitled to the
benefits afforded to Agent under Sections 12.5 and 12.6 hereof.
13. MISCELLANEOUS
13.1 Accounting Principles. Where the character or amount of
any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, it shall
be done in accordance with GAAP.
13.2 Consent to Jurisdiction. The Company and each Permitted
Borrower hereby irrevocably submits to the non-exclusive
jurisdiction of any United States Federal or Michigan state court
sitting in Detroit in any action or proceeding arising out of or
relating to this Agreement or any of the Loan Documents and the
Company and each Permitted Borrower hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and
determined in any such United States Federal or Michigan state
court. Each of the Permitted Borrowers irrevocably appoints the
Company as its agent for service of process. The Company and each
Permitted Borrower irrevocably consents to the service of any and
all process in any such action or proceeding brought in any court
in or of the State of Michigan by the delivery of copies of such
process to the Company at its address specified on the signature
<PAGE>
<PAGE> 110 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
page hereto or by certified mail directed to such address. Nothing
in this Section shall affect the right of the Banks and the Agent
to serve process in any other manner permitted by law or limit the
right of the Banks or the Agent (or any of them) to bring any such
action or proceeding against the Company or any of the Permitted
Borrowers or any of its or their property in the courts of any
other jurisdiction. The Company and each Permitted Borrower hereby
irrevocably waives any objection to the laying of venue of any such
suit or proceeding in the above described courts.
13.3 Law of Michigan. This Agreement, the Notes and the
other Loan Documents executed have been delivered at Detroit,
Michigan, and shall be governed by and construed and enforced in
accordance with the laws of the State of Michigan, except as and to
the extent expressed to the contrary in any of the Loan Documents.
Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
13.4 Interest. In the event the obligation of the Company or
any of the Permitted Borrowers to pay interest on the principal
balance of the Notes is or becomes in excess of the maximum
interest rate which the Company is permitted by law to contract or
agree to pay, giving due consideration to the execution date of
this Agreement, then, in that event, the rate of interest
applicable with respect to such Bank's Percentage shall be deemed
to be immediately reduced to such maximum rate and all previous
payments in excess of the maximum rate shall be deemed to have been
payments in reduction of principal and not of interest.
13.5 Closing Costs; Other Costs. Company shall pay or
reimburse Agent for payment of, on demand (a) all closing costs and
expenses, including, by way of description and not limitation, in-
house and outside attorney fees and advances, appraisal and
accounting fees, title and lien search fees, and required travel
costs, incurred by Agent in connection with the commitment,
consummation and closing of the loans contemplated hereby, or in
connection with any refinancing or restructuring of the loans or
advances provided under this Agreement or the other Loan Documents,
or any amendment thereof requested by Company, or in connection
with the release of the Collateral under the Prior Loan Agreements
pursuant to Section 13.22 hereof; and (b) all stamp and other taxes
and fees payable or determined to be payable in connection with the
execution, delivery, filing or recording of this Agreement and the
Loan Documents and the consummation of the transactions
contemplated hereby, and any and all liabilities with respect to or
resulting from any delay in paying or omitting to pay such taxes or
fees, and in connection with any releases or discharges of the
<PAGE>
<PAGE> 111 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Collateral under the Prior Loan Agreements pursuant to Section
13.22 hereof. Furthermore, all reasonable costs and expenses,
including without limitation attorney fees, and costs and expenses
to Environmental Auditors retained by Agent hereunder, incurred by
Agent in revising, preserving, protecting, exercising or enforcing
any of its or any of the Banks' rights against Company or any of
the Permitted Borrowers, or otherwise incurred by Agent and the
Banks (using a single law firm retained by Agent, with the approval
of the Majority Banks) in connection with any Event of Default or
the enforcement of the loans (whether incurred through
negotiations, legal proceedings or otherwise), including by way of
description and not limitation, such charges in any court or
bankruptcy proceedings or arising out of any claim or action by any
person against Agent or any Bank which would not have been asserted
were it not for Agent's or such Bank's relationship with Company
and the Permitted Borrowers hereunder or otherwise, shall also be
paid by Company and the Permitted Borrowers. All of said amounts
required to be paid by Company hereunder and not paid forthwith
upon demand, as aforesaid, shall bear interest, from the date
incurred to the date payment is received by Agent, at the Prime-
based Rate, plus three percent (3%).
13.6 Notices. Except as otherwise provided herein, all
notices or demand hereunder to the parties hereto shall be
sufficient if made in writing and delivered by messenger or
deposited in the mail, postage prepaid, certified mail, and
addressed to the parties as set forth on the signature pages of
this Agreement and to Permitted Borrowers at the Company's address.
Any notice or demand given to the Company hereunder shall be deemed
given to the Permitted Borrowers, whether or not said notice or
demand is addressed to or received by the Permitted Borrowers.
13.7 Further Action. Company, from time to time, upon
written request of Agent will make, execute, acknowledge and
deliver or cause to be made, executed, acknowledged and delivered,
all such further and additional instruments, and take all such
further action as may be required to carry out the intent and
purpose of this Agreement, and to provide for Advances under and
payment of the Notes, according to the intent and purpose herein
and therein expressed.
13.8 Successors and Assigns; Assignments and Participations.
(a) This Agreement shall be binding upon and shall
inure to the benefit of Company (and the Permitted Borrowers) and
the Banks and their respective successors and assigns.
(b) The foregoing shall not authorize any
assignment by Company, or any of the Permitted Borrowers, of its
rights or duties hereunder, and no such assignment shall be made
(or effective) without the prior written approval of the Banks.
<PAGE>
<PAGE> 112 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
(c) The Company and Agent acknowledge that each of
the Banks may at any time and from time to time, subject to the
terms and conditions hereof, assign or grant participations in such
Bank's rights and obligations hereunder and under the other Loan
Documents to any commercial bank, savings and loan association,
insurance company, pension fund, mutual fund, commercial finance
company or other similar financial institution, the identity of
which institution is approved by Company and Agent, such approval
not to be unreasonably withheld or delayed; provided, however, that
(i) the approval of Company shall not be required upon the
occurrence and during the continuance of a Default or Event of
Default and (ii) the approval of Company and Agent shall not be
required for any such sale, transfer, assignment or participation
to the Affiliate of an assigning Bank, any other Bank or any
Federal Reserve Bank; and provided further that the aggregate
assignments and participation interests sold by a Bank (other than
pursuant to subparagraph (ii) of this Section 13.8(c)) do not
exceed fifty percent (50%) of its original interest therein. The
Company authorizes each Bank to disclose to any prospective
assignee or participant, once approved by Company and Agent, any
and all financial information in such Bank's possession concerning
the Company which has been delivered to such Bank pursuant to this
Agreement; provided that each such prospective participant shall
execute a confidentiality agreement consistent with the terms of
Section 13.13, hereof.
(d) Each assignment by a Bank of any portion of its
rights and obligations hereunder and under the other Loan Documents
shall be made pursuant to an Assignment Agreement substantially (as
determined by Agent) in the form attached hereto as Exhibit "I"
(with appropriate insertions acceptable to Agent) and shall be
subject to the terms and conditions hereof, and to the following
restrictions:
(i) each assignment shall cover all of the Notes
issued by Company and its Subsidiaries
hereunder and the notes issued by the Company
or any of its Subsidiaries under the other
Loan Agreements (and not any particular note
or notes), and shall be for a fixed and not
varying percentage thereof, with the same
percentage applicable to each such Note;
(ii) each assignment shall be in a minimum amount
of Ten Million Dollars ($10,000,000) or, as
applicable, the Alternative Currency
equivalent thereof;
(iii) no assignment shall violate any "blue sky" or
other securities law of any jurisdiction or
shall require the Company or any other Person
to file a registration statement or similar
<PAGE>
<PAGE> 113 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
application with the United States Securities
and Exchange Commission (or similar state
regulatory body) or to qualify under the "blue
sky" or other securities laws of any
jurisdiction; and
(iv) no assignment shall be effective unless Agent
has received from the assignee (or from the
assigning Bank) an assignment fee of $3,500
for each such assignment.
In connection with any assignment, Company and Agent shall be
entitled to continue to deal solely and directly with the assigning
Bank in connection with the interest so assigned until (x) the
Agent shall have received a notice of assignment duly executed by
the assigning Bank and an Assignment Agreement (with respect
thereto) duly executed by the assigning Bank and each assignee; and
(y) the assigning Bank shall have delivered to the Agent the
original of each Note held by the assigning Bank under the Loan
Agreements. From and after the date on which the Agent shall
notify Company and the assigning Bank that the foregoing conditions
shall have been satisfied and all consents (if any) required shall
have been given, the assignee thereunder shall be deemed to be a
party to this Agreement and the other Loan Agreements. To the
extent that rights and obligations hereunder shall have been
assigned to such assignee as provided in such notice of assignment
(and Assignment Agreement), such assignee shall have the rights and
obligations of a Bank under this Agreement (including without
limitation the right to receive fees payable hereunder in respect
of the period following such assignment). In addition, the
assigning Bank, to the extent that rights and obligations hereunder
shall have been assigned by it as provided in such notice of
assignment (and Assignment Agreement), but not otherwise, shall
relinquish its rights and be released from its obligations under
this Agreement.
Within five (5) business days following Company's receipt of notice
from the Agent that Agent has accepted and executed a notice of
assignment and the duly executed Assignment Agreement, Company and
the Permitted Borrowers shall, to the extent applicable, execute
and deliver to the Agent in exchange for any surrendered Note, new
Note(s) payable to the order of the assignee in an amount equal to
the amount assigned to it pursuant to such notice of assignment
(and Assignment Agreement), and with respect to the portion of the
Indebtedness retained by the assigning Bank, to the extent
applicable, a new Note payable to the order of the assigning Bank
in an amount equal to the amount retained by such Bank hereunder
shall be executed and delivered by the Company and the Permitted
Borrowers. Agent, the Banks and the Company (and the Permitted
Borrowers) acknowledge and agree that any such new Note(s) shall be
given in renewal and replacement of the surrendered Notes and shall
not effect or constitute a novation or discharge of the
<PAGE>
<PAGE> 114 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Indebtedness evidenced by any surrendered Note, and each such new
Note shall contain a provision confirming such agreement. In
addition, promptly following receipt of such Notes, Agent shall
prepare and distribute to Company, the Permitted Borrowers and each
of the Banks a revised Exhibit G to this Agreement and a comparable
revised exhibit to each of the other Loan Agreements setting forth
the applicable new Percentages of the Banks (including the assignee
Bank), taking into account such assignment.
(e) Each Bank agrees that any participation
agreement permitted hereunder shall comply with all applicable laws
and shall be subject to the following restrictions (which shall be
set forth in the applicable Participation Agreement):
(i) such Bank shall remain the holder of its Notes
hereunder, notwithstanding any such
participation;
(ii) except as expressly set forth in this Section
13.8(e) with respect to rights of setoff and
the benefits of Section 11 hereof, a
participant shall have no direct rights or
remedies hereunder;
(iii) a participant shall not reassign or transfer,
or grant any sub-participations in its
participation interest hereunder or any part
thereof; and
(iv) such Bank shall retain the sole right and
responsibility to enforce the obligations of
the Company relating to the Notes and Loan
Documents, including, without limitation, the
right to proceed against any Guaranties, or
cause Agent to do so (subject to the terms and
conditions hereof), and the right to approve
any amendment, modification or waiver of any
provision of this Agreement without the
consent of the participant, except for those
matters covered by Section 13.11(a) through
(d) and (h) hereof (provided that a
participant may exercise approval rights over
such matters only on an indirect basis, acting
through such Bank, and Company, Agent and the
other Banks may continue to deal directly with
such Bank in connection with such Bank's
rights and duties hereunder), and shall
otherwise be in form satisfactory to Agent.
Company agrees that each participant shall be deemed to have the
right of setoff under Section 10.4 hereof (and under the comparable
terms of the other Loan Agreements), in respect of its
<PAGE>
<PAGE> 115 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
participation interest in amounts owing under this Agreement and
the Loan Documents to the same extent as if the Indebtedness were
owing directly to it as a Bank under this Agreement, shall be
subject to the pro rata recovery provisions of Section 10.3 hereof
(and under the comparable terms of the other Loan Agreements), and
that each participant shall be entitled to the benefits of Section
11 hereof (and under the comparable terms of the other Loan
Agreements). The amount, terms and conditions of any participation
shall be as set forth in the participation agreement between the
issuing Bank and the Person purchasing such participation, and
none of the Company, the Agent and the other Banks shall have any
responsibility or obligation with respect thereto, or to any
Person to whom any such participation may be issued. No such
participation shall relieve any issuing Bank of any of its
obligations under this Agreement or any of the other Loan
Documents, and all actions hereunder shall be conducted as if no
such participation had been granted.
(f) Nothing in this Agreement, the Loan Documents
or the Notes, expressed or implied, is intended to or shall confer
on any Person other than the respective parties hereto and thereto
and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or
other claim under this Agreement, the Notes or the other Loan
Documents.
13.9 Indulgence. No delay or failure of Agent and the Banks
in exercising any right, power or privilege hereunder shall affect
such right, power or privilege nor shall any single or partial
exercise thereof preclude any further exercise thereof, nor the
exercise of any other right, power or privilege. The rights of
Agent and the Banks hereunder are cumulative and are not exclusive
of any rights or remedies which Agent and the Banks would otherwise
have.
13.10 Counterparts. This Agreement may be executed in several
counterparts, and each executed copy shall constitute an original
instrument, but such counterparts shall together constitute but one
and the same instrument.
13.11 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or any Loan Document, nor consent to
any departure by the Company or any of the Permitted Borrowers
therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Majority Banks, 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 no
amendment, waiver or consent shall, unless in writing and signed by
all the Banks, do any of the following: (a) increase any commitment
of the Banks hereunder or subject the Banks to any additional
commitments or other obligations, (b) reduce or forgive the
principal of, or interest on, the Notes or any fees or other
<PAGE>
<PAGE> 116 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
amounts payable hereunder, (c) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, (d) waive any Event of Default
specified in Sections 9.1(a) or (b) hereof (provided that if, at
the relevant time, only Bid Advances are outstanding hereunder, the
prior written approval of all Banks shall be required to waive,
whether by consent, waiver or amendment, any Event of Default under
this Agreement), (e) release or defer the granting or perfecting of
a lien or security interest in any collateral or release any
guaranty or similar undertaking provided by any Person, except in
each case as shall be otherwise expressly provided in this
Agreement or any Loan Document, (f) take any action which requires
the signing of all Banks pursuant to the terms of this Agreement or
any Loan Document, (g) change the definitions of "Majority Banks",
"Interest Periods" or "Alternative Currencies", (h) change the
aggregate unpaid principal amount of the Notes which shall be
required for the Banks or any of them to take any action under this
Agreement or any Loan Document, or (i) change Section 13.21 hereof
or this Section 13.11, and provided further, however, that no
amendment, waiver, or consent shall, unless in writing and signed
by the Agent in addition to all the Banks, affect the rights or
duties of the Agent under this Agreement or any Loan Document. All
references in this Agreement to "Banks" or "the Banks" shall refer
to all Banks, unless expressly stated to refer to Majority Banks.
13.12 Taxes and Fees. Should any tax (other than a tax based
upon the net income of any Bank or Agent), recording or filing fee
become payable in respect of this Agreement or any of the Loan
Documents or any amendment, modification or supplement hereof or
thereof, the Company agrees to pay the same together with any
interest or penalties thereon and agrees to hold the Agent and the
Banks harmless with respect thereto.
13.13 Confidentiality. Each Bank agrees that it will not
disclose without the prior consent of the Company (other than to
its employees, to another Bank or to its auditors or counsel) any
confidential information with respect to the Company or any of its
Subsidiaries which is furnished pursuant to this Agreement or any
of the Loan Documents; provided that any Bank may disclose any such
information (a) as has become generally available to the public or
has been lawfully obtained by such Bank from any third party not
known by such Bank to be under any duty of confidentiality to the
Company, (b) as may be required or appropriate in any report,
statement or testimony submitted to, or in respect to any inquiry,
by, any municipal, state or federal regulatory body having or
claiming to have jurisdiction over such Bank, including the Board
of Governors of the Federal Reserve System of the United States or
the Federal Deposit Insurance Corporation or similar organizations
(whether in the United States or elsewhere) or their successors,
(c) as may be required or appropriate in respect to any summons or
subpoena or in connection with any litigation, (d) in order to
comply with any law, order, regulation or ruling applicable to such
<PAGE>
<PAGE> 117 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Bank, and (e) to any permitted transferee or assignee or to any
approved participant of, or with respect to, the Notes, as
aforesaid.
13.14 Withholding Taxes. If any Bank is not incorporated
under the laws of the United States or a state thereof, such Bank
shall promptly deliver to the Agent two executed copies of (i)
Internal Revenue Service Form 1001 specifying the applicable tax
treaty between the United States and the jurisdiction of such
Bank's domicile which provides for the exemption from withholding
on interest payments to such Bank, (ii) Internal Revenue Service
Form 4224 evidencing that the income to be received by such Bank
hereunder is effectively connected with the conduct of a trade or
business in the United States or (iii) other evidence satisfactory
to the Agent that such Bank is exempt from United States income tax
withholding with respect to such income. Such Bank shall amend or
supplement any such form or evidence as required to insure that it
is accurate, complete and non-misleading at all times. Promptly
upon notice from the Agent of any determination by the Internal
Revenue Service that any payments previously made to such Bank
hereunder were subject to United States income tax withholding when
made, such Bank shall pay to the Agent the excess of the aggregate
amount required to be withheld from such payments over the
aggregate amount actually withheld by the Agent. In addition, from
time to time upon the reasonable request and at the sole expense of
the Company or any Permitted Borrower, each Bank and the Agent
shall (to the extent it is able to do so based upon applicable
facts and circumstances), complete and provide the Company or any
Permitted Borrower with such forms, certificates or other documents
as may be reasonably necessary to allow the Company or any
Permitted Borrower, as applicable, to make any payment under this
Agreement or the other Loan Documents without any withholding for
or on the account of any tax under Section 10.1(e) hereof (or with
such withholding at a reduced rate), provided that the execution
and delivery of such forms, certificates or other documents does
not adversely affect or otherwise restrict the right and benefits
(including without limitation economic benefits) available to such
Bank or the Agent, as the case may be, under this Agreement or any
of the other Loan Documents, or under or in connection with any
transactions not related to the transactions contemplated hereby.
13.15 Effective Upon Execution. This Agreement shall become
effective upon the execution hereof by Banks, Agent and the Company
and the issuance by the Company and the Permitted Borrowers, as
applicable, of the Revolving Credit Notes, and the Term Notes
hereunder, and shall remain effective until the Indebtedness has
been repaid and discharged in full and no commitment to extend any
credit hereunder or under any of the other Loan Agreements remains
outstanding.
13.16 Severability. In case any one or more of the
obligations of the Company or any of the Permitted Borrowers under
<PAGE>
<PAGE> 118 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
this Agreement, the Notes or any of the other Loan Documents shall
be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining obligations
of the Company or any of the Permitted Borrowers shall not in any
way be affected or impaired thereby, and such invalidity,
illegality or unenforceability in one jurisdiction shall not affect
the validity, legality or enforceability of the obligations of the
Company or any of the Permitted Borrowers under this Agreement, the
Notes or any of the other Loan Documents in any other jurisdiction.
13.17 Table of Contents and Headings. The table of contents
and the headings of the various subdivisions hereof are for
convenience of reference only and shall in no way modify or affect
any of the terms or provisions hereof.
13.18 Construction of Certain Provisions. If any provision of
this Agreement or any of the Loan Documents refers to any action to
be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is
taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
13.19 Independence of Covenants. Each covenant hereunder
shall be given independent effect (subject to any exceptions stated
in such covenant) so that if a particular action or condition is
not permitted by any such covenant (taking into account any such
stated exception), the fact that it would be permitted by an
exception to, or would be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default or an
Event of Default if such action is taken or such condition exists.
13.20 Reliance on and Survival of Various Provisions. All
terms, covenants, agreements, representations and warranties of the
Company or any party to any of the Loan Documents made herein or in
any of the Loan Documents or in any certificate, report, financial
statement or other document furnished by or on behalf of the
Company, any such party in connection with this Agreement or any of
the Loan Documents shall be deemed to have been relied upon by the
Banks, notwithstanding any investigation heretofore or hereafter
made by any Bank or on such Bank's behalf, and those covenants and
agreements of the Company and the Permitted Borrowers set forth in
Section 11.8 hereof (together with any other indemnities of the
Company or the Permitted Borrowers contained elsewhere in this
Agreement or in any of the Loan Documents) and of Banks set forth
in Section 13.13 hereof shall survive the repayment in full of the
Indebtedness and the termination of any commitments to make
Advances hereunder.
13.21 Release of Guaranties. Upon the prior written request
of Company to Agent following the satisfaction of the conditions
set forth in this Section 13.21, Banks and the Agent agree, if
Company obtains an S&P Rating of BBB- (or higher quality) or a
<PAGE>
<PAGE> 119 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
Moody's Rating of Baa3 (or higher quality) and such rating is then
in effect, to release the Domestic Guaranty and the Permitted
Borrowers Guaranty, and the Guarantors' obligations thereunder;
provided, however, that:
(a) no Default or Event of Default shall have occurred and
be continuing on the date of Company's request
hereunder, and as of the effective date of such
release; and
(b) concurrently with the release of such guaranties by
Banks and Agent, the Company has irrevocably paid and
discharged in full all Indebtedness outstanding under
the Acquisition Loans on such date and has irrevocably
cancelled any and all further commitments of Agent or
the Banks to make further Advances thereof.
13.22 Release of Collateral under Prior Loan Agreements.
Agent and the Prior Banks acknowledge and agree that the Collateral
obtained by them from Company and its Subsidiaries, as applicable,
under the Prior Loan Agreements shall be released and discharged
(at Company's sole expense) as soon as reasonably practicable
following the execution and delivery of this Agreement.
13.23 Complete Agreement. This Agreement, the Notes, any
Requests for Advance hereunder, the other Loan Documents and any
agreements, certificates, or other documents given to secure the
Indebtedness and the Commitment Letter, contain the entire
agreement of the parties hereto (provided that in the event of any
inconsistency between this Agreement and the other Loan Documents,
on one hand, and the Commitment Letter, on the other hand, this
Agreement and the other Loan Documents shall control), and none of
the parties hereto shall be bound by anything not expressed in
writing.
<PAGE>
<PAGE> 120 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
WITNESS the due execution hereof as of the day and year first
above written.
COMPANY: AGENT:
VISHAY INTERTECHNOLOGY, INC. COMERICA BANK, As Agent
By:_________________________ By:________________________
Its: Vice President Its: Vice President
63 Lincoln Highway One Detroit Center
Malvern, Pennsylvania 19355 500 Woodward Avenue
Detroit, Michigan 48226
Attention: National Division
<PAGE>
<PAGE> 121 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
BANKS:
COMERICA BANK
By:__________________________
Its:_________________________
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: National Division
Telex: 235808
Fax No.: (313) 222-3330
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:__________________________
Its:_________________________
NationsBank Corporate Center
100 North Tryon Street
NC 1007-08-04
Charlotte, NC 28255-0086
Attn: Mr. M. Gregory Seaton
Telex: 669959
Fax No.: (704) 386-3271
BERLINER HANDELS-UND FRANKFURTER
BANK KGaA
By: ____________________________
Its: ___________________________
Bockenheimer Landstr. 10
60323 Frankfurt/Main 1
Germany
Attn: Mr. Hans-Jurgen Scholz
Telex: 411 026
Fax No.: 4969/718-3011
<PAGE>
<PAGE> 122 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
BANK HAPOALIM, B.M.
By:__________________________
Its:_________________________
3 Penn Center Plaza
Philadelphia, Pennsylvania 19102
Attn: Mr. Andrew Niesen
Telex: 902022
Fax No.: (215) 665-2217
SIGNET BANK/MARYLAND
By:__________________________
Its:_________________________
7 St. Paul Street
Baltimore, Maryland 21202
Attn: Ms. Janice E. Godwin
Telex: 87638
Fax No.: (301) 625-6365
CORESTATES BANK, N.A.,
formerly known as and continuing
to do business under the name of
THE PHILADELPHIA NATIONAL BANK
By:__________________________
Its:_________________________
1345 Chestnut Street
F.C. 1-8-3-14
Philadelphia, Pennsylvania 19107
Attn: Mr. James A. Bennett
Telex: 845400
Fax No.: (215) 973-7820
<PAGE>
<PAGE> 123 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
BANK LEUMI le-ISRAEL, B.M.
By:__________________________
Its:_________________________
1511 Walnut Street
Philadelphia, Pennsylvania 19102
Attn: Mr. Joseph A. McBride
Telex: 173090
Fax No.: (215) 563-8688
MERIDIAN BANK
By:__________________________
Its:_________________________
1650 Market Street
Suite 3600
Philadelphia, Pennsylvania 19103
Attn: Mr. John M. Fessick
Telex: 173003
Fax No.: (215) 854-3774
ABN AMRO BANK N.V. NEW YORK BRANCH
By:__________________________
Its:_________________________
and
By:__________________________
Its:_________________________
500 Park Avenue
Second Floor
New York, New York 10022
Attn: Mr. James B. Sieger
Telex: 423721
Fax No.: (212) 759-4792
<PAGE>
<PAGE> 124 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
CREDIT LYONNAIS NEW YORK BRANCH
By:__________________________
Its:_________________________
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Steve Levi
Telex:
Fax No.: (212) 459-3179
CREDIT SUISSE
By:__________________________
Its:_________________________
And By:______________________
Its:_________________________
_____________________________
_____________________________
_____________________________
12 East 49th Street
New York, New York 10017
Attn: Ms. Eileen O'Connell Fox
Telex: 420149
Fax No.: (212) 238-5389
<PAGE>
<PAGE> 125 -- Exhibit 10.1 ($302,000,000 Loan Agreement)
<TABLE>
<CAPTION>
SCHEDULE 4.1 (VISHAY LOAN AGREEMENT)
Pricing Matrix (Determination of Pricing Levels)
Applicable Margin
Applicable Margin for Advances for Advances
for the Revolving Credit of the Term Loan Applicable Fee Percentage For
- ----------------------------------------------------------------------------------------------------------------------------------
Revolving Credit
Commitment Fee on
Prime-based Eurocurrency- Prime-based Eurocurrency- Revolving Credit Revolving Credit
Rate based Rate Rate based Rate Facility Fee Designated Portion
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
If Leverage Ratio is less than or
equal to 1.5:1.0
OR
If Rating Level 1 is in effect 0.00% .375% 0.00% .625% .125% .0625%
- ----------------------------------------------------------------------------------------------------------------------------------
If Leverage Ratio is greater than
1.5:1.0, but less than or equal to
2.0:1.0
OR
If Rating Level 2 is in effect 0.00% .4875% 0.00% .75% .1375% .0750%
- ----------------------------------------------------------------------------------------------------------------------------------
If Leverage Ratio is greater than
2.0:1.0, but less than or equal to
3.9:1.0
OR
If Rating Level 3 is in effect 0.00% .5625% 0.00% .875% .1875% .1250%
- ----------------------------------------------------------------------------------------------------------------------------------
If Leverage Ratio is greater than
3.9:1.0
OR
If Rating Level 4 is in effect .125% .6375% .125% 1.125% .3125% .25%
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<PAGE> 126 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "A"
REQUEST FOR ADVANCE
A. Request
The undersigned authorized officer of _________________________ in
accordance with Section 2.3 of the Amended and Restated Vishay
Intertechnology, Inc. $302,500,000 Revolving Credit and Term Loan Agreement
dated as of July ___, 1994, among Vishay Intertechnology, Inc. ("Company"),
certain Banks and Comerica Bank, as Agent for the Banks (the "Agreement"),
hereby requests Comerica Bank, in its capacity as Agent under the Agreement
to make a (an) ____________________________/1 advance to the undersigned on
______________, 19 ___,/2 in the amount of ___________________________/3 under
the Revolving Credit Notes ("Notes") dated July ___, 1994 made by the
undersigned to said Banks.
The Interest Period for the requested Advance shall be _________________
_____________./4
B. Application of Proceeds
- -------------
1. The proceeds of this Advance shall be applied first to
convert/refund/5 the following outstanding Advances:
- --------------
1/ Insert, as applicable, "Eurocurrency-based" or "Prime-based".
2/ Insert date at least four (4) Business Days after the date of
Request if Request is for Eurocurrency-based Advance and, if Request
involves the conversion or renewal of any outstanding Eurocurrency-
based Advance, date must be the Business Day subsequent to last day
of applicable Eurocurrency-based Interest Period.
3/ Insert amount and type of currency of Requested Advance. This
amount, plus the amount of any other outstanding Indebtedness under
the Agreement to be then combined therewith having the same
Applicable Interest Rate and Interest Period, if any, shall not be
less than $500,000 in the case of a Prime-based Advance, or (y)
$1,000,000 (or the applicable foreign currency equivalent thereof) in
the case of a Eurocurrency-based Advance, and shall not result in
there being in effect, (i) more than two (2) Applicable Interest
Rates and Interest Periods for Advances in Dollars, and (ii) more
than one (1) Interest Rate and Interest Period for Advances in any
Alternative Currency.
4/ For Eurocurrency-based Advance insert, as applicable, "1
month", "2 months", "3 months" or "6 months."
5/ Strike inapplicable term to indicate whether a conversion or
refunding.
<PAGE>
<PAGE> 127 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
===================================================================
Type Last Day Current
of of Interest Principal Dollar
Advance Period Outstanding Equivalent/6
===================================================================
2. The balance of the proceeds of the Advance, being __________________
_____________________________ ( _____________________ ),/7 shall be deposited
in the undersigned's account number __________________, with _______________,
_____________, _________________./8
C. Advance Availability
The amount inserted at B.2 above (expressed, in the case of Alternative
Currency Advances in a dollar amount calculated at current spot exchange
rates) shall not exceed the amount calculated in Line C.1(iv) below, as
follows:
(i) Maximum principal amount available under all
Revolving Credit Notes ($200,000,000) less (in each
case) the Revolving Credit Designated Portion......... $__________
(ii) Aggregate amount of principal outstanding under
all Revolving Credit Notes (including
Alternative Currency Advances outstanding,
expressed in a Dollar amount at current spot
exchange rates)....................................... $__________
(iii) Aggregate principal amount of Bid Advances then
outstanding........................................... $__________
(iv) Line C.1(i) minus Line C.1(ii) minus Line
C.1(iii).............................................. $__________
- ------------
6/ Applicable to Eurocurrency Advance conversions. To be
determined by Agent.
7/ Amount inserted here may not exceed amount determined on Line
C.(iv) below.
8/ Insert account number, bank name and bank address.
<PAGE>
<PAGE> 128 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
D. Request Irrevocable
Upon Agent's receipt of this Request For Advance, this Request For
Advance shall be irrevocable.
E. Certification
The undersigned hereby certifies that:
(1) both before and after the Advance, the obligations of the Company,
its Subsidiaries and the Permitted Borrowers set forth in the
Agreement and any of the Loan Documents to which such Persons are
parties are and shall be valid, binding and enforceable obligations
of the Company, its Subsidiaries and the Permitted Borrowers, as
the case may be;
(2) all conditions to Advances of the Revolving Credit have been
satisfied, and shall remain satisfied to the date of Advance;
(3) there is no Event of Default in existence, and no event which, with
the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, and none will exist upon the
making of the Advance;
(4) the representations and warranties contained in the Agreement and
the Loan Documents are true and correct in all material respects
and shall be true and correct in all material respects as of the
making of the Advance; and
(5) the execution of this Request for Advance will not violate the
material terms and conditions of any material contract, agreement
or other borrowing of Company, its Subsidiaries or any of the
Permitted Borrowers.
<PAGE>
<PAGE> 129 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
F. Defined Terms
Capitalized terms used herein, unless specifically defined to the
contrary herein, have the meanings given them in the Agreement.
Dated this ___________ day of __________________, 1994.
(_______________________________)
By:_____________________________
Its:____________________________
Company hereby ratifies and confirms the truth and accuracy of the
information, representations and certifications of ______________________
_________________ made in this Request for Advance and acknowledges and
approves the disbursement of funds by Agent and the Banks pursuant to the
Request for Advance.
VISHAY INTERTECHNOLOGY, INC.
By:_____________________________
Its:____________________________
(This form of Request for Advance (including footnotes) is subject in all
respects to the terms and conditions of the Agreement which shall govern in
the event of any inconsistencies or omissions.)
<PAGE>
<PAGE> 130 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "B-1"
REVOLVING CREDIT NOTE
$____________________ July ____, 1994
On or before the Revolving Credit Maturity Date, FOR VALUE RECEIVED,
Vishay Intertechnology, Inc., a Delaware corporation ("Company") promises to
pay to the order of ( insert bank ) ("Bank") at Detroit,
Michigan, care of Agent, for the account of Bank's Eurocurrency Lending
Office with respect to any Eurocurrency-based Advances hereunder, in lawful
money of the United States of America or in such Alternative Currencies
applicable to particular Advances which may, from time to time, be
outstanding hereunder, the Indebtedness or so much of the sum of (
insert amount derived from Percentages ) Dollars ($ ______________) (or
the foreign currency equivalent thereof then outstanding in any one or more
of the Alternative Currencies if applicable), as may from time to time have
been advanced and then be outstanding hereunder pursuant to the Amended and
Restated Vishay Intertechnology, Inc. $302,500,000 Revolving Credit and Term
Loan Agreement dated as of July ____, 1994 (the "Agreement"), made by and
among the Company, certain banks, including the Bank, and Comerica Bank, a
Michigan banking corporation, as Agent for such banks, together with interest
thereon as hereinafter set forth.
Each of the Advances made hereunder shall bear interest at the
Eurocurrency-based Rate or the Prime-based Rate as elected by Company or as
otherwise determined under the Agreement.
Interest on the unpaid balance of all Prime-based Advances shall be
payable in United States Dollars quarterly commencing on September 30, 1994
and on the last day of each calendar quarter thereafter. Interest accruing at
the Prime-based Rate shall be computed on the basis of a 360 day year and
assessed for the actual number of days elapsed, and in such computation
effect shall be given to changes in the Prime-based Rate on the date of such
change in the Prime-based Rate.
Interest on each 1 month, 2 month and 3 month Eurocurrency-based Advance
shall be payable in United States Dollars or in the Alternative Currency
applicable to such Advance, as the case may be, on the last day of the
Interest Period applicable thereto. Interest on each 6 month
Eurocurrency-based Advance outstanding from time to time shall be payable in
United States Dollars or in the Alternative Currency applicable to such
Advance, as the case may be, at intervals of 3 months after the first day of
the applicable Interest Period and on the last day of the Interest Period
applicable thereto. Interest accruing at the Eurocurrency-based Rate shall be
computed on the basis of a 360 day year and assessed for the
<PAGE>
<PAGE> 131 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
actual number of days elapsed from the first day of the Interest Period appli-
cable thereto, to, but not including, the last day thereof. Interest due on an
Eurocurrency-based Advance made in an Alternative Currency shall be paid in
such Alternative Currency.
Notwithstanding anything to the contrary in the preceding paragraph,
interest shall be payable, in the currency applicable to such Advance, on
every type of Advance on the date that any Advance is converted to another
type of Advance.
In the event and so long as any default or Event of Default shall exist
hereunder or under the Agreement, interest shall be payable daily on all
Advances from time to time outstanding hereunder at a per annum rate equal to
the Applicable Interest Rate plus three percent (3%) for the remainder of the
then existing Interest Period, if any, and at all other times, with respect
to Domestic Advances from time to time outstanding, at a per annum rate equal
to the Prime-based Rate plus three percent (3%), and with respect to
Eurocurrency-based Advances from time to time outstanding, (i) at a per annum
rate calculated by the Agent, whose determination shall be conclusive absent
manifest error, on a daily basis, equal to three percent (3%) above the
interest rate per annum at which one (1) day deposits (or, if such amount due
remains unpaid for more than three (3) Business Days, then for such other
period of time as the Agent may elect which shall in no event be longer than
six (6) months) in the relevant Eurocurrency in the amount of such overdue
payment are offered by the Agent's Eurocurrency Lending Office for the
applicable period so determined, or (ii) if at any such time such deposits
are not offered by the Eurocurrency Lending Office, then at a rate per annum
equal to three percent (3%) above the rate determined by the Agent to be its
aggregate marginal cost (including the cost of maintaining any required
reserves or deposit insurance) of carrying the amount of such
Eurocurrency-based Advance.
This Note is a note under which advances, repayments and readvances may
be made from time to time, but only in accordance with, the terms and
conditions of the Agreement. This Note evidences borrowings under, is subject
to, is secured in accordance with, and may be accelerated or matured under,
the terms of the Agreement, to which reference is hereby made. Definitions
and terms of the Agreement are hereby incorporated by reference herein.
As additional security for this Note, Company grants Bank a lien on all
property and assets including deposits and other credits of the Company, at
any time in possession or control of or owing by Bank for any purpose.
<PAGE>
<PAGE> 132 -- EXHIBIT 10.1 ($302,000,000 LOAN 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.
Company 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.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
VISHAY INTERTECHNOLOGY, INC.
By:__________________________
Its:_________________________
<PAGE>
<PAGE> 133 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "B-2"
REVOLVING CREDIT NOTE
$______________________ July ____, 1994
On or before the Revolving Credit Maturity Date, FOR VALUE RECEIVED,
(insert Permitted Borrower ), a (insert jurisdiction of incorporation)
corporation ("Permitted Borrower") promises to pay to the order of (
insert Bank ) ("Bank") at Detroit, Michigan, care of Agent, for the account
of Bank's Eurocurrency Lending Office with respect to any Eurocurrency-based
Advances hereunder, in lawful money of the United States of America or in
such Alternative Currencies applicable to particular Advances which may, from
time to time, be outstanding hereunder, the Indebtedness or so much of the
sum of ( insert amounts derived from Percentages ) Dollars ($ )
(or the foreign currency equivalent thereof then outstanding in any one or
more of the Alternative Currencies if applicable), as may from time to time
have been advanced and then be outstanding hereunder pursuant to the Amended
and Restated Vishay Intertechnology, Inc. $302,500,000 Revolving Credit and
Term Loan Agreement dated as of July ____, 1994 (the "Agreement"), made by and
among Vishay Intertechnology, Inc., certain banks, including the Bank, and
Comerica Bank, a Michigan banking corporation, as Agent for such banks,
together with interest thereon as hereinafter set forth.
By executing and delivering this Note to Bank, the Permitted Borrower
hereby assumes and agrees, with respect to all Advances to it hereunder, to
be bound by all of the terms and conditions of the Agreement as fully as
though such terms and conditions were set forth herein, including without
limitation, the Sublimit applicable to the Permitted Borrower.
Each of the Advances made hereunder shall bear interest at the
Eurocurrency-based Rate or the Prime-based Rate as elected by Permitted
Borrower or as otherwise determined under the Agreement.
Interest on the unpaid balance of all Prime-based Advances shall be
payable in United States Dollars quarterly commencing on September 30, 1994
and on the last day of each calendar quarter thereafter. Interest accruing at
the Prime-based Rate shall be computed on the basis of a 360 day year and
assessed for the actual number of days elapsed, and in such computation
effect shall be given to changes in the Prime-based Rate on the date of such
change in the Prime-based Rate.
Interest on each 1 month, 2 month and 3 month Eurocurrency-based Advance
shall be payable in United States Dollars or in the Alternative Currency
applicable to such
<PAGE>
<PAGE> 134 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
Advance, as the case may be, on the last day of the Interest Period applicable
thereto. Interest on each 6 month Eurocurrency-based Advance outstanding from
time to time shall be payable in United States Dollars or in the Alternative
Currency applicable to such Advance, as the case may be, at intervals of 3
months after the first day of the Interest Period and on the last day of the
Interest Period applicable thereto. Interest accruing at the Eurocurrency-based
Rate shall be computed on the basis of a 360 day year and assessed for the
actual number of days elapsed from the first day of the Interest Period
applicable thereto, to, but not including, the last day thereof. Interest
due on a Eurocurrency-based Advance made in an Alternative Currency shall
be paid in an Alternative Currency.
Notwithstanding anything to the contrary in the preceding paragraph,
interest shall be payable, in the currency applicable to such Advance, on
every type of Advance on the date that any Advance is converted to another
type of Advance.
In the event and so long as a default or Event of Default shall exist
hereunder or under the Agreement, interest shall be payable daily on all
Advances from time to time outstanding hereunder at a per annum rate equal to
the Applicable Interest Rate plus three percent (3%) for the remainder of the
then existing Interest Period, if any, and at all other times, with respect
to Domestic Advances from time to time outstanding, at a per annum rate equal
to the Prime-based Rate plus three percent (3%), and with respect to
Eurocurrency-based Advances from time to time outstanding, (i) at a per annum
rate calculated by the Agent, whose determination shall be conclusive absent
manifest error, on a daily basis, equal to three percent (3%) above the
interest rate per annum at which one (1) day deposits (or, if such amount due
remains unpaid for more than three (3) Business Days, then for such other
period of time as the Agent may elect which shall in no event be longer than
six (6) months) in the relevant Eurocurrency in the amount of such overdue
payment are offered by the Agent's Eurocurrency Lending Office for the
applicable period so determined, or (ii) if at any such time such deposits
are not offered by the Eurocurrency Lending Office, then at a rate per annum
equal to three percent (3%) above the rate determined by the Agent to be its
aggregate marginal cost (including the cost of maintaining any required
reserves or deposit insurance) of carrying the amount of such
Eurocurrency-based Advance.
This Note is a note under which advances, repayments and readvances may
be made from time to time, but only in accordance with the terms and
conditions of the Agreement. This Note evidences borrowings under, is subject
to, is secured in accordance with, and may be accelerated or matured under,
the terms of the Agreement, to which reference is hereby made.
<PAGE>
<PAGE> 135 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
Definitions and terms of the Agreement are hereby incorporated by reference
herein.
As additional security for this Note, Permitted Borrower grants Bank a
lien on all property and assets including deposits and other credits of the
Permitted Borrower, at any time in possession or control of or owing by Bank
for any purpose.
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.
Permitted Borrower 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.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
(PERMITTED BORROWER)
By:___________________________
Its:__________________________
<PAGE>
<PAGE> 136 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "C-1"
FORM OF BID BORROWING REQUEST
TO: Comerica Bank ("Agent")
Re: Amended and Restated Vishay Intertechnology, Inc. $302,500,000
Revolving Credit and Term Loan Agreement dated as of July ____, 1994
(the "Agreement"), among Vishay Intertechnology, Inc. ("Company"),
Agent and certain Banks
Pursuant to Section 2.5(b) of the Agreement, the Company notifies you of
a request for offers to make the Bid Advances specified herein. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to such
terms in the Agreement.
(1) The date of the proposed Bid Advance borrowing is _______________, 199_
(which day is at least one (1) Business Day from the date hereof in the
case of an Absolute Rate Bid Advance and at least five (5) Business Days
from the date hereof in the case of a Eurocurrency Bid Advance).
(2) The aggregate amount of the proposed Bid Advance borrowing is
$___________________./1
(3) The Bid Offer requested is for _____________./2
(4) The Interest Period(s) for the Bid Advances comprising the proposed Bid
Advance borrowing shall be ____________./3
The undersigned hereby certifies that the following contents are true
and correct on and as of the date hereof, and will be true and correct on the
date of the proposed Bid Advance borrowing, before and after giving effect
thereto:
- ------------
1/ Insert an amount which is a minimum amount of $15,000,000 or
any multiple of $1,000,000 in excess thereof.
2/ Insert "Eurocurrency Bid Advances" or "Absolute Rate Bid
Advances" or both.
3/ No more than three Interest Periods may be requested in a
single Bid Borrowing Request.
<PAGE>
<PAGE> 137 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
(a) the undersigned has complied and will be on the date of the
proposed Bid Advance borrowing in compliance with all the terms, covenants
and conditions of the Agreement and the other Loan Documents;
(b) no Default or Event of Default exists or shall result from the
proposed Bid Advance borrowing;
(c) each and every representation and warranty contained in the
Agreement is true and correct in all material respects with the same effect
as if made on and as of the date of the proposed Bid Advance borrowing; and
(d) the aggregate amount of principal outstanding under all
Advances of the Revolving Credit and Bid Advances does not exceed the
Revolving Credit Aggregate Commitment.
VISHAY INTERTECHNOLOGY, INC.
Dated:___________________________
By:____________________________________
Its:___________________________________
(This form of Bid Borrowing Request (including footnotes) is subject in all
respects to the terms and conditions of the Agreement which shall govern in
the event of any inconsistencies or omissions.)
<PAGE>
<PAGE> 138 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "C-2"
FORM OF BID OFFER
TO: Comerica Bank ("Agent")
Re: Amended and Restated Vishay Intertechnology, Inc.
$302,500,000 Revolving Credit and Term Loan Agreement
dated as of July ____, 1994 (the "Agreement"), among Vishay
Intertechnology, Inc. ("Company"), Agent and certain
Banks
In response to the Bid Borrowing Request of the Company dated
____________ 199_ and in accordance with Section 2.5(c) of the
Agreement, the undersigned Bid Lender offers to make Bid Advances
thereunder in the following principal amount(s) at the following
interest rate(s) for the following Interest Period(s) (the terms
defined in the Agreement being used herein as therein defined):
=====================================================================
INTEREST PRINCIPAL (Eurocurrency Bid
PERIOD AMOUNT* Margin)
(Absolute Rate)
=====================================================================
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
=====================================================================
The date of the proposed Bid Advance borrowing is _________________
____, 19___ (which day is no earlier than date hereof in the case of
an Absolute Rate Bid Advances and at least four (4) Business Days
from the date hereof in the case of a Eurocurrency Bid Advance).
Acceptance of any bid contained herein is subject to
compliance with the terms and conditions of the Agreement,
including Section 2.5(d) thereof.
- ------------
* Insert an amount which is a minimum amount of $5,000,000 or
any multiple of $1,000,000 in excess thereof.
<PAGE>
<PAGE> 139 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
(NAME OF BID LENDER)
By:_____________________________
Dated:______________________
Its:____________________________
(This form of Bid Offer is subject in all respects to the terms and
conditions of the Agreement which shall govern in the event of any
inconsistencies or omissions.)
<PAGE>
<PAGE> 140 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "C-3"
FORM OF BID ACKNOWLEDGMENT
TO: Comerica Bank
Re: Amended and Restated Vishay Intertechnology, Inc.
$302,500,000 Revolving Credit and Term Loan Agreement
dated as of July ____, 1994 (the "Agreement"), among Vishay
Intertechnology, Inc. ("Company"), Agent and certain
Banks
Pursuant to Sections 2.5(d) and 2.5(e) of the Agreement, the
undersigned hereby notifies you of its acceptance of the following
offers made by the Bid Lenders in response to the Bid Borrowing
Request submitted by the undersigned on ____________, 199_ (the
terms defined in the Agreement being used herein as therein
defined) :
=============================================================================
Type of Eurocurrency Bid Principal
Name of Interest Bid Margin or Absolute Amount of
Lender Period Advance* Rate, as applicable Advances
=============================================================================
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
Date of proposed Bid Advance borrowing:__________________________
The undersigned hereby certifies that its acceptance of the
offers listed above complies with and upon the funding of such Bid
Advances shall comply with the terms of the Agreement, including,
but not limited to, Section 2.5(d) thereof. The undersigned hereby
- ------------
* Specify whether it is a Eurocurrency Bid Advance (and the Eurocurrency
Bid Margin) or an Absolute Rate Bid Advance (and the Absolute Bid Rate).
<PAGE>
<PAGE> 141 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
confirms and restates each of the statements certified by it in the
Bid Borrowing Request relating to this Bid Acknowledgment.
VISHAY INTERTECHNOLOGY, INC.
Dated:______________________
By:___________________________________
Its:__________________________________
(This form of Bid Acknowledgment is subject in all respects to the
terms and conditions of the Agreement which shall govern in the
event of any inconsistencies or omissions.)
<PAGE>
<PAGE> 142 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "C-4"
BID NOTE
$200,000,000.00 July ____, 1994
On or before the Revolving Credit Maturity Date, subject to
the terms hereof, FOR VALUE RECEIVED, Vishay Intertechnology,
Inc., a Delaware corporation ("Company") promises to pay to the
order of ( insert bank ) ("Bank") at _________________________,
___________________, care of Bank, in lawful money of the United States
of America, the Indebtedness or so much of the sum of Two Hundred
Million Dollars ($200,000,000.00), as may from time to time have
been advanced and then be outstanding hereunder pursuant to the
Amended and Restated Vishay Intertechnology, Inc. $302,500,000
Revolving Credit and Term Loan Agreement dated as of July ____,
1994 (the "Agreement"), made by and among the Company, certain
banks, including the Bank, and Comerica Bank, a Michigan banking
corporation, as Agent for such banks, together with interest
thereon as hereinafter set forth.
The unpaid principal indebtedness from time outstanding
under this Note shall be due and payable on the last day of the
Interest Period applicable thereto or as otherwise set forth in
the Agreement, provided that no Bid Advance may mature or be
payable on a day later than the Revolving Credit Maturity Date.
Each of the Bid Advances made hereunder shall bear interest
at the Absolute Rate or the Eurocurrency-based Rate as elected by
Company or as otherwise determined under the Agreement.
Interest on each Absolute Rate Advance and each 1 month, 2
month and 3 month Eurocurrency-based Advance shall be payable in
United States Dollars on the last day of the Interest Period
applicable thereto. Interest on each 6 month Eurocurrency-based
Advance outstanding from time to time shall be payable in United
States Dollars, at intervals of 3 months after the first day of
the applicable Interest Period and on the last day of the
Interest Period applicable thereto. Interest accruing at the
Absolute Rate or Eurocurrency-based Rate shall be computed on the
basis of a 360 day year and assessed for the actual number of
days elapsed from the first day of the Interest Period applicable
thereto, to, but not including, the last day thereof.
In the event and so long as any default or Event of Default
shall exist hereunder or under the Agreement, interest shall be
payable daily on all Bid Advances from time to time outstanding
hereunder at a per annum rate equal to the Applicable Interest
Rate plus three percent (3%) for the remainder of the then
existing Interest Period, if any, and at all other times, with
respect to Domestic Advances from time to time outstanding, at a
per annum rate equal to the Absolute Rate plus three percent
<PAGE>
<PAGE> 143 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
(3%), and with respect to Eurocurrency-based Advances from time
to time outstanding, (i) at a per annum rate calculated by the
applicable Bid Lender having funded such Bid Advance, whose
determination shall be conclusive absent manifest error, on a
daily basis, equal to three percent (3%) above the interest rate
per annum at which one (1) day deposits (or, if such amount due
remains unpaid for more than three (3) Business Days, then for
such other period of time as the applicable Bid Lender may elect
which shall in no event be longer than six (6) months) in the
relevant eurocurrency in the amount of such overdue payment due
to the applicable Bid Lender are offered by such Bid Lender's
Eurocurrency Lending Office for the applicable period so
determined, or (ii) if at any such time such deposits are not
offered by such Bid Lender's Eurocurrency Lending Office, then at
a rate per annum equal to three percent (3%) above the rate
determined by the applicable Bid Lender to be its aggregate
marginal cost (including the cost of maintaining any required
reserves or deposit insurance) of carrying the amount of such
Eurocurrency-based Advance.
This Note is a note under which advances, repayments and
readvances may be made from time to time, but only in accordance
with, the terms and conditions of the Agreement. This Note
evidences borrowings under, is subject to, is secured in
accordance with, and may be accelerated or matured under, the
terms of the Agreement, to which reference is hereby made.
Definitions and terms of the Agreement are hereby incorporated by
reference herein.
As additional security for this Note, Company grants Bank a
lien on all property and assets including deposits and other
credits of the Company, at any time in possession or control of
or owing by Bank for any purpose.
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.
Company 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.
<PAGE>
<PAGE> 144 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
Nothing herein shall limit any right granted Bank by any
other instrument or by law.
VISHAY INTERTECHNOLOGY, INC.
By:____________________________
Its:___________________________
<PAGE>
<PAGE> 145 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "D"
TERM NOTE
$____________________________ July ____, 1994
On or before December 31, 2000 (the "Term Loan Maturity Date"), FOR
VALUE RECEIVED, Vishay Intertechnology, Inc., a Delaware corporation
("Company") promises to pay to the order of (insert bank) ("Bank") at
Detroit, Michigan, care of Agent, in lawful money of the United States of
America the Indebtedness or so much of the sum of (insert Bank's percentage
of $102,500,000) Dollars ($____________) which may have been advanced and
then be outstanding hereunder, together with interest thereon, as hereinafter
set forth, in accordance with that certain Amended and Restated Vishay
Intertechnology, Inc. $302,500,000 Revolving Credit and Term Loan Agreement
dated as of July ____, 1994 (the "Agreement"), made by and among Company,
certain banks, including the Bank, and Comerica Bank, a Michigan banking
corporation, as Agent for such banks.
Until the Term Loan Maturity Date, when the entire unpaid principal
balance of the Term Loan (as defined in the Agreement) and all accrued
interest and other sums outstanding thereon shall be paid in full, the
principal Indebtedness evidenced by this Note shall be repaid on the
following dates and in the following amounts (irrespective of and in addition
to any principal payments under the Agreement based on Excess Cash Flow, but
taking into account any optional prepayments thereunder):
(a) on or before December 31, 1994, (Bank's Percentage of
$5,000,000); and
(b) commencing on March 31, 1995, and on the last day of each
calendar quarter thereafter through December 31, 1996, the sum of (Bank's
Percentage of $2,500,000);
(c) commencing on March 31, 1997, and on the last day of each
calendar quarter thereafter through December 31, 1997, the sum of (Bank's
Percentage of $3,750,000);
(d) commencing on March 31, 1998, and on the last day of each
calendar quarter thereafter through December 31, 1999, the sum of (Bank's
Percentage of $5,000,000); and
(e) commencing on March 31, 2000, and on the last day of each
calendar quarter thereafter through December 31, 2000, the sum of (Bank's
Percentage of $5,625,000).
<PAGE>
<PAGE> 146 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
There shall be no readvance or reborrowing of any principal reductions
of this Note.
Each of the Advances made hereunder shall bear interest at the
Eurocurrency-based Rate, the Prime-based Rate or the Fixed Rate as elected by
Company or as otherwise determined under the Agreement.
Interest on the unpaid balance of all Prime-based Advances or after the
Fixed Rate Election shall be payable in United States Dollars quarterly
commencing on September 30, 1994 and on the last day of each calendar quarter
thereafter until the Term Loan Maturity Date. Interest accruing at the
Prime-based Rate or the Fixed Rate shall be computed on the basis of a 360
day year and assessed for the actual number of days elapsed, and in such
computation effect shall be given to changes in the Prime-based Rate on the
date of such change in the Prime-based Rate.
Interest on each 1 month, 2 month and 3 month Eurocurrency-based Advance
shall be payable in United States Dollars on the last day of the Interest
Period applicable thereto. Interest on each 6 month Eurocurrency-based
Advance outstanding from time to time shall be payable in United States
Dollars at intervals of 3 months after the first day of the Interest Period
and on the last day of the Interest Period applicable thereto. Interest
accruing at the Eurocurrency-based Rate shall be computed on the basis of a
360 day year and assessed for the actual number of days elapsed from the
first day of the Interest Period applicable thereto, to, but not including,
the last day thereof.
In the event and so long as a default or Event of Default shall exist
under this Note or under the Agreement, interest shall be payable daily on
all Advances from time to time outstanding hereunder at a per annum rate
equal to the Applicable Interest Rate plus three percent (3%) for the
remainder of the then existing Interest Period, if any, and at all other
times, with respect to Domestic Advances from time to time outstanding, at a
per annum rate equal to the Prime-based Rate or the Fixed Rate, as
applicable, plus three percent (3%), and with respect to Eurocurrency-based
Advances from time to time outstanding under this Note, (i) at a per annum
rate calculated by the Agent, whose determination shall be conclusive absent
manifest error, on a daily basis, equal to three percent (3%) above the
interest rate per annum at which one (1) day deposits (or, if such amount due
remains unpaid for more than three (3) Business Days, then for such other
period of time as the Agent may elect which shall in no event be longer than
six (6) months) in the relevant Eurocurrency in the amount of such overdue
payment due to the Agent are offered by the Eurocurrency Lending Office for
the applicable period determined as provided above, or (ii) if at any such
time such deposits are not offered by the Eurocurrency Lending Office, then
at a rate per annum equal to three percent (3%) above the rate determined by
the Agent to be its aggregate marginal cost (including the cost of
<PAGE>
<PAGE> 147 -- EXHIBT 10.1 ($302,000,000 LOAN AGREEMENT)
maintaining any required reserves or deposit insurance) of carrying the
amount of such Eurocurrency Advance.
The amount and date of each Advance of the Term Loan, its Applicable
Interest Rate and Interest Period, and the amount and date of any repayments
shall be noted on Agent's records, which records will be conclusive evidence
thereof, absent manifest error.
This Note is a note under which prepayments may be made from time to
time, but only in accordance with the terms and conditions of the Agreement,
including without limitation, after the Fixed Rate Election, the payment of
Yield Maintenance Payments.
This Note evidences borrowings under, is subject to, is secured in
accordance with, and may be accelerated or matured under, the terms of the
Agreement, to which reference is hereby made. Definitions and terms of the
Agreement are hereby incorporated herein.
As additional security for this Note, Company grants Bank a lien on all
property and assets including deposits and other credits of the Company, at
any time in possession or control of or owing by Bank for any purpose.
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.
Company 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.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
VISHAY INTERTECHNOLOGY, INC.,
a Delaware corporation
By:___________________________
Its:_____________________
<PAGE>
<PAGE> 148 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "E"
REQUEST FOR TERM LOAN ADVANCE AND RATE REQUEST
To: Comerica Bank ("Agent")
A. Request
The undersigned authorized officer of Vishay Intertechnology, Inc.
("Company") in accordance with Section 3.9 of the Amended and Restated Vishay
Intertechnology, Inc. $302,500,000 Revolving Credit and Term Loan Agreement
dated as of July ___, 1994, among Company, certain Banks and Comerica Bank,
as Agent for the Banks (the "Agreement"), hereby requests the Agent under the
Agreement to make, refund or convert, as applicable, a (an) _______________/1
Advance of the Term Loan to the undersigned on __________, 19__,/2 in the
amount of $__________/3 under the Term Notes ("Notes") dated July ___, 1994
made by Company to said Banks.
The Interest Period for the requested Advance shall be ________________./4
- ------------
1/ Insert, as applicable, "Eurocurrency-based" or "Prime-based."
2/ Insert date at least four (4) Business Days after the date of
Request, if Request is for Eurocurrency-based Advance and, if Request
involves the conversion or renewal of any outstanding Eurocurrency-
based Advance, date must be the Business Day subsequent to the last
day of the applicable Eurocurrency-based Interest Period.
3/ Insert amount of requested Advance. This amount, together with
the amount of any other outstanding indebtedness evidenced by the
Term Notes to be then combined therewith having the same Applicable
Interest Rate and Interest Period, if any, shall not be less than (x)
$500,000 in the case of a Prime-based Advance, or (y) $1,000,000 (or
the applicable foreign currency equivalent thereof) in the case of a
Eurocurrency-based Advance, and upon completion of the Advance there
shall be no more than 1 Interest Period and 2 Applicable Interest
Rates (including the Prime-based Rate).
4/ For Eurocurrency-based Advance insert, as applicable, "1
month", "2 months", "3 months" or "6 months." Such Interest Period
(i) may not end after the Term Loan Maturity Date; and (ii) must
leave a sufficient portion of the Term Loan subject to an Interest
Period ending on the last day of the quarter to enable Company to
make required principal repayments.
<PAGE>
<PAGE> 149 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
B. Application of Proceeds
The proceeds of this Advance shall be applied to refund/convert/5 the
following outstanding Advances:
=======================================================================
Type of Last Day of Principal
Advance Interest Period Outstanding
=======================================================================
C. Request Irrevocable
Upon Agent's receipt of this Request For Term Loan Advance, this Request
For Term Loan Advance shall be irrevocable.
D. Certification
The undersigned hereby certifies that:
(1) both before and after the Advance, the obligations of the Company
and its Subsidiaries set forth in the Agreement and any of the Loan
Documents to which such Persons are parties are and shall be valid,
binding and enforceable obligations of the Company and its
Subsidiaries;
(2) all conditions to Advances of the Term Loan have been satisfied,
and shall remain satisfied to the date of Advance;
(3) there is no Event of Default in existence, and no event which, with
the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, and none will exist upon the
making of the Advance;
(4) the representations and warranties contained in the Agreement and
the Loan Documents are true and correct in all material respects
and shall be true and correct in all material respects as of the
making of the Advance; and
(5) the execution of this Request for Term Loan Advance will not
violate the material terms and conditions of any material contract,
agreement or other borrowing of Company or its Subsidiaries
- ------------
5/ Strike inapplicable term to indicate whether a conversion or
refunding.
<PAGE>
<PAGE> 150 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
E. Defined Terms
Capitalized terms used herein, unless specifically defined to the
contrary herein, have the meanings given them in the Agreement.
Dated this _________ day of ____________________, 1994.
VISHAY INTERTECHNOLOGY, INC.
By:_________________________________
Its:________________________________
(This form of Request for Term Loan Advance (including footnotes) is subject
in all respects to the terms and conditions of the Agreement which shall
govern in the event of any inconsistencies or omissions.)
<PAGE>
<PAGE> 151 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "F"
FIXED RATE ELECTION
To: Comerica Bank ("Agent")
Re: Amended and Restated Vishay Intertechnology, Inc. $302,500,000 Revolving
Credit and Term Loan Agreement dated as of July ____, 1994 (the
"Agreement"), among Vishay Intertechnology, Inc. ("Company"), Agent and
certain Banks
Pursuant to Section 3.11 of the Agreement, the Company elects the Fixed
Rate as the Applicable Interest Rate for the remaining balance of the Term
Loan.
The Company certifies to the matters specified in Section 3.11(c) of the
Agreement.
Capitalized terms used herein, unless specifically defined to the
contrary herein, have the meanings given them in the Agreement.
Dated:____________________ VISHAY INTERTECHNOLOGY, INC.
By:___________________________
Its:__________________________
<PAGE>
<PAGE> 152 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "G"
Percentages
Comerica Bank 15.42%
NationsBank of North Carolina, N.A. 15.42%
Berliner Handels-Und Frankfurter Bank 11.67%
Signet Bank Maryland 11.66%
Bank Hapoalim, B.M. 8.33%
CoreStates Bank, N.A. 8.33%
ABN AMRO Bank N.V. 8.33%
Credit Lyonnais New York Branch 8.33%
Bank Leumi le-Israel, B.M. 4.17%
Credit Suisse 4.17%
Meridian Bank 4.17%
<PAGE>
<PAGE> 153 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "H"
Sublimit
Vishay Beteiligungs GmbH, formerly
Draloric Electronic GmbH ("VBG").................$25,000,000
Draloric Electronic GmbH, formerly
Vishay Electronic GmbH ("Draloric")..............$25,000,000;
provided, however, that to the extent of any increase in the
nominal share capital of Draloric which causes its aggregate
nominal share capital to exceed Fifteen Million Deutsche Marks (DM
15,000,000), the Sublimit applicable to VBG shall decrease dollar
for dollar by the equivalent in Dollars of any such increase and
the Sublimit applicable to Draloric shall increase by the
equivalent in Dollars of any such increase.
<PAGE>
<PAGE> 154 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
EXHIBIT "I"
FORM OF
ASSIGNMENT AGREEMENT
Date: ______________________________
To: VISHAY INTERTECHNOLOGY, INC.
and
COMERICA BANK ("Agent")
Re: Amended and Restated Vishay Intertechnology, Inc. $302,500,000
Revolving Credit and Term Loan Agreement dated as of July ____,
1994 (the "Agreement"), among Vishay Intertechnology, Inc.
("Company"), Agent and certain Banks
Gentlemen and Ladies:
Reference is made to Section 13.8(c), (d) and (e) of the
Agreement. Unless otherwise defined herein or the context otherwise
requires, all initially capitalized terms used herein without
definition shall have the meanings specified in the Agreement.
This Agreement constitutes notice to each of you of the
proposed assignment and delegation by (insert assigner Bank)
(the "Assignor") to (insert Proposed assignee) (the "Assignee")
of a ______% undivided interest in each of the Assignor's notes
under all of the Loan Agreements (the "Notes"), such that after
giving effect to the assignment and assumption hereafter provided
the Assignee's interest in the Notes shall equal $____________*
and its Percentage shall equal ____% under the Loan Documents.
The Assignor hereby instructs the Agent to make all payments
from and including the "Effective Date" (as hereafter defined)
hereof in respect of the interest assigned hereby, directly to the
Assignee. The Assignor and the Assignee agree that all interest and
fees accrued up to, but not including, the Effective Date of the
assignment and delegation being made hereby are the property of the
Assignor, and not the Assignee. The Assignee agrees that, upon
receipt of any such interest or fees accrued up to the Effective
Date, the Assignee will promptly remit the same to the Assignor.
The Assignee hereby confirms that it has received a copy of
the Loan Agreements 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 Loan Agreements as a condition to the making
- ------------
*Such amount shall not be less than a minimum amount of
$10,000,000.
<PAGE>
<PAGE> 155 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
of the loans thereunder. The Assignee 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 Percentage been granted and its loans been made
directly by such Assignee to the Company and/or the Permitted
Borrowers without the intervention of the Agent, the Assignor or
any other bank; and (b) has made and will continue to make,
independently and without reliance upon the Agent, the Assignor or
any other bank, and based on such documents and information as it
has deemed appropriate, its own credit analysis and decisions
relating to the Loan Agreements. The Assignee further acknowledges
and agrees that neither the Agent, nor the Assignor has made any
representations or warranties about the creditworthiness of the
Company, the Permitted Borrowers or any other party to the Loan
Agreements or any other of the Loan Documents, or with respect to
the legality, validity, sufficiency or enforceability of the Loan
Agreements, or any other of the Loan Documents. This assignment
shall be made without recourse to or warranty by the Assignor,
except as set forth herein.
Assignee represents and warrants that it is a Person to which
assignments are permitted pursuant to Section 13.8(c) of the
Agreement. Assignor and Assignee represent and warrant that this
assignment shall not violate any "blue sky" or other securities law
of any jurisdiction or require the Company or any other Person to
file a registration statement with the United States Securities and
Exchange Commission or Apply to qualify any loans or any interest
in any thereof, under the "blue sky" or other securities laws of
any jurisdiction.
Except as otherwise provided in the Loan Agreements, effective
as of the Effective Date:
(a) the Assignee: (i) shall be deemed automatically to have
become a party to the Loan Agreements, to have assumed
all of the Assignor's obligations thereunder to the
extent of the Assignee's percentage referred to in the
second paragraph of this Assignment Agreement, and to
have all the rights and obligations of a party to the
Loan Agreements, as if it were an original signatory
thereto to the extent specified in the second paragraph
hereof; and (ii) agrees to be bound by the terms and
conditions set forth in the Loan Agreements as if it were
an original signatory thereto; and
(b) the Assignor's obligations under the Loan Agreements
shall be reduced by the percentage referred to in the
second paragraph of this Assignment Agreement.
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:
<PAGE>
<PAGE> 156 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
(1) the delivery to the Agent of an original of this
Assignment Agreement executed by the Assignor and the
Assignee;
(2) the payment to the Agent, of all accrued fees, expenses
and other items for which reimbursement is then owing
under the Loan Agreements;
(3) the payment to the Agent of the $3,500.00 processing fee
referred to in Section 13.8(d) (iv) of the Agreement; and
(4) all other restrictions and items noted in Sections
13.8(c), (d) and (e) of the Agreement have been
completed.
The Agent shall notify the Assignor and the Assignee of the
Effective Date.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned loans:
(A) Address for Notices:
Institution Name:
Address:
Attention:
Telephone:
Facsimile:
(B) Payment Instructions:
(C) Proposed effective date of assignment.
The Assignee has delivered to the Agent (or is delivering to
the Agent concurrently herewith) the tax forms referred to in
Section 13.14 of the Agreement, other forms reasonably requested by
the Agent, and the original of each Note held by the Assignor under
the Loan Agreements.
<PAGE>
<PAGE> 157 -- EXHIBIT 10.1 ($302,000,000 LOAN AGREEMENT)
Please evidence your consent to and acceptance of the proposed
assignment and delegation set forth herein by signing and returning
counterparts hereof to the Assignor and the Assignee.
(ASSIGNOR)
By:________________________________
Its:_______________________________
(ASSIGNEE)
By:________________________________
Its:_______________________________
ACCEPTED AND CONSENTED TO
this ______ day of __________ 199_
COMERICA BANK, Agent
By:____________________________
Its:___________________________
VISHAY INTERTECHNOLOGY, INC.
By:____________________________
Its:___________________________
(This form of Assignment Agreement (including footnotes) is subject
in all respects to the terms and conditions of the Agreement which
shall govern in the event of any inconsistencies or omissions.)
<PAGE>
<PAGE>
<PAGE> 1 --Exibit 10.2 ( Revolving Credit + Term Loan )
Execution Copy
AMENDED AND RESTATED DRALORIC/VBG
DM 40,000,000 REVOLVING CREDIT
AND
DM 9,506,000 TERM LOAN AGREEMENT
DATED AS OF JULY 18, 1994,
COMERICA BANK, AS AGENT
NATIONSBANK OF NORTH CAROLINA, N.A., AS CO-AGENT
BERLINER HANDELS-UND FRANKFURTER BANK KGAA
AND SIGNET BANK/MARYLAND, AS LEAD MANAGERS
<PAGE>
<PAGE> 2 --Exibit 10.2 ( Revolving Credit + Term Loan )
TABLE OF CONTENTS
-----------------
Page
----
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 "Absolute Rate" . . . . . . . . . . . . . . . . . . . . 1
1.2 "Absolute Rate Bid Advance" . . . . . . . . . . . . . . 1
1.3 "Absolute Rate Interest Period" . . . . . . . . . . . . 1
1.4 "Acquisition Loan(s)" . . . . . . . . . . . . . . . . . 1
1.5 "Advance(s)". . . . . . . . . . . . . . . . . . . . . . 2
1.6 "Affiliate" . . . . . . . . . . . . . . . . . . . . . . 2
1.7 "Agent" . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 "Agent's Correspondent" . . . . . . . . . . . . . . . . 2
1.9 "Agent's Fees". . . . . . . . . . . . . . . . . . . . . 2
1.10 "Alternate Base Rate" . . . . . . . . . . . . . . . . . 2
1.11 "Alternative Currency". . . . . . . . . . . . . . . . . 2
1.12 "Applicable Fee Percentage" . . . . . . . . . . . . . . 2
1.13 "Applicable Interest Rate". . . . . . . . . . . . . . . 2
1.14 "Applicable Margin" . . . . . . . . . . . . . . . . . . 3
1.15 "Banks" . . . . . . . . . . . . . . . . . . . . . . . . 3
1.16 "Bid Acknowledgment". . . . . . . . . . . . . . . . . . 3
1.17 "Bid Advance" . . . . . . . . . . . . . . . . . . . . . 3
1.18 "Bid Borrowing Request" . . . . . . . . . . . . . . . . 3
1.19 "Bid Lender(s)" . . . . . . . . . . . . . . . . . . . . 3
1.20 "Bid Notes" . . . . . . . . . . . . . . . . . . . . . . 3
1.21 "Bid Offer" . . . . . . . . . . . . . . . . . . . . . . 3
1.22 "Bridge Loan" . . . . . . . . . . . . . . . . . . . . . 4
1.23 "Business Day". . . . . . . . . . . . . . . . . . . . . 4
1.24 "Commitment Letter" . . . . . . . . . . . . . . . . . . 4
1.25 "Company" . . . . . . . . . . . . . . . . . . . . . . . 4
1.26 "Consolidated" and "Consolidating". . . . . . . . . . . 4
1.27 "conversion" or "converted" . . . . . . . . . . . . . . 4
1.28 "Deutsche Mark Equivalent". . . . . . . . . . . . . . . 4
1.29 "Deutsche Mark-based Rate". . . . . . . . . . . . . . . 4
1.30 "Deutsche Mark Adjusted Rate" . . . . . . . . . . . . . 4
1.31 "Deutsche Mark Principal Limit" . . . . . . . . . . . . 5
1.32 "DM-based Advance". . . . . . . . . . . . . . . . . . . 5
1.33 "DM Bid Advance". . . . . . . . . . . . . . . . . . . . 5
1.34 "DM Bid Margin" . . . . . . . . . . . . . . . . . . . . 5
1.35 "DM Interest Period". . . . . . . . . . . . . . . . . . 5
1.36 "Dollar Amount" . . . . . . . . . . . . . . . . . . . . 6
1.37 "Dollars" and the sign "$". . . . . . . . . . . . . . . 6
1.38 "Domestic Guaranty" . . . . . . . . . . . . . . . . . . 6
1.39 "Draloric". . . . . . . . . . . . . . . . . . . . . . . 6
1.40 "Eurocurrency Lending Office" . . . . . . . . . . . . . 6
1.41 "Event of Default". . . . . . . . . . . . . . . . . . . 6
1.42 "Federal Funds Effective Rate". . . . . . . . . . . . . 6
1.43 "Fixed Charge Coverage Ratio" . . . . . . . . . . . . . 6
1.44 "GAAP". . . . . . . . . . . . . . . . . . . . . . . . . 6
1.45 "Guaranties". . . . . . . . . . . . . . . . . . . . . . 7
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1.46 "Hazardous Materials" and "Hazardous
Materials Laws" . . . . . . . . . . . . . . . . . . . 7
1.47 "hereof", "hereto", "hereunder" . . . . . . . . . . . . 7
1.48 "HLT Determination" . . . . . . . . . . . . . . . . . . 7
1.49 "Indebtedness". . . . . . . . . . . . . . . . . . . . . 7
1.50 "Interest Period" . . . . . . . . . . . . . . . . . . . 7
1.51 "Loan Agreements" . . . . . . . . . . . . . . . . . . . 8
1.52 "Loan Documents". . . . . . . . . . . . . . . . . . . . 8
1.53 "Majority Banks". . . . . . . . . . . . . . . . . . . . 8
1.54 "Moody's Rating". . . . . . . . . . . . . . . . . . . . 8
1.55 "New Banks" . . . . . . . . . . . . . . . . . . . . . . 8
1.56 "Non-Amortizing Term Loan". . . . . . . . . . . . . . . 8
1.57 "Notes" . . . . . . . . . . . . . . . . . . . . . . . . 8
1.58 "Percentage". . . . . . . . . . . . . . . . . . . . . . 8
1.59 "Permitted Borrowers" . . . . . . . . . . . . . . . . . 8
1.60 "Permitted Encumbrances". . . . . . . . . . . . . . . . 9
1.61 "Person". . . . . . . . . . . . . . . . . . . . . . . . 10
1.62 "Prime Rate". . . . . . . . . . . . . . . . . . . . . . 10
1.63 "Prime-based Advance" . . . . . . . . . . . . . . . . . 10
1.64 "Prime-based Rate". . . . . . . . . . . . . . . . . . . 10
1.65 "Prior Agreements". . . . . . . . . . . . . . . . . . . 10
1.66 "Prior Banks" . . . . . . . . . . . . . . . . . . . . . 10
1.67 "Prior DM Loan Agreement" . . . . . . . . . . . . . . . 10
1.68 "Prior Vishay Loan Agreement" . . . . . . . . . . . . . 10
1.69 "Rating Level". . . . . . . . . . . . . . . . . . . . . 11
1.70 "Rating Level 1". . . . . . . . . . . . . . . . . . . . 11
1.71 "Rating Level 2". . . . . . . . . . . . . . . . . . . . 11
1.72 "Rating Level 3". . . . . . . . . . . . . . . . . . . . 11
1.73 "Rating Level 4". . . . . . . . . . . . . . . . . . . . 11
1.74 "Request for Advance" . . . . . . . . . . . . . . . . . 11
1.75 "Revolving Credit". . . . . . . . . . . . . . . . . . . 11
1.76 "Revolving Credit Commitment Fee" . . . . . . . . . . . 11
1.77 "Revolving Credit Facility Fee" . . . . . . . . . . . . 11
1.78 "Revolving Credit Maturity Date". . . . . . . . . . . . 11
1.79 "Revolving Credit Maximum Amount" . . . . . . . . . . . 11
1.80 "Revolving Credit Notes". . . . . . . . . . . . . . . . 11
1.81 "Roederstein Loan Agreement". . . . . . . . . . . . . . 11
1.82 "Roederstein Loan Documents". . . . . . . . . . . . . . 12
1.83 "S & P Rating". . . . . . . . . . . . . . . . . . . . . 12
1.84 "Shares", "share capital", "capital stock",
"stock" . . . . . . . . . . . . . . . . . . . . . . . 12
1.85 "Subsidiary(ies)" . . . . . . . . . . . . . . . . . . . 12
1.86 "Target Company". . . . . . . . . . . . . . . . . . . . 12
1.87 "Target Company Acquisition". . . . . . . . . . . . . . 12
1.88 "Target Company Loan Agreement" . . . . . . . . . . . . 12
1.89 "Target Company Loan Documents" . . . . . . . . . . . . 12
<PAGE>
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1.90 "Term Loan" . . . . . . . . . . . . . . . . . . . . . . 12
1.91 "Term Loan Maturity Date" . . . . . . . . . . . . . . . 12
1.92 "Term Loan Rate Request". . . . . . . . . . . . . . . . 13
1.93 "Term Notes". . . . . . . . . . . . . . . . . . . . . . 13
1.94 "Vishay". . . . . . . . . . . . . . . . . . . . . . . . 13
1.95 "Vishay Guaranty" . . . . . . . . . . . . . . . . . . . 13
1.96 "Vishay Loan Agreement" . . . . . . . . . . . . . . . . 13
2. REVOLVING CREDIT; BID ADVANCES . . . . . . . . . . . . . . . . 13
2.1 Commitment. . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Accrual of Interest and Maturity. . . . . . . . . . . . 13
2.3 Requests for and Refundings of Advances.. . . . . . . . 13
2.4 Disbursement of Advances. . . . . . . . . . . . . . . . 15
2.5 Bid Advances. . . . . . . . . . . . . . . . . . . . . . 16
2.6 No Dollar Advance Availability. . . . . . . . . . . . . 23
2.7 Revolving Credit Facility Fee.. . . . . . . . . . . . . 23
2.8 Revolving Credit Commitment Fee.. . . . . . . . . . . . 23
2.9 Optional Reduction or Termination of
Revolving Credit Maximum Amount.. . . . . . . . . . . 24
2.10 Extension of Revolving Credit Maturity
Date. . . . . . . . . . . . . . . . . . . . . . . . . 24
2.11 Revolving Credit as Renewal; Application of
Advances. . . . . . . . . . . . . . . . . . . . . . . 25
3. TERM LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.1 Commitment. . . . . . . . . . . . . . . . . . . . . . . 25
3.2 Repayment of Term Loan. . . . . . . . . . . . . . . . . 25
3.3 Accrual of Interest.. . . . . . . . . . . . . . . . . . 26
3.4 Deutsche Mark-Based Interest Payments.. . . . . . . . . 26
3.5 Term Loan Rate Requests and Refundings. . . . . . . . . 26
3.6 Prime-based Rate Applicability and Interest
Payments. . . . . . . . . . . . . . . . . . . . . . . 27
3.7 Term Loan as Renewal. . . . . . . . . . . . . . . . . . 27
4. INTEREST PAYMENTS AND PERIODS: REVOLVING CREDIT, BID ADVANCES
AND TERM CREDIT. . . . . . . . . . . . . . . . . . . . . . . . 27
4.1 Interest Payments.. . . . . . . . . . . . . . . . . . . 27
4.2 Interest Calculation. . . . . . . . . . . . . . . . . . 28
4.3 Interest Period Selection.. . . . . . . . . . . . . . . 28
4.4 Limited Availability. . . . . . . . . . . . . . . . . . 28
4.5 Unavailability. . . . . . . . . . . . . . . . . . . . . 29
4.6 Reconversion to Deutsche Mark-based Rate on
Re-availability.. . . . . . . . . . . . . . . . . . . 29
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4.7 Repayment or Reconversion.. . . . . . . . . . . . . . . 29
4.8 Interest Payments on Conversions and
Reconversions.. . . . . . . . . . . . . . . . . . . . 29
4.9 Interest on Default.. . . . . . . . . . . . . . . . . . 30
4.10 Prepayment. . . . . . . . . . . . . . . . . . . . . . . 30
4.11 Special Limitation. . . . . . . . . . . . . . . . . . . 31
5. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS; MARGIN
ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.1 Reimbursement of Prepayment Costs.. . . . . . . . . . . 32
5.2 Agent's Eurocurrency Lending Office.. . . . . . . . . . 32
5.3 Availability. . . . . . . . . . . . . . . . . . . . . . 32
5.4 Laws Affecting Availability.. . . . . . . . . . . . . . 32
5.5 Increased Cost of Deutsche Marks. . . . . . . . . . . . 33
5.6 Indemnity.. . . . . . . . . . . . . . . . . . . . . . . 34
5.7 Judgment Currency.. . . . . . . . . . . . . . . . . . . 34
5.8 Other Increased Costs.. . . . . . . . . . . . . . . . . 35
5.9 Margin Adjustments. . . . . . . . . . . . . . . . . . . 35
5.10 HLT Determination.. . . . . . . . . . . . . . . . . . . 36
6. PAYMENTS, RECOVERIES AND COLLECTIONS . . . . . . . . . . . . . 37
6.1 Payment Procedure.. . . . . . . . . . . . . . . . . . . 37
6.2 Application of Proceeds.. . . . . . . . . . . . . . . . 39
6.3 Pro-rata Recovery.. . . . . . . . . . . . . . . . . . . 39
6.4 Deposits and Accounts.. . . . . . . . . . . . . . . . . 40
7. CONDITIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.1 Vishay Loan Agreement.. . . . . . . . . . . . . . . . . 40
7.2 Vishay's Certificate. . . . . . . . . . . . . . . . . . 40
7.3 Payment of Agent's and Other Fees.. . . . . . . . . . . 40
7.4 Other Documents and Instruments.. . . . . . . . . . . . 40
7.5 Continuing Conditions.. . . . . . . . . . . . . . . . . 40
8. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 41
9. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 41
10. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 41
11. DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.1 Events of Default.. . . . . . . . . . . . . . . . . . . 42
11.2 Exercise of Remedies. . . . . . . . . . . . . . . . . . 44
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11.3 Rights Cumulative.. . . . . . . . . . . . . . . . . . . 44
11.4 Waiver by Company of Certain Laws.. . . . . . . . . . . 44
11.5 Waiver of Defaults. . . . . . . . . . . . . . . . . . . 44
11.6 Cross-Default.. . . . . . . . . . . . . . . . . . . . . 45
12. AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
12.1 Appointment of Agent. . . . . . . . . . . . . . . . . . 45
12.2 Deposit Account with Agent. . . . . . . . . . . . . . . 45
12.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . 46
12.4 Successor Agents. . . . . . . . . . . . . . . . . . . . 46
12.5 Loans by Agent. . . . . . . . . . . . . . . . . . . . . 46
12.6 Credit Decisions. . . . . . . . . . . . . . . . . . . . 47
12.7 Notices by Agent. . . . . . . . . . . . . . . . . . . . 47
12.8 Agent's Fees. . . . . . . . . . . . . . . . . . . . . . 47
12.9 Nature of Agency. . . . . . . . . . . . . . . . . . . . 47
12.10 Actions; Confirmation of Agent's Authority
to Act in Event of Default. . . . . . . . . . . . . . 47
12.11 Authority of Agent to Enforce Notes and This
Agreement.. . . . . . . . . . . . . . . . . . . . . . 48
12.12 Indemnification.. . . . . . . . . . . . . . . . . . . . 48
12.13 Knowledge of Default. . . . . . . . . . . . . . . . . . 48
12.14 Agent's Authorization; Action by Banks. . . . . . . . . 49
12.15 Enforcement Actions by the Agent. . . . . . . . . . . . 49
12.16 Co-Agents and Lead Managers.. . . . . . . . . . . . . . 50
13. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 50
13.1 Accounting Principles.. . . . . . . . . . . . . . . . . 50
13.2 Consent to Jurisdiction.. . . . . . . . . . . . . . . . 50
13.3 Law of Michigan.. . . . . . . . . . . . . . . . . . . . 50
13.4 Interest. . . . . . . . . . . . . . . . . . . . . . . . 51
13.5 Closing Costs; Other Costs and Expenses.. . . . . . . . 51
13.6 Notices.. . . . . . . . . . . . . . . . . . . . . . . . 51
13.7 Further Action. . . . . . . . . . . . . . . . . . . . . 52
13.8 Successors and Assigns. . . . . . . . . . . . . . . . . 52
13.9 Indulgence. . . . . . . . . . . . . . . . . . . . . . . 52
13.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . 52
13.11 Amendment and Waiver. . . . . . . . . . . . . . . . . . 52
13.12 Taxes and Fees. . . . . . . . . . . . . . . . . . . . . 53
13.13 Confidentiality.. . . . . . . . . . . . . . . . . . . . 53
13.14 Withholding Taxes.. . . . . . . . . . . . . . . . . . . 54
13.15 Effective Upon Execution. . . . . . . . . . . . . . . . 54
13.16 Severability. . . . . . . . . . . . . . . . . . . . . . 54
13.17 Table of Contents and Headings. . . . . . . . . . . . . 55
13.18 Construction of Certain Provisions. . . . . . . . . . . 55
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13.19 Independence of Covenants.. . . . . . . . . . . . . . . 55
13.20 Reliance on and Survival of Various
Provisions. . . . . . . . . . . . . . . . . . . . . . 55
13.21 Complete Agreement. . . . . . . . . . . . . . . . . . . 55
EXHIBITS
Form of Request for Advance . . . . . . . . . . . . . . . . . . . . .A
Form of Revolving Credit Note . . . . . . . . . . . . . . . . . . . .B
Form of BID Borrowing Request . . . . . . . . . . . . . . . . . . .C-1
Form of BID Offer . . . . . . . . . . . . . . . . . . . . . . . . .C-2
Form of BID Acknowledgment. . . . . . . . . . . . . . . . . . . . .C-3
Form of BID Note. . . . . . . . . . . . . . . . . . . . . . . . . .C-4
Form of Term Note . . . . . . . . . . . . . . . . . . . . . . . . . .D
Form of Term Loan Rate Request. . . . . . . . . . . . . . . . . . . .E
Percentages . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F
<PAGE>
<PAGE> 8 --Exibit 10.2 ( Revolving Credit + Term Loan )
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made as of the 18th day
of July, 1994, among Comerica Bank, successor by merger to
Manufacturers Bank, N.A., formerly known as Manufacturers National
Bank of Detroit, NationsBank of North Carolina, N.A., formerly
known as NCNB National Bank of North Carolina, Berliner Handels-und
Frankfurter Bank KGaA, Signet Bank/Maryland, formerly known as
Union Trust Company of Maryland, CoreStates Bank, N.A., formerly
known as and continuing to do business under the name of The
Philadelphia National Bank, Bank Hapoalim, B.M., ABN AMRO Bank N.V.
New York Branch, Credit Lyonnais New York Branch, Meridian Bank,
Bank Leumi le-Israel, B.M. and Credit Suisse (individually, "Bank",
and collectively "Banks"), Comerica Bank, as agent for the Banks
(in such capacity, "Agent") and Vishay Beteiligungs GmbH, a German
corporation ("Company").
RECITALS:
A. In connection with the execution and delivery of the
Vishay Loan Agreement (as defined below), Company has requested
that the Banks and Agent amend and renew revolving and term credit
previously extended to Company pursuant to the Prior DM Loan
Agreement (as defined below), all on the terms set forth herein.
B. Pursuant to the Commitment Letter (as defined below),
the Banks are prepared to amend, renew and extend such credit as
aforesaid on the terms and conditions set forth herein.
NOW THEREFORE, COMPANY, AGENT AND THE BANKS AGREE:
1. DEFINITIONS
For the purposes of this Agreement the following terms will
have the following meanings:
1.1 "Absolute Rate" shall have the meaning ascribed to such
term under Section 2.5(c) hereof.
1.2 "Absolute Rate Bid Advance" shall mean any Bid Advance
bearing interest at an Absolute Rate.
1.3 "Absolute Rate Interest Period" shall mean, with
respect to any Absolute Rate Bid Advance, the period (consisting of
a whole number of days) commencing on (and including) the date such
Bid Advance is made, and ending not less than seven (7) days and
not more than thirty (30) days thereafter (but in no event later
than the Revolving Credit Maturity Date), as selected by the
Company in its Bid Borrowing Request.
1.4 "Acquisition Loan(s)" shall mean the Non-amortizing
Term Loan and the Bridge Loan.
<PAGE>
<PAGE> 9 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.5 "Advance(s)" shall mean, as the context may indicate,
a borrowing requested by Company and made by Banks under Section
2.1, or Section 3.1 of this Agreement, including without limitation
any refunding or conversions of such borrowing under Section 2.3 or
Section 3.5 hereof, or a borrowing requested by Company and made by
a Bank or Banks under Section 2.5 of this Agreement, and shall
include, as applicable, an Absolute Rate Bid Advance, a DM-based
Advance and a Prime-based Advance.
1.6 "Affiliate" shall mean, with respect to any Person, any
other Person or group acting in concert in respect of the Person
that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with such
Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person or group of
Persons, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies
of such Person, whether through the ownership of voting securities
or by contract or otherwise.
1.7 "Agent" shall mean Comerica Bank, a Michigan banking
corporation, successor by merger to Manufacturers Bank, N.A. or any
successor appointed in accordance with Section 12.4 hereof.
1.8 "Agent's Correspondent" shall mean, so long as the
Revolving Credit and/or Term Loan is denominated in Deutsche Marks,
Chemical Bank Frankfurt, or such other bank or banks as Agent may
from time to time designate by written notice to Company and the
Banks.
1.9 "Agent's Fees" shall mean those fees and expenses
required to be paid by Company to Agent under Section 12.8 hereof.
1.10 "Alternate Base Rate" shall mean, for any day, an
interest rate per annum equal to the Federal Funds Effective Rate
in effect on such day, plus one-half percent (1/2%).
1.11 "Alternative Currency" shall have the meaning given it
in the Vishay Loan Agreement.
1.12 "Applicable Fee Percentage" shall mean, as of any date
of determination thereof, the applicable percentage used to
calculate the fees due and payable hereunder, determined by
reference to the appropriate columns in the Pricing Matrix attached
to this Agreement as Schedule 14.
1.13 "Applicable Interest Rate" shall mean:
(a) for all periods during which the Revolving
Credit, Bid Advances and/or the Term Loan, as applicable, are
<PAGE>
<PAGE> 10 --Exibit 10.2 ( Revolving Credit + Term Loan )
denominated in Deutsche Marks hereunder, the Deutsche Mark-
based Rate; and
(b) if the Revolving Credit, Bid Advances and/or
Term Loan, as applicable, have been converted to Dollars
pursuant to Section 4.5, hereof, and so long as such
Indebtedness is denominated in Dollars hereunder, the Prime-
based Rate.
1.14 "Applicable Margin" shall mean, as of any date of
determination thereof, (i) with respect to the Revolving Credit and
the Term Loan, the applicable interest rate margin, determined by
reference to the appropriate columns in the Pricing Matrix attached
to this Agreement as Schedule 14, and (ii) with respect to DM Bid
Advances, the DM Bid Margin.
1.15 "Banks" shall mean Comerica Bank, successor by merger
to Manufacturers Bank, N.A., formerly known as Manufacturers
National Bank of Detroit ("Comerica"), NationsBank of North
Carolina, N.A., formerly known as NCNB National Bank of North
Carolina ("NationsBank"), Berliner Handels-und Frankfurter Bank
KGaA ("BHF"), Signet Bank/Maryland, formerly known as Union Trust
Company of Maryland ("Signet"), CoreStates Bank, N.A., formerly
known as and continuing to do business under the name of
Philadelphia National Bank, Bank Hapoalim, B.M., ABN AMRO Bank N.V.
New York Branch, Credit Lyonnais New York Branch ("Credit
Lyonnais"), Meridian Bank, Bank Leumi le-Israel, B.M. and Credit
Suisse, and any assignee which becomes a Bank pursuant to Section
13.8 hereof.
1.16 "Bid Acknowledgment" shall have the meaning ascribed to
such term in Section 2.5(e) hereof.
1.17 "Bid Advance" shall mean any Advance under Section 2.5
hereof, and shall include an Absolute Rate Bid Advance and a DM Bid
Advance.
1.18 "Bid Borrowing Request" shall have the meaning ascribed
to such term in Section 2.5(b) hereof.
1.19 "Bid Lender(s)" shall mean each of the Banks, other
than any Bank which notifies Company and Agent in writing (so long
as it has no Bid Offer outstanding) that it does not wish to fund
a Bid Advance under Section 2.5 hereof.
1.20 "Bid Notes" shall have the meaning ascribed to such
term in Section 2.5(g) hereof.
1.21 "Bid Offer" shall mean an offer by a Bid Lender to make
a Bid Advance in accordance with Section 2.5(c) hereof.
<PAGE>
<PAGE> 11 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.22 "Bridge Loan" shall mean the bridge loan in an
aggregate amount not to exceed One Hundred Million Dollars
($100,000,000) to be advanced by the Banks to Vishay pursuant to
the Target Company Loan Agreement.
1.23 "Business Day" shall mean any day on which commercial
banks are open for domestic and international business (including
dealings in foreign exchange) in Detroit, London, Frankfurt am Main
(except with respect to any Prime-based Advances) and New York, and
if funds are to be paid or made available in an Alternative
Currency, on such day in the place where such funds are to be paid
or made available.
1.24 "Commitment Letter" shall mean that certain commitment
letter dated June 28, 1994 and issued to Vishay by the Agent, for
itself and for and on behalf of the Banks, with respect to the
credit to be amended, renewed, increased and/or extended under the
terms and conditions of this Agreement, the Vishay Loan Agreement,
the Roederstein Loan Agreement and the Target Company Loan
Agreement.
1.25 "Company" shall mean Vishay Beteiligungs GmbH, a German
corporation, formerly known as Draloric Electronic GmbH.
1.26 "Consolidated" and "Consolidating" shall have the
meanings set forth in the Vishay Loan Agreement.
1.27 "conversion" or "converted", as used herein, shall
refer, to any and all conversions or reconversions of the
Indebtedness hereunder.
1.28 "Deutsche Mark Equivalent" shall mean the amount of
Deutsche Marks which could be purchased with the then outstanding
principal amount of Dollars at the most favorable spot exchange
rate determined by the Agent to be available to it for the sale of
Deutsche Marks for Dollars at approximately 11:00 a.m. (Detroit
time) two (2) Business Days prior to any reconversion of the
Indebtedness from Dollars to Deutsche Marks hereunder.
1.29 "Deutsche Mark-based Rate" shall mean a per annum
interest rate which is the Applicable Margin (subject in each case,
if applicable, to adjustment under Section 5.9 hereof), above (or
below) the Deutsche Mark Adjusted Rate.
1.30 "Deutsche Mark Adjusted Rate" shall mean the quotient
of:
(a) the per annum interest rate at which Agent's
Eurocurrency Lending Office (or with respect to a Bid Advance,
if applicable, the Eurocurrency Lending Office of the Bid
Lender funding such Bid Advance) offers deposits in Deutsche
Marks to United States regional prime banks in the
<PAGE>
<PAGE> 12 --Exibit 10.2 ( Revolving Credit + Term Loan )
eurocurrency market in amounts comparable to the Indebtedness
then outstanding and for a period equal to the relevant
Interest Period at approximately 11:00 A.M. Detroit time (or,
in the case of a Bid Advance, local time of the applicable Bid
Lender) two (2) Business Days prior to the first day of such
Interest Period; divided by
(b) a percentage equal to 100% minus the maximum
rate on such date at which Agent (or, in the case of a Bid
Advance, the applicable Bid Lender) is required to maintain
reserves on "Eurocurrency Liabilities" as defined in and
pursuant to Regulation D of the Board of Governors of the
Federal Reserve System or, if such regulation or definition is
modified, and as long as Agent (or, in the case of a Bid
Advance, the applicable Bid Lender) is required to maintain
reserves against a category of liabilities which includes
eurocurrency deposits or includes a category of assets which
includes eurocurrency loans, the rate at which such reserves
are required to be maintained on such category,
such sum to be rounded upward, if necessary, to the nearest whole
multiple of 1/16th of 1%.
1.31 "Deutsche Mark Principal Limit" shall mean:
(a) with respect to the Revolving Credit and the
aggregate outstanding principal amount of Bid Advances at any
time, the Revolving Credit Maximum Amount as of the date of
any determination thereof; and
(b) with respect to the Term Loan, Nine Million
Five Hundred Six Thousand Deutsche Marks (DM 9,506,000) minus
the sum of (i) the amount of any prepayments of principal made
on the Term Notes on or prior to the date of any determination
thereof, and (ii) the amount of any principal repayments on
the Term Notes scheduled to be paid under Section 3.2, hereof,
on or prior to the date of any determination thereof.
1.32 "DM-based Advance" shall mean any Advance (including a
DM Bid Advance) bearing interest at the Deutsche Mark-based Rate.
1.33 "DM Bid Advance" shall mean any Bid Advance bearing
interest at the Deutsche Mark-based Rate.
1.34 "DM Bid Margin" shall have the meaning ascribed to such
term in Section 2.5(c) hereof.
1.35 "DM Interest Period" shall mean an Interest Period of
one, two, three or six months (or, with respect to Advances of the
Revolving Credit, any lesser or greater number of days agreed to in
advance by Company, Agent and the Banks) as selected by Company for
a DM-based Advance pursuant to Section 4.3 hereof, or as offered by
<PAGE>
<PAGE> 13 --Exibit 10.2 ( Revolving Credit + Term Loan )
a Bid Lender and selected by Company pursuant to Section 2.5 hereof
or as selected by Company for a DM-based Advance pursuant to
Section 3.10 hereof.
1.36 "Dollar Amount" shall mean (i) when the Indebtedness
hereunder is being carried in Dollars, the principal amount thereof
and (ii) when the Indebtedness hereunder is being carried in
Deutsche Marks, the amount of Dollars which is equivalent to the
principal amount of such Indebtedness at the most favorable spot
exchange rate determined by the Agent to be available to it for the
sale of Dollars for Deutsche Marks at the relevant time, as such
Dollar Amount may be adjusted hereunder.
1.37 "Dollars" and the sign "$" shall mean lawful money of
the United States of America.
1.38 "Domestic Guaranty" shall have the meaning set forth in
the Vishay Loan Agreement.
1.39 "Draloric" shall mean Draloric Electronic, GmbH, a
German corporation, formerly known as Vishay Electronic, GmbH.
1.40 "Eurocurrency Lending Office" shall mean, as to Agent
and each of the Banks, its office, branch or affiliate located at
its address set forth on the signature pages hereof (or identified
thereon as its Eurocurrency Lending Office), or at such other
office, branch or affiliate of Agent or such Bank as it may
hereafter designate as its Eurocurrency Lending Office by notice to
Company and Agent.
1.41 "Event of Default" shall mean any of the Events of
Default specified in Sections 11.1 and 11.6 hereof.
1.42 "Federal Funds Effective Rate" shall mean, for any day,
a fluctuating interest rate per annum equal to the weighted average
of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of
recognized standing selected by it.
1.43 "Fixed Charge Coverage Ratio" shall have the meaning
set forth in the Vishay Loan Agreement.
1.44 "GAAP" shall mean generally accepted accounting
principles in the United States of America as in effect from time
to time.
<PAGE>
<PAGE> 14 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.45 "Guaranties" shall mean the Vishay Guaranty, the
Domestic Guaranty, and the Permitted Borrowers Guaranty.
1.46 "Hazardous Materials" and "Hazardous Materials Laws"
shall have the meanings set forth in the Vishay Loan Agreement.
1.47 "hereof", "hereto", "hereunder" and similar terms shall
refer to this Agreement and not to any particular paragraph or
provision of this Agreement.
1.48 "HLT Determination" shall have the meaning set forth in
the Vishay Loan Agreement.
1.49 "Indebtedness" shall mean all indebtedness and
liabilities, whether direct or indirect, absolute or contingent,
owing by Company or Vishay to the Banks or to the Agent, in any
manner and at any time, under this Agreement, the Vishay Loan
Agreement, the Roederstein Loan Agreement or the Target Company
Loan Agreement (or, in each case, any promissory notes issued
thereunder) or the other Loan Documents, whether evidenced by the
Notes or Company's revolving credit notes under the Vishay Loan
Agreement, or by Company's term notes under the Roederstein Loan
Agreement or arising under the Vishay Loan Agreement or the
Roederstein Loan Agreement or the Company's execution and delivery
of the Permitted Borrowers Guaranty, or otherwise, due or hereafter
to become due, now owing or that may hereafter be incurred by the
Company to, or acquired by, the Banks or by Agent, and any
judgments that may hereafter be rendered on such indebtedness or
any part thereof, with interest according to the rates and terms
specified, or as provided by law, and any and all consolidations,
amendments, renewals or extensions of any of the foregoing.
1.50 "Interest Period" shall mean either an Absolute Rate
Interest Period or a DM Interest Period commencing on the day an
Absolute Rate Bid Advance or a DM-based Advance, as the case may
be, is made, or the effective date of an election of the Absolute
Rate under Section 2.5 hereof or the DM-based Rate under Section
2.5 or 4.3 hereof, provided that
(a) any Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the
next succeeding Business Day, except that if the next
succeeding Business Day falls in another calendar month, the
Interest Period shall end on the next preceding Business Day,
and when an Interest Period begins on a day which has no
numerically corresponding day in the calendar month during
which such Interest Period is to end, it shall end on the last
Business Day of such calendar month, and
(b) no Interest Period shall extend beyond the then
effective maturity date of the Note(s) to which such Interest
Period is to apply.
<PAGE>
<PAGE> 15 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.51 "Loan Agreements" shall mean this Agreement, the Vishay
Loan Agreement, the Roederstein Loan Agreement and the Target
Company Loan Agreement.
1.52 "Loan Documents" shall mean collectively, the Notes,
the Vishay Loan Agreement (with respect to the Company's
obligations thereunder) and the Revolving Credit Notes issued by
the Company thereunder, the Permitted Borrowers Guaranty (with
respect to the Company's obligations thereunder), the Roederstein
Loan Documents (with respect to the Company's obligations
thereunder) and any other documents, instruments or agreements
executed pursuant to or in connection with any such document or
this Agreement, the Vishay Loan Agreement, or the Roederstein Loan
Agreement, as such documents may be amended from time to time.
1.53 "Majority Banks" shall mean at any time the Banks
holding 66 2/3% of the aggregate principal amount of the
Indebtedness then outstanding under this Agreement and the other
Loan Documents (excluding any Bid Notes issued under this Agreement
or the Vishay Loan Agreement except upon the occurrence and during
the continuance of an Event of Default, provided that the
Indebtedness under any such Bid Notes shall not be included for
purposes of Section 11.2(w) hereof) or, if no Indebtedness is then
outstanding, the Banks holding 66 2/3% of the Percentages.
1.54 "Moody's Rating" shall mean the rating by Moody's
Investors Services, Inc. (or any successor thereto) of Company's
long-term, senior unsecured debt.
1.55 "New Banks" shall mean Credit Lyonnais and Credit
Suisse.
1.56 "Non-Amortizing Term Loan" shall mean that certain non-
amortizing term loan in an aggregate amount not to exceed One
Hundred Million Dollars ($100,000,000) to be advanced by the Banks
to Vishay pursuant to the Target Company Loan Agreement.
1.57 "Notes" shall mean the Revolving Credit Notes, the Bid
Notes or the Term Notes or all of the Revolving Credit Notes, the
Bid Notes and the Term Notes, as the context indicates.
1.58 "Percentage" shall mean, with respect to any Bank, its
percentage share, as set forth on Exhibit "F" hereto, of the
Revolving Credit and/or the Term Loan as the context indicates, as
such Exhibit may be revised from time to time by Agent in
accordance with Section 13.8(d) of the Vishay Loan Agreement.
1.59 "Permitted Borrowers" and "Permitted Borrowers
Guaranty" shall have the meanings set forth in the Vishay Loan
Agreement.
<PAGE>
<PAGE> 16 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.60 "Permitted Encumbrances" shall mean, with respect to
any Person:
(a) the liens and encumbrances granted under or
established by this Agreement or the Loan Documents;
(b) liens for taxes not yet due and payable or
which are being contested in good faith by appropriate
proceedings diligently pursued, provided that such provision
for the payment of all such taxes known to such Person has
been made on the books of such Person as may be required by
generally accepted accounting principles, consistently
applied;
(c) mechanics', materialmen's, banker's, carriers',
warehousemen's and similar liens and encumbrances arising in
the ordinary course of business and securing obligations of
such Person that are not overdue for a period of more than 60
days or are being contested in good faith by appropriate
proceedings diligently pursued, provided that in the case of
any such contest (i) any proceedings commenced for the
enforcement of such liens and encumbrances shall have been
duly suspended; and (ii) such provision for the payment of
such liens and encumbrances has been made on the books of such
Person as may be required by generally accepted accounting
principles, consistently applied;
(d) liens arising in connection with worker's
compensation, unemployment insurance, old age pensions
(subject to the remaining provisions hereof) and social
security benefits which are not overdue or are being contested
in good faith by appropriate proceedings diligently pursued,
provided that in the case of any such contest (i) any
proceedings commenced for the enforcement of such liens shall
have been duly suspended; and (ii) such provision for the
payment of such liens has been made on the books of such
Person as may be required by generally accepted accounting
principles, consistently applied; and
(e)(i) liens incurred in the ordinary course of
business to secure the performance of statutory obligations
arising in connection with progress payments or advance
payments due under contracts with the United States or any
foreign government or any agency thereof entered into in the
ordinary course of business and (ii) liens incurred or
deposits made in the ordinary course of business to secure the
performance of statutory obligations, bids, leases, fee and
expense arrangements with trustees and fiscal agents and other
similar obligations (exclusive of obligations incurred in
connection with the borrowing of money, any lease-purchase
arrangements or the payment of the deferred purchase price of
property), provided that full provision for the payment of all
<PAGE>
<PAGE> 17 --Exibit 10.2 ( Revolving Credit + Term Loan )
such obligations set forth in clauses (i) and (ii) has been
made on the books of such Person as may be required by
generally accepted accounting principles, consistently
applied;
(f) any minor imperfections of title, including but
not limited to easements, covenants, rights-of-way or other
similar restrictions, which, either individually or in the
aggregate do not materially adversely affect the present or
future use of the property to which they relate, which would
have a material adverse effect on the sale or lease of such
property, or which would render title thereto unmarketable;
and
(g) those liens and encumbrances of Company
identified in Schedule 1.60, hereto.
1.61 "Person" shall mean an individual, corporation,
partnership, trust, incorporated or unincorporated organization,
joint venture, joint stock company, or a government or any agency
or political subdivision thereof or other entity of any kind.
1.62 "Prime Rate" shall mean the per annum interest rate
established by Agent as its prime rate for its borrowers as such
rate may vary from time to time, which rate is not necessarily the
lowest rate on loans made by Agent at any such time.
1.63 "Prime-based Advance" shall mean an Advance which bears
interest at the Prime-based Rate.
1.64 "Prime-based Rate" shall mean that rate of interest
which is the greater of (i) the Prime Rate or (ii) the Alternate
Base Rate, plus, in each case, the Applicable Margin (subject to
adjustment in each case, if applicable, under Section 5.9 hereof).
1.65 "Prior Agreements" shall have the meaning set forth in
the Vishay Loan Agreement.
1.66 "Prior Banks" shall mean the Banks other than the New
Banks.
1.67 "Prior DM Loan Agreement" shall mean that certain
Amended and Restated Draloric Electronic, GmbH DM 42,375,000
Revolving Credit and DM 57,036,000 Term Loan Agreement dated as of
January 10, 1992 among Company, the Prior Banks and Agent, as
amended, which loan agreement is amended and restated in its
entirety by this Agreement.
1.68 "Prior Vishay Loan Agreement" shall have the meaning
set forth in the Vishay Loan Agreement.
<PAGE>
<PAGE> 18 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.69 "Rating Level" shall mean Rating Level 1, 2, 3 or 4 as
then in effect hereunder.
1.70 "Rating Level 1" shall mean an S & P rating of BBB+ (or
higher) and a Moody's rating of Baa1 (or higher quality).
1.71 "Rating Level 2" shall mean an S & P rating of BBB (or
higher) and a Moody's rating of Baa2 (or higher quality).
1.72 "Rating Level 3" shall mean an S & P rating of BBB- (or
higher) and a Moody's rating of Baa3 (or higher quality).
1.73 "Rating Level 4" shall mean the rating level (if any)
which exists whenever the Company does not qualify for Rating Level
1, Rating Level 2 or Rating Level 3.
1.74 "Request for Advance" shall mean a Request for Advance
issued by Company under this Agreement in the form annexed hereto
as Exhibit "A".
1.75 "Revolving Credit" shall mean the revolving credit loan
to be advanced to the Company pursuant to Article 2 hereof, in an
amount not to exceed the Revolving Credit Maximum Amount.
1.76 "Revolving Credit Commitment Fee" shall mean the
commitment fee payable to Agent for distribution to the Banks
pursuant to Section 2.8 hereof.
1.77 "Revolving Credit Facility Fee" shall mean the facility
fee payable to Agent for distribution to the Banks pursuant to
Section 2.7 hereof.
1.78 "Revolving Credit Maturity Date" shall mean the earlier
to occur of (i) December 31, 1997, as such date may be extended
from time to time pursuant to Section 2.10 hereof, and (ii) the
date on which the Revolving Credit Maximum Amount shall be
terminated pursuant to Section 2.9 or 11.2 hereof.
1.79 "Revolving Credit Maximum Amount" shall mean Forty
Million Deutsche Marks (DM 40,000,000), less any reductions in the
Revolving Credit Maximum Amount under Section 2.9 of this
Agreement.
1.80 "Revolving Credit Notes" shall mean the Notes described
in Section 2.1 made by Company to each of the Banks in the form
annexed to this Agreement as Exhibit "B", as such Notes may be
amended, renewed, replaced or extended from time to time.
1.81 "Roederstein Loan Agreement" shall mean that certain
Roederstein DM 104,315,990.20 Term Loan Agreement dated as of the
date hereof among Company, the Banks and Agent, as amended from
time to time.
<PAGE>
<PAGE> 19 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.82 "Roederstein Loan Documents" shall mean the Roederstein
Loan Agreement and all notes, and other loan documents executed by
Company, Vishay or any of the Permitted Borrowers pursuant to or in
connection with the Roederstein Loan Agreement, as such documents
may be amended from time to time.
1.83 "S & P Rating" shall mean the rating by Standard &
Poor's Corporation (or any successor thereto) of Company's long-
term, senior unsecured debt.
1.84 "Shares", "share capital", "capital stock", "stock" and
words of similar import shall mean and refer to the equity capital
interest under applicable law of any Person in a corporation,
howsoever such interest is created or arises, whether such capital
consists of common, preferred or preference shares or other stock,
and whether such capital is evidenced by a certificate, share
register entry or otherwise.
1.85 "Subsidiary(ies)" shall mean any corporation,
association, joint stock company, or business trust of which more
than fifty percent (50%) of the outstanding voting stock is owned
either directly or indirectly by Company or one or more of its
Subsidiaries or by Company and one or more of its Subsidiaries, or
the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by Company
and/or its Subsidiaries.
1.86 "Target Company" shall mean Vitramon, Incorporated, a
Delaware corporation.
1.87 "Target Company Acquisition" shall have the meaning set
forth in the Vishay Loan Agreement.
1.88 "Target Company Loan Agreement" shall mean that certain
$200,000,000 Target Company Loan Agreement dated as of the date
hereof among Vishay, the Banks and Agent, as amended from time to
time.
1.89 "Target Company Loan Documents" shall mean the Target
Company Loan Agreement, and all notes and other loan documents
executed by Vishay or any of its Subsidiaries pursuant to or in
connection with the Target Company Loan Agreement, as such
documents may be amended from time to time.
1.90 "Term Loan" shall mean the amortizing term loan in the
amount of Nine Million Five Hundred Six Thousand Deutsche Marks (DM
9,506,000) advanced to Company by the Banks pursuant to Section 3.1
hereof.
1.91 "Term Loan Maturity Date" shall mean December 31, 1994.
<PAGE>
<PAGE> 20 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.92 "Term Loan Rate Request" shall mean a rate selection
request issued by Company pursuant to Section 3.5 hereof in the
form attached as Exhibit "E".
1.93 "Term Notes" shall mean the term notes described in
Section 3.1 hereof, and made by Company to each of the Banks in the
form attached as Exhibit "D".
1.94 "Vishay" shall mean Vishay Intertechnology, Inc., a
Delaware corporation.
1.95 "Vishay Guaranty" shall have the meaning set forth in
the Vishay Loan Agreement.
1.96 "Vishay Loan Agreement" shall mean that certain Amended
and Restated Vishay Intertechnology, Inc. $302,500,000 Revolving
Credit and Term Loan Agreement dated as of the date hereof among
Vishay, Agent and the Banks, as amended from time to time.
Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings set forth in the Vishay Loan
Agreement.
2. REVOLVING CREDIT; BID ADVANCES
2.1 Commitment. Subject to the terms and conditions of this
Agreement, each Bank severally agrees to make Advances to Company
at any time and from time to time from the effective date hereof
until (but excluding) the Revolving Credit Maturity Date, and
Company agrees to borrow such Advances, of sums not to exceed each
such Bank's Percentage of the Revolving Credit Maximum Amount at
any time outstanding. All of the Advances hereunder shall be
evidenced by Revolving Credit Notes under which advances,
repayments and readvances may be made, subject to the terms and
conditions of this Agreement.
2.2 Accrual of Interest and Maturity. The Revolving Credit
Notes, and all principal and interest outstanding thereunder, shall
mature and become due and payable in full on the Revolving Credit
Maturity Date, and each Advance from time to time outstanding under
the Revolving Credit Notes shall, from and after the date of such
Advance, bear interest at its Applicable Interest Rate. The amount
and date of each Advance, its Applicable Interest Rate, its
Interest Period, and the amount and date of any repayment shall be
noted on Agent's records, which records will be conclusive evidence
thereof, absent manifest error.
2.3 Requests for and Refundings of Advances. Company may
request an Advance under the Revolving Credit Notes only after
delivery to Agent of a Request for Advance executed by an
authorized officer of Company and subject to the following and to
the remaining provisions of this Agreement:
<PAGE>
<PAGE> 21 --Exibit 10.2 ( Revolving Credit + Term Loan )
(a) each such Request for Advance shall set forth
the information required on the Request for Advance form
annexed hereto as Exhibit "A", including without limitation:
(i) the proposed date of Advance, which must
be a Business Day;
(ii) whether the Advance is a refunding or
conversion of an outstanding Advance; and
(iii) the first Interest Period applicable
thereto.
(b) each such Request for Advance shall be
delivered to Agent by 12 noon (Detroit time) not less than
four (4) Business Days prior to the proposed date of Advance;
(c) the principal amount of such requested Advance,
plus the principal amount of all other Advances of the
Revolving Credit then outstanding hereunder, plus the
aggregate principal amount of Bid Advances outstanding
hereunder, plus the aggregate principal amount of Bid Advances
requested but not yet advanced hereunder (determined as
aforesaid), shall not exceed the Revolving Credit Maximum
Amount;
(d) the principal amount of such Advance, plus the
amount of any other outstanding Indebtedness under this
Agreement to be then combined therewith having the same
Interest Period, if any, shall be at least Five Million
Deutsche Marks (DM 5,000,000) and at any one time the Company
shall not have more than one (1) Interest Period in effect;
(e) a Request for Advance, once delivered to Agent,
shall not be revocable by Company; and
(f) each Request for Advance shall constitute and
include a certification by the Company as of the date thereof
that:
(i) both before and after the Advance, the
obligations of the Company, its
Subsidiaries and the Permitted Borrowers
set forth in this Agreement and any of
the Loan Documents to which such Persons
are parties are valid, binding and
enforceable obligations of the Company,
its Subsidiaries and the Permitted
Borrowers, as the case may be;
(ii) all conditions to Advances of the
Revolving Credit have been satisfied, and
<PAGE>
<PAGE> 22 --Exibit 10.2 ( Revolving Credit + Term Loan )
shall remain satisfied to the date of
Advance;
(iii) there is no Event of Default, in
existence, and no event which, with the
giving of notice or the lapse of time, or
both, would constitute an Event of
Default, and none will exist upon the
making of the Advance;
(iv) the representations and warranties
contained in this Agreement and the Loan
Documents are true and correct in all
material respects and shall be true and
correct in all material respects as of
the making of the Advance; and
(v) the execution of the Request for Advance
will not violate the material terms and
conditions of any material contract,
agreement or other borrowing of Company
or any of the Permitted Borrowers.
2.4 Disbursement of Advances.
(a) Upon receiving any Request for Advance from
Company under Section 2.3 hereof, Agent shall promptly notify
each Bank by wire, telex or by telephone (confirmed by wire,
telecopy or telex) of the amount of such Advance to be made
and the date such Advance is to be made by said Bank pursuant
to its Percentage of the Advance. Unless such Bank's
commitment to make Advances hereunder shall have been
suspended or terminated in accordance with this Agreement,
each Bank shall make available the amount of its Percentage of
the Advance in immediately available funds in Deutsche Marks
to Agent, at the Agent's Correspondent for the account of the
Eurocurrency Lending Office of the Agent, not later than 12
noon (the time of the Agent's Correspondent) on the date of
such Advance.
(b) Subject to submission of an executed Request
for Advance by Company without exceptions noted in the
compliance certification therein, Agent shall make available
to Company, the aggregate of the amounts so received by it in
like funds not later than 4:00 p.m. (the time of the Agent's
Correspondent) on the date of such Advance, by credit to an
account of Company maintained with Agent's Correspondent or to
such other account or third party as Company may reasonably
direct.
(c) Agent shall deliver the documents and papers
received by it for the account of each Bank to such Bank or
<PAGE>
<PAGE> 23 --Exibit 10.2 ( Revolving Credit + Term Loan )
upon its order. Unless Agent shall have been notified by any
Bank prior to the date of any proposed Advance that such Bank
does not intend to make available to Agent such Bank's
Percentage of the Advance, Agent may assume that such Bank has
made such amount available to Agent on such date and in
Deutsche Marks, as aforesaid and may, in reliance upon such
assumption, make available to Company, a corresponding amount.
If such amount is not in fact made available to Agent by such
Bank, as aforesaid, Agent shall be entitled to recover such
amount on demand from such Bank. If such Bank does not pay
such amount forthwith upon Agent's demand therefor, the Agent
shall promptly notify Company and Company shall pay such
amount to Agent. Agent shall also be entitled to recover from
such Bank or Company, as the case may be, interest on such
amount in respect of each day from the date such amount was
made available by Agent to Company to the date such amount is
recovered by Agent, at a rate per annum equal to:
(i) in the case of a Bank, Agent's aggregate
marginal cost (including the cost of
maintaining any required reserves or deposit
insurance and of any fees penalties, overdraft
charges or other costs or expenses incurred by
Agent as a result of such failure to deliver
funds hereunder) of carrying such amount; and
(ii) in the case of Company, the rate of interest
then applicable to the Revolving Credit.
The obligation of any Bank to make any Advance hereunder shall
not be affected by the failure of any other Bank to make any
Advance hereunder, and no Bank shall have any liability to the
Company, the Agent, or any other Bank for another Bank's
failure to make any Advance hereunder.
2.5 Bid Advances.
(a) Bid Advances. Company may request Bid Offers from the
Bid Lenders to make Bid Advances in Deutsche Marks in accordance
with this Section 2.5 from time to time on any Business Day prior
to the Revolving Credit Maturity Date ("Bid Advance(s)"); provided,
however, that after giving effect to each Bid Advance and all other
Advances of the Revolving Credit requested to be made on such date,
the aggregate outstanding Advances of the Revolving Credit and Bid
Advances shall not exceed the Revolving Credit Maximum Amount. Each
Bid Advance shall mature, and the principal amount thereof shall be
due and payable by the Company, on the last day of the Interest
Period applicable thereto, provided, that no Bid Advance may mature
or be payable on a day later than the Revolving Credit Maturity
Date. In no event whatsoever shall any outstanding Bid Advance be
deemed to reduce, modify or affect any Bank's commitment to make
Advances of the Revolving Credit, based upon its Percentage. All
<PAGE>
<PAGE> 24 --Exibit 10.2 ( Revolving Credit + Term Loan )
Bid Lenders, or any lesser number thereof (including any Bid Lender
individually), may, but shall not be obligated to, make Bid Offers
so requested, and the Company may, but shall not be obligated to,
accept any Bid Lender's Bid Offer, subject to the terms hereof.
(b) Bid Requests. Company may request from all Bid Lenders
a Bid Advance by telephonic notice to the Agent (which notice shall
be immediately confirmed by a facsimile Bid Borrowing Request (each
a "Bid Borrowing Request") in the form of Exhibit C-1 attached
hereto) not later than 10:00 a.m. (Detroit time) at least five (5)
Business Days prior to the date for such proposed Bid Advance in
the case of an Absolute Rate Bid Advance, and not later than 10:00
a.m. (Detroit time) at least five (5) Business Days prior to the
date for such proposed Bid Advance borrowing in the case of a DM
Bid Advance, in each case specifying:
(i) the date (which must be a Business Day) and
aggregate amount of the proposed Bid Advance (which shall be
in a minimum aggregate principal amount of Ten Million
Deutsche Marks (DM 10,000,000) and an integral multiple of One
Million Deutsche Marks (DM 1,000,000);
(ii) whether the Bid Offers requested are to be for
Absolute Rate Bid Advances or DM Bid Advances, or both; and
(iii) the duration of the Interest Period or Interest
Periods applicable thereto, up to a maximum of three (3) such
Interest Periods.
The Agent shall promptly (but in any event no later than 5:00 p.m.
(Detroit time), on the same day of receipt of the Bid Borrowing
Request) notify each Bid Lender by telephone (confirmed by
facsimile) of each Bid Borrowing Request. The Company shall not
request any Bid Advance within ten (10) Business Days after the
date of any other Bid Borrowing Request or Bid Advance. Company may
not request the refunding or conversion of any outstanding Advance
(whether a Bid Advance or an Advance of the Revolving Credit) as a
Bid Advance.
(c) Bid Offers.
(i) If any Bid Lender, in its sole discretion,
elects to offer to make a Bid Advance to the Company as part
of a proposed Bid Advance, it shall deliver by telephone
(confirmed by facsimile promptly on the same day) to the Agent
before 10:30 a.m. (Detroit time) four (4) Business Days prior
to the date of such proposed Bid Advance, a Bid Offer, in the
form of Exhibit C-2 attached hereto ("Bid Offer"), specifying:
(A) the amount and Interest Period of each Bid
Advance which such Bid Lender would be willing to make
as part of such proposed Bid Advance, which amount
<PAGE>
<PAGE> 25 --Exibit 10.2 ( Revolving Credit + Term Loan )
shall be in a minimum principal amount of Three Million
Deutsche Marks (DM 3,000,000) and in an integral
multiple of One Million Deutsche Marks (DM 1,000,000),
may not exceed the aggregate amount of the proposed Bid
Advance as requested by the Company in connection with
such Bid Advance, but may exceed such Bid Lender's
Percentage of the Revolving Credit Maximum Amount, and
which Interest Period shall be the Interest Period
specified by the Company in the Bid Borrowing Request
with respect to such Bid Advance;
(B) in the event the Company requests an Absolute
Rate Bid Advance, the rate of interest per annum
offered by such Bid Lender in its sole discretion with
respect to such Bid Advance (rounded to the nearest
1/16th of 1%) (the "Absolute Rate") offered for each
such Absolute Rate Bid Advance; and
(C) in the event the Company requests a DM Bid
Advance, the margin offered by such Bid Lender in its
sole discretion with respect to such Bid Advance above
or below the DM Adjusted Rate expressed as a percentage
(rounded to the nearest 1/16th of 1%) (the "DM Bid
Margin") to be added to or subtracted from the
applicable DM Adjusted Rate for the Interest Period for
each such DM Bid Advance.
Notwithstanding the foregoing, Bid Offers submitted by Agent
in its capacity as a Bank may be submitted, and may only be
submitted, if the Agent notifies Company of the terms of such
Bid Offer (and the content thereof) not later than 30 minutes
prior to the deadline for the other Bid Lenders, in the case
of a DM Bid Advance. Agent agrees to use good faith diligent
efforts in formulating any such Bid Offers hereunder, not to
review any Bid Offers submitted by other Bid Lenders.
(ii) Bid Offers shall be irrevocable, subject to the
terms and conditions of this Agreement. If a Bid Offer is
determined by the Agent (whose determination shall be
conclusive in the absence of manifest error) to:
(A) be not substantially in the form of Exhibit
C-2 attached hereto;
(B) omit any required information;
(C) be conditional or qualified in any respect;
(D) propose terms other than or in addition to
those set forth in the related Bid Borrowing
Request;
<PAGE>
<PAGE> 26 --Exibit 10.2 ( Revolving Credit + Term Loan )
(E) not have been delivered to the Agent in
accordance with the time periods specified
herein; or
(F) be otherwise inconsistent with the provisions
hereof,
the Agent will reject the offer made by such Bid Offer and give
telephonic notice (confirmed by facsimile) of such rejection to the
Bid Lender which submitted such Bid Offer. Promptly thereafter,
and in any case, no later than 11:00 a.m. (Detroit time) four (4)
Business Days prior to the date of the proposed Bid Advance, the
Agent will give telephonic notice (confirmed by facsimile) to the
Company of all conforming Bid Offers and the terms thereof.
(d) Acceptance by the Company of Bid Offers. The Company
shall, four (4) Business Days prior to the date of the proposed Bid
Advance, in its sole discretion, either:
(i) irrevocably cancel the Bid Borrowing Request
that requested such Bid Advance by giving the Agent telephonic
notice confirmed promptly thereafter by facsimile) to that
effect; or
(ii) irrevocably accept one or more of the Bid
Offers by giving telephonic notice to the Agent of the amount
of the Bid Advance to be made on such date, specifying (A) the
amount of each Bid Advance to be made by each Bid Lender as
part of such Bid Advance, which amount shall not be greater
than the amount offered by such Bid Lender in its Bid Offer,
(B) the Interest Period with respect thereto, and (C) the
Absolute Rate with respect to each Absolute Rate Bid Advance
and the DM Bid Margin with respect to each DM Bid Advance;
provided, however, that:
(A) the Company shall accept Bid Lenders' conforming
Bid Offers only on the basis of ascending Absolute
Rates or DM Bid Margins and shall not accept any Bid
Lender's conforming Bid Offer to make a Bid Advance at
a particular Absolute Rate or DM Bid Margin for a
particular Interest Period if the Company has decided
to reject any other Bid Lender's conforming Bid Offer
to make a Bid Advance with the same Interest Period at
a lower Absolute Rate or DM Bid Margin, as the case may
be;
(B) the aggregate principal amount of all Bid Offers
accepted by the Company shall not, after giving effect
to all reductions made pursuant to proviso (C) of this
Section 2.5 (d)(ii) below, exceed the principal amount
specified in the Bid Borrowing Request;
<PAGE>
<PAGE> 27 --Exibit 10.2 ( Revolving Credit + Term Loan )
(C) if the Company shall accept any Bid Offer to
make a Bid Advance at a particular Absolute Rate or DM
Bid Margin, as the case may be, for a particular
Interest Period, then the Company shall accept all
offers to make Bid Advances at such Absolute Rate or DM
Bid Margin, as the case may be, for the same Interest
Period; provided, however, that, if Bid Offers are made
by two or more Bid Lenders at the same Absolute Rates
or DM Bid Margins (with respect to the related Interest
Period(s)) as the case may be, for a greater aggregate
principal amount than the amount in respect of which
such Bid Offers are accepted for the related Interest
Period, the principal amount of Bid Advances in respect
of which such Bid Offers are accepted shall be
allocated by the Agent among such Bid Lenders as nearly
as possible (and in such multiples, not greater than
One Million Five Hundred Thousand Deutsche Marks (DM
1,500,000), as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such
Bid Offers. Each Bid Lender acknowledges and agrees
that any Bid Offer submitted by such Bid Lender may be
modified in accordance with this clause (C), and no
such modification shall constitute a rejection of such
Bid Offer. Determinations by Agent of the amounts of
Bid Advances hereunder shall be conclusive in the
absence of manifest error.
Subject to the foregoing requirements, the Company may accept or
reject, at the Company's sole discretion, the offer to make Bid
Advances contained in any Bid Offer. Each notice given by the
Company pursuant to this Section 2.5(d) shall be irrevocable.
Failure by the Company to accept a Bid Offer in accordance with the
provisions of this Section 2.5(d) shall constitute a rejection of
such Bid Offer.
(e) Acknowledgment of Bid Borrowings. Promptly after
acceptance of a Bid Offer by the Company pursuant to Section 2.5(d)
(ii) hereof:
(i) in any case no later than 1:00 p.m. (Detroit time)
four (4) Business Days prior to the date of such Bid Advance
in the case of a DM Bid Advance, the Company shall deliver by
facsimile to the Agent a Bid Acknowledgment in substantially
the form of Exhibit C-3 hereto ("Bid Acknowledgment")
confirming, with respect to each Bid Advance to be made to the
Company, the Interest Period, the amount of the borrowing and
the Absolute Rate or DM Bid Margin, as the case may be,
therefor; and
(ii) in any case no later than 2:00 p.m. (Detroit time)
four (4) Business Days prior to the date of such Bid Advance
the Agent will give telephonic notice to each Bid Lender of
<PAGE>
<PAGE> 28 --Exibit 10.2 ( Revolving Credit + Term Loan )
each Interest Period, amount of the borrowing, and the
Absolute Rate or DM Bid Margin, as the case may be, so
accepted by the Company.
(f) Bid Advance Funding. At or before noon (Detroit time)
on the Business Day of such Bid Advance each Bid Lender whose Bid
Offer in respect thereof the Company accepted pursuant to Section
2.5(d)(ii) hereof shall deposit with the Agent same day funds in an
amount equal to the principal amount of such Bid Lender's Bid
Advance. Such deposit will be made to an account which the Agent
shall from time to time specify by notice to the Bid Lenders. To
the extent same day funds are received from such Bid Lenders, the
Agent shall make such same day funds available to the Company by
wire transfer to the accounts which Company shall have specified in
its Bid Acknowledgment. No Bid Lender's obligation to make any Bid
Advance shall be affected by any other Bid Lender's failure to make
any Bid Advance.
Unless Agent shall have received notice from a Bid Lender
prior to the date of funding of such Bid Lender's Bid Advance
accepted by the Company that such Bid Lender will not make
available to the Agent such Bid Lender's share of such Bid Advance,
Agent may assume that such Bid Lender has made such share available
to Agent on the date of such Bid Advance in accordance with this
subparagraph (f) and Agent may (but under no circumstances shall be
required to do so), in reliance upon such assumption, make
available to Company on such date a corresponding amount. If and
to the extent that such Bid Lender shall not have so made such
share available to Agent in accordance with the terms hereof, such
Bid Lender and Company severally agree to repay to Agent forthwith
upon demand such corresponding amount, together with interest
thereon, for each day from the date such amount is made available
to Company until the date such amount is repaid to Agent, at a rate
per annum equal to:
(i) in the case of a Bid Lender, Agent's aggregate
marginal cost (including the cost of
maintaining any required reserves or deposit
insurance and of any fees penalties, overdraft
charges or other costs or expenses incurred by
Agent as a result of such failure to deliver
funds hereunder) of carrying such amount; and
(ii) so long as the Bid Advance is denominated in
Deutsche Marks hereunder, (x) at a per annum
rate calculated by the Agent, whose
determination shall be conclusive absent
manifest error, on a daily basis, equal to
three percent (3%) above the interest rate per
annum at which one (1) day (or, if such amount
due remains unpaid for more than three (3)
Business Days, then for such other period of
<PAGE>
<PAGE> 29 --Exibit 10.2 ( Revolving Credit + Term Loan )
time as the Agent may elect which shall in no
event be longer than six (6) months) deposits
in Deutsche Marks, in the amount of such
overdue payment due to the Agent are offered
by the Agent's Eurocurrency Lending Office for
the applicable period determined as provided
above, or (y) if at any such time such
deposits are not offered by the Agent's
Eurocurrency Lending Office, then at a rate
per annum equal to three percent (3%) above
the rate determined by the Agent to be its
aggregate marginal cost (including the cost of
maintaining any required reserves or deposit
insurance) of carrying the amount of the
Indebtedness then outstanding; provided that,
if the applicable Bid Advance has been
converted to Dollars hereunder is then in
effect, at a per annum rate equal to the
Prime-based Rate, plus three percent (3%).
If such Bid Lender shall repay to Agent such corresponding amount,
such amount so repaid shall constitute such Bid Lender's portion of
the Bid Advance included in such Bid Advance for purposes of this
Agreement.
Promptly after each Bid Advance, and in any case no later than
the immediately succeeding Business Day, the Agent will deliver to
each of the Banks, a copy of the Bid Acknowledgment, specifying the
date and amount of such Bid Advance, the amounts of the Bid
Advances which comprise such borrowing and the Interest Period(s)
thereof and the Absolute Rate(s) or DM Bid Margin(s) as the case
may be, accepted. Furthermore, upon the request of any Bank from
time to time hereunder, the Agent will provide summaries to such
Bid Lender of all Bid Offers received in response thereto.
(g) Bid Notes. The Bid Advances of each Bid Lender shall
be evidenced by a promissory note in the form of Exhibit C-4
attached hereto ("Bid Notes"), with appropriate insertions and
shall be payable to the order of such Bid Lender, shall be dated as
of the date of this Agreement, shall set forth the maximum
principal amount of the aggregate Bid Advances which may be made by
such Bid Lender and shall mature, subject to the terms hereof, on
the Revolving Credit Maturity Date. Each Bid Lender shall record
in its records, or at its option on the schedule attached to its
Bid Note, the date and amount of each Bid Advance made by such Bid
Lender, the Applicable Interest Rate with respect to each Bid
Advance, each repayment thereof and the dates on which each
Interest Period for such Bid Advance shall begin and end. The
aggregate unpaid principal amount so recorded shall be conclusive
evidence of the principal amount owing and unpaid on such Bid Note,
absent manifest error. The failure to so record any such amount or
any error in so recording any such amount shall not, however, limit
<PAGE>
<PAGE> 30 --Exibit 10.2 ( Revolving Credit + Term Loan )
or otherwise affect the obligations of the Company hereunder or
under any such Bid Note.
2.6 No Dollar Advance Availability. Notwithstanding
anything to the contrary contained in this Agreement, no additional
Advances of the Revolving Credit shall be available to Company from
the date of any notification by Agent that, pursuant to Section 4.5
hereof, the outstanding Indebtedness is to be converted to Dollars,
unless and until Agent shall notify Company, pursuant to Section
4.6 hereof, that the outstanding Indebtedness is to be reconverted
to Deutsche Marks in accordance with the terms hereof.
2.7 Revolving Credit Facility Fee. From the date hereof to
the Revolving Credit Maturity Date, the Company shall pay to the
Agent, for distribution to the Banks pro rata, a Revolving Credit
Facility Fee consisting of the Applicable Fee Percentage per annum,
calculated on a daily basis, times the Revolving Credit Maximum
Amount then in effect hereunder, regardless of the aggregate amount
of Advances of the Revolving Credit outstanding from time to time.
The Revolving Credit Facility Fee shall be payable quarterly in
arrears commencing September 30, 1994, and on the last day of each
calendar quarter thereafter and at the Revolving Credit Maturity
Date, and shall be computed on the basis of a year of three hundred
sixty (360) days and assessed for the actual number of days
elapsed, giving immediate effect to any changes in the Applicable
Fee Percentage. Whenever any payment of the Revolving Credit
Facility Fee shall be due on a day which is not a Business Day, the
date for payment thereof shall be extended to the next Business
Day. Upon receipt of such payment, Agent shall make prompt payment
to each Bank of its share of the Revolving Credit Facility Fee
based upon its respective Percentage. The Revolving Credit Facility
Fee shall not be refundable under any circumstances.
2.8 Revolving Credit Commitment Fee. From the date hereof
to the Revolving Credit Maturity Date, the Company shall pay to the
Agent, for distribution to the Banks as set forth below, in the
currency in which the Indebtedness is then being carried, or, if no
Indebtedness is then outstanding hereunder, in the currency in
which the Indebtedness hereunder would be required to be carried if
it were outstanding, a Revolving Credit Commitment Fee equal to
.0625% per annum on the daily average amount by which the Revolving
Credit Maximum Amount exceeds the principal amount outstanding from
time to time under the Revolving Credit, plus the aggregate daily
amount of Bid Advances outstanding from time to time hereunder
determined in each case as of the last day of each Interest Period
so long as, and during all times when the Indebtedness is carried
in Deutsche Marks (but otherwise computed on a daily basis). The
Revolving Credit Commitment Fee shall be payable quarterly in
arrears commencing September 30, 1994 and on the last day of each
December, March, June and September thereafter, and shall be
computed on the basis of a year of three hundred sixty (360) days
<PAGE>
<PAGE> 31 --Exibit 10.2 ( Revolving Credit + Term Loan )
and assessed for the actual number of days elapsed. Whenever any
payment of the Revolving Credit Commitment Fee shall be due on a
day which is not a Business Day, the date for payment thereof shall
be extended to the next Business Day. Upon receipt of such payment
Agent shall make prompt payment to each Bank of its share of the
Revolving Credit Commitment Fee based upon its respective
Percentage. It is expressly understood that the commitment fees
described in this Section are not refundable under any
circumstances.
2.9 Optional Reduction or Termination of Revolving Credit
Maximum Amount. Provided that no Event of Default, or event which
with the giving of notice or the passage of time, or both, would
constitute an Event of Default, is in existence, the Company may
upon at least five (5) Business Days' prior written notice to the
Agent, permanently reduce the Revolving Credit Maximum Amount in
whole at any time, or in part from time to time, without premium or
penalty, provided that: (i) each partial reduction of the Revolving
Credit Maximum Amount shall be in made in integral multiples of Two
Million Deutsche Marks (DM 2,000,000) if the Deutsche Mark-based
Rate is then in effect, or One Million Dollars ($1,000,000) if the
Prime-based Rate is then in effect; (ii) each reduction shall be
accompanied by the payment of the Revolving Credit Commitment Fee,
if any, accrued to the date of such reduction; (iii) the Company
shall prepay in accordance with the terms hereof the amount, if
any, by which the aggregate unpaid principal amount of Revolving
Credit Notes, plus the aggregate principal amount of Bid Advances
then outstanding, exceeds the amount of the Revolving Credit
Maximum Amount as so reduced, together with interest thereon to the
date of prepayment; and (iv) if the termination or reduction of the
Revolving Credit Maximum Amount requires the prepayment of an
Absolute Rate Bid Advance or a DM-based Advance, the termination or
reduction may be made only on the last day of the then current
Interest Period applicable to such Advance. Reductions of the
Revolving Credit Maximum Amount and any accompanying prepayments of
the Revolving Credit Notes shall be distributed to each Bank in
accordance with such Bank's Percentage thereof, shall be permanent
and irrevocable and will not be available for reinstatement by or
readvance to the Company.
2.10 Extension of Revolving Credit Maturity Date. Provided
that no Default or Event of Default has occurred and is continuing,
Company may, by written notice to Agent and each Bank (which notice
shall be irrevocable and which shall not be deemed effective unless
actually received by Agent and each Bank) prior to May 18, 1994,
but not before April 18, 1994, of each year, request that the Banks
extend the then applicable Revolving Credit Maturity Date to a date
that is one year later than the Revolving Credit Maturity Date then
in effect (each such request, a "Request"). Each Bank shall, not
later than thirty (30) calendar days following the date of its
receipt of the Request, give written notice to the Agent stating
whether such Bank is willing to extend the Revolving Credit
<PAGE>
<PAGE> 32 --Exibit 10.2 ( Revolving Credit + Term Loan )
Maturity Date as requested. If Agent has received the aforesaid
written approvals of such Request from each of the Banks, then,
effective upon the date of Agent's receipt of all such written
approvals from the Banks, as aforesaid, the Revolving Credit
Maturity Date shall be so extended for an additional one year
period, the term Revolving Credit Maturity Date shall mean such
extended date and Agent shall promptly notify the Company that such
extension has occurred. If (i) any Bank gives the Agent written
notice that it is unwilling to extend the Revolving Credit Maturity
Date as requested or (ii) any Bank fails to provide written
approval to Agent of such a Request within thirty (30) calendar
days of the date of Agent's receipt of the Request, then (x) the
Banks shall be deemed to have declined to extend the Revolving
Credit Maturity Date, (y) the then-current Revolving Credit
Maturity Date shall remain in effect (with no further right on the
part of Company to request extensions thereof under this Section
2.10) and (z) the commitments of the Banks to make Advances of the
Revolving Credit hereunder shall terminate on the Revolving Credit
Maturity Date then in effect, and Agent shall promptly notify
Company thereof.
2.11 Revolving Credit as Renewal; Application of Advances.
The Revolving Credit Notes issued by Company shall constitute
renewal and replacement evidence of all present indebtedness of
Company for the Revolving Credit outstanding under the Prior DM
Loan Agreement as of the date hereof. Thereafter, Advances of the
Revolving Credit shall be available, subject to the terms hereof,
to fund working capital needs or other general corporate purposes
of Company. Advances of the Revolving Credit shall not be available
to fund, directly or indirectly, the Target Company Acquisition or
the payment of any transfer taxes, stamp duties, brokerage fees or
other costs and expenses resulting directly or indirectly from such
acquisition.
3. TERM LOAN
3.1 Commitment. Subject to the terms and conditions of this
Agreement, each Bank, severally and for itself alone, agrees to
loan to Company, and Company agrees to borrow from each Bank, in a
single advance of Deutsche Marks, concurrently with the execution
and delivery of this Agreement, an amount equal to each Bank's
respective Percentage of the Term Loan. Concurrently with the
execution and delivery of this Agreement, Company agrees to issue
a separate Term Note to each Bank, with appropriate insertions
(acceptable to Banks in form and substance) as evidence of the
Indebtedness under this Section 3.1.
3.2 Repayment of Term Loan. The principal indebtedness
represented by the Term Notes shall be repaid, in Deutsche Marks
(unless the Term Loan has been converted to Dollars pursuant to
Section 4.5, hereof, and the Prime-based Rate is then in effect, in
which event, said Indebtedness shall be paid in Dollars) in
<PAGE>
<PAGE> 33 --Exibit 10.2 ( Revolving Credit + Term Loan )
quarterly principal installments of Four Million Seven Hundred
Fifty Three Thousand Deutsche Marks (DM 4,753,000), provided that,
during any period in which the Indebtedness under the Term Notes is
carried in Dollars in accordance with Section 4.5 hereof, the
Dollar Amount of each scheduled payment of principal and interest
on the Term Notes shall be adjusted to provide for full
amortization of the outstanding principal balance over the
remaining term of the Term Loan. Such payments shall commence on
September 30, 1994, and shall continue on the last day of each
calendar quarter thereafter until the Term Loan Maturity Date, when
the entire unpaid principal balance of such Indebtedness and
accrued interest thereon shall be paid in full.
3.3 Accrual of Interest. Subject to Sections 4.6 and 4.8
hereof, the unpaid principal Indebtedness from time to time
outstanding under the Term Notes shall, from the date of the
issuance of the Term Notes (until paid), bear interest at the
Deutsche Mark-based Rate. The amount and date of the extension of
the Term Loan, Advances thereof, the amount of interest accruing
thereon and Interest Periods for Advances, and the amount and date
of any repayments, shall be noted on Agent's records, which records
shall be conclusive evidence thereof, absent manifest error.
3.4 Deutsche Mark-Based Interest Payments. Interest on
Indebtedness evidenced by the Term Notes which is funded or carried
as a Deutsche Mark-based Advance from time to time shall be payable
in immediately available funds on the last day of the Interest
Period applicable thereto, or as otherwise set forth in Section 4.1
hereof.
3.5 Term Loan Rate Requests and Refundings. So long as the
Deutsche Mark-based Rate is in effect hereunder, Company may refund
any Advance of the Indebtedness outstanding under the Term Notes as
a Deutsche Mark-based Advance with a like Interest Period, or
convert such Indebtedness to a Deutsche Mark-based Advance with
another Interest Period only after delivery to Agent of a Term Loan
Rate Request executed by an authorized officer of Company, subject
to the following and to the other provisions hereof:
(a) each such Term Loan Rate Request shall set
forth the information required on the Term Loan Rate Request
form annexed hereto as Exhibit "E", including without
limitation the proposed date of Advance, which must be the day
following the last day of the then ending Interest Period and
the Interest Period applicable to the requested Advance;
(b) each such Term Loan Rate Request shall be
delivered to Agent by 12 noon (Detroit time) four (4) Business
Days prior to the proposed date of the refunding or
conversion;
<PAGE>
<PAGE> 34 --Exibit 10.2 ( Revolving Credit + Term Loan )
(c) Company shall not be entitled to request any
Advance with an Interest Period ending after the Term Loan
Maturity Date;
(d) the principal amount of such Advance, plus the
amount of any other outstanding Indebtedness evidenced by the
Term Notes to be then combined therewith having the same
Interest Period, if any, shall be not less than Five Million
Deutsche Marks (DM 5,000,000), unless the balance remaining
outstanding on the Term Loan is less than such amount, then
such lesser amount shall govern and, at any one time, the
Company shall not have more than two (2) Interest Periods in
effect with respect to the Term Loan; and
(e) a Term Loan Rate Request, once delivered to
Agent, shall not be revocable by Company.
3.6 Prime-based Rate Applicability and Interest Payments.
In the event that, pursuant to Section 4.5 hereof, or any other
applicable provision of this Agreement, the Indebtedness
outstanding under the Term Notes shall be converted to an Advance
of Dollars as a Prime-based Advance, thereafter interest on the
unpaid balance of Indebtedness evidenced by the Term Notes shall
accrue from the date of such Advance to the Term Loan Maturity Date
(or until paid, or refunded or reconverted to a Deutsche Mark-based
Advance in accordance with Section 4.6 hereof), at a per annum
interest rate equal to the Prime-based Rate, and shall be payable
in immediately available funds quarterly commencing on the due date
for the next principal installment required to be paid on the Term
Loan pursuant to Section 3.2 hereof, and on the due date of each
succeeding principal payment thereon.
3.7 Term Loan as Renewal. The Term Notes issued by Company
shall constitute renewal and replacement evidence of all present
indebtedness of Company for the Term Loan outstanding under the
Prior DM Loan Agreement as of the date hereof.
4. INTEREST PAYMENTS AND PERIODS: REVOLVING CREDIT, BID
ADVANCES AND TERM CREDIT
4.1 Interest Payments. All accrued and unpaid interest on
the Indebtedness from time to time outstanding under the Revolving
Credit or the Term Loan, or as Bid Advances, shall be due and
payable in full, in immediately available funds, (a) whenever the
Deutsche Mark-based Rate shall be then in effect, (i) on the last
day of each Interest Period and, (ii) if such Interest Period is
longer than 3 months, at intervals of 3 months after the first day
of the Interest Period, and (b) whenever the Prime-based Rate shall
be then in effect, quarterly on a calendar year basis until the
Revolving Credit Maturity Date or the Term Loan Maturity Date, as
applicable, when the entire Indebtedness, including all accrued
interest, shall be due and payable in full.
<PAGE>
<PAGE> 35 --Exibit 10.2 ( Revolving Credit + Term Loan )
4.2 Interest Calculation. Interest accruing under the Notes
at the Deutsche Mark-based Rate shall be computed on the basis of
a 360 day year and assessed for the actual number of days elapsed
from the first day of the Interest Period applicable thereto to but
not including the last day thereof. Interest accruing at the Prime-
based Rate shall be computed on the basis of a 360 day year and
assessed for the actual number of days elapsed, and in such
computation effect shall be given to any change in the interest
rate resulting from a change in the Prime-based Rate on the date of
such change in the Prime-based Rate. Interest accruing under the
Notes shall be repaid in Deutsche Marks, unless the Applicable
Interest Rate in effect is the Prime-based Rate, in which event
said interest shall be repaid in Dollars.
4.3 Interest Period Selection. So long as the Deutsche
Mark-based Rate is in effect hereunder, Company shall have the
option of selecting, subject to the provisions hereof, among one
(1), two (2), three (3) or six (6) months as the term of each
Interest Period available hereunder for the Revolving Credit or the
Term Loan. The Revolving Credit shall, subject to the terms hereof,
be carried in a single Interest Period for the balance outstanding
from time to time hereunder. The Company may have in effect at any
one time no more than two (2) Interest Periods for the balance
outstanding under the Term Notes. Notwithstanding any provision
hereof to the contrary, Company shall be required to select
Interest Periods for a sufficient portion of the Term Loan so that
at least one (1) Interest Period shall end on the last day of each
calendar quarter while the Term Loan is outstanding (including
without limitation, the scheduled maturity date of the Term Loan),
thereby permitting the Company to make its required principal
payments under Section 3.2 hereof. In the event Company shall fail
to timely exercise its option in accordance with this Section 4.3,
the next Interest Period shall be fixed by the Agent for the same
period as the Interest Period then ending, or for the period to the
next principal installment due date, or, if applicable, the
Revolving Credit Maturity Date, whichever is the shorter period,
provided that Company will indemnify Agent and each of the Banks
against any loss or expense incurred by them (or any of them)
pursuant to Section 5, hereof. Each selection of an Interest Period
for the Revolving Credit or the Term Loan, and the amount and date
of any repayment shall be noted on Agent's records, which records
will be conclusive evidence thereof, absent manifest error.
4.4 Limited Availability. Notwithstanding the Company's
selection of an Interest Period under Section 4.3 hereof, if prior
to the last day of any Interest Period, Agent or the Banks (after
consultation with Agent) shall determine that deposits of Deutsche
Marks will not be available to Agent or the Banks in the amounts
and for the terms necessary to carry the outstanding principal
indebtedness of the Advance subject to such Interest Period for the
next applicable Interest Period, then Agent shall so notify Company
<PAGE>
<PAGE> 36 --Exibit 10.2 ( Revolving Credit + Term Loan )
and Company shall immediately select another Interest Period to be
applicable as the next Interest Period.
4.5 Unavailability. If prior to the last day of any
Interest Period, Agent or the Banks (after consultation with Agent)
shall determine that by reason of circumstances affecting the
foreign exchange and interbank markets, generally, or for any of
the reasons set forth in Sections 5.3 or 5.4 hereof, deposits of
Deutsche Marks will not be available to Agent and the Banks as of
the last day of an applicable Interest Period in the amounts
necessary to carry the outstanding principal of the Advances
subject to such ending Interest Period in Deutsche Marks for any
Interest Period, Agent (or, in the case of a DM Bid Advance, the
applicable Bid Lender) shall notify the Company and the Advances
shall then be automatically converted to and carried in Dollars, in
the Dollar Amount of the Indebtedness then outstanding at the
Prime-based Rate, until the first day of the next Interest Period,
if any, selected pursuant to Section 4.6 hereof.
4.6 Reconversion to Deutsche Mark-based Rate on Re-
availability. In the event that, after a conversion of Indebtedness
to Dollars pursuant to Section 4.5 hereof, Agent determines that
Deposits of Deutsche Marks are again available to Agent and/or the
Banks in the amounts necessary to carry the principal Indebtedness
under the Notes in Deutsche Marks for any Interest Period, Agent
(or, in the case of any DM Bid Advance, the applicable Bid Lender)
shall notify Company of the Interest Period(s) for which such
deposits in Deutsche Marks are available and Company shall
immediately select the next Interest Period from among such
available Interest Periods, in accordance with Section 4.3 hereof.
4.7 Repayment or Reconversion. In the event that the
currency in which the Indebtedness is being carried is required to
be changed from Dollars to Deutsche Marks under Section 4.6, as
aforesaid, and if the Deutsche Mark Equivalent of the principal
amount of the Indebtedness under the Revolving Credit and/or the
Term Loan outstanding upon such reconversion shall exceed the
Deutsche Mark Principal Limit, then concurrently with such
reconversion, Company shall pay to Agent in immediately available
funds, for the ratable benefit of the Banks, an amount in Deutsche
Marks sufficient to reduce the then outstanding principal amount of
the Revolving Credit, the aggregate Bid Advances, and/or the Term
Loan to an amount not greater than the applicable Deutsche Mark
Principal Limit for the Revolving Credit and for the Term Loan.
4.8 Interest Payments on Conversions and Reconversions.
Notwithstanding anything to the contrary in the preceding Sections,
all accrued and unpaid interest on any Indebtedness converted or
reconverted pursuant to Section 4.5 or 4.6 hereof, or otherwise,
shall be due and payable in full on the date of such conversion or
reconversion.
<PAGE>
<PAGE> 37 --Exibit 10.2 ( Revolving Credit + Term Loan )
4.9 Interest on Default. In the event and so long as any
Event of Default shall exist under any Note or any Event of Default
shall exist under this Agreement, interest shall be payable daily
on the principal balance of the Indebtedness then outstanding (a)
if the Deutsche Mark-based Rate is then in effect, at a per annum
rate equal to the Applicable Interest Rate plus three percent (3%)
for the remainder of the then-existing Interest Period, if any, and
at all other times (i) at a per annum rate calculated by the Agent,
or, in the case of any Bid Advance, the applicable Bid Lender,
whose determination shall be conclusive absent manifest error, on
a daily basis, equal to three percent (3%) above the interest rate
per annum at which one (1) day (or, if such amount due remains
unpaid for more than three (3) Business Days, then for such other
period of time as the Agent or such Bid Lender, as applicable, may
elect which shall in no event be longer than six (6) months)
deposits in Deutsche Marks in the amount of such overdue payment
due to the Agent are offered by the Agent's or such Bid Lender
Eurocurrency Lending Office for the applicable period determined as
provided above, or (ii) if at any such time such deposits are not
offered by the Agent's or such Bid Lender's Eurocurrency Lending
Office, then at a rate per annum equal to three percent (3%) above
the rate determined by the Agent to be its aggregate marginal cost
(including the cost of maintaining any required reserves or deposit
insurance) of carrying the amount of the Indebtedness then
outstanding, and (b) if the Prime-based Rate is then in effect, at
a per annum rate equal to the Prime-based Rate plus three percent
(3%).
4.10 Prepayment.
(a) Company may, upon four (4) Business Days prior
written notice to Agent, prepay all or any part of the
outstanding balance of the Revolving Credit or the Term Loan
and the entire outstanding balance (but no partial prepayment)
of any Bid Advance without premium or penalty, provided that
(i) if the Deutsche Mark-based Rate is then in effect, any
such prepayment shall be made only on the last day of any
Interest Period, (ii) the amount of any partial prepayment
shall be at least One Million Deutsche Marks (DM 1,000,000),
if the Deutsche Mark-based Rate is then in effect and One
Million Dollars ($1,000,000) if the Prime-based Rate is then
in effect, and (iii) if any such prepayment would otherwise
reduce the principal balance of the Revolving Credit or the
Term Loan, as applicable, to an amount less than Five Million
Deutsche Marks (DM 5,000,000), if the Deutsche Mark-based Rate
is then in effect or One Million Dollars ($1,000,000), if the
Prime-based Rate is then in effect, such prepayment shall
cover the entire remaining balance of the Revolving Credit or
the Term Loan, as applicable.
(b) Any prepayments made in accordance with this
Section on Indebtedness evidenced by the Revolving Credit
<PAGE>
<PAGE> 38 --Exibit 10.2 ( Revolving Credit + Term Loan )
Notes or the Bid Notes shall be without prejudice to the right
to reborrow under the Revolving Credit Notes, except that, as
set forth in Section 2.5 hereof, Company shall not be entitled
to any reborrowings of the Revolving Credit during any period
which the Revolving Credit is carried in Dollars and except to
the extent that such payment is made in connection with a
reduction of the Revolving Credit Maximum Amount pursuant to
Section 2.9 hereof.
(c) Any prepayments made in accordance with this
Section on Indebtedness evidenced by the Term Notes (i) shall
be without premium or penalty, but there shall be no
reborrowing of such prepaid amounts and (ii) shall be applied
to the principal installments under the Terms Notes in the
inverse order of their maturities, and shall not affect the
periodic payments of principal required thereunder.
4.11 Special Limitation. In the event, as a result of
increases in the value of Deutsche Marks and/or any of the
Alternative Currencies against the Dollar (taking into account the
Current Dollar Equivalent of the Indebtedness outstanding from time
to time under the Vishay Loan Agreement and the Roederstein Loan
Agreement and any Indebtedness required to be aggregated under 12
USCA 84, as amended, the regulations promulgated thereunder, or
other, similar applicable law) or for any other reason, the
obligation of any of the Banks to advance additional funds
hereunder or under any of the other Loan Agreements is determined
by such Bank to exceed its then applicable legal lending limit
under 12 USCA 84, as amended, and the regulations promulgated
thereunder, or other, similar applicable laws, the amount of
additional funds which such Bank shall be obligated to advance
hereunder shall immediately be reduced to the maximum amount which
such Bank may legally advance (as determined by such Bank) the
obligation of each of the remaining Banks hereunder shall be
proportionately reduced, based on the applicable Percentages, and,
to the extent necessary under such laws and regulations (as
determined by each of the Banks, with respect to the applicability
of such laws and regulations to itself), the Company shall reduce,
or cause to be reduced, complying to the extent practicable with
the remaining provisions hereof, the Indebtedness outstanding
hereunder or under any of the other Loan Agreements by an amount
sufficient to comply with such maximum amounts. Upon any such
reduction in the obligations of the Banks under this Section 4.11,
Company shall have the right, subject to the terms and conditions
of this Agreement (but subsequent to Company's compliance with its
obligation to reduce the Indebtedness outstanding hereunder), to
add to the Banks providing financing hereunder a bank reasonably
acceptable to the Agent for the purpose of restoring the shortfall
created by the reduction in such obligations of the Banks.
5. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS;
MARGIN ADJUSTMENTS
<PAGE>
<PAGE> 39 --Exibit 10.2 ( Revolving Credit + Term Loan )
5.1 Reimbursement of Prepayment Costs. If any prepayment of
the Indebtedness shall occur on any day other than the last day of
an Interest Period (whether pursuant to this Agreement or by
acceleration, or otherwise), or if an Applicable Interest Rate
shall be changed during any Interest Period pursuant to this
Agreement, or if, after requesting an Advance or the conversion of
outstanding Indebtedness hereunder, but prior to the Advance or
conversion thereof, as the case may be, the Company is no longer
entitled to the Advance or conversion requested hereunder, Company
shall reimburse Banks on demand for any costs incurred by Banks as
a result of the timing thereof, including but not limited to any
net costs incurred in liquidating or employing deposits from third
parties. Each Bank demanding reimbursement under this Section 5.1
shall deliver to Company a certificate setting forth the basis for
determining such costs, which certificate shall be conclusively
presumed correct save for manifest error.
5.2 Agent's Eurocurrency Lending Office. Agent and each of
the Banks shall have the option of maintaining and carrying the
Indebtedness on the books of its applicable Eurocurrency Lending
Office.
5.3 Availability. The Agent and the Banks shall not be
required to fund any Advance in Deutsche Marks if, at any time
prior to the Advance or funding, the Agent or the Banks (after
consultation with the Agent) shall determine, in their sole
discretion, that (i) deposits in Deutsche Marks, in the amounts and
maturities required to fund such Advances will not be available to
the Agent and the Banks; (ii) a fundamental change has occurred in
the foreign exchange or interbank markets with respect to Deutsche
Marks (including, without limitation, changes in national or
international financial, political or economic conditions or
currency exchange rates or exchange controls); or (iii) it has
become otherwise materially impractical for the Agent to make such
advance in Deutsche Marks. The Agent shall promptly notify the
Company and Banks of any such determination.
5.4 Laws Affecting Availability. If, after the date hereof,
the introduction of, or any change in, any applicable law, rule or
regulation or in the interpretation or administration thereof by
any governmental authority charged with the interpretation or
administration thereof, or compliance by any of the Banks (or any
of their respective Eurocurrency Lending Offices) with any request
or directive (whether or not having the force of law) of any such
authority, shall make it unlawful or impossible for any of the
Banks (or any of their respective Eurocurrency Lending Offices) to
maintain the Indebtedness or any portion thereof with interest at
the Deutsche Mark-based Rate or in Deutsche Marks, such Bank shall
forthwith give notice thereof to Company and to Agent. Thereafter,
if any of the Banks may not lawfully continue to maintain the
Indebtedness hereunder or any portion thereof to the end of the
then current Interest Period applicable thereto at the Deutsche
<PAGE>
<PAGE> 40 --Exibit 10.2 ( Revolving Credit + Term Loan )
Mark based-Rate or in Deutsche Marks, the Indebtedness outstanding
shall immediately be converted in the manner set forth under
Section 4.5 hereof. For purposes of this Section, a change in law,
rule, regulation, interpretation or administration shall include,
without limitation, any change made or which becomes effective on
the basis of a law, rule, regulation, interpretation or
administration presently in force, the effective date of which
change is delayed by the terms of such law, rule, regulation,
interpretation or administration.
5.5 Increased Cost of Deutsche Marks. If the adoption after
the date hereof, or any change after the date hereof in, any
applicable law, rule or regulation of any governmental authority,
central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by Agent or any of the
Banks (or any of their respective Eurocurrency Lending Offices)
with any request or directive (whether or not having the force of
law) made by any such authority, central bank or comparable agency
after the date hereof:
(a) shall subject any of the Banks (or any of their
respective Eurocurrency Lending Offices) to any tax, duty or other
charge with respect to the Indebtedness hereunder, or any portion
thereof, or shall change the basis of taxation of payments to any
of the Banks (or any of their respective Eurocurrency Lending
Offices) of the principal of or interest on the Indebtedness
hereunder, or any portion thereof, or any other amounts due under
this Agreement in respect thereof (except for changes in the rate
of tax on the overall net income of any of the Banks or any of
their respective Eurocurrency Lending Offices imposed by the
jurisdiction in which such Bank's principal executive office or
Eurocurrency Lending Office is located); or
(b) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the
account of, or credit extended by any of the Banks (or any of their
respective Eurocurrency Lending Offices) or shall impose on any of
the Banks (or any of their respective Eurocurrency Lending Offices)
or the foreign exchange and interbank markets any other condition
affecting the Indebtedness hereunder, or any portion thereof;
and the result of any of the foregoing is to increase the costs to
any of the Banks of maintaining any part of the Indebtedness
hereunder at the Deutsche Mark-based Rate or in Deutsche Marks or
to reduce the amount of any sum received or receivable by any of
the Banks under this Agreement, then such Bank shall promptly
notify Agent (or in the case of a Bid Advance, shall notify Company
directly, with a copy of such notice to Agent), and Agent (or such
Bank, as aforesaid) shall promptly notify Company of such fact and
demand compensation therefor and, within fifteen (15) days after
<PAGE>
<PAGE> 41 --Exibit 10.2 ( Revolving Credit + Term Loan )
such notice by Agent, Company agrees to pay to such Bank such
additional amount or amounts as will compensate such Bank or Banks
for such increased cost or reduction. Agent will promptly notify
Company of any event of which it has knowledge which will entitle
Banks to compensation pursuant to this Section, or which will cause
the Company to incur additional liability under Section 6.1(e)
hereof, provided that Agent shall incur no liability whatsoever to
the Banks or Company in the event it fails to do so. A certificate
of Agent (or such Bank, if applicable) setting forth the basis for
determining such additional amount or amounts necessary to
compensate such Bank or Banks shall be conclusively presumed to be
correct save for manifest error. For purposes of this Section, a
change in law, rule, regulation, interpretation, administration,
request or directive shall include, without limitation, any change
made or which becomes effective on the basis of a law, rule,
regulation, interpretation, administration, request or directive
presently in force, the effective date of which change is delayed
by the terms of such law, rule, regulation, interpretation,
administration, request or directive.
5.6 Indemnity. The Company will indemnify Agent and each of
the Banks against any loss or expense which may arise or be
attributable to the Agent's and each Bank's obtaining, liquidating
or employing deposits or other funds acquired to effect, fund or
maintain the Indebtedness hereunder, or any portion thereof, (a) as
a consequence of any failure by the Company to make any payment
when due of any amount due hereunder, (b) due to any failure of the
Company to specify an Interest Period or (c) due to any payment or
prepayment of the Indebtedness or any portion thereof (unless the
Prime-based rate is then in effect) on a date other than the last
day of the Interest Period. Such loss or expense shall be
calculated based upon the present value, as applicable, of payments
due from the Company with respect to the deposits obtained by the
Agent or any of the Banks in order to fund the Indebtedness or any
portion thereof. The Agent's and each Bank's (as applicable)
calculations of any such loss or expense shall be furnished to the
Company and shall be conclusive, absent manifest error.
5.7 Judgment Currency. The obligation of the Company to
make payments of the principal of and interest on the Notes and any
other amounts payable hereunder in the currency specified for such
payment herein or in the Notes shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment, which is
expressed in or converted into any other currency, except to the
extent that such tender or recovery shall result in the actual
receipt by each of the Banks of the full amount of such currency
expressed to be payable herein or in the Notes. The Agent (or the
applicable Bank, in the case of a Bid Advance) shall, using all
amounts obtained or received from the Company pursuant to such
tender or recovery in payment of principal of and interest on the
Notes, promptly purchase the specified currency, as aforesaid, at
the most favorable spot exchange rate determined by the Agent to be
<PAGE>
<PAGE> 42 --Exibit 10.2 ( Revolving Credit + Term Loan )
available to it. The obligation of the Company to make payments in
the specified currency shall be enforceable as an alternative or
additional cause of action solely for the purpose of recovering the
amount, if any, by which such actual receipt shall fall short of
the full amount of the currency expressed to be payable herein or
in the Notes.
5.8 Other Increased Costs. In the event that at any time
after the date of this Agreement any change in law such as
described in Section 5.5 hereof, shall, in the opinion of the Agent
or any of the Banks (as certified to Agent in writing by such Bank)
require that the Revolving Credit or any other Indebtedness or
commitment under this Agreement or any of the other Loan Agreements
be treated as an asset or otherwise be included for purposes of
calculating the appropriate amount of capital to be maintained by
each of the Banks or any corporation controlling such Banks, as the
case may be, the Agent shall notify the Company. The Company and
the Agent shall thereafter negotiate in good faith an agreement to
increase the Revolving Credit Commitment Fee or other fees payable
to the Agent, for the benefit of the Banks under this Agreement,
which in the opinion of the Agent, will adequately compensate the
Banks for the costs associated with such change in law. If such
increase is approved in writing by the Company within thirty (30)
days from the date of the notice to the Company from the Agent, the
Revolving Credit Commitment Fee or other fees (if applicable)
payable by the Company under this Agreement shall, effective from
the date of such agreement, include the amount of such agreed
increase. If the Company and the Agent are unable to agree on such
an increase within thirty (30) days from the date of the notice to
the Company, the Company shall have the option, exercised by
written notice to the Agent within forty-five (45) days from the
date of the aforesaid notice to the Company from the Agent, to
terminate the Revolving Credit or other commitments if applicable,
in which event, all sums then outstanding to Banks and to Agent
hereunder shall be due and payable in full. If (a) the Company and
the Agent fail to agree on an increase in the Revolving Credit
Commitment Fee or other fees (if applicable), or (b) the Company
fails to give timely notice that it has elected to exercise its
option to terminate the Revolving Credit or other commitments, if
applicable, as set forth above, then the Revolving Credit and such
other commitments hereunder shall automatically terminate as of the
last day of the aforesaid forty-five (45) day period, in which
event all sums then outstanding to Banks and to Agent hereunder
shall be due and payable in full.
5.9 Margin Adjustments. Adjustments to the Applicable
Margin, based on Schedule 5.9, shall be implemented as follows:
(i) Such margin adjustments shall be given
prospective effect only, effective (A) as to all Prime-based
Advances outstanding hereunder, immediately upon required date
of delivery of the financial statements required to be
<PAGE>
<PAGE> 43 --Exibit 10.2 ( Revolving Credit + Term Loan )
delivered under Section 7.3(b) and 7.3(c) of the Vishay Loan
Agreement establishing applicability of the appropriate
adjustments, if any, or on the obtaining and/or any change in
the Rating Level then in effect, as applicable and (B) as to
each DM-based Advance outstanding hereunder, effective upon
the expiration of the applicable Interest Period(s), if any,
in effect on (x) the required date of delivery of the latest
of such financial statements required to be delivered
hereunder during such Interest Period(s) or (y) the date of
the obtaining and/or any change in the Rating Level in effect
hereunder, as applicable, in each case with no retroactivity
or claw-back.
(ii) With respect to DM-based Advances outstanding
hereunder, an adjustment hereunder, after becoming effective,
shall remain in effect only through the end of the applicable
Interest Period(s) for such DM-based Advances if any;
provided, however, that upon the delivery of quarterly
financial statements demonstrating any change in the Leverage
Ratio or the obtaining and/or change in the Rating Level then
in effect, as aforesaid, or the occurrence of any other event
which under the terms hereof causes such adjustment no longer
to be applicable, then any such subsequent adjustment or no
adjustment, as the case may be, shall be effective (and said
pricing shall thereby be adjusted up or down, as applicable),
with the commencement of each Interest Period following such
change or event, all in accordance with the preceding
subparagraph.
5.10 HLT Determination. In the event at any time (whether
before or after the funding of the Acquisition Loans) of an HLT
Determination, the Agent, the Banks and the Company shall commence
negotiations in good faith to agree upon whether and, if so, the
extent to which fees, interest rates and/or margins hereunder
should be increased so as to reflect such HLT Determination and to
compensate the Banks and Agent for additional costs, expenses
and/or fees which result from or are associated with any such HLT
Determination, including without limitation any costs resulting
from any requirement that additional capital be allocated to the
Indebtedness, or any portion thereof. If Company and the Majority
Banks agree that fees, interest rates and/or margins should be
increased, and agree on the amount of such increase or increases,
this Agreement may be amended to give effect to such increase or
increases as provided in Section 13.11 hereof. If Company and
Majority Banks fail to agree on whether and, if so, the extent to
which fees, interest rates and/or margins hereunder should be
increased within 60 days after notice to Company of an HLT
Determination as herein provided, then (i) the Agent shall, if
requested by the Majority Banks, by written notice to the Company
terminate the commitments of the Banks to fund and/or maintain
Advances of the Revolving Credit hereunder and under the Vishay
Loan Agreement, and if still outstanding, any commitment to fund
<PAGE>
<PAGE> 44 --Exibit 10.2 ( Revolving Credit + Term Loan )
Advances of the Acquisition Loans, and such commitments shall
thereupon terminate, (ii) Company shall be obligated to repay all
outstanding Indebtedness at the end of the Interest Period
applicable thereto and (iii) the Company may, at its option, on at
least ten Business Days' written notice to the Agent (which shall
promptly notify the Banks thereof) prepay all Indebtedness
outstanding hereunder and under the other Loan Agreements by paying
the aggregate principal amount thereof, together, with all accrued
interest thereon to the date of prepayment; provided that, if the
Company prepays any fixed rate loans or Advances carried at the
Absolute Rate or the Deutsche Mark-based Rate, or any comparable
rate, pursuant to this Section 5.10, Company shall compensate the
Banks for any resulting funding losses as provided in Section 5.1
hereof. Subject to compliance by Company with this Section 5.10,
the Banks acknowledge that an HLT Determination shall not
constitute a Default or an Event of Default hereunder.
6. PAYMENTS, RECOVERIES AND COLLECTIONS
6.1 Payment Procedure.
(a) All payments by Company of principal of, or
interest on, the Revolving Credit Notes, the Term Notes, or of
any fees or other amount due hereunder, shall be made without
setoff or counterclaim on the date specified for payment under
this Agreement and shall be made in Deutsche Marks in
immediately available funds for the account of Agent's
Eurocurrency Lending Office, at the Agent's Correspondent, for
the ratable account of the Banks, not later than 11:00 a.m.
(local time of the Agent's Correspondent); provided however
that subsequent to any conversion of the Indebtedness
hereunder from Deutsche Marks to Dollars pursuant to Section
4.5 hereof, such payments shall be made not later than 11:00
a.m. (Detroit time) in Dollars in immediately available funds
to Agent, for the ratable account of the Banks, at Agent's
office located at 100 Renaissance Center, Detroit, Michigan
48243 until reconversion of the Indebtedness hereunder from
Dollar to Deutsche Marks pursuant to Section 4.6 hereof. Upon
receipt of each such payment, the Agent shall make prompt
payment to each Bank, or such Bank's Eurocurrency Lending
Office (as directed by such Bank), in like funds and
currencies, of all amounts received by it for the account of
such Bank.
(b) Unless the Agent shall have been notified by
the Company prior to the date on which any payment to be made
by the Company is due that the Company does not intend to
remit such payment, the Agent may, in its discretion, assume
that the Company has remitted such payment when so due and the
Agent may, in reliance upon such assumption, make available to
each Bank on such payment date an amount equal to such Bank's
share of such assumed payment. If the Company has not in fact
<PAGE>
<PAGE> 45 --Exibit 10.2 ( Revolving Credit + Term Loan )
remitted such payment to the Agent, each Bank shall forthwith
on demand repay to the Agent in the applicable currency the
amount of such assumed payment made available to such Bank,
together with the interest thereon, in respect of each day
from and including the date such amount was made available by
the Agent to such Bank to the date such amount is repaid to
the Agent at a rate per annum equal to Agent's aggregate
marginal cost (including the cost of maintaining any required
reserves or deposit insurance and of any fees penalties,
overdraft charges or other costs or expenses incurred by
Agent) of carrying such amount, unless the Indebtedness has
been converted to Dollars hereunder, in which case said rate
shall be the federal funds rate (daily average), as the same
may vary from time to time.
(c) Whenever any payment of principal of, or
interest on, the Indebtedness hereunder shall be due on a day
which is not a Business Day the date of payment thereof shall
be extended to the next succeeding Business Day, unless as a
result thereof it would fall in the next calendar month, in
which case it shall be shortened to the next preceding
Business Day and, in the case of a payment of principal,
interest thereon shall be payable for such extended or
shortened time, if any, provided that if the Indebtedness
hereunder is then being carried in Dollars, whenever any
payment to be made hereunder shall otherwise be due on a day
which is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall
be included in computing interest, if any, in connection with
such payment.
(d) Except as otherwise provided in this Agreement
or the other Loan Documents (and subject to the terms and
conditions thereof), all payment by Company of principal of or
interest on the Bid Notes shall be made to the applicable Bid
Lender in Deutsche Marks (unless the Prime-based Rate is then
in effect, in which case payments shall be made in Dollars)
without setoff or counterclaim on the dates and other terms
provided in such Notes.
(e) All payments to be made by the Company under
this Agreement or any of the Notes (including without
limitation, payments under the Bid Notes) shall be made
without set-off or counterclaim, as aforesaid, and without
deduction for or on account of any present or future
withholding or other taxes of any nature imposed by any
governmental authority or of any political subdivision thereof
or any federation or organization of which such governmental
authority may at the time of payment be a member, unless
Company is compelled by law to make payment subject to such
tax. In such event the Company shall:
<PAGE>
<PAGE> 46 --Exibit 10.2 ( Revolving Credit + Term Loan )
(i) pay to the Agent for Agent's own account
and/or for the account of the Banks (and in
the case of Bid Advances, pay to the
applicable Bank which funded such Advances)
such additional amounts as may be necessary to
ensure that the Agent and/or such Bank or
Banks receive a net amount in Deutsche Marks
or Dollars, as the case may be, equal to the
full amount which would have been receivable
had payment not been made subject to such tax;
and
(ii) remit such tax to the relevant taxing
authorities according to applicable law, and
send to the Agent or the applicable Bid
Lender, as the case may be, such certificates
or certified copy receipts as the Agent or
such Bid Lender shall reasonably require as
proof of the payment by the Company of any
such taxes payable by the Company.
As used herein, the terms "tax", "taxes" and "taxation"
include all existing taxes, levies, imposts, duties, charges, fees,
deductions and withholdings and any restrictions or conditions
resulting in a charge together with interest thereon and fines and
penalties with respect thereto which may be imposed by reason of
any violation or default with respect to the law regarding such
tax, assessed as a result of or in connection with the transactions
in Deutsche Marks hereunder, or the payment and or receipt of funds
in Deutsche Marks or the payment or delivery of funds into or out
of any jurisdiction other than the United States (whether assessed
against Company, Agent or any of the Banks).
6.2 Application of Proceeds. Notwithstanding anything to
the contrary in this Agreement, upon the occurrence and during the
continuance an Event of Default, any offsets or voluntary payments
by the Company, or others and any other sums received or collected
in respect of the Indebtedness, shall be applied, first, to the
Notes pro rata, based on the aggregate Indebtedness then
outstanding thereunder (or in such other order and manner as
determined by all of the Banks), next, to any other Indebtedness on
a pro rata basis (as aforesaid), and then, if there is any excess,
to the Company.
6.3 Pro-rata Recovery. If any Bank shall obtain any payment
or other recovery (whether voluntary, involuntary, by application
of offset or otherwise) on account of principal of, or interest on,
any of the Revolving Credit Notes or Term Notes in excess of its
pro rata share of payments then or thereafter obtained by all Banks
upon principal of and interest on all such Notes, such Bank shall
purchase from the other Banks such participations in the Revolving
Credit Notes and Term Notes held by them as shall be necessary to
<PAGE>
<PAGE> 47 --Exibit 10.2 ( Revolving Credit + Term Loan )
cause such purchasing Bank to share the excess payment or other
recovery ratably in accordance with the Percentage with each of
them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such
purchasing holder, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without
interest.
6.4 Deposits and Accounts. In addition to and not in
limitation of any rights of any Bank or other holder of any Note
under applicable law, each Bank and each other such holder shall,
upon acceleration of the Indebtedness under the Notes and without
notice or demand of any kind, have the right to appropriate and
apply to the payment of the Notes owing to it (whether or not then
due) any and all balances, credits, deposits, accounts or moneys of
Company then or thereafter with such Bank or other holder;
provided, however, that any such amount so applied by any Bank or
other holder on any of the Notes owing to it shall be subject to
the provisions of Section 6.3.
7. CONDITIONS.
The obligations of Banks to make Advances pursuant to this
Agreement are subject to the following conditions:
7.1 Vishay Loan Agreement. All of the conditions required
to be satisfied for the making of Advances under the Vishay Loan
Agreement (as defined therein) shall have been satisfied or waived
in accordance with the terms and conditions thereof.
7.2 Vishay's Certificate. The Agent shall have received,
with a signed counterpart for each Bank, a certificate of a
responsible senior officer of Vishay, dated the date hereof,
stating that the conditions referred to (with respect to the Vishay
Loan Agreement) in Section 7.1, hereof, have been fully satisfied.
7.3 Payment of Agent's and Other Fees. Vishay or Company
shall have paid to the Agent the Agent's Fees and all costs and
expenses required hereunder.
7.4 Other Documents and Instruments. The Agent shall have
received, with a photocopy for each Bank, such other instruments
and documents as the Majority Banks may reasonably request in
connection with the making of Advances hereunder, and all such
instruments and documents shall be satisfactory in form and
substance to the Majority Banks.
7.5 Continuing Conditions. The obligations of the Banks to
make Advances hereunder shall be subject to the continuing
conditions that all documents executed or submitted pursuant hereto
shall be satisfactory in form and substance (consistent with the
terms hereof) to Agent and its counsel and to each of the Banks and
<PAGE>
<PAGE> 48 --Exibit 10.2 ( Revolving Credit + Term Loan )
their respective counsel; Agent and its counsel and each of the
Banks and their respective counsel shall have received all
information, and such counterpart originals or such certified or
other copies of such materials, as Agent or its counsel and each of
the Banks and their respective counsel may reasonably request; and
all other legal matters relating to the transactions contemplated
by this Agreement (including, without limitation, matters arising
from time to time as a result of changes occurring with respect to
any statutory, regulatory or decisional law applicable hereto)
shall be satisfactory to counsel to Agent and counsel to each of
the Banks.
8. REPRESENTATIONS AND WARRANTIES
Company ratifies, confirms and, by reference thereto (as fully
as though such matters were expressly set forth herein), represents
and warrants with respect to itself and its Subsidiaries those
matters set forth in Sections 6.1, 6.3 through 6.8, inclusive,
6.10, 6.12, 6.14, 6.15 through 6.21, inclusive, of the Vishay Loan
Agreement, and such representations and warranties shall be deemed
to be continuing representations and warranties during the life of
this Agreement.
9. AFFIRMATIVE COVENANTS
Company covenants and agrees that so long as any of the Banks
is committed to make any Advances under this Agreement and
thereafter so long as any Indebtedness remains outstanding under
this Agreement, it will, and as applicable, it will cause its
Subsidiaries to, comply with the covenants set forth in Sections
7.1 through 7.3 and 7.9 through 7.15, inclusive, of the Vishay Loan
Agreement as fully as though the obligations set forth therein were
expressly set forth herein as the obligations of Company and its
Subsidiaries. To the full extent set forth in Sections 7, 8 and 9
hereof, and elsewhere herein, the provisions of the Vishay Loan
Agreement are incorporated herein by reference and shall remain in
full force and effect for the benefit of Agent and the Banks,
notwithstanding any amendment, supplement or termination of the
Vishay Loan Agreement after the date hereof. Any amendments to the
representations, warranties, covenants or other provisions of the
Vishay Loan Agreement incorporated by reference herein which are
contained in any future amendment or supplement thereto shall be
deemed to run in favor of Agent and the Banks as additional rights
and remedies, and not in derogation of the rights and remedies
provided hereunder.
10. NEGATIVE COVENANTS
Company covenants and agrees that so long as any Indebtedness
or any commitment to make Advances under this Agreement remains
outstanding, it will not, and it will not allow any of its
Subsidiaries, without the prior written consent of Agent, to
<PAGE>
<PAGE> 49 --Exibit 10.2 ( Revolving Credit + Term Loan )
violate any of the covenants set forth in Sections 8.1 through
8.12, inclusive, of the Vishay Loan Agreement as fully as though
the obligations set forth therein were expressly set forth herein
as the obligations of the Company and its Subsidiaries.
11. DEFAULTS
11.1 Events of Default. Any of the following events is an
"Event of Default":
(a) non-payment of the principal or interest, when
due, under any of the Notes issued hereunder in accordance
with the terms thereof;
(b) default in the payment of any money by Company
under this Agreement, other than as set forth in subsection
(a) above, or under any of the other Loan Documents, or by
Vishay or any of the Permitted Borrowers under the Vishay Loan
Agreement, or by Company under the Roederstein Loan Agreement,
or by Vishay under the Target Company Loan Agreement or other
documents or instruments executed in connection therewith
(other than, in each case, as set forth therein), within three
(3) days of the date the same is due and payable;
(c) default in the observance or performance or any
of the other conditions, covenants or agreements set forth in
this Agreement (subject, in the case of any covenants
incorporated by reference herein from the Vishay Loan
Agreement, to any applicable grace periods provided
thereunder) or any of the Loan Documents by any party thereto
or the occurrence of any other default or Event of Default, as
the case may be, hereunder or thereunder;
(d) any representation or warranty made by Company
herein (subject, in the case of any representations and
warranties incorporated by reference herein from the Vishay
Loan Agreement, to any applicable grace periods provided
thereunder) or in any instrument submitted pursuant hereto or
by any other party to the Loan Documents proves untrue in any
material adverse respect when made or deemed made;
(e) any provision of the Vishay Guaranty, the
Domestic Guaranty or the Permitted Borrowers Guaranty shall at
any time for any reason (other than in accordance with its
terms or the terms of this Agreement) cease to be valid and
binding and enforceable against Vishay or the Significant
Subsidiaries, as applicable, or the validity, binding effect
or enforceability thereof shall be contested by any Person, or
Vishay or any of the Significant Subsidiaries shall deny that
it has any or further liability or obligation under the Vishay
Guaranty, the Domestic Guaranty or the Permitted Borrowers
Guaranty, as applicable, or the Vishay Guaranty, the Domestic
<PAGE>
<PAGE> 50 --Exibit 10.2 ( Revolving Credit + Term Loan )
Guaranty or the Permitted Borrowers Guaranty shall be
terminated, invalidated or set aside or in any way cease to
give or provide to the Banks and the Agent the benefits
purported to be created thereby;
(f) default in the payment of any other obligation
of Company or its Subsidiaries for borrowed money in excess of
One Million Dollars ($1,000,000) (or the Alternative Currency
equivalent thereof), individually, or in the aggregate,
resulting in acceleration thereof prior to its expressed
maturity;
(g) the rendering of any judgment or judgments for
the payment of money in excess of the sum of One Million
Dollars ($1,000,000) (or the Alternative Currency equivalent
thereof) in the aggregate against Company or any of its
Subsidiaries and such judgments shall remain unpaid,
unvacated, unbonded or unstayed by appeal or otherwise for a
period of thirty (30) consecutive days, except as covered by
adequate insurance with a reputable carrier and an action is
pending in which an active defense is being made with respect
thereto;
(h) if a creditors' committee shall have been
appointed for the business of Company or any of its
Subsidiaries; or if Company or any of its Subsidiaries shall
have made a general assignment for the benefit of creditors or
shall have been adjudicated bankrupt, or shall have filed a
voluntary petition in bankruptcy or for reorganization or to
effect a plan or arrangement with creditors or shall fail to
pay its debts generally as such debts become due in the
ordinary course of business (except as contested in good faith
and for which adequate reserves are made in such party's
financial statements) or otherwise sought protection or
exercised any rights under other, similar laws in effect in
any foreign jurisdiction; or shall file an answer to a
creditor's petition or other petition filed against it,
admitting the material allegations thereof for an adjudication
in bankruptcy or for reorganization; or shall have applied for
or permitted the appointment of a receiver or trustee or
custodian for any of its property or assets; or such receiver,
trustee or custodian shall have been appointed for any of its
property or assets (otherwise than upon application or consent
of Company or any of its Subsidiaries) and such appointment
has not been dismissed or stayed within thirty (30) days from
the date of appointment or if an order for relief or otherwise
approving any petition for reorganization of Company or any of
its Subsidiaries shall be entered and shall not be dismissed
or stayed within thirty (30) days from the date of entry
thereof.
<PAGE>
<PAGE> 51 --Exibit 10.2 ( Revolving Credit + Term Loan )
11.2 Exercise of Remedies. If an Event of Default has
occurred and is continuing hereunder: (w) the Agent shall, if
directed to do so by the Majority Bank, declare the Banks'
commitments to lend hereunder immediately and automatically
terminated; (x) the Agent shall, at the direction of the Majority
Banks, declare the entire unpaid principal Indebtedness, including
the Notes, immediately due and payable, without presentment, notice
or demand, all of which are hereby expressly waived by Company; (y)
upon occurrence of any Event of Default specified in subsection
11.1(h), above, and notwithstanding the lack of any declaration by
Agent under preceding clauses (w) or (x) the entire unpaid
principal Indebtedness, including the Notes, shall become
automatically due and payable unless such acceleration is delayed
or waived by the Agent at the direction of the Banks; and (z) the
Agent shall, if directed to do so by the Majority Banks or the
Banks, as applicable (subject to the terms hereof), exercise any
remedy permitted by this Agreement, the Loan Documents or law.
11.3 Rights Cumulative. No delay or failure of Agent and/or
Banks in exercising any right, power or privilege hereunder shall
affect such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise thereof, or
the exercise of any other power, right or privilege. The rights of
Banks under this Agreement are cumulative and not exclusive of any
right or remedies which Banks would otherwise have.
11.4 Waiver by Company of Certain Laws. To the extent
permitted by applicable law, Company hereby agrees to waive, and
does hereby absolutely and irrevocably waive and relinquish the
benefit and advantage of any marshalling, valuation, stay,
appraisement, extension or redemption laws now existing or which
may hereafter exist, which, but for this provision, might be
applicable to any sale made under the judgment, order or decree of
any court, on any claim for interest on the Notes, and further
hereby irrevocably agrees to waive the right to trial by jury with
respect to any and all actions or proceedings in which Agent or the
Banks (or any of them), on one hand, and the Company or any of the
Permitted Borrowers, on the other hand, are parties, whether or not
such actions or proceedings arise out of this Agreement or the Loan
Documents, or otherwise. These waivers have been voluntarily given,
with full knowledge of the consequences thereof.
11.5 Waiver of Defaults. No Event of Default shall be waived
by the Banks except in a writing signed by an officer of the Agent
in accordance with Section 13.11 hereof. No single or partial
exercise of any right, power or privilege hereunder, nor any delay
in the exercise thereof, shall preclude other or further exercise
of the Banks' rights by Agent. No waiver of any Default or Event of
Default shall extend to any other or further Default or Event of
Default. No forbearance on the part of the Agent or any Bank in
enforcing any of the Banks' rights shall constitute a waiver of any
of their rights. Company expressly agrees that this Section may not
<PAGE>
<PAGE> 52 --Exibit 10.2 ( Revolving Credit + Term Loan )
be waived or modified by the Banks or Agent by course of
performance, estoppel or otherwise.
11.6 Cross-Default. In addition to the other Events of
Default specified herein, any failure to perform and discharge when
due, after allowance for any applicable cure period, any of the
obligations, covenants and agreements required to be performed
under the provisions of any instruments evidencing or securing any
other present and future borrowings of Company from the Banks (or
from Agent) in renewal or extension of, or related to this
Agreement or any of the other Loan Documents, shall be an Event of
Default under the provisions of this Agreement entitling Agent,
with the consent of the Majority Banks, (without notice or any cure
period except as expressly provided herein or therein) to exercise
any and all rights and remedies provided hereby. Any Event of
Default under this Agreement or under any of the other Loan
Documents shall also constitute a default under all other
instruments securing this or any other present or future
borrowings, or any agreements in relation thereto, entitling Agent
and the Banks to exercise any and all rights and remedies provided
therein.
12. AGENT
12.1 Appointment of Agent. Each Bank and the holder of each
Note appoints and authorizes Agent to act on behalf of such Bank or
holder under the Loan Documents and to exercise such powers
hereunder and thereunder as are specifically delegated to or
required of Agent by the terms hereof and thereof, together with
such powers as may be reasonably incidental thereto. Each Bank
agrees (which agreement shall survive any termination of this
Agreement) to reimburse Agent for all reasonable out-of-pocket
expenses (including in-house and outside attorneys' fees) incurred
by Agent hereunder or in connection herewith or with any Default or
Event of Default or in enforcing the obligations of Company under
this Agreement or the Loan Documents or any other instrument
executed pursuant hereto, and for which Agent is not reimbursed by
Company, pro rata according to such Bank's Percentage. Agent shall
not be required to take any action under the Loan Documents, or to
prosecute or defend any suit in respect of the Loan Documents,
unless indemnified to its satisfaction by the Banks against loss,
costs, liability and expense. If any indemnity furnished to Agent
shall become impaired, it may call for additional indemnity and
cease to do the acts indemnified against until such additional
indemnity is given.
12.2 Deposit Account with Agent. Company hereby authorizes
Agent to charge its general deposit account, if any, maintained
with Agent for the amount of any principal, interest, or other
amounts or costs due under this Agreement when the same becomes due
and payable under the terms of this Agreement the Revolving Credit
Notes or Term Notes, or any Bid Notes payable to Agent.
<PAGE>
<PAGE> 53 --Exibit 10.2 ( Revolving Credit + Term Loan )
12.3 Exculpatory Provisions. Agent agrees to exercise its
rights and powers, and to perform its duties, as Agent hereunder
and under the Loan Documents in accordance with its usual customs
and practices in bank-agency transactions, but only upon and
subject to the express terms and conditions of Section 12, hereof,
(and no implied covenants or other obligations shall be read into
this Agreement against the Agent); neither Agent nor any of its
directors, officers, employees or agents shall be liable to any
Bank for any action taken or omitted to be taken by it or them
under this Agreement or any document executed pursuant hereto, or
in connection herewith or therewith, except for its or their own
willful misconduct or gross negligence, nor be responsible to any
Bank for any recitals or warranties herein or therein made by any
other Person, nor for the effectiveness, enforceability, validity
or due execution (other than its own due execution and delivery) of
this Agreement or any document executed pursuant hereto, or any
security thereunder, nor to make any inquiry respecting the
performance by Company or any of its Subsidiaries of its
obligations hereunder or thereunder. Nor shall Agent have, or be
deemed to have, a fiduciary relationship with any Bank by reason of
this Agreement. Agent shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which it believes to be genuine
and to have been presented by a proper person.
12.4 Successor Agents. Agent may resign as such at any time
upon at least thirty (30) days prior notice to Company and all
Banks. If Agent at any time shall resign or if the office of Agent
shall become vacant for any other reason, Majority Banks shall, by
written instrument, appoint a successor Agent (satisfactory to such
Majority Banks) which shall thereupon become Agent hereunder and
shall be entitled to receive from the prior Agent such documents of
transfer and assignment as such successor Agent may reasonably
request. Such successor Agent shall succeed to all of the rights
and obligations of the retiring Agent as if originally named. The
retiring or removed Agent shall duly assign, transfer and deliver
to such successor Agent all moneys at the time held by the retiring
or removed Agent hereunder after deducting therefrom its expenses
for which it is entitled to be reimbursed. Upon such succession of
any such successor Agent, the retiring agent shall be discharged
from its duties and obligations hereunder, except for its gross
negligence or willful misconduct arising prior to its retirement
hereunder, and the provisions of this Section 12 shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
12.5 Loans by Agent. Agent shall have the same rights and
powers with respect to the credit extended by it and the Notes held
by it as any Bank and may exercise the same as if it were not
Agent, and the term "Bank" and, when appropriate, "holder" shall
include Agent in its individual capacity.
<PAGE>
<PAGE> 54 --Exibit 10.2 ( Revolving Credit + Term Loan )
12.6 Credit Decisions. Each Bank acknowledges that it has,
independently of Agent and each other Bank and based on financial
statements and such other documents, information and investigations
as it has deemed appropriate, made its own credit decision to
extend credit hereunder from time to time. Each Bank also
acknowledges that it will, independently of Agent and each other
Bank and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue
to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under
this Agreement or any document executed pursuant hereto.
12.7 Notices by Agent. Agent shall give prompt notice to
each Bank of its receipt of each notice or request required or
permitted to be given to Agent by Company pursuant to the terms of
this Agreement and shall promptly distribute to the Banks and
reports required from the Company or its Subsidiaries under the
terms hereof received by Agent, in its capacity as Agent.
12.8 Agent's Fees. Commencing on September 30, 1994, and on
each succeeding anniversary date thereof until the Indebtedness has
been repaid, the Company shall cause Vishay to pay to Agent, in
Dollars, an annual agency fee set forth (or to be set forth from
time to time) in a letter agreement between Vishay and Agent. The
Agent's Fees described in this Section are not refundable under any
circumstances.
12.9 Nature of Agency. The appointment of Agent as agent is
for the convenience of Banks and Company in making advances of the
Revolving Credit or the Term Loan and other Indebtedness hereunder,
and collecting fees and principal and interest on the Indebtedness
hereunder. No Bank is purchasing any Indebtedness from Agent and
this Agreement is not intended to be a purchase or participation
agreement.
12.10 Actions; Confirmation of Agent's Authority to Act in
Event of Default. Subject to the terms of this Agreement and to the
direction of the Majority Banks, Agent is hereby expressly
authorized to act in all litigation and in all other respects as
the representative of the Banks where Agent considers it to be
necessary or desirable in order to carry out the purposes of this
Agreement or the Loan Documents. Without necessarily accepting
service of process or designating Agent to do so in its stead, each
Bank hereby agrees with each other Bank and with Agent, without
intending to confer or conferring any rights on any other party,
(i) that it shall be bound by any litigation brought by or against
Agent by the Company, any Subsidiary or any other party in
connection with the Indebtedness hereunder or any other rights,
duties or obligations arising hereunder or under this Agreement or
the Loan Documents and (ii) that it now irrevocably waives the
defense of procedural impediment or failure to name or join such
Bank as an indispensable party; provided however that each Bank
<PAGE>
<PAGE> 55 --Exibit 10.2 ( Revolving Credit + Term Loan )
reserves the right, subject to applicable law, to intervene or
otherwise appear in such litigation, and to retain its own counsel
in connection therewith. In conducting such litigation hereunder on
behalf of the Banks, Agent shall, subject to the terms hereof,
accept the direction of the Majority Banks or all of the Banks, as
the case may be, and shall at all times be indemnified by the Banks
as provided in Sections 12.1 and 12.12 hereof. Agent shall
undertake to give each Bank prompt notice of any litigation
commenced against Agent and/or the Banks with respect to this
Agreement, the Loan Agreement or the other Loan Documents or any
matter referred to herein or therein.
12.11 Authority of Agent to Enforce Notes and This Agreement.
Each Bank, subject to the terms and conditions of this Agreement
including without limitation Sections 12.10, 12.14 and 12.15
hereof, authorizes the Agent with full power and authority as
attorney-in-fact to institute and maintain actions, suits or
proceedings for the collection and enforcement of the Notes and to
file such proofs of debt or other documents as may be necessary to
have the claims of the Banks allowed in any proceeding relative to
the Company or any of its Subsidiaries, or its creditors or
affecting its properties, and to take such other actions which
Agent considers to be necessary or desirable for the protection,
collection and enforcement of the Notes, this Agreement or the Loan
Documents.
12.12 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such, to the extent not reimbursed by the
Company, pro rata according to their respective Percentages, from
and against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating
to or arising out of this Agreement or any of the other Loan
Documents or any action taken or omitted to be taken or suffered in
good faith by the Agent hereunder, provided that no Bank shall be
liable for any portion of any of the foregoing items resulting from
the gross negligence or willful misconduct of the Agent or any of
its officers, employees, directors or agents.
12.13 Knowledge of Default. It is expressly understood and
agreed that the Agent shall be entitled to assume that no default
or Event of Default has occurred and is continuing, unless the
officers of the Agent immediately responsible for matters
concerning this Agreement shall have actual (rather than
constructive) knowledge of such occurrence or shall have been
notified in writing by a Bank that such Bank considers that a
default or an Event of Default has occurred and is continuing, and
specifying the nature thereof. Upon obtaining actual knowledge of
any default or Event of Default as described above, the Agent shall
promptly, but in any event within three (3) Business Days after
obtaining knowledge thereof, notify each Bank of such default or
<PAGE>
<PAGE> 56 --Exibit 10.2 ( Revolving Credit + Term Loan )
Event of Default and the action, if any, the Agent proposes be
taken with respect thereto.
12.14 Agent's Authorization; Action by Banks. Except as
otherwise expressly provided herein, whenever the Agent is
authorized and empowered hereunder on behalf of the Banks to give
any approval or consent, or to make any request, or to take any
other action on behalf of the Banks (including without limitation
the exercise of any right or remedy hereunder or under the other
Loan Documents), the Agent shall be required (but only to the
extent otherwise required hereunder) to give such approval or
consent, or to make such request or to take such other action only
when so requested in writing by the Majority Banks or the Banks, as
applicable hereunder. Action that may be taken by Majority Banks or
all of the Banks, as the case may be (as provided for hereunder)
may be taken (i) pursuant to a vote at a meeting (which may be held
by telephone conference call) as to which all of the Banks have
been given reasonable advance notice, or (ii) pursuant to the
written consent of the requisite Percentages of the Banks as
required hereunder, provided that all of the Banks are given
reasonable advance notice of the requests for such consent.
12.15 Enforcement Actions by the Agent. Except as otherwise
expressly provided under this Agreement or in any of the other Loan
Documents and subject to the terms hereof, Agent will take such
action, assert such rights and pursue such remedies under this
Agreement and the other Loan Documents as the Majority Banks or all
of the Banks, as the case may be (as provided for hereunder), shall
direct. Except as otherwise expressly provided in any of the Loan
Documents, Agent will not (and will not be obligated to) take any
action, assert any rights or pursue any remedies under this
Agreement or any of the other Loan Documents in violation or
contravention of any express direction or instruction of the
Majority Banks or all of the Banks, as the case may be (as provided
for hereunder). Agent may refuse (and will not be obligated) to
take any action, assert any rights or pursue any remedies under
this Agreement or any of the other Loan Documents in the absence of
the express written direction and instruction of the Majority Banks
or all of the Banks, as the case may be (as provided for
hereunder). In the event Agent fails, within a commercially
reasonable time, to take such action, assert such rights, or pursue
such remedies as the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall direct in conformity
with this Agreement, the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall have the right to
take such action, to assert such rights, or pursue such remedies on
behalf of all of the Banks unless the terms hereof otherwise
require the consent of all the Banks to the taking of such actions
(in which event all of the Banks must join in such action). Except
as expressly provided above or elsewhere in this Agreement or the
other Loan Documents, no Bank (other than the Agent, acting in its
<PAGE>
<PAGE> 57 --Exibit 10.2 ( Revolving Credit + Term Loan )
capacity as Agent) shall be entitled to take any enforcement action
of any kind under any of the Loan Documents.
12.16 Co-Agents and Lead Managers. NationsBank has been
designated by the Company as "Co-Agent" and BHF and Signet have
been designated by the Company as "Lead Managers" under this
Agreement. Other than its rights and remedies as a Bank hereunder,
each such Co-Agent and Lead Manager shall have no administrative,
collateral or other rights or responsibilities, provided, however,
that each such Co-Agent and Lead Manager shall be entitled to the
benefits afforded to Agent under Sections 12.5 and 12.6 hereof.
13. MISCELLANEOUS
13.1 Accounting Principles. Where the character or amount of
any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, it shall
be done in accordance with generally accepted accounting principles
consistently applied.
13.2 Consent to Jurisdiction. Company hereby irrevocably
submits to the non-exclusive jurisdiction of any United States
Federal or Michigan state court sitting in Detroit in any action or
proceeding arising out of or relating to this Agreement or any of
the Loan Documents and Company hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and
determined in any such United States Federal or Michigan state
court. Company irrevocably consents to the service of any and all
process in any such action or proceeding brought in any court in or
of the state of Michigan by the delivery of copies of such process
to Company at its address specified on the signature page hereto or
by certified mail directed to such address. Nothing in this Section
shall affect the right of the Banks and the Agent to serve process
in any other manner permitted by law or limit the right of the
Banks or the Agent (or any of them) to bring any such action or
proceeding against the Company or any of its or their property in
the courts of any other jurisdiction. The Company hereby
irrevocably waives any objection to the laying of venue of any such
suit or proceeding in the above described courts.
13.3 Law of Michigan. This Agreement, and the other Loan
Documents have been delivered at Detroit, Michigan, U.S.A., and
shall be governed by and construed and enforced in accordance with
the laws of the State of Michigan, except as and to the extent
expressed to the contrary in any of the Loan Documents. Whenever
possible each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but
if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without
<PAGE>
<PAGE> 58 --Exibit 10.2 ( Revolving Credit + Term Loan )
invalidating the remainder of such provision or the remaining
provisions of this Agreement.
13.4 Interest. In the event the obligation of the Company to
pay interest on the principal balance of the Notes is or becomes in
excess of the maximum interest rate which the Company is permitted
by law to contract or agree to pay, giving due consideration to the
execution date of this Agreement, then, in that event, the rate of
interest applicable with respect to such Bank's Percentage shall be
deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to
have been payments in reduction of principal and not of interest.
13.5 Closing Costs; Other Costs and Expenses. Company shall
pay or reimburse Agent for payment of, on demand (a) all closing
costs and expenses, including, by way of description and not
limitation, house and outside attorney fees and advances, appraisal
and accounting fees, title and lien search fees, and required
travel costs, incurred by Agent in connection with the commitment,
consummation and closing of the loans contemplated hereby, or in
connection with any refinancing or restructuring of the loans or
advances provided under this Agreement or the other Loan Documents,
or any amendment thereof requested by Company; and (b) all stamp
and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing or recording of
this Agreement and the Loan Documents and the consummation of the
transactions contemplated hereby, and any and all liabilities with
respect to or resulting from any delay in paying or omitting to pay
such taxes or fees. Furthermore, all reasonable costs and expenses,
including without limitation attorney fees, and costs and expenses
to Environmental Auditors retained by Agent hereunder, incurred by
Agent in revising, preserving, protecting, exercising or enforcing
any of its or any of the Banks' rights against Company, or
otherwise incurred by Agent and the Banks (using a single law firm
retained by Agent, with the approval of the Majority Banks) in
connection with any Event of Default or the enforcement of the
loans (whether incurred through negotiations, legal proceedings or
otherwise), including by way of description and not limitation,
such charges in any court or bankruptcy proceedings or arising out
of any claim or action by any person against Agent or any Bank
which would not have been asserted were it not for Agent's or such
Bank's relationship with Company hereunder or otherwise, shall also
be paid by Company. All of said amounts required to be paid by
Company hereunder and not paid forthwith upon demand, as aforesaid,
shall bear interest, from the date incurred to the date payment is
received by Agent, at the Prime-based Rate, plus three percent
(3%).
13.6 Notices. Except as otherwise provided herein, all
notices or demand hereunder to the parties hereto shall be
sufficient if made in writing and delivered by messenger or
deposited in the mail, postage prepaid, certified mail, and
<PAGE>
<PAGE> 59 --Exibit 10.2 ( Revolving Credit + Term Loan )
addressed to the parties as set forth on the signature pages of
this Agreement.
13.7 Further Action. Company, from time to time, upon
written request of Agent will make, execute, acknowledge and
deliver or cause to be made, executed, acknowledged and delivered,
all such further and additional instruments, and take all such
further action as may be required to carry out the intent and
purpose of this Agreement, and to provide for the Advances under
and payment of the Notes, according to the intent and purpose
herein and therein expressed.
13.8 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of Company and the Banks and
their respective successors and assigns. The foregoing shall not
authorize any assignment by Company of its rights or duties
hereunder, and no such assignment shall be made (or effective)
without the prior written approval of the Banks. Nor may any Bank
sell, assign, transfer, grant participations in, or otherwise
dispose of all or any portion of their respective Notes, or of its
right, title and interest therein or thereto or in or to this
Agreement, except in accordance with and subject to the
requirements set forth in Section 13.8 of the Vishay Loan
Agreement.
13.9 Indulgence. No delay or failure of Agent and the Banks
in exercising any right, power or privilege hereunder shall affect
such right, power or privilege nor shall any single or partial
exercise thereof preclude any further exercise thereof, nor the
exercise of any other right, power or privilege. The rights of
Agent and the Banks hereunder are cumulative and are not exclusive
of any rights or remedies which Agent and the Banks would otherwise
have.
13.10 Counterparts. This Agreement may be executed in several
counterparts, and each executed copy shall constitute an original
instrument, but such counterparts shall together constitute but one
and the same instrument.
13.11 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or any Loan Document, nor consent to
any departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Majority Banks, 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 no amendment, waiver or
consent shall, unless in writing and signed by all the Banks, do
any of the following: (a) increase any commitment of the Banks
hereunder or subject the Banks to any additional obligations, (b)
reduce or forgive the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, (c) postpone any date
fixed for any payment of principal of, or interest on, the Notes or
<PAGE>
<PAGE> 60 --Exibit 10.2 ( Revolving Credit + Term Loan )
any fees or other amounts payable hereunder, (d) waive any Event of
Default specified in Sections 11.1(a) or (b) hereof (provided that
if, at the relevant time, only Bid Advances are outstanding
hereunder or under the Vishay Loan Agreement, the prior written
approval of all Banks shall be required to waive, whether by
consent, waiver or amendment, any Event of Default under this
Agreement), (e) release or defer the granting or perfecting of a
lien or security interest in any collateral or release any guaranty
or similar undertaking provided by any Person, except in each case
as shall be otherwise expressly provided in this Agreement or any
Loan Document, (f) take any action which requires the signing of
all Banks pursuant to the terms of this Agreement or any Loan
Document, (g) change the definition of "Majority Banks" or
"Interest Periods" (h) change the aggregate unpaid principal amount
of the Notes which shall be required for the Banks or any of them
to take any action under this Agreement or any Loan Document, (i)
except for conversions from Deutsche Marks to Dollars under Section
4.5 hereof or reconversions from Dollars to Deutsche Marks under
Section 4.6 hereof, as the case may be, change the currency in
which any Indebtedness hereunder is denominated or (j) change this
Section 13.11, and provided further, however, that no amendment,
waiver, or consent shall, unless in writing and signed by the Agent
in addition to all the Banks, affect the rights or duties of the
Agent under this Agreement or any Loan Document.
13.12 Taxes and Fees. Should any tax (other than a tax based
upon the net income of any Bank), recording or filing fee become
payable in respect of this Agreement or any of the Loan Documents'
or any amendment, modification or supplement hereof or thereof, the
Company agrees to pay the same together with any interest or
penalties thereon and agrees to hold the Agent and the Banks
harmless with respect thereto.
13.13 Confidentiality. Each Bank agrees that it will not
disclose without the prior consent of the Company, (other than to
its employees, to another Bank or to its auditors or counsel) any
confidential information with respect to the Company or any of its
Subsidiaries which is furnished pursuant to this Agreement or any
of the Loan Documents; provided that any Bank may disclose any such
information (a) as has become generally available to the public or
has been lawfully obtained by such Bank from any third party under
no duty of confidentiality to the Company, (b) as may be required
or appropriate in any report, statement or testimony submitted to,
or in respect to any inquiry, by, any municipal, state or federal
regulatory body having or claiming to have jurisdiction over such
Bank, including the Board of Governors of the Federal Reserve
System of the United States or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States
or elsewhere) or their successors, (c) as may be required or
appropriate in respect to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Bank, and (e) to any
<PAGE>
<PAGE> 61 --Exibit 10.2 ( Revolving Credit + Term Loan )
permitted transferror or assignee or any approved participant of,
or with respect to, the Notes, as aforesaid.
13.14 Withholding Taxes. If any Bank is not incorporated
under the laws of the United States or a state thereof, such Bank
shall promptly deliver to the Agent two executed copies of (i)
Internal Revenue Service Form 1001 specifying the applicable tax
treaty between the United States and the jurisdiction of such
Bank's domicile which provides for the exemption from withholding
on interest payments to such Bank, (ii) Internal Revenue Service
Form 4224 evidencing that the income to be received by such Bank
hereunder is effectively connected with the conduct of a trade or
business in the United States or (iii) other evidence satisfactory
to the Agent that such Bank is exempt from United States income tax
withholding with respect to such income. Such Bank shall amend or
supplement any such form or evidence as required to insure that it
is accurate, complete and non-misleading at all times. Promptly
upon notice from the Agent of any determination by the Internal
Revenue Service that any payments previously made to such Bank
hereunder were subject to United States income tax withholding when
made, such Bank shall pay to the Agent the excess of the aggregate
amount required to be withheld from such payments over the
aggregate amount actually withheld by the Agent. In addition, from
time to time upon the reasonable request and at the sole expense of
the Company, each Bank and the Agent shall (to the extent it is
able to do so based upon applicable facts and circumstances),
complete and provide the Company with such forms, certificates or
other documents as may be reasonably necessary to allow the Company
to make any payment under this Agreement or the other Loan
Documents without any withholding for or on the account of any tax
under Section 6.1(e) hereof (or with such withholding at a reduced
rate), provided that the execution and delivery of such forms,
certificates or other documents does not adversely affect or
otherwise restrict the right and benefits (including without
limitation economic benefits) available to such Bank or the Agent,
as the case may be, under this Agreement or any of the other Loan
Documents, or under or in connection with any transactions not
related to the transactions contemplated hereby.
13.15 Effective Upon Execution. This Agreement shall become
effective upon the execution hereof by Banks, Agent, and Company
and shall remain effective until the Indebtedness has been repaid
and discharged in full and no commitment to make Advances hereunder
or under the Vishay Loan Agreement, the Roederstein Loan Agreement
or the Target Company Loan Agreement remains outstanding.
13.16 Severability. In case any one or more of the
obligations of the Company under this Agreement, the Notes or any
of the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of the Company shall
not in any way be affected or impaired thereby, and such
<PAGE>
<PAGE> 62 --Exibit 10.2 ( Revolving Credit + Term Loan )
invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the
obligations of the Company under this Agreement, the Notes or any
of the other Loan Documents in any other jurisdiction.
13.17 Table of Contents and Headings. The table of contents
and the headings of the various subdivisions hereof are for
convenience of reference only and shall in no way modify or affect
any of the terms or provisions hereof.
13.18 Construction of Certain Provisions. If any provision of
this Agreement or any of the Loan Documents refers to any action to
be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is
taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
13.19 Independence of Covenants. Each covenant hereunder
shall be given independent effect (subject to any exceptions stated
in such covenant) so that if a particular action or condition is
not permitted by any such covenant (taking into account any such
stated exception), the fact that it would be permitted by an
exception to, or would be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default or an
Event of Default if such action is taken or such condition exists.
13.20 Reliance on and Survival of Various Provisions. All
terms, covenants, agreements, representations and warranties of the
Company or any party to any of the Loan Documents made herein or in
any of the Loan Documents or in any certificate, report, financial
statement or other document furnished by or on behalf of the
Company, any such party in connection with this Agreement or any of
the Loan Documents shall be deemed to have been relied upon by the
Banks, notwithstanding any investigation heretofore or hereafter
made by any Bank or on such Bank's behalf, and those covenants and
agreements of the Company set forth in Section 5.6 hereof (together
with any other indemnities of the Company contained elsewhere in
this Agreement or in any of the Loan Documents) and of Banks set
forth in Section 13.13 hereof shall survive the repayment in full
of the Indebtedness and the termination of any commitments to make
Advances hereunder.
13.21 Complete Agreement. This Agreement, the Notes, the
other Loan Documents and any agreements, certificates, or other
documents given to evidence or secure the Indebtedness and the
Commitment Letter, contain the entire agreement of the parties
hereto (provided that in the event of any inconsistency between
this Agreement and the other Loan Documents, on one hand, and the
Commitment Letter on the other hand, this Agreement and other Loan
Documents shall control), and none of the parties shall be bound by
anything not expressed in writing.
<PAGE>
<PAGE> 63 --Exibit 10.2 ( Revolving Credit + Term Loan )
WITNESS the due execution hereof as of the day and year first
above written.
COMPANY: AGENT:
VISHAY BETEILIGUNGS GmbH COMERICA BANK, As Agent
By: By:
---------------------------- -----------------------------
Its: Attorney-in-Fact Its: Vice President
63 Lincoln Highway Comerica Bank Building
Malvern, Pennsylvania 19355 One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48275
Attention: National Division
<PAGE>
<PAGE> 64 --Exibit 10.2 ( Revolving Credit + Term Loan )
BANKS:
COMERICA BANK
By:
-----------------------------
Its:
----------------------------
Comerica Bank Building
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48275
Attention: National Division
Telex: 235808
Fax No.: (313) 222-3330
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:
-----------------------------
Its:
----------------------------
NationsBank Corporate Center
100 North Tryon Street
NC 1007-08-04
Charlotte, NC 28255-0086
Attn: Mr. M. Gregory Seaton
Telex: 669959
Fax No.: (704) 386-3271
BERLINER HANDELS-UND FRANKFURTER
BANK KGaA
By:
-----------------------------
Its:
----------------------------
Bockenheimer Landstr. 10
60323 Frankfurt/Main 1
Germany
Attn: Mr. Hans-Jurgen Scholz
Telex: 411 026
Fax No.: 4969/718-3011
<PAGE>
<PAGE> 65 --Exibit 10.2 ( Revolving Credit + Term Loan )
BANK HAPOALIM, B.M.
By:
-----------------------------
Its:
----------------------------
3 Penn Center Plaza
Philadelphia, Pennsylvania 19102
Attn: Mr. Andrew Niesen
Telex: 902022
Fax No.: (215) 665-2217
SIGNET BANK/MARYLAND
By:
-----------------------------
Its:
----------------------------
7 St. Paul Street
Baltimore, Maryland 21202
Attn: Ms. Janice E. Godwin
Telex: 87638
Fax No.: (301) 625-6365
CORESTATES BANK, N.A.,
formerly known as and continuing
to do business under the name of
THE PHILADELPHIA NATIONAL BANK
By:
-----------------------------
Its:
----------------------------
1345 Chestnut Street
F.C. 1-8-3-14
Philadelphia, Pennsylvania 19107
Attn: Mr. James A. Bennett
Telex: 845400
Fax No.: (215) 973-7820
<PAGE>
<PAGE> 66 --Exibit 10.2 ( Revolving Credit + Term Loan )
BANK LEUMI le-ISRAEL, B.M.
By:
-----------------------------
Its:
----------------------------
1511 Walnut Street
Philadelphia, Pennsylvania 19102
Attn: Mr. Joseph A. McBride
Telex: 173090
Fax No.: (215) 563-8688
MERIDIAN BANK
By:
-----------------------------
Its:
----------------------------
1650 Market Street
Suite 3600
Philadelphia, Pennsylvania 19103
Attn: Mr. John M. Fessick
Telex: 173003
Fax No.: (215) 854-3774
ABN AMRO BANK N.V. NEW YORK BRANCH
By:
-----------------------------
Its:
----------------------------
and
By:
-----------------------------
Its:
----------------------------
500 Park Avenue
Second Floor
New York, New York 10022
Attn: Mr. James B. Sieger
Telex: 423721
Fax No.: (212) 759-4792
<PAGE>
<PAGE> 67 --Exibit 10.2 ( Revolving Credit + Term Loan )
CREDIT LYONNAIS NEW YORK BRANCH
By:
-----------------------------
Its:
----------------------------
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Steve Levi
Telex:
--------------------------
Fax No.: (212) 459-3179
CREDIT SUISSE
By:
-----------------------------
Its:
----------------------------
And By:
-------------------------
Its:
____________________________
12 East 49th Street
New York, New York 10017
Attn: Ms. Eileen O'Connel Fox
Telex: 420149
Fax No.: (212) 238-5389
<PAGE>
<PAGE> 68 --Exibit 10.2 ( Revolving Credit + Term Loan )
SCHEDULE 1.14 (DM LOAN AGREEMENT)
Pricing Matrix (Determination of Pricing Levels)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
Applicable Margin Applicable Margin Applicable Fee
for Advances for the for Advances Percentage For
Revolving Credit of the Term Loan
- -----------------------------------------------------------------------------------------------------
Prime-based Deutsche Mark- Prime-based Deutsche Mark- Revolving Credit
Rate based Rate Rate based Rate Facility Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
If Leverage Ratio
is less than or
equal to 1.5:1.0
OR
If Rating Level 1
is in effect 0.00% .375% 0.00% .625% .125%
- -----------------------------------------------------------------------------------------------------
If Leverage Ratio
is greater than
1.5:1.0, but less
than or equal to
2.0:1.0
OR
If Rating Level 2
is in effect 0.00% .4875% 0.00% .75% .1375%
- -----------------------------------------------------------------------------------------------------
If Leverage Ratio
is greater than
2.0:1.0, but less
than or equal to
3.9:1.0
OR
If Rating Level 3
is in effect 0.00% .5625% 0.00% .875% .1875%
- -----------------------------------------------------------------------------------------------------
If Leverage Ratio
is greater than
3.9:1.0
OR
If Rating Level 4
is in effect .125% .6375% .125% 1.125% .3125%
- -----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<PAGE> 69 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "A"
REQUEST FOR ADVANCE
The undersigned authorized officer of Vishay Beteiligungs GmbH
(formerly Draloric Electronic GmbH) ("Company") in accordance with
Section 2.3 of the Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan Agreement dated as of
July , 1994, among Company, certain Banks and Comerica Bank, as
Agent for the Banks (the "Agreement"), hereby requests Comerica
Bank, in its capacity as Agent under the Agreement to make a
Deutsche Mark-based Rate Advance to the undersigned on_______________,
19-,/1 in the amount of DM _____________________________________/2 under
the Revolving Credit Notes ("Notes") dated July __, 1994 made by
the undersigned to said Banks.
The Interest Period for the requested Advance shall be __________
______________________./3
B. Application of Proceeds
1. The proceeds of this Advance shall be applied first to
convert/renew/4 the following outstanding Advances:
- ---------------
1/ Insert date at least four (4) Business Days after the date
of Request and, if Request involves the conversion or renewal of
any outstanding Deutsche Mark-based Rate Advance, date must be the
Business Day subsequent to last day of applicable Interest Period.
2/ Insert amount, in Deutsche Marks, of Requested Advance. This
amount, plus the amount of any other outstanding Indebtedness under
the Agreement to be then combined therewith having the same
Interest Period, if any, shall be at least DM 1,000,000 and at any
one time the Company shall not have more than 1 Interest Period in
effect with respect to the Notes.
3/ Insert, as applicable, "1 month", "2 months", "3 months" or
"6 months."
4/ Strike inapplicable term to indicate whether a conversion or
renewal.
<PAGE>
<PAGE> 70 --Exibit 10.2 ( Revolving Credit + Term Loan )
Type Last Day Current
of of Interest Principal Dollar
Advance Period outstanding Equivalent/5
2. The balance of the proceeds of the Advance, being______
_________________Deutsche Marks (DM_____________________),/6 shall
be deposited in the undersigned's account number ___________, with
_________, _________, _________./7
C. Advance Availability
The amount inserted at B.2 above shall not exceed the amount
calculated in Line C.l(iv) below, as follows:
1. (i) Maximum principal amount available under
all Revolving Credit Notes (DM
40,000,000) less any reductions in
Revolving Credit Maximum Amount pursuant
to Section 2.9............................. $
--------
(ii) Aggregate amount of principal outstanding
under all Revolving Credit Notes........... $
--------
(iii) Aggregate principal amount of Bid
Advances then outstanding.................. $
--------
(iv) Line C.1(i) minus Line C.l(ii) minus Line
C.l(iii)................................... $
--------
D. Request Irrevocable
Upon Agent's receipt of this Request For Advance, this
Request For Advance shall be irrevocable.
5/ Applicable to reconversions from Prime-based Rate. To be
determined by Agent.
6/ Amount inserted here may not exceed amount determined on
Line C.l(iv) below.
7/ Insert account number, bank name and bank address.
<PAGE>
<PAGE> 71 --Exibit 10.2 ( Revolving Credit + Term Loan )
E. Certification
The undersigned hereby certifies that:
(1) both before and after the Advance, the obligations of
the Company, its Subsidiaries and the Permitted
Borrowers set forth in the Agreement and any of the Loan
Documents to which such Persons are parties are and
shall be valid, binding and enforceable obligations of
the Company and its Subsidiaries, as the case may be;
(2) all conditions to Advances of the Revolving Credit have
been satisfied, and shall remain satisfied to the date
of Advance;
(3) there is no Event of Default in existence, and no event
which, with the giving of notice or the lapse of time,
or both, would constitute such an Event of Default, and
none will exist upon the making of the Advance;
(4) the representations and warranties contained in the
Agreement and the Loan Documents are true and correct in
all material respects and shall be true and correct in
all material respects as of the making of the Advance;
and
(5) the execution of this Request for Advance will not
violate the material terms and conditions of any
material contract, agreement or other borrowing of
Company or any of its Subsidiaries.
F. Defined Terms
Capitalized terms used herein, unless specifically defined
to the contrary herein, have the meanings given them in the Agreement.
Dated this ____ day of _________________, 1994.
VISHAY BETEILIGUNGS GmbH
By:
___________________________
Its:
__________________________
(This form of Request for Advance (including footnotes) is subject
in all respects to the terms and conditions of the Agreement which
shall govern in the event of any inconsistencies or omissions.)
<PAGE>
<PAGE> 72 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "B"
REVOLVING CREDIT NOTE
$ July ____, 1994
On or before the Revolving Credit Maturity Date, FOR VALUE
RECEIVED, Vishay Beteiligungs GmbH, a German corporation
("Company") promises to pay to the order of ( insert bank )
("Bank") at Detroit, Michigan, care of Agent, for the
account of Bank's Eurocurrency Lending Office, at the office of
Agent's Correspondent, in Deutsche Marks if the Deutsche Mark-based
Rate is then in effect, and at Agent's Detroit, Michigan office in
Dollars if the Prime-based Rate is then in effect, the Indebtedness
or so much of the sum of ________________________________________
________ Deutsche Marks (DM ______________) (or the Dollar
Amount equivalent thereof then outstanding if the Prime-based Rate
is then applicable), as may from time to time have been advanced
and then be outstanding hereunder pursuant to the Amended and
Restated Draloric/VBG, DM 40,000,000 Revolving Credit and DM
9,506,000 Term Loan Agreement ("Agreement") dated as of July __,
1994, made by and among Company, certain banks, including the
Bank, and Comerica Bank, as Agent for such banks, together with
interest thereon as hereinafter set forth.
Each of the Advances made hereunder shall bear interest at
the Deutsche Mark-based Rate as elected by Company or determined
under the Agreement, or the Prime-based Rate as determined under
the Agreement.
All accrued and unpaid interest on the Indebtedness
outstanding under this Note from time to time shall be due and
payable in full, in immediately available funds, (a) whenever the
Deutsche Mark-based Rate shall be in effect, (i) on the last day
of each Interest Period, and, (ii) if such Interest Period is
longer than 3 months, at intervals of 3 months after the first day
of the Interest Period, (b) whenever the Prime-based Rate shall be
then in effect, on the last day of each quarter on a calendar year
basis, and (c) on the date of any conversion or reconversion
pursuant to Section 4.5 or 4.6 of the Agreement, until the
Revolving Credit Maturity Date when the entire Indebtedness
outstanding under this Note including all accrued interest, shall
be due and payable in full.
In the event and so long as any default or Event of Default
shall exist under any Note or any Event of Default shall exist
under the Agreement, interest shall be payable daily on the
principal balance of the Indebtedness then outstanding hereunder
(a) if the Deutsche Mark-based Rate is then in effect, at a per
annum rate equal to the Applicable Interest Rate, plus three
percent (3%) for the remainder of the then existing Interest
Period, if any, and at all other times (i) at a per annum rate
<PAGE>
<PAGE> 73 --Exibit 10.2 ( Revolving Credit + Term Loan )
calculated by the Agent, whose determination shall be conclusive
absent manifest error, on a daily basis, equal to three percent
(3%) above the interest rate per annum at which one (1) day (or,
if such amount due remains unpaid for more than three (3) Business
Days, then for such other period of time as the Agent may elect
which shall in no event be longer than six (6) months) deposits in
the relevant currency in the amount of such overdue payment due to
the Agent are offered by the Agent's Eurocurrency Lending Office
for the applicable period determined as provided above, or (ii) if
at any such time such deposits are not offered by the Agent's
Eurocurrency Lending Office, then at a rate per annum equal to
three percent (3%) above the rate determined by the Agent to be
its aggregate marginal cost (including the cost of maintaining any
required reserves or deposit insurance) of carrying the amount of
the Indebtedness then outstanding, and (b) if the Prime-based Rate
is then in effect, at a per annum rate equal to the Applicable
Interest Rate plus three percent (3%).
Interest accruing under this Note at the Deutsche Mark-based
Rate shall be computed on the basis of a 360 day Year and assessed
for the actual number of days elapsed from the first day of the
Interest Period applicable thereto, to, but not including, the
last day thereof. Interest accruing at the Prime-based Rate shall
be computed on the basis of a 360 day year and assessed for the
actual number of days elapsed, and in such computation effect
shall be given to any change in the interest rate resulting from
a change in the Prime-based Rate on the date of such change in the
Prime-based Rate. Interest accruing under this Note shall be
repaid in Deutsche Marks, unless the Prime-based Rate be then in
effect, in which event said interest shall be repaid in Dollars.
This Note is a note under which advances, repayments and
readvances may be made from time to time, but only in accordance
with, the terms and conditions of the Agreement. This Note
evidences borrowings under, is subject to, is secured in
accordance with, and may be accelerated or matured under, the
terms of the Agreement, to which reference is hereby made.
Definitions and terms of the Agreement are hereby incorporated by
reference herein.
As additional security for this Note, Company grants Bank a
lien an all property and assets including deposits and other
credits of the Company, at any time in possession or control of or
owing by Bank for any purpose.
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.
Company 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
<PAGE>
<PAGE> 74 --Exibit 10.2 ( Revolving Credit + Term Loan )
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.
Nothing herein shall limit any right granted Bank by any
other instrument or by law.
VISHAY BETEILIGUNGS GmbH
By:
_________________________
Its:
________________________
<PAGE>
<PAGE> 75 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "C-1"
FORM OF BID BORROWING REQUEST
TO: Comerica Bank ("Agent")
Re: Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan Agreement
dated as of July ____, 1994 (the "Agreement"), among
Vishay Beteiligungs GmbH (formerly Draloric Electronic
GmbH) ("Company"), Agent and certain Banks
Pursuant to Section 2.5(b) of the Agreement, the Company
notifies you of a request for offers to make the Bid Advances
specified herein. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Agreement.
(1) The date of the proposed Bid Advance borrowing is
199_ (which day is at least five (5) Business Day from the
date hereof in the case of an Absolute Rate Bid Advance and
at least five (5) Business Days from the date hereof in the
case of a DM Bid Advance).
(2) The aggregate amount of the proposed Bid Advance borrowing is
DM ____________./1
(3) The Bid offer requested is for ______________./2
(4) The Interest Period(s) for the Bid Advances comprising the
proposed Bid Advance borrowing shall be ____________./3
The undersigned hereby certifies that the following contents
are true and correct on and as of the date hereof, and will be
true and correct on the date of the proposed Bid Advance
borrowing, before and after giving effect thereto:
(a) the undersigned has complied and will be on the
date of the proposed Bid Advance borrowing in compliance with all the
- --------------
1/ Insert an amount which is a minimum amount of DM 10,000,000
or any multiple of DM 1,000,000 in excess thereof.
2/ Insert "DM Bid Advances" or "Absolute Rate Bid Advances" or
both.
3/ No more than three Interest Periods may be requested in a
single Bid Borrowing Request.
<PAGE>
<PAGE> 76 --Exibit 10.2 ( Revolving Credit + Term Loan )
terms, covenants and conditions of the Agreement and the other
Loan Documents;
(b) no Default or Event of Default exists or shall
result from the proposed Bid Advance borrowing;
(c) each and every representation and warranty
contained in the Agreement is true and correct in all material
respects with the same effect as if made on and as of the date of
the proposdd Bid Advance borrowing; and
(d) the aggregate amount of principal outstanding under
all Advances of the Revolving Credit and Bid Advances does not
exceed the Revolving Credit Maximum Amount.
VISHAY BETEILIGUNGS GmbH
Dated:_______________________
By: _________________________
Its: ________________________
(This form of Bid Borrowing Request (including footnotes) is
subject in all respects to the terms and conditions of the
Agreement which shall govern in the event of any
inconsistencies or omissions.)
<PAGE>
<PAGE> 77 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "C-2"
FORM OF BID OFFER
TO: Comerica Bank ("Agent")
Re: Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan Agreement
dated as of July ____, 1994 (the "Agreement"), among
Vishay Beteiligungs GmbH (formerly Draloric Electronic
GmbH) ("Company"), Agent and certain Banks
In response to the Bid Borrowing Request of the Company dated________
199__ and in accordance with Section 2.5(c) of the Agreement, the
undersigned Bid Lender offers to make Bid Advances thereunder in
the following principal amount(s) at the following interest
rate(s) for the following Interest Period(s) (the terms defined in
the Agreement being used herein as therein defined):
INTEREST PRINCIPAL (DM Bid Margin)
PERIOD AMOUNT* (Absolute Rate)
The date of the proposed Bid Advance borrowing is,
19__ (which day is at least four (4) Business Days from
the date hereof).
Acceptance of any bid contained herein is subject to
compliance with the terms and conditions of the Agreement,
including Section 2.5(d) thereof.
- --------------
*Insert an amount which is a minimum amount of DM 3,000,000 or
any multiple of DM 1,000,000 in excess thereof.
<PAGE>
<PAGE> 78 --Exibit 10.2 ( Revolving Credit + Term Loan )
(NAME OF BID LENDER)
By:________________________
Dated:________________________
Its:_______________________
(This form of Bid Offer is subject in all respects to the terms
and conditions of the Agreement which shall govern in the event of
any inconsistencies or omissions.)
<PAGE>
<PAGE> 79 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "C-3"
FORM OF BID ACKNOWLEDGMENT
TO: Comerica Bank
Re: Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan
Agreement dated as of July ____, 1994 (the
"Agreement"), among Vishay Beteiligungs GmbH
(formerly Draloric Electronic GmbH) ("Company"), Agent
and certain Banks
Pursuant to Sections 2.5(d) and 2.5(e) of the Agreement,
the undersigned hereby notifies you of its acceptance of the
following offers made by the Bid Lenders in response to the
Bid Borrowing Request submitted by the undersigned on ________, 199_
(the terms defined in the Agreement being used herein as therein
defined):
Type of DM Bid margin or Principal
Name of Interest Bid Absolute Rate, as Amount of
Lender Period Advance* applicable Advances
Date of proposed Bid Advance borrowing: _______________
The undersigned hereby certifies that its acceptance of
the offers listed above complies with and upon the funding of
such Bid Advances shall comply with the terms of the
Agreement, including, but not limited to, Section 2.5(d)
thereof. The undersigned hereby
- ---------------
*Specify whether it is a DN Bid Advance (and the DM Bid Margin) or an
Absolute Rate Bid Advance (and the Absolute Bid Rate).
<PAGE>
<PAGE> 80 --Exibit 10.2 ( Revolving Credit + Term Loan )
confirms and restates each of the statements certified by it in
the Bid Borrowing Request relating to this Bid Acknowledgment.
VISHAY BETEILIGUNGS GmbH
Dated:
_____________________
By:
-------------------------
Its:
------------------------
(This form of Bid Acknowledgment is subject in all respects to the
terms and conditions of the Agreement which shall govern in the
event of any inconsistencies or omissions.)
<PAGE>
<PAGE> 81 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "C-4"
BID NOTE
DM 40,000,000 July ___, 1994
On or before the Revolving Credit Maturity Date, subject to
the terms hereof, FOR VALUE RECEIVED, Vishay Beteiligungs GmbH, a
German corporation ("Company") promises to pay to the order of (_
____insert bank______________) ("Bank") at ____________, ______________,
care of Bank, in Deutsche Marks, the Indebtedness or so much of
the sum of Forty Million Deutsche Marks (DM 40,000,000), as may
from time to time have been advanced and then be outstanding
hereunder pursuant to the Amended and Restated Draloric/VBG, DM
40,000,000 Revolving Credit and DH 9,506,000 Term Loan Agreement
dated as of July __, 1994 (the "Agreement"), made by and among the
Company, certain banks, including the Bank, and Comerica Bank, a
Michigan banking corporation, as Agent for such banks, together
with interest thereon as hereinafter set forth.
The unpaid principal indebtedness from time outstanding under
this Note shall be due and payable on the last day of the Interest
Period applicable thereto or as otherwise set forth in the
Agreement, provided that no Bid Advance may mature or be payable
on a day later than the Revolving Credit Maturity Date.
Each of the Bid Advances made hereunder shall bear interest
at the Absolute Rate or the Deutsche Mark-based Rate as elected by
Company or as otherwise determined under the Agreement.
Interest on each Absolute Rate Advance and each 1 month, 2
month and 3 month DM-based Advance shall be payable in Deutsche
Marks on the last day of the Interest Period applicable thereto.
Interest on each 6 month DM-based Advance outstanding from time to
time shall be payable in Deutsche Marks, at intervals of 3 months
after the first day of the applicable Interest Period and on the
last day of the Interest Period applicable thereto. Interest
accruing at the Absolute Rate or Deutsche Mark-based Rate shall be
computed on the basis of a 360 day year and assessed for the
actual number of days elapsed from the first day of the Interest
Period applicable thereto, to, but not including, the last day
thereof.
In the event and so long as any default or Event of Default
shall exist hereunder or under the Agreement, interest shall be
payable daily on all Bid Advances from time to time outstanding
hereunder at a per annum rate equal to the Applicable Interest
Rate plus three percent (3%) for the remainder of the then
existing Interest Period, if any, and at all other times, with
respect to Absolute Rate Advances from time to time outstanding.
at a per annum rate equal to the Absolute Rate plus three percent
(3%), and with respect to DM-based Advances from time to time outstanding,
(i)at a per annum rate calculated by the applicable Bid Lender
<PAGE>
<PAGE> 82 --Exibit 10.2 ( Revolving Credit + Term Loan )
having funded such Bid Advance, whose determination shall be
conclusive absent manifest error, on a daily basis, equal to three
percent (3%) above the interest rate per annum at which one (1)
day deposits (or, if such amount due remains unpaid for more than
three (3) Business Days, then for such other period of time as
the applicable Bid Lender may elect which shall in no event be
longer than six (6) months) in Deutsche Marks in the amount of
such overdue payment due to the applicable Bid Lender are off-
ered by such Bid Lender's Eurocurrency Lending Office for the
applicable period so determined, or (ii) if at any such time such
deposits are not offered by such Bid Lender's Eurocurrency Lending
Office, then at a rate per annum equal to three percent (3%) above
the rate determined by the applicable Bid Lender to be its
aggregate marginal cost (including the cost of maintaining any
required reserves or deposit insurance) of carrying the amount of
such DM-based Advance.
This Note is a note under which advances, repayments and
readvances may be made from time to time, but only in accordance
with, the terms and conditions of the Agreement. This Note
evidences borrowings under, is subject to, is secured in
accordance with, and may be accelerated or matured under, the
terms of the Agreement, to which reference is hereby made.
Definitions and terms of the Agreement are hereby incorporated by
reference herein.
As additional security for this Note, Company grants Bank a
lien on all property and assets including deposits and other
credits of the Company, at any time in possession or control of or
owing by Bank for any purpose.
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.
Company 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.
Nothing herein shall limit any right granted Bank by any
other instrument or by law.
VISHAY BETEILIGUNGS GmbB
By:
-------------------------
Its:
------------------------
<PAGE>
<PAGE> 83 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "D"
TERM NOTE
DM July , 1994
-----------------------------
On or before December 31, 1994 (the "Term Loan Maturity
Date"), FOR VALUE RECEIVED, Vishay Beteiligungs GmbH, a German
corporation ("Company") promises to pay to the order of (insert
bank) ("Bank") at Detroit, Michigan, care of Agent, in Deutsche
Marks, the sum of _______________ ________________________ Deutsche
Marks (DM__________), in quarterly principal installments of
____________________ Deutsche Marks (DM _________) each, commencing
on September 30, 1994 and on the last day of each calendar quarter
thereafter until December 31, 1994, when the entire principal
balance hereunder and interest thereon as hereinafter set forth,
shall be due and payable in full, all in accordance with that
certain Amended and Restated Draloric/VBG DM 40,000,000 Revolving
Credit and DM 9,506,000 Term Loan Agreement ("Agreement") dated as
of July , 1994 by and among Company, certain banks, including the
Bank, and Comerica Bank, as Agent for such banks. Capitalized terms
used herein, except as defined to the contrary, have the meanings
given them in the Agreement. Notwithstanding the foregoing, in the
event the Term Loan is converted to Dollars pursuant to the
Agreement, this Note shall be payable in Dollars, as set forth
therein, and the quarterly installments of principal specified
above shall be due and payable in the Dollar Amount necessary to
provide full amortization of outstanding principal over the
remaining term of this Note.
Each of the Advances made hereunder shall bear interest at the
Deutsche Mark-based Rate, as determined under the Agreement, or, if
applicable from time to time under the Agreement, the Prime-based
Rate.
All accrued and unpaid interest on the Indebtedness
outstanding under this Note from time to time shall be due and
payable in full, in immediately available funds, (a) whenever the
Deutsche Mark-based Rate shall be in effect, (i) on the last day of
each Interest Period, and, (ii) if such Interest Period is longer
than 3 months, at intervals of 3 months after the first day of the
applicable Interest Period, and (b) whenever the Prime-based Rate
shall be then in effect, on the last day of each quarter on a
calendar year basis until December 31, 1994, when the entire
Indebtedness outstanding under this Note including all accrued
interest, shall be due and payable in full.
In the event and so long as a default or Event of Default
shall exist under this Note or under the Agreement, interest shall
be payable daily on the principal balance then outstanding
<PAGE>
<PAGE> 84 --Exibit 10.2 ( Revolving Credit + Term Loan )
hereunder (a) if the Deutsche Mark-based Rate is then in effect, at
a per annum rate equal to the Applicable Interest Rate plus three
percent (3%) for the remainder of the then existing Interest
Period, if any, and at all other times, (i) at a per annum rate
calculated by the Agent, whose determination shall be conclusive
absent manifest error, on a daily basis, equal to three percent
(3%) above the interest rate per annum at which one (1) day
deposits (or, if such amount due remains unpaid for more than three
(3) Business Days, then for such other period of time as the Agent
may elect which shall in no event be longer than six (6) months) in
the relevant currency in the amount of such overdue payment due to
the Agent are offered by the Agent's Eurocurrency Lending Office
for the applicable period determined as provided above, or (ii) if
at any such time such deposits are not offered by the Agent's
Eurocurrency Lending Office, then at a rate per annum equal to
three percent (3%) above the rate determined by the Agent to be its
aggregate marginal cost (including the cost of maintaining any
required reserves or deposit insurance) of carrying the amount of
the Indebtedness then outstanding, and (b) if the Prime-based Rate
is then in effect, at a per annum rate equal to the Prime-based
Rate plus three percent (3%).
Interest accruing under this Note at the Deutsche Mark-based
Rate shall be computed on the basis of a 360 day year and assessed
for the actual number of days elapsed from the first day of the
Interest Period applicable thereto, to, but not including, the last
day thereof. Interest accruing at the Prime-based Rate shall be
computed on the basis of a 360 day year and assessed for the actual
number of days elapsed, and in such computation effect shall be
given to any change in the interest rate resulting from a change in
the prime-based Rate on the date of such change in the Prime-based
Rate. Interest accruing under this Note shall be repaid in Deutsche
Marks, unless the prime-based Rate is applicable thereto, in which
event said interest shall be repaid in Dollars.
The amount and date of each Advance of the Term Loan, its
Applicable Interest Rate and Interest Period, and the amount and
date of any repayments shall be noted on Agent's records, which
records will be conclusive evidence thereof, absent manifest error.
This Note is a note under which prepayments may be made from
time to time, but only in accordance with the terms and conditions
of the Agreement.
This Note evidences borrowings under, is subject to, is
secured in accordance with, and may be accelerated or matured
under, the terms of the Agreement, to which reference is hereby
made. Definitions and terms of the Agreement are hereby
incorporated herein.
As additional security for this Note, Company grants Bank a
lien on all property and assets including deposits and other
<PAGE>
<PAGE> 85 --Exibit 10.2 ( Revolving Credit + Term Loan )
credits of the Company, at any time in possession or control of or
owing by Bank for any purpose.
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.
Company 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.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
VISHAY BETEILIGUNGS GmbH,
a German corporation
By:___________________________
Its:_____________________
<PAGE>
<PAGE> 86 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "E"
TERM LOAN RATE REQUEST
To: Comerica Bank ("Agent")
A. Request
The undersigned authorized officer of Vishay Beteiligungs GmbH
("Company") in accordance with Section 3.5 of the Amended and
Restated Draloric/VBG DM 40,000,000 Revolving Credit and DM
9,506,000 Term Loan Agreement dated as of July ___, 1994, among
Company, certain Banks and Comerica Bank, as Agent for the Banks
(the "Agreement"), hereby requests the Agent under the Agreement to
refund or convert DM of the Indebtedness evidenced
by the Term Notes with a __________ Advance on ,
199 .
The Interest Period for the requested Advance shall be____________
____________.
- ---------------
1/Insert amount of requested Advance. This amount, together
with the amount of any other outstanding Indebtedness evidenced by
the Term Notes to be then combined therewith having the same
Applicable Interest Rate and Interest Period, if any, shall not be
less than DM 5,000,000, unless the balance remaining outstanding on
the Term Loan is less, in which case such lesser amount shall
control, and at any time the Company shall not have more than 2
Interest Periods in effect with respect to the Term Loan.
2/Insert, as applicable, "Deutsche Mark-based" or "Prime-
based."
3/Insert date at least four (4) Business Days after the date of
Request, if Request is for DM-based Advance and, if Request
involves the conversion or renewal of any outstanding DM-based
Advance, date must be the Business Day subsequent to the last day
of the applicalbe DM-based Interest Period.
4/For DM-based Advance insert, as applicable, "1 month", "2
months", "3 months" or "6 months."
<PAGE>
<PAGE> 87 --Exibit 10.2 ( Revolving Credit + Term Loan )
B. Application of Proceeds
1. The proceeds of this Advance shall be applied first to
refund/convert/5 the following outstanding Advances:
Type of Last Day of Principal
Advance Interest Period Outstanding
C. Request Irrevocable
Upon Agent's receipt of this Term Loan Rate Request, this Term
Loan Rate Request shall be irrevocable.
D. Maturity Date
Company shall not be entitled to request any Advance with an
Interest Period ending after the Term Loan Maturity Date.
E. Defined Terms
Capitalized terms used herein, unless specifically defined to
the contrary herein, have the meanings given them in the Agreement.
Dated this day of , 1994.
VISHAY BETEILIGUNGS GmbH
By:
___________________________
Its:
__________________________
(This form of Term Loan Rate Request (including footnotes) is
subject in all respects to the terms and conditions of the
Agreement which shall govern in the event of any inconsistencies or
omissions.)
5/Strike inapplicable term to indicate whether a conversion or renewal.
<PAGE>
<PAGE> 88 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "F"
Percentages
Comerica Bank 15.42%
NationsBank of North Carolina, N.A. 15.42%
Berliner Handels-Und Frankfurter Bank 11.67%
Signet Bank Maryland 11.66%
Bank Hapoalim, B.M. 8.33%
CoreStates Bank, N.A. 8.33%
ABN AMRO Bank N.V. 8.33%
Credit Lyonnais New York Branch 8.33%
Bank Leumi le-Israel, B.M. 4.17%
Credit Suisse 4.17%
Meridian Bank 4.17%
<PAGE>
<PAGE> 1 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
Execution Copy
=============================================================================
AMENDED AND RESTATED ROEDERSTEIN
DM 104,315,990.20 TERM LOAN AGREEMENT
DATED AS OF JULY 18, 1994
COMERICA BANK, AS AGENT
NATIONSBANK OF NORTH CAROLINA, N.A., AS CO-Agent
BERLINER HANDELS-UND FRANKFURTER BANK KGAA and
SIGNET BANK/MARYLAND, as Lead Managers
=============================================================================
<PAGE>
<PAGE> 2 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
TABLE OF CONTENTS
-----------------
Page
----
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 "Advance(s)". . . . . . . . . . . . . . . . . 1
1.2 "Agent" . . . . . . . . . . . . . . . . . . . 1
1.3 "Agent's Correspondent" . . . . . . . . . . . 1
1.4 "Agent's Fees". . . . . . . . . . . . . . . . 2
1.5 "Alternate Base Rate" . . . . . . . . . . . . 2
1.6 "Applicable Interest Rate". . . . . . . . . . 2
1.7 "Applicable Margin" . . . . . . . . . . . . . 2
1.8 "Banks" . . . . . . . . . . . . . . . . . . . 2
1.9 "Bridge Loan" . . . . . . . . . . . . . . . . 2
1.10 "Business Day". . . . . . . . . . . . . . . . 2
1.11 "Commitment Letter" . . . . . . . . . . . . . 2
1.12 "Company" . . . . . . . . . . . . . . . . . . 3
1.13 "Conversion" or "converted" . . . . . . . . . 3
1.14 "Deutsche Mark Equivalent". . . . . . . . . . 3
1.15 "Deutsche Mark-based Advance" . . . . . . . . 3
1.16 "Deutsche Mark-based Rate". . . . . . . . . . 3
1.17 "Deutsche Mark-Interest Period" . . . . . . . 3
1.18 "Deutsche Mark Principal Limit" . . . . . . . 4
1.19 "DM Loan Agreement" . . . . . . . . . . . . . 4
1.20 "Dollar Amount" . . . . . . . . . . . . . . . 4
1.21 "Dollars" and the sign "$". . . . . . . . . . 4
1.22 "Eurocurrency Lending Office" . . . . . . . . 4
1.23 "Event of Default". . . . . . . . . . . . . . 4
1.24 "hereof", "hereto", "hereunder" . . . . . . . 4
1.25 "Indebtedness". . . . . . . . . . . . . . . . 4
1.26 "Interest Period" . . . . . . . . . . . . . . 5
1.27 "Loan Documents". . . . . . . . . . . . . . . 5
1.28 "Majority Banks". . . . . . . . . . . . . . . 5
1.29 "Moody's Rating". . . . . . . . . . . . . . . 5
1.30 "New Banks" . . . . . . . . . . . . . . . . . 6
1.31 "Non-Amortizing Term Loan". . . . . . . . . . 6
1.32 "Percentage". . . . . . . . . . . . . . . . . 6
1.33 "Permitted Borrowers" and "Permitted
Borrowers Guaranty" . . . . . . . . . . . . 6
1.34 "Permitted Encumbrances". . . . . . . . . . . 6
1.35 "Person". . . . . . . . . . . . . . . . . . . 7
1.36 "Prime Rate". . . . . . . . . . . . . . . . . 7
1.37 "Prime-based Advance" . . . . . . . . . . . . 7
1.38 "Prime-based Rate". . . . . . . . . . . . . . 7
1.39 "Prior Banks" . . . . . . . . . . . . . . . . 8
1.40 "Prior Roederstein Loan Agreement". . . . . . 8
1.41 "Rating Level". . . . . . . . . . . . . . . . 8
1.42 "Rating Level 1". . . . . . . . . . . . . . . 8
1.43 "Rating Level 2". . . . . . . . . . . . . . . 8
1.44 "Rating Level 3". . . . . . . . . . . . . . . 8
<PAGE>
<PAGE> 3 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
TABLE OF CONTENTS
-----------------
Page
----
1.45 "Rating Level 4". . . . . . . . . . . . . . . 8
1.46 "Roederstein" . . . . . . . . . . . . . . . . 8
1.47 "Roederstein Acquisition" . . . . . . . . . . 8
1.48 "S & P Rating". . . . . . . . . . . . . . . . 8
1.49 "Shares", "share capital", "capital stock",
"stock" . . . . . . . . . . . . . . . . . . 8
1.50 "Target Company". . . . . . . . . . . . . . . 8
1.51 "Target Company Acquisition". . . . . . . . . 8
1.52 "Target Company Loan Agreement" . . . . . . . 9
1.53 "Target Company Loan Documents" . . . . . . . 9
1.54 "Term Loan" . . . . . . . . . . . . . . . . . 9
1.55 "Term Loan Maturity Date" . . . . . . . . . . 9
1.56 "Term Loan Rate Request". . . . . . . . . . . 9
1.57 "Term Notes". . . . . . . . . . . . . . . . . 9
1.58 "Vishay". . . . . . . . . . . . . . . . . . . 9
1.59 "Vishay Loan Agreement" . . . . . . . . . . . 9
2. THE INDEBTEDNESS: TERM LOAN . . . . . . . . . . . . . . . 9
2.1 Commitment. . . . . . . . . . . . . . . . . . 9
2.2 Scheduled Repayment of Term Loan. . . . . . . 10
2.3 Excess Cash Flow Recapture. . . . . . . . . . 10
2.4 Accrual of Interest; Interest Payments. . . . 11
2.5 Prime-based Rate Applicability and Interest
Payments. . . . . . . . . . . . . . . . . . 11
2.6 Interest Calculation. . . . . . . . . . . . . 12
2.7 Interest on Default . . . . . . . . . . . . . 12
2.8 Prepayment. . . . . . . . . . . . . . . . . . 12
2.10 Term Loan as Renewal. . . . . . . . . . . . . 13
3. SELECTION OF INTEREST RATES AND PERIODS; CONVERSION AND
RECONVERSION OF TERM LOAN . . . . . . . . . . . . . . . . 13
3.1 Term Loan Rate Requests, Refundings and
Conversions . . . . . . . . . . . . . . . . 13
3.2 Interest Period Selection . . . . . . . . . . 14
3.3 Limited Availability. . . . . . . . . . . . . 15
3.4 Unavailability. . . . . . . . . . . . . . . . 15
3.5 Reconversion to Deutsche Mark-based Rate on
Re-availability . . . . . . . . . . . . . . 15
3.6 Repayment on Reconversion . . . . . . . . . . 16
3.7 Interest Payments on Conversions and
Reconversions . . . . . . . . . . . . . . . 16
4. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS; MARGIN
ADJUSTMENTS; SPECIAL LIMITATION . . . . . . . . . . . . . 16
<PAGE>
<PAGE> 4 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
TABLE OF CONTENTS
-----------------
Page
----
4.1 Reimbursement of Prepayment Costs . . . . . . 16
4.2 Agent's Eurocurrency Lending Office . . . . . 16
4.3 Circumstances Affecting Deutsche Mark-based
Rate Availability . . . . . . . . . . . . . 17
4.4 Laws Affecting Deutsche Mark-based Advance
Availability. . . . . . . . . . . . . . . . 17
4.5 Increased Cost of Deutsche Mark-based
Advances. . . . . . . . . . . . . . . . . . 18
4.6 Indemnity . . . . . . . . . . . . . . . . . . 19
4.7 Judgment Currency . . . . . . . . . . . . . . 19
4.8 Margin Adjustments. . . . . . . . . . . . . . 19
4.9 HLT Determination . . . . . . . . . . . . . . 20
4.10 Special Limitation. . . . . . . . . . . . . . 21
5. PAYMENTS, RECOVERIES AND COLLECTIONS. . . . . . . . . . . 22
5.1 Payment Procedure . . . . . . . . . . . . . . 22
5.2 Application of Proceeds of Collateral . . . . 24
5.3 Pro rata Recovery . . . . . . . . . . . . . . 24
5.4 Deposits and Accounts . . . . . . . . . . . . 24
6. CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . 24
6.1 Vishay Loan Agreement . . . . . . . . . . . . 24
6.2 Vishay's Certificate. . . . . . . . . . . . . 25
6.3 Payment of Agent's and Other Fees . . . . . . 25
6.4 Other Documents and Instruments . . . . . . . 25
7. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . 25
8. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . 25
8.1 Vishay Loan Agreement . . . . . . . . . . . . 25
8.2 Incorporation of Vishay Loan Agreement. . . . 25
9. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . 26
10. DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . 26
10.1 Events of Default . . . . . . . . . . . . . . 26
10.2 Exercise of Remedies. . . . . . . . . . . . . 28
10.3 Rights Cumulative . . . . . . . . . . . . . . 28
10.4 Waiver by Vishay and Company of Certain
Laws. . . . . . . . . . . . . . . . . . . . 28
10.5 Waiver of Defaults. . . . . . . . . . . . . . 28
10.6 Cross-Default . . . . . . . . . . . . . . . . 29
<PAGE>
<PAGE> 5 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
TABLE OF CONTENTS
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Page
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11. AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.1 Appointment of Agent. . . . . . . . . . . . . 29
11.2 Deposit Account with Agent. . . . . . . . . . 29
11.3 Exculpatory Provisions. . . . . . . . . . . . 30
11.4 Successor Agents. . . . . . . . . . . . . . . 30
11.5 Loans by Agent. . . . . . . . . . . . . . . . 30
11.6 Credit Decisions. . . . . . . . . . . . . . . 31
11.7 Notices by Agent. . . . . . . . . . . . . . . 31
11.8 Agent's Fees. . . . . . . . . . . . . . . . . 31
11.9 Nature of Agency. . . . . . . . . . . . . . . 31
11.10 Actions; Confirmation of Agent's Authority
to Act in Event of Default. . . . . . . . . 31
11.11 Authority of Agent to Enforce Term Notes and
This Agreement. . . . . . . . . . . . . . . 32
11.12 Indemnification . . . . . . . . . . . . . . . 32
11.13 Knowledge of Default. . . . . . . . . . . . . 32
11.14 Agent's Authorization; Action by Banks. . . . 33
11.15 Enforcement Actions by the Agent. . . . . . . 33
11.16 Co-Agents and Lead Managers . . . . . . . . . 34
12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 34
12.1 Accounting Principles . . . . . . . . . . . . 34
12.2 Consent to Jurisdiction . . . . . . . . . . . 34
12.3 Law of Michigan . . . . . . . . . . . . . . . 34
12.4 Interest. . . . . . . . . . . . . . . . . . . 35
12.5 Closing Costs; Other Costs and Expenses . . . 35
12.6 Notices . . . . . . . . . . . . . . . . . . . 36
12.7 Further Action. . . . . . . . . . . . . . . . 36
12.8 Successors and Assigns. . . . . . . . . . . . 36
12.9 Indulgence. . . . . . . . . . . . . . . . . . 36
12.10 Counterparts. . . . . . . . . . . . . . . . . 36
12.11 Amendment and Waiver. . . . . . . . . . . . . 36
12.12 Taxes and Fees. . . . . . . . . . . . . . . . 37
12.13 Confidentiality . . . . . . . . . . . . . . . 37
12.14 Withholding Taxes . . . . . . . . . . . . . . 38
12.15 Effective Upon Execution. . . . . . . . . . . 38
12.16 Severability. . . . . . . . . . . . . . . . . 39
12.17 Table of Contents and Headings. . . . . . . . 39
12.18 Construction of Certain Provisions. . . . . . 39
12.19 Independence of Covenants . . . . . . . . . . 39
12.20 Reliance on and Survival of Various
Provisions. . . . . . . . . . . . . . . . . 39
12.21 Complete Agreement. . . . . . . . . . . . . . 39
<PAGE>
<PAGE> 6 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
TABLE OF CONTENTS
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Page
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EXHIBITS
Form of Term Note-Company........................... A
Form of Term Loan Rate Request...................... B
Percentages......................................... C
<PAGE>
<PAGE> 7 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made as of the 18th day
of July, 1994, among Comerica Bank, successor by merger to
Manufacturers Bank, N.A., formerly known as Manufacturers National
Bank of Detroit, NationsBank of North Carolina, N.A., formerly
known as NCNB National Bank of North Carolina, Berliner Handels-und
Frankfurter Bank KGaA, Signet Bank/Maryland, formerly known as
Union Trust Company of Maryland, CoreStates Bank, N.A., formerly
known as and continuing to do business under the name of The
Philadelphia National Bank, Bank Hapoalim, B.M., ABN AMRO Bank N.V.
New York Branch, Credit Lyonnais New York Branch, Meridian Bank,
Bank Leumi le-Israel, B.M. and Credit Suisse (individually, "Bank",
and collectively "Banks") Comerica Bank, as agent for the Banks (in
such capacity, "Agent") and Vishay Beteiligungs GmbH, a German
corporation ("Company").
RECITALS:
A. Company has requested that the Banks renew credit in
the form of a Term Loan (as defined below) in the aggregate amount
of up to One Hundred Four Million Three Hundred Fifteen Thousand
Nine Hundred Ninety and 20/100 Deutsche Marks (DM 104,315,990.20),
subject to the funding of a portion thereof in Dollars, all on the
terms set forth herein.
B. Pursuant to the Commitment Letter (as defined below),
the Banks are prepared to extend such credit as aforesaid, but only
on the terms and conditions set forth herein.
NOW THEREFORE, COMPANY, AGENT AND THE BANKS AGREE:
1. DEFINITIONS
For the purposes of this Agreement the following terms will
have the following meanings:
1.1 "Advance(s)" shall mean the borrowings requested by
Company and made by Banks under Section 2.1 of this Agreement,
including any refundings or conversions of such borrowing under
Section 3 hereof.
1.2 "Agent" shall mean Comerica Bank, a Michigan banking
corporation, successor by merger to Manufacturers Bank, N.A.,
formerly known as Manufacturers National Bank of Detroit, or any
successor appointed in accordance with Section 11.4 hereof.
1.3 "Agent's Correspondent" shall mean, for Advances in
Deutsche Marks, Chemical Bank Frankfurt, Germany, or such other
bank or banks as Agent may from time to time designate by written
notice to Company, Vishay and the Banks.
<PAGE>
<PAGE> 8 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
1.4 "Agent's Fees" shall mean those fees and expenses
required to be paid by Vishay and Company to Agent under Section
11.8 hereof.
1.5 "Alternate Base Rate" shall mean, for any day, an
interest rate per annum equal to the Federal Funds Effective Rate
in effect on such day, plus one-half percent (1/2%).
1.6 "Applicable Interest Rate" shall mean:
(a) for all periods during which the Term Loan is
denominated in DM, the Deutsche Mark-based Rate; and
(b) for all periods during which the Term Loan has
been converted to Dollars hereunder (but only so long as such
Indebtedness is so denominated according to the terms hereof),
the Prime-based Rate.
1.7 "Applicable Margin" shall mean, as of any date of
determination thereof, the applicable interest rate margin,
determined by reference to the appropriate columns in the Pricing
Matrix attached to this Agreement as Schedule 1.7.
1.8 "Banks" shall mean Comerica Bank, successor by merger
to Manufacturers Bank, N.A., formerly known as Manufacturers
National Bank of Detroit ("Comerica"), NationsBank of North
Carolina, N.A., formerly known as NCNB National Bank of North
Carolina ("NationsBank"), Berliner Handels-und Frankfurter Bank
KGaA ("BHF"), Signet Bank/Maryland, formerly known as Union Trust
Company of Maryland ("Signet"), Bank Hapoalim, B.M., CoreStates
Bank, N.A., formerly known as and continuing to do business under
the name of Philadelphia National Bank, ABN AMRO Bank N.V. New York
Branch, Credit Lyonnais New York Branch ("Credit Lyonnais"),
Meridian Bank, Bank Leumi le-Israel, B.M. and Credit Suisse, and
any assignee which becomes a Bank pursuant to Section 13.8 hereof.
1.9 "Bridge Loan" shall mean the bridge loan in an
aggregate amount not to exceed One Hundred Million Dollars
($100,000,000) to be advanced by the Banks to Vishay pursuant to
the Target Company Loan Agreement.
1.10 "Business Day" shall mean any day on which commercial
banks are open for domestic and international business (including
dealings in foreign exchange) in Detroit, London, New York and
Frankfurt am Main (except with respect to any Prime-based
Advances), and if funds are to be paid or made available other than
in Dollars, on such day in the place where such funds are to be
paid or made available.
1.11 "Commitment Letter" shall mean that certain commitment
letter dated June 28, 1994 and issued to Vishay by the Agent, for
itself and for and on behalf of the Banks, with respect to the
<PAGE>
<PAGE> 9 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
credit to be amended, renewed, increased and/or extended under the
terms and conditions of this Agreement, the DM Loan Agreement, the
Vishay Loan Agreement and the Target Company Loan Agreement.
1.12 "Company" shall mean Vishay Beteiligungs Gmbh, a German
corporation, formerly known as Draloric Electronic GmbH.
1.13 "Conversion" or "converted", as used herein, shall
refer, to any and all conversions or reconversions of the
Indebtedness hereunder.
1.14 "Deutsche Mark Equivalent" shall mean the amount of
Deutsche Marks which could be purchased with the then outstanding
principal amount of Dollars at the most favorable spot exchange
rate determined by the Agent to be available to it for the sale of
Deutsche Marks for Dollars at approximately 11:00 a.m. (Detroit
time) two (2) Business Days prior to any conversion or reconversion
of the Indebtedness from Dollars to Deutsche Marks hereunder.
1.15 "Deutsche Mark-based Advance" shall mean an Advance
which bears interest at the Deutsche Mark-based Rate.
1.16 "Deutsche Mark-based Rate" shall mean a per annum
interest rate which is the Applicable Margin (subject, if
applicable, to adjustment under Section 4.8), above (or below) the
quotient of:
(a) the per annum interest rate at which Agent's
Eurocurrency Lending Office offers deposits in Deutsche Marks
to United States regional prime banks in the eurocurrency
market in amounts comparable to the Indebtedness then
outstanding and for a period equal to the relevant Deutsche
Mark-Interest Period at approximately 11:00 A.M. Detroit time
two (2) Business Days prior to the first day of such Deutsche
Mark-Interest Period; divided by
(b) a percentage equal to 100% minus the maximum
rate on such date at which Agent is required to maintain
reserves on "Euro-currency Liabilities" as defined in and
pursuant to Regulation D of the Board of Governors of the
Federal Reserve System or, if such regulation or definition is
modified, and as long as Agent is required to maintain
reserves against a category of liabilities which includes
eurocurrency deposits or includes a category of assets which
includes eurocurrency loans, the rate at which such reserves
are required to be maintained on such category,
such sum to be rounded upward, if necessary, to the nearest whole
multiple of 1/16th of 1%.
1.17 "Deutsche Mark-Interest Period" shall mean an Interest
Period of one, two, three or six months (or any lesser or greater
<PAGE>
<PAGE> 10 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
number of days agreed to in advance by Company, Agent and the
Banks), to the extent available hereunder, as selected by Company
for a Deutsche Mark-based Advance in accordance with and subject to
Sections 3.1 and 3.2 hereof.
1.18 "Deutsche Mark Principal Limit" shall mean One Hundred
Four Million Three Hundred Fifteen Thousand Nine Hundred Ninety and
20/100 Deutsche Marks (DM 104,315,990.20) minus the sum of (a) the
amount of any payments or prepayments of principal made on the Term
Notes on or prior to the date of any determination thereof, and (b)
the amount of any principal repayments on the Term Notes scheduled
to be paid under Section 2.2 hereof or required to be paid under
Section 2.3 hereof, on or prior to the date of any determination
thereof.
1.19 "DM Loan Agreement" shall mean that certain Amended and
Restated Draloric/VBG GmbH DM 40,000,000 Revolving Credit and DM
9,506,000 Term Loan Agreement among Company, Agent and the Banks
dated as of the date hereof, as amended from time to time.
1.20 "Dollar Amount" shall mean (a) with respect to the
Indebtedness, if any, being carried in Dollars from time to time
hereunder (and to the extent thereof), the principal amount
thereof, and (b) with respect to the Indebtedness being carried in
Deutsche Marks from time to time hereunder (and to the extent
thereof), the amount of Dollars which is equivalent to the
principal amount of such Indebtedness at the most favorable spot
exchange rate determined by the Agent to be available to it for the
sale of Dollars for Deutsche Marks at the relevant time, as such
Dollar Amount may be adjusted hereunder.
1.21 "Dollars" and the sign "$" shall mean lawful money of
the United States of America.
1.22 "Eurocurrency Lending Office" shall mean, as to Agent
and each of the Banks, its office, branch or affiliate located at
its address set forth on the signature pages hereof (or identified
thereon as its Eurocurrency Lending Office), or at such other
office, branch or affiliate of Agent or such Bank as it may
hereafter designate as its Eurocurrency Lending Office by notice to
Company and Agent.
1.23 "Event of Default" shall mean any of the Events of
Default specified in Section 10.1 and 10.6 hereof.
1.24 "hereof", "hereto", "hereunder" and similar terms shall
refer to this Agreement and not to any particular paragraph or
provision of this Agreement.
1.25 "Indebtedness" shall mean all indebtedness and
liabilities, whether direct or indirect, absolute or contingent,
owing by Company or Vishay to the Banks or to the Agent, in any
<PAGE>
<PAGE> 11 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
manner and at any time, under this Agreement or the Loan Documents,
whether evidenced by the Term Notes, the Permitted Borrowers
Guaranty, or otherwise (including without limitation any and all
Indebtedness as defined in the Vishay Loan Agreement), due or
hereafter to become due, now owing or that may hereafter be
incurred by the Company or Vishay to, or acquired by, the Banks or
by Agent, and any judgments that may hereafter be rendered on such
indebtedness or any part thereof, with interest according to the
rates and terms specified, or as provided by law, and any and all
consolidations, amendments, renewals or extensions of any of the
foregoing.
1.26 "Interest Period" shall mean a Deutsche Mark-Interest
Period selected by Company in accordance with and subject to
Sections 3.1 and 3.2 hereof, provided that
(a) any Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the
next succeeding Business Day, except that if the next
succeeding Business Day falls in another calendar month, the
Interest Period shall end on the next preceding Business Day,
and when an Interest Period begins on a day which has no
numerically corresponding day in the calendar month during
which such Interest Period is to end, it shall end on the last
Business Day of such calendar month, and
(b) no Interest Period shall extend beyond the
maturity date set forth in the Term Notes to which such
Interest Period is to apply.
1.27 "Loan Documents" shall mean, collectively, the Term
Notes, this Agreement, the Vishay Loan Agreement (with respect to
the Company's obligations thereunder), the DM Loan Agreement, the
Permitted Borrowers Guaranty and any other documents, instruments
or agreements executed pursuant to or in connection with any such
document or this Agreement, the Vishay Loan Agreement or the DM
Loan Agreement.
1.28 "Majority Banks" shall mean at any time the Banks
holding 66 2/3% of the aggregate principal amount of the
Indebtedness then outstanding under this Agreement and the other
Loan Documents (excluding any Bid Notes issued under the DM Loan
Agreement or the Vishay Loan Agreement except upon the occurrence
and during the continuance of an Event of Default) or, if no
Indebtedness is then outstanding, the Banks holding 66 2/3% of the
Percentages.
1.29 "Moody's Rating" shall mean the rating by Moody's
Investors Services, Inc. (or any successor thereto) of Company's
long-term, senior unsecured debt.
<PAGE>
<PAGE> 12 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
1.30 "New Banks" shall mean Credit Lyonnais and Credit
Suisse.
1.31 "Non-Amortizing Term Loan" shall mean that certain non-
amortizing term loan in an aggregate amount not to exceed One
Hundred Million Dollars ($100,000,000) to be advanced by the Banks
to the Company pursuant to the Target Company Loan Agreement.
1.32 "Percentage" shall mean, with respect to any Bank, its
percentage share, as set forth on Exhibit "C" hereto, of the Term
Loan, as such Exhibit may be revised from time to time by Agent in
accordance with Section 13.8(d) of the Vishay Loan Agreement.
1.33 "Permitted Borrowers" and "Permitted Borrowers
Guaranty" shall have the meanings set forth in the Vishay Loan
Agreement.
1.34 "Permitted Encumbrances" shall mean, with respect to
any Person:
(a) the liens and encumbrances granted under or
established by this Agreement or the Loan Documents;
(b) liens for taxes not yet due and payable or
which are being contested in good faith by appropriate
proceedings diligently pursued, provided that such provision
for the payment of all such taxes known to such Person has
been made on the books of such Person as may be required by
generally accepted accounting principles, consistently
applied;
(c) mechanics', materialmen's, banker's, carriers',
warehousemen's and similar liens and encumbrances arising in
the ordinary course of business and securing obligations of
such Person that are not overdue for a period of more than 60
days or are being contested in good faith by appropriate
proceedings diligently pursued, provided that in the case of
any such contest (i) any proceedings commenced for the
enforcement of such liens and encumbrances shall have been
duly suspended; and (ii) such provision for the payment of
such liens and encumbrances has been made on the books of such
Person as may be required by generally accepted accounting
principles, consistently applied;
(d) liens arising in connection with worker's
compensation, unemployment insurance, old age pensions
(subject to the remaining provisions hereof) and social
security benefits which are not overdue or are being contested
in good faith by appropriate proceedings diligently pursued,
provided that in the case of any such contest (i) any
proceedings commenced for the enforcement of such liens shall
have been duly suspended; and (ii) such provision for the
<PAGE>
<PAGE> 13 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
payment of such liens has been made on the books of such
Person as may be required by generally accepted accounting
principles, consistently applied;
(e)(i) liens incurred in the ordinary course of
business to secure the performance of statutory obligations
arising in connection with progress payments or advance
payments due under contracts with the United States or any
foreign government or any agency thereof entered into in the
ordinary course of business and (ii) liens incurred or
deposits made in the ordinary course of business to secure the
performance of statutory obligations, bids, leases, fee and
expense arrangements with trustees and fiscal agents and other
similar obligations (exclusive of obligations incurred in
connection with the borrowing of money, any lease-purchase
arrangements or the payment of the deferred purchase price of
property), provided that full provision for the payment of all
such obligations set forth in clauses (i) and (ii) has been
made on the books of such Person as may be required by
generally accepted accounting principles, consistently
applied;
(f) any minor imperfections of title, including but
not limited to easements, covenants, rights-of-way or other
similar restrictions, which, either individually or in the
aggregate do not materially adversely affect the present or
future use of the property to which they relate, which would
have a material adverse effect on the sale or lease of such
property, or which would render title thereto unmarketable;
and
(g) those liens and encumbrances of Company and its
Subsidiaries identified in Schedule 1.34 of the DM Loan
Agreement.
1.35 "Person" shall mean an individual, corporation,
partnership, trust, incorporated or unincorporated organization,
joint venture, joint stock company, or a government or any agency
or political subdivision thereof or other entity of any kind.
1.36 "Prime Rate" shall mean the per annum interest rate
established by Agent as its prime rate for its borrowers as such
rate may vary from time to time, which rate is not necessarily the
lowest rate on loans made by Agent at any such time.
1.37 "Prime-based Advance" shall mean an Advance which bears
interest at the Prime-based Rate.
1.38 "Prime-based Rate" shall mean that rate of interest
which is the greater of (a) the Prime Rate or (b) the Alternate
Base Rate, plus the Applicable Margin, subject to adjustment in
each case, if applicable, under Section 4.8 hereof.
<PAGE>
<PAGE> 14 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
1.39 "Prior Banks" shall mean the Banks other than the New
Banks.
1.40 "Prior Roederstein Loan Agreement" shall mean that
certain Roederstein 104,315,990.20 Term Loan Agreement dated as of
January 29, 1994 among Company, Vishay, the Prior Banks and Agent,
as amended.
1.41 "Rating Level" shall mean Rating Level 1, 2, 3 or 4 as
then in effect hereunder.
1.42 "Rating Level 1" shall mean an S & P rating of BBB+ (or
higher) and a Moody's rating of Baa1 (or higher quality).
1.43 "Rating Level 2" shall mean an S & P rating of BBB (or
higher) and a Moody's rating of Baa2 (or higher quality).
1.44 "Rating Level 3" shall mean an S & P rating of BBB- (or
higher) and a Moody's rating of Baa3 (or higher quality).
1.45 "Rating Level 4" shall mean the rating level (if any)
which exists whenever the Company does not qualify for Rating Level
1, Rating Level 2 or Rating Level 3.
1.46 "Roederstein" shall mean Roederstein Spezialfabriken
fur Bauelemente der Elektronik und Kondensatoren der
Starkstromtechnik GmbH.
1.47 "Roederstein Acquisition" shall mean the acquisition by
Company, and/or by Vishay (subject to the terms hereof), of the
entire remaining share capital of Roederstein or of substantially
all of the domestic and foreign assets of Roederstein (including
foreign subsidiaries).
1.48 "S & P Rating" shall mean the rating by Standard &
Poor's Corporation (or any successor thereto) of Company's long-
term, senior unsecured debt.
1.49 "Shares", "share capital", "capital stock", "stock" and
words of similar import shall mean and refer to the equity capital
interest under applicable law of any Person in a corporation,
howsoever such interest is created or arises, whether such capital
consists of common, preferred or preference shares or other stock,
and whether such capital is evidenced by a certificate, share
register entry or otherwise.
1.50 "Target Company" shall mean Vitramon, Incorporated, a
Delaware corporation.
1.51 "Target Company Acquisition" shall mean the acquisition
by the Company, subject to the terms hereof, of all of the issued
<PAGE>
<PAGE> 15 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
and outstanding shares of stock of the Target Company for the price
and on the terms set forth in the Purchase and Sale Agreement.
1.52 "Target Company Loan Agreement" shall mean that certain
$200,000,000 Target Company Loan Agreement dated as of the date
hereof among Vishay, the Banks and Agent, as amended from time to
time.
1.53 "Target Company Loan Documents" shall mean the Target
Company Loan Agreement, and all notes and other loan documents
executed by Vishay or any of its Subsidiaries pursuant to or in
connection with the Target Company Loan Agreement, as such
documents may be amended from time to time.
1.54 "Term Loan" shall mean the term loan in the amount of
One Hundred Four Million Three Hundred Fifteen Thousand Nine
Hundred Ninety and 20/100 Deutsche Marks (DM 104,315,990.20) to be
advanced by the Banks to Company pursuant to Section 2.1 hereof.
1.55 "Term Loan Maturity Date" shall mean December 31, 1997.
1.56 "Term Loan Rate Request" shall mean a rate selection
request issued by Company pursuant to Section 3.1 hereof in the
form attached as Exhibit "B".
1.57 "Term Notes" shall mean the term notes described in
Section 2.1 hereof, and made by Company to each of the Banks in the
form attached hereto as Exhibit "A".
1.58 "Vishay" shall mean Vishay Intertechnology, Inc., a
Delaware corporation.
1.59 "Vishay Loan Agreement" shall mean that certain Amended
and Restated Vishay Intertechnology, Inc. $302,500,000 Revolving
Credit and Term Loan Agreement dated as of the date hereof among
Vishay, Agent and the Banks, as amended from time to time.
Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings set forth in the Vishay Loan
Agreement.
2. THE INDEBTEDNESS: TERM LOAN
2.1 Commitment. Subject to the terms and conditions of this
Agreement, each Bank, severally and for itself alone, agrees to
loan to Company, and Company agrees to borrow from each Bank, in a
single advance of Deutsche Marks, concurrently with the execution
and delivery of this Agreement, an amount equal to each Bank's
respective Percentage of One Hundred Four Million Three Hundred
Fifteen Thousand Nine Hundred Ninety and 20/100 Deutsche Marks (DM
104,315,990.20).
<PAGE>
<PAGE> 16 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
Concurrently with the execution and delivery of this Agreement,
Company agrees to issue a separate Term Note to each Bank, in the
form attached hereto as Exhibit A, with appropriate insertions
(acceptable to Banks in form and substance) and in the face amount
of each Bank's respective Percentage of the Term Loan hereunder.
2.2 Scheduled Repayment of Term Loan. The principal
indebtedness represented by the Term Loan shall be repaid in
Deutsche Marks (unless the Term Loan has been converted to Dollars
pursuant to Section 3.4 hereof, in which event said Indebtedness
shall be paid in Dollars). Scheduled principal payments shall be
required under the Term Loan, irrespective of and in addition to
any principal payments based on Excess Cash Flow, or any optional
prepayments, on the following dates and in the following amounts:
(a) on or before December 31, 1994, DM 18,700,000;
(b) on or before December 31, 1995, DM 34,100,000;
(c) on or before December 31, 1996, DM 37,000,000;
and
(d) on or before December 31, 1997, the entire
remaining unpaid principal balance of such
Indebtedness and accrued interest and other
sums thereon shall be due and payable in full;
provided however that during any of the foregoing periods in which
the Indebtedness under the Term Loan is carried in Dollars in
accordance with Section 3.4 hereof, the amount of each scheduled
payment of principal on such Term Notes shall be payable in that
amount of Dollars which is equivalent to the stated principal
amount of such payment at the most favorable spot exchange rate
determined by the Agent to be available to it for the sale of
Dollars for Deutsche Marks at approximately 11:00 a.m. (Detroit
time) two (2) Business Days prior to the relevant payment date.
There shall be no readvance or reborrowing of any principal
reductions of the Term Loan under Sections 2.2, 2.3, 2.8 or
elsewhere hereunder.
2.3 Excess Cash Flow Recapture. The Term Loan shall be
subject to additional required principal reductions in the Dollar
Amount of fifty percent (50%) of Excess Cash Flow, to be applied
against the balances outstanding in Deutsche Marks and Dollars
under this Agreement (pro rata, based on the respective amounts
thereof then outstanding hereunder), payable only if the Term Loan
under the Vishay Loan Agreement has been paid and discharged in
full on or before the applicable dates set forth below (and only to
the extent that fifty percent (50%) of Excess Cash Flow for the
applicable fiscal year has not been applied to reduce the Term Loan
under the Vishay Loan Agreement in respect of such fiscal year) or
if the Company has elected the Fixed Rate as the Applicable
<PAGE>
<PAGE> 17 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
Interest Rate for such Term Loan under Section 3.1 thereof, as
follows:
(a) in respect of calendar years 1994 and 1995, on
the earlier of (i) the date of Vishay's delivery of the
financial statements for such calendar years under Section
7.3(b) of the Vishay Loan Agreement or (ii) May 31st of the
applicable fiscal year; and
(b) in respect of calendar year 1996, on the
earlier of (i) the date of Vishay's delivery of financial
statements for calendar year 1996 under Section 7.3(b) of the
Vishay Loan Agreement or (ii) May 31, 1997; provided, however,
that the entire balance of the Term Loan shall be due and
payable on the Term Loan Maturity Date.
Principal reductions based on Excess Cash Flow shall be in addition
to other required principal repayments hereunder, or any optional
prepayments made prior thereto, shall be made in Deutsche Marks or
Dollars, as applicable, and shall be applied against principal
installments due hereunder in the inverse order of their maturity.
2.4 Accrual of Interest; Interest Payments. The unpaid
principal Indebtedness from time to time outstanding hereunder
shall, from the date of the issuance of the Term Notes (until
paid), bear interest at the Applicable Interest Rates, as selected
by Company pursuant to Sections 3.1 and 3.2 hereof. The amount and
date of the extension of the Term Loan, any Advances thereof, the
Applicable Interest Rates and the amount of interest accruing
thereon and Interest Periods for Advances, and the amount and date
of any repayments, shall be noted on Agent's records, which records
shall be conclusive evidence thereof, absent manifest error. All
accrued and unpaid interest on the Indebtedness from time to time
outstanding under the Term Loan, shall be due and payable in full,
in immediately available funds, (a) whenever a Deutsche Mark-based
Rate shall be then in effect, (i) on the last day of each
applicable Interest Period and, (ii) if such Interest Period is
longer than 3 months, at intervals of 3 months, after the first day
of the Interest Period, and (b) in the case of Prime-based
Advances, on the last day of each calendar quarter and on the date
of any conversion to a Deutsche Mark-based Advance, until the Term
Loan Maturity Date, when the entire Indebtedness, including all
accrued interest, shall be due and payable in full.
2.5 Prime-based Rate Applicability and Interest Payments.
In the event that, pursuant to Section 3.4 hereof, or any other
applicable provision of this Agreement, the Indebtedness
outstanding under the Term Loan shall be converted to an Advance of
Dollars as a Prime-based Advance, thereafter interest on the unpaid
balance of Indebtedness evidenced by the Term Loan shall accrue
from the date of such Advance to the Term Loan Maturity Date (or
until paid, or reconverted to a Deutsche Mark-based Advance in
<PAGE>
<PAGE> 18 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
accordance with Section 3.6 hereof), at a per annum interest rate
equal to the Prime-based Rate, and shall be payable in immediately
available funds quarterly commencing on the last day of the
calendar quarter coinciding with or next following the date of such
conversion and on the last day of each calendar quarter thereafter,
until the Term Loan Maturity Date.
2.6 Interest Calculation. Interest accruing under the Term
Notes at a Deutsche Mark-based Rate shall be computed on the basis
of a 360 day year and assessed for the actual number of days
elapsed from the first day of the Interest Period applicable
thereto, to, but not including the last day thereof. Interest
accruing at the Prime-based Rate shall be computed on the basis of
a 360 day year and assessed for the actual number of days elapsed,
and in such computation effect shall be given to any change in the
interest rate resulting from a change in the Prime-based Rate on
the date of such change in the Prime-based Rate. Interest accruing
under the Term Loan shall be repaid in Deutsche Marks, unless the
Indebtedness outstanding under such notes has been converted to an
Advance of Dollars as a Prime-based Advance, in which event said
interest shall be repaid in Dollars.
2.7 Interest on Default. In the event and so long as any
Event of Default shall exist under any Term Note or any Event of
Default shall exist under this Agreement, interest shall be payable
daily on the principal balance of the Indebtedness then outstanding
at a per annum rate equal to the Applicable Interest Rate plus
three percent (3%) for the remainder of the then-existing Interest
Period, if any, and, at all other times, with respect to any
principal Indebtedness hereunder denominated in Dollars, at a per
annum rate equal to the Prime-based Rate plus three percent (3%),
and, with respect to any principal Indebtedness hereunder
denominated in Deutsche Marks, (a) at a per annum rate calculated
by the Agent, whose determination shall be conclusive absent
manifest error, on a daily basis, equal to three percent (3%) above
the interest rate per annum at which one (1) day (or, if such
amount due remains unpaid for more than three (3) Business Days,
then for such other period of time as the Agent may elect which
shall in no event be longer than six (6) months) deposits in
Deutsche Marks in the amount of such overdue payment due to the
Agent are offered by the Agent's Eurocurrency Lending Office for
the applicable period determined as provided above, or (b) if at
any such time such deposits are not offered by the Agent's
Eurocurrency Lending Office, then at a rate per annum equal to
three percent (3%) above the rate determined by the Agent to be its
aggregate marginal cost (including the cost of maintaining any
required reserves or deposit insurance) of carrying the amount (in
Deutsche Marks) of the Indebtedness then outstanding.
2.8 Prepayment.
<PAGE>
<PAGE> 19 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
(a) Company may, upon four (4) Business Days prior
written notice to Agent, prepay all or any part of the
outstanding balance of the Term Loan without premium or
penalty, provided that (i) if the Deutsche Mark-based Rate is
then in effect, any such prepayment shall be made only on the
last day of any Interest Period, (ii) the amount of any
partial prepayment shall be at least One Million Deutsche
Marks (DM 1,000,000) (if the Term Loan is then denominated in
Deutsche Marks) and One Million Dollars ($1,000,000) (if the
Term Loan is then denominated in Dollars), and (iii) if any
such prepayment would otherwise reduce the principal balance
of the Term Loan to an amount less than Five Million Deutsche
Marks (DM 5,000,000) (if then denominated in Deutsche Marks)
or Two Million Dollars ($2,000,000) (if the Term Loan is then
denominated in Dollars), such prepayment shall include the
entire remaining balance of the Term Loan, as applicable.
(b) Any prepayments made in accordance with this
Section 2.9 (i) shall be without premium or penalty, but there
shall be no reborrowing of such prepaid amounts and (ii) shall
be applied to the principal installments then outstanding
under this Agreement in the inverse order of their maturities,
and shall not affect the periodic or other payments of
principal required hereunder.
2.10 Term Loan as Renewal. The Term Notes issued by Company
shall constitute renewal and replacement evidence of all present
Indebtedness of Company for the Term Loan outstanding under the
Prior Roederstein Loan Agreement as of the date hereof.
3. SELECTION OF INTEREST RATES AND PERIODS; CONVERSION AND
RECONVERSION OF TERM LOAN
3.1 Term Loan Rate Requests, Refundings and Conversions. So
long as the Deutsche Mark-based Rate is in effect hereunder,
Company may refund any Advance of the Indebtedness outstanding
under the Term Loan as a Deutsche Mark-based Advance with a like
Interest Period, or convert such Indebtedness to a Deutsche Mark-
based Advance with another Interest Period, only after delivery to
Agent of a Term Loan Rate Request executed by an authorized officer
of Company or Vishay, as applicable, subject to the following and
to the other provisions of this Agreement:
(a) each such Term Loan Rate Request shall set
forth the information required on the Term Loan Rate Request
form annexed hereto as Exhibit "B", including, without
limitation, the proposed date of Advance, which must be the
day following the last day of the then ending Interest Period,
the Applicable Interest Rate and Interest Period applicable to
the requested Advance;
<PAGE>
<PAGE> 20 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
(b) each such Term Loan Rate Request shall be
delivered to Agent by 12 noon (Detroit time) four (4) Business
Days prior to the proposed date of the refunding or
conversion;
(c) No Advance may be requested with an Interest
Period ending after the Term Loan Maturity Date;
(d) the principal amount of such Advance, plus the
amount of any other outstanding Indebtedness evidenced by the
Term Notes to be then combined therewith having the same
Applicable Interest Rate and Interest Period, if any, shall be
not less than Five Million Deutsche Marks (DM 5,000,000) or
Two Million Dollars ($2,000,000), as applicable, unless the
balance remaining outstanding on the Term Loan is less than
such amount, then such lesser amount shall govern;
(e) at any one time, there shall not be in effect
more than one (1) Applicable Interest Rate and, if applicable,
two (2) Interest Periods for the Term Loan; and
(f) a Term Loan Rate Request, once delivered to
Agent, shall not be revocable by Company.
3.2 Interest Period Selection. Company shall have the
option of selecting, subject to the provisions hereof, among one
(1), two (2), three (3) or six (6) months as the term of each
Deutsche Mark Interest Period. There may be in effect at any one
time no more than one (1) Applicable Interest Rate and, if
applicable, two (2) Interest Periods for the balance outstanding
under the Term Loan. Notwithstanding any provision hereof to the
contrary, Company shall be required to select Interest Periods for
a sufficient amount of the Term Loan, so that at least one (1)
Interest Period shall end on the date of each scheduled principal
payment due thereon while the Term Loan is outstanding (including
without limitation, the scheduled maturity date of the Term Loan),
or, in the case of any Advance funded in Dollars, outstanding as a
Prime-based Advance, thereby permitting the Company to make the
required principal payments under Section 2.2 hereof. In the event
the Company shall fail with respect to any Advance to timely
exercise its option to refund or convert such Advance in accordance
with this Section 3.2 (and Agent has not received payment in full
on the last day of the Interest Period applicable thereto), or,
subject to Section 2.9 hereof, if on last day of an applicable
Interest Period an Event of Default or event which with the giving
of notice or the passage of time, or both, would constitute an
Event of Default shall have occurred and be continuing, the
principal amount of such Advance which has not been prepaid shall:
(a) in the case of any Advance denominated in
Dollars, be automatically converted to a Prime-based Advance;
and
<PAGE>
<PAGE> 21 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
(b) in the case of any Advance denominated in
Deutsche Marks, the next Interest Period shall be fixed by the
Agent for the same period as the Interest Period then in
effect, or, if applicable, the Term Loan Maturity Date,
whichever is the shorter period, provided that Company will
indemnify Agent and each of the Banks against any loss or
expense incurred by them (or any of them) pursuant to Section
4 hereof.
Each selection of an Interest Period, and the amount and date of
any repayment shall be noted on Agent's records, which records will
be conclusive evidence thereof, absent manifest error.
3.3 Limited Availability. Notwithstanding the selection of
an Interest Period under Sections 3.1 and 3.2 hereof, if prior to
the last day of any Interest Period, Agent or the Banks (after
consultation with Agent) shall determine that deposits of Deutsche
Marks will not be available to Agent or the Banks in the amounts
and for the terms necessary to carry the outstanding principal
indebtedness of the Advance subject to such Interest Period for the
next applicable Interest Period, then Agent shall so notify Company
and, subject to the terms hereof, Company shall immediately select
another Interest Period to be applicable as the next Interest
Period.
3.4 Unavailability. If, prior to the last day of any
Interest Period, Agent or the Banks (after consultation with Agent)
shall determine that by reason of circumstances affecting the
foreign exchange and interbank markets, generally, or for any of
the reasons set forth in Sections 4.3 or 4.4 hereof, deposits of
Deutsche Marks will not be available to Agent and the Banks as of
the last day of an applicable Interest Period in the amounts
necessary to carry the outstanding principal of the Advances
subject to such ending Interest Period in Deutsche Marks for any
Interest Period, Agent shall notify the Company and such Advances
shall then be automatically converted to and carried in Dollars, in
the Dollar Amount of the Indebtedness then outstanding, and shall
bear interest at the Prime-based Rate, until the first day of the
next Interest Period, if any, selected pursuant to Section 3.5
hereof.
3.5 Reconversion to Deutsche Mark-based Rate on Re-
availability. In the event that, after a conversion of Indebtedness
to Dollars pursuant to Section 3.4 hereof, Agent determines that
deposits of Deutsche Marks are again available to Agent and the
Banks in the amounts necessary to carry the principal Indebtedness
under the Term Loan in Deutsche Marks for any Interest Period,
Agent shall notify Company of the Interest Period(s) for which such
deposits in Deutsche Marks are available and Company shall
immediately select the next Interest Period from among such
available Interest Periods, in accordance with Sections 3.1 and 3.2
hereof, and the Indebtedness previously converted from Deutsche
<PAGE>
<PAGE> 22 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
Marks to Dollars under Section 3.4 hereof shall be reconverted to
Deutsche Marks (in the amount of the Deutsche Mark Equivalent of
such Indebtedness), all in accordance with and subject to Section
3.6 hereof, below.
3.6 Repayment on Reconversion. In the event that the
currency in which Indebtedness is being carried is required to be
changed from Dollars to Deutsche Marks under Section 3.5 hereof, as
aforesaid, and if the Deutsche Mark Equivalent of the principal
amount of the Indebtedness under the Term Loan outstanding upon
such reconversion shall exceed the Deutsche Mark Principal Limit,
then concurrently with such reconversion, Company shall pay to
Agent in immediately available funds, for the ratable benefit of
the Banks, an amount in Deutsche Marks sufficient to reduce the
then outstanding principal amount of the Term Loan to an amount not
greater than the Deutsche Mark Principal Limit.
3.7 Interest Payments on Conversions and Reconversions.
Notwithstanding anything to the contrary in the preceding Sections,
all accrued and unpaid interest on any Indebtedness converted or
reconverted pursuant to the foregoing Sections or otherwise, shall
be due and payable in full on the date of such conversion or
reconversion.
4. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS;
MARGIN ADJUSTMENTS; SPECIAL LIMITATION
4.1 Reimbursement of Prepayment Costs. As to any Deutsche
Mark-based Advance, if any prepayment thereof shall occur on any
day other than the last day of an Interest Period, whether pursuant
to this Agreement or by acceleration, or otherwise, or if the rate
applicable to such Advance shall be changed during any Interest
Period pursuant to this Agreement, or if, after requesting the
refunding or conversion of outstanding Indebtedness hereunder, but
prior to the refunding or conversion thereof, Company is no longer
entitled to the refunding or conversion requested hereunder,
Company shall reimburse Banks on demand for any costs incurred by
Banks as a result of the timing thereof, including but not limited
to any net costs incurred in liquidating or employing deposits from
third parties. Each Bank demanding reimbursement under this Section
4.1 shall deliver to Company a certificate setting forth the basis
for determining such costs, which certificate shall be conclusively
presumed correct save for manifest error.
4.2 Agent's Eurocurrency Lending Office. For any Advance to
which a Deutsche Mark-based Rate is applicable, Agent (if Agent
shall designate a Eurocurrency Lending Office which maintains books
separate from those of the rest of Agent), and each of the Banks
shall have the option of maintaining and carrying such Advance on
the books of its applicable Eurocurrency Lending Office.
<PAGE>
<PAGE> 23 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
4.3 Circumstances Affecting Deutsche Mark-based Rate
Availability. If with respect to any Interest Period Agent or the
Banks (after consultation with Agent) shall determine that, by
reason of circumstances affecting the foreign exchange and
interbank markets generally, deposits in Eurodollars or in Deutsche
Marks, as the case may be, in the applicable amounts are not being
offered to the Agent for such Interest Period, (a) the obligation
of Banks to make the applicable Deutsche Mark-based Advances, and
the right of Company to convert an Advance to or refund an Advance
as a Deutsche Mark-based Advance, shall be suspended, and (b) the
Company, shall, to the extent it is able to do so hereunder,
convert said Advance to another type of Advance, or, if unable to
do so, shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such Deutsche Mark-based
Advance covered hereby in Deutsche Marks, together with accrued
interest thereon, together with any amounts payable under Section
4.6, hereof, and all other amounts payable hereunder on the last
day of the then current Interest Period applicable to such Advance.
4.4 Laws Affecting Deutsche Mark-based Advance
Availability. If, after the date hereof, the introduction of, or
any change in, any applicable law, rule or regulation or in the
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof, or compliance by any of the Banks (or any of their
respective Eurocurrency Lending Offices) with any request or
directive (whether or not having the force of law) of any such
authority, shall make it unlawful or impossible for any of the
Banks (or any of their respective Eurocurrency Lending Offices) to
honor its obligations hereunder to make or maintain any Advance
with interest at the Deutsche Mark-based Rate, or in Deutsche
Marks, such Bank shall forthwith give notice thereof to Company and
to Agent. Thereafter, the obligations of Banks to make Deutsche
Mark-based Advances or Advances in Deutsche Marks and the right of
Company to convert an Advance or refund an Advance as a Deutsche
Mark-based Advance or as an Advance carried in Deutsche Marks,
shall be suspended and Advances at the Deutsche Mark based-Rate or
carried in Deutsche Marks shall immediately be converted in the
manner set forth under Section 3.4 hereof. If any of the Banks may
not lawfully continue to maintain an Advance to the end of the then
current Interest Period applicable thereto as an Advance in
Deutsche Marks or at the Deutsche Mark-based Rate, the applicable
Advance shall immediately be converted to a Prime-based Advance (in
the Dollar Amount thereof) in the manner set forth under Section
3.5 hereof and the Prime-based Rate shall be applicable thereto for
the remainder of such Interest Period. For purposes of this
Section, a change in law, rule, regulation, interpretation or
administration shall include, without limitation, any change made
or which becomes effective on the basis of a law, rule, regulation,
interpretation or administration presently in force, the effective
date of which change is delayed by the terms of such law, rule,
regulation, interpretation or administration.
<PAGE>
<PAGE> 24 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
4.5 Increased Cost of Deutsche Mark-based Advances. If the
adoption after the date hereof, or any change after the date hereof
in, any applicable law, rule or regulation of any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Agent or
any of the Banks (or any of their respective Eurocurrency Lending
Offices) with any request or directive (whether or not having the
force of law) made by any such authority, central bank or
comparable agency after the date hereof:
(a) shall subject any of the Banks (or any of their
respective Eurocurrency Lending Offices) to any tax, duty or
other charge with respect to the Indebtedness hereunder, or
any portion thereof, or shall change the basis of taxation of
payments to any of the Banks (or any of their respective
Eurocurrency Lending Offices) of the principal of or interest
on the Indebtedness hereunder, or any portion thereof, or any
other amounts due under this Agreement in respect thereof
(except for changes in the rate of tax on, or measured by, the
overall net income of any of the Banks or any of their
respective Eurocurrency Lending Offices imposed by the
jurisdiction in which such Bank's principal executive office
or Eurocurrency Lending Office is located); or
(b) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by any of the
Banks (or any of their respective Eurocurrency Lending
Offices) or shall impose on any of the Banks (or any of their
respective Eurocurrency Lending Offices) or the foreign
exchange and interbank markets any other condition affecting
the Indebtedness hereunder, or any portion thereof;
and the result of any of the foregoing is to increase the costs to
any of the Banks of maintaining any part of the Indebtedness
hereunder as an Advance in Deutsche Marks or to reduce the amount
of any sum received or receivable by any of the Banks under this
Agreement, then such Bank shall promptly notify Agent, and Agent
shall promptly notify Company of such fact and demand compensation
therefor and, within fifteen (15) days after such notice by Agent
and/or Company, as applicable, agree to pay to such Bank such
additional amount or amounts as will compensate such Bank or Banks
for such increased cost or reduction. Agent will promptly notify
Company of any event of which it has knowledge which will entitle
Banks to compensation pursuant to this Section, or which will cause
the Company to incur additional liability under Section 5.1(d)
hereof, provided that Agent shall incur no liability whatsoever to
the Banks or Company in the event it fails to do so. A certificate
of Agent setting forth the basis for determining such additional
amount or amounts necessary to compensate such Bank or Banks shall
<PAGE>
<PAGE> 25 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
be conclusively presumed to be correct save for manifest error. For
purposes of this Section, a change in law, rule, regulation,
interpretation, administration, request or directive shall include,
without limitation, any change made or which becomes effective on
the basis of a law, rule, regulation, interpretation,
administration, request or directive presently in force, the
effective date of which change is delayed by the terms of such law,
rule, regulation, interpretation, administration, request or
directive.
4.6 Indemnity. The Company will indemnify Agent and each of
the Banks against any loss or expense which may arise or be
attributable to the Agent's and each Bank's obtaining, liquidating
or employing deposits or other funds acquired to effect, fund or
maintain the Indebtedness hereunder, or any portion thereof, (a) as
a consequence of any failure by the Company to make any payment
when due of any amount due hereunder, (b) due to any failure of the
Company to specify an Interest Period or (c) due to any payment or
prepayment of the Indebtedness or any portion thereof (unless the
Prime-based rate is then in effect) on a date other than the last
day of the Interest Period. Such loss or expense shall be
calculated based upon the present value, as applicable, of payments
due from the Company with respect to the deposits obtained by the
Agent or any of the Banks in order to fund the Indebtedness or any
portion thereof. The Agent's and each Bank's (as applicable)
calculations of any such loss or expense shall be furnished to the
Company and shall be conclusive, absent manifest error.
4.7 Judgment Currency. The obligation of the Company to
make payments of the principal of and interest on the Term Notes
and any other amounts payable hereunder in the currency specified
for such payment herein or in the Term Notes shall not be
discharged or satisfied by any tender, or any recovery pursuant to
any judgment, which is expressed in or converted into any other
currency, except to the extent that such tender or recovery shall
result in the actual receipt by the Bank of the full amount of such
currency expressed to be payable herein or in the Term Notes. The
Agent shall, using all amounts obtained or received from the
Company pursuant to such tender or recovery in payment of principal
of and interest on the Term Notes, promptly purchase the specified
currency, as aforesaid, at the most favorable spot exchange rate
determined by the Agent to be available to it. The respective
obligations of the Company to make payments in the specified
currency shall be enforceable as an alternative or additional cause
of action solely for the purpose of recovering the amount, if any,
by which such actual receipt shall fall short of the full amount of
the currency expressed to be payable herein or in the Term Notes.
4.8 Margin Adjustments. Adjustments to the Applicable
Margin, based on Schedule 4.8, shall be implemented on a quarterly
basis as follows:
<PAGE>
<PAGE> 26 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
(a) Such margin adjustments shall be given
prospective effect only, effective (A) as to all Prime-based
Advances outstanding hereunder, immediately upon required date
of delivery of the financial statements required to be
delivered under Section 7.3(b) and 7.3(c) of the Vishay Loan
Agreement establishing applicability of the appropriate
adjustments, if any, or on the obtaining and/or any change in
the Rating Level then in effect, as applicable and (B) as to
each DM-based Advance outstanding hereunder, effective upon
the expiration of the applicable Interest Period(s), if any,
in effect on (x) the required date of delivery of the latest
of such financial statements required to be delivered
hereunder during such Interest Period(s) or (y) the date of
the obtaining and/or any change in the Rating Level in effect
hereunder, as applicable, in each case with no retroactivity
or claw-back.
(ii) With respect to DM-based Advances outstanding
hereunder, an adjustment hereunder, after becoming effective,
shall remain in effect only through the end of the applicable
Interest Period(s) for such DM-based Advances if any;
provided, however, that upon the delivery of quarterly
financial statements demonstrating any change in the Leverage
Ratio or the obtaining and/or change in the Rating Level then
in effect, as aforesaid, or the occurrence of any other event
which under the terms hereof causes such adjustment no longer
to be applicable, then any such subsequent adjustment or no
adjustment, as the case may be, shall be effective (and said
pricing shall thereby be adjusted up or down, as applicable),
with the commencement of each Interest Period following such
change or event, all in accordance with the preceding
subparagraph.
4.9 HLT Determination. In the event at any time (whether
before or after the funding of the Acquisition Loans) of an HLT
Determination, the Agent, the Banks and the Company shall commence
negotiations in good faith to agree upon whether and, if so, the
extent to which fees, interest rates and/or margins hereunder
should be increased so as to reflect such HLT Determination and to
compensate the Banks and Agent for additional costs, expenses
and/or fees which result from or are associated with any such HLT
Determination, including without limitation any costs resulting
from any requirement that additional capital be allocated to the
Indebtedness, or any portion thereof. If Company and the Majority
Banks agree that fees, interest rates and/or margins should be
increased, and agree on the amount of such increase or increases,
this Agreement may be amended to give effect to such increase or
increases as provided in Section 12.11 hereof. If Company and
Majority Banks fail to agree on whether and, if so, the extent to
which fees, interest rates and/or margins hereunder should be
increased within 60 days after notice to Company of an HLT
Determination as herein provided, then (i) the Agent shall, if
<PAGE>
<PAGE> 27 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
requested by the Majority Banks, by written notice to the Company
terminate the commitments of the Banks to fund and/or maintain
Advances of the Revolving Credit under the DM Loan Agreement and
under the Vishay Loan Agreement, and if still outstanding, any
commitment to fund Advances of the Acquisition Loans, and such
commitments shall thereupon terminate, (ii) Company shall be
obligated to repay all outstanding Indebtedness at the end of the
Interest Period applicable thereto and (iii) the Company may, at
its option, on at least ten Business Days' written notice to the
Agent (which shall promptly notify the Banks thereof) prepay all
Indebtedness outstanding hereunder and under the other Loan
Agreements by paying the aggregate principal amount thereof,
together, with all accrued interest thereon to the date of
prepayment; provided that, if the Company prepays any fixed rate
loans or Advances carried at the Deutsche Mark-based Rate, or any
comparable rate, pursuant to this Section 4.9, Company shall
compensate the Banks for any resulting funding losses as provided
in Section 4.1 hereof. Subject to compliance by Company with this
Section 4.9, the Banks acknowledge that an HLT Determination shall
not constitute a Default or an Event of Default hereunder.
4.10 Special Limitation. In the event, as a result of
increases in the value of Deutsche Marks and/or any of the
Alternative Currencies against the Dollar (taking into account the
Current Dollar Equivalent of the Indebtedness outstanding from time
to time under the Vishay Loan Agreement, the DM Loan Agreement and
any Indebtedness required to be aggregated under 12 USCA 84, as
amended, the regulations promulgated thereunder, or other, similar
applicable law) or for any other reason, the obligation of any of
the Banks to advance additional funds hereunder or under any of the
other Loan Agreements is determined by such Bank to exceed its then
applicable legal lending limit under 12 USCA 84, as amended, and
the regulations promulgated thereunder, or other, similar
applicable laws, the amount of additional funds which such Bank
shall be obligated to advance hereunder shall immediately be
reduced to the maximum amount which such Bank may legally advance
(as determined by such Bank) and the obligation of each of the
remaining Banks hereunder shall be proportionately reduced, based
on the applicable Percentages, and, to the extent necessary under
such laws and regulations (as determined by each of the Banks, with
respect to the applicability of such laws and regulations to
itself), the Company shall reduce, or cause to be reduced,
complying to the extent practicable with the remaining provisions
hereof, the Indebtedness outstanding hereunder or under any of the
other Loan Agreements by an amount sufficient to comply with such
maximum amounts. Upon any such reduction in the obligations of the
Banks under this Section 4.10, Company shall have the right,
subject to the terms and conditions of this Agreement (but
subsequent to Company's compliance with its obligation to reduce
the Indebtedness outstanding hereunder), to add to the Banks
providing financing hereunder a bank reasonably acceptable to the
<PAGE>
<PAGE> 28 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
Agent for the purpose of restoring the shortfall created by the
reduction in such obligations of the Banks.
5. PAYMENTS, RECOVERIES AND COLLECTIONS
5.1 Payment Procedure.
(a) All payments by the Company of principal of, or
interest on, the Term Notes, or of any other amount due
hereunder, shall be made without setoff or counterclaim on the
date specified for payment under this Agreement and, (if the
Term Loan is then denominated in Deutsche Marks), shall be
made by the Company in Deutsche Marks in immediately available
funds for the account of Agent's Eurocurrency Lending Office,
at the Agent's Correspondent, for the ratable account of the
Banks, not later than 11:00 a.m. (local time of the Agent's
Correspondent); provided, however, that subsequent to any
conversion of the Indebtedness hereunder from Deutsche Marks
to Dollars pursuant to Section 3.4 hereof, such payments shall
be made not later than 11:00 a.m. (Detroit time) in Dollars in
immediately available funds to Agent, for the ratable account
of the Banks, at Agent's office located at Comerica Bank
Building, One Detroit Center, 500 Woodward Avenue, Detroit,
Michigan 48275 until reconversion of the Indebtedness
hereunder from Dollar to Deutsche Marks pursuant to Section
3.5 hereof. Upon receipt of each such payment, the Agent shall
make prompt payment to each Bank, or such Bank's Eurocurrency
Lending Office (as directed by such Bank), in like funds and
currencies, of all amounts received by it for the account of
such Bank.
(b) Unless the Agent shall have been notified by
the Company prior to the date on which any payment to be made
pursuant to the terms hereof is due that the Company does not
intend to remit such payment, the Agent may, in its
discretion, assume that such payment has been remitted when so
due and the Agent may, in reliance upon such assumption, make
available to each Bank on such payment date an amount equal to
such Bank's share of such assumed payment. If the Company has
not in fact remitted such payment to the Agent, each Bank
shall forthwith on demand repay to the Agent in the applicable
currency the amount of such assumed payment made available to
such Bank, together with the interest thereon, in respect of
each day from and including the date such amount was made
available by the Agent to such Bank to the date such amount is
repaid to the Agent at a rate per annum equal to (i) with
respect to Deutsche Mark-based Advances, Agent's aggregate
marginal cost (including the cost of maintaining any required
reserves or deposit insurance and of any fees, penalties,
overdraft charges or other costs or expenses incurred by
Agent) of carrying such amount, and (ii) with respect to
Indebtedness which has been converted to a Prime-based Advance
<PAGE>
<PAGE> 29 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
pursuant to Section 3.4 hereof, the federal funds rate (daily
average), as the same may vary from time to time.
(c) Whenever any payment of principal of, or
interest on, a Deutsche Mark-based Advance shall be due on a
day which is not a Business Day the date of payment thereof
shall be extended to the next succeeding Business Day, unless
as a result thereof it would fall in the next calendar month,
in which case it shall be shortened to the next preceding
Business Day and, in the case of a payment of principal,
interest thereon shall be payable for such extended or
shortened time, if any. Whenever any payment to be made
hereunder of principal of, or interest on, a Prime-based
Advance shall otherwise be due on a day which is not a
Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be
included in computing interest, if any, in connection with
such payment.
(d) All payments to be made by the Company under
this Agreement shall be made without set-off or counterclaim,
as aforesaid, and without deduction for or on account of any
present or future withholding or other taxes of any nature
imposed by any governmental authority or of any political
subdivision thereof or any federation or organization of which
such governmental authority may at the time of payment be a
member, unless the Company is compelled by law to make payment
subject to such tax. In such event, the Company shall:
(i) pay to the Agent for Agent's own account
and/or (as the case may be) for the account of
the Banks such additional amounts as may be
necessary to ensure that the Agent and/or such
Banks receive a net amount in Deutsche Marks
or Dollars, as the case may be, equal to the
full amount which would have been receivable
had payment not been made subject to such tax;
and
(ii) remit such tax to the relevant taxing
authorities according to applicable law and
send to the Agent such certificates or
certified copy receipts as the Agent shall
reasonably require as proof of the payment by
Vishay or the Company of any such taxes
payable by Vishay or the Company.
As used herein, the terms "tax", "taxes" and "taxation"
include all existing taxes, levies, imposts, duties, charges, fees,
deductions and withholdings and any restrictions or conditions
resulting in a charge together with interest thereon and fines and
penalties with respect thereto which may be imposed by reason of
<PAGE>
<PAGE> 30 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
any violation or default with respect to the law regarding such
tax, assessed as a result of or in connection with the transactions
in Deutsche Marks hereunder, or the payment and or receipt of funds
in Deutsche Marks or the payment or delivery of funds into or out
of any jurisdiction other than the United States (whether assessed
against Vishay, Company, Agent or any of the Banks).
5.2 Application of Proceeds of Collateral. Notwithstanding
anything to the contrary in this Agreement, upon the occurrence and
during the continuance of an Event of Default, any offsets or
voluntary payments by the Company, or others and any other sums
received or collected in respect of the Indebtedness, shall be
applied, first, to the Notes pro rata, based on the aggregate
Indebtedness then outstanding thereunder (or in such other order
and manner as determined by all of the Banks), next, to any other
Indebtedness on a pro rata basis (as aforesaid), and then, if there
is any excess, to Company.
5.3 Pro rata Recovery. If any Bank shall obtain any payment
or other recovery (whether voluntary, involuntary, by application
of offset or otherwise) on account of principal of, or interest on,
any of the Term Notes in excess of its pro rata share of payments
then or thereafter obtained by all Banks upon principal of and
interest on all Term Notes, such Bank shall purchase from the other
Banks such participation in the Term Notes held by them as shall be
necessary to cause such purchasing Bank to share the excess payment
or other recovery ratably in accordance with the Percentage with
each of them; provided, however, that if all or any portion of the
excess payment or other recovery is thereafter recovered from such
purchasing holder, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without
interest.
5.4 Deposits and Accounts. In addition to and not in
limitation of any rights of any Bank or other holder of any Term
Note under applicable law, each Bank and each other such holder
shall, upon acceleration of the Indebtedness under the Term Notes
and without notice or demand of any kind, have the right to
appropriate and apply to the payment of the Term Notes owing to it
(whether or not then due) any and all balances, credits, deposits,
accounts or moneys of Vishay or Company then or thereafter with
such Bank or other holder; provided, however, that any such amount
so applied by any Bank or other holder on any of the Term Notes
owing to it shall be subject to the provisions of Section 5.3.
6. CONDITIONS.
The obligations of Banks to make Advances of the Term Loan
pursuant to this Agreement are subject to the following conditions:
6.1 Vishay Loan Agreement. All of the conditions required
to be satisfied for the making of Advances under the Vishay Loan
<PAGE>
<PAGE> 31 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
Agreement (as defined therein) shall have been satisfied or waived
in accordance with the terms and conditions thereof.
6.2 Vishay's Certificate. The Agent shall have received,
with a signed counterpart for each Bank, a certificate of a
responsible senior officer of Vishay, dated the date hereof,
stating that the conditions referred to (with respect to the Vishay
Loan Agreement) in Section 6.1, hereof, have been fully satisfied.
6.3 Payment of Agent's and Other Fees. Vishay or Company
shall have paid to the Agent the Agent's Fees and all costs and
expenses required hereunder.
6.4 Other Documents and Instruments. The Agent shall have
received, with a photocopy for each Bank, the Roederstein Loan
Documents, and all such instruments and documents shall be
satisfactory in form and substance to the Majority Banks.
7. REPRESENTATIONS AND WARRANTIES
Company ratifies, confirms and, by reference thereto (as fully
as though such matters were expressly set forth herein), represents
and warrants with respect to itself and its Subsidiaries those
matters set forth in Sections 6.1, 6.3 through 6.8, inclusive,
6.10, 6.12, 6.14, 6.15 through 6.21, inclusive, of the Vishay Loan
Agreement and such representations and warranties of Company shall
be deemed to be continuing representations and warranties during
the life of this Agreement.
8. AFFIRMATIVE COVENANTS
Company covenants and agrees that it will, and, as applicable,
will cause its Subsidiaries to, so long as any of the Banks is
committed to make any Advances under this Agreement and thereafter
so long as any Indebtedness remains outstanding under this
Agreement:
8.1 Vishay Loan Agreement. Comply with the covenants set
forth in Sections 7.1 through 7.3 and 7.9 through 7.15, inclusive,
of the Vishay Loan Agreement, as fully as though the obligations
set forth therein were expressly set forth herein as the
obligations of the Company and its Subsidiaries.
8.2 Incorporation of Vishay Loan Agreement. To the full
extent set forth in Sections 7, 8 and 9 hereof, and elsewhere
herein, the provisions of the Vishay Loan Agreement are
incorporated herein by reference and shall remain in full force and
effect for the benefit of Agent and the Banks, notwithstanding any
amendment, supplement or termination of the Vishay Loan Agreement
after the date hereof. Any amendments to the representations,
warranties, covenants or other provisions of the Vishay Loan
Agreement incorporated by reference herein which are contained in
<PAGE>
<PAGE> 32 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
any future amendment or supplement thereto shall be deemed to run
in favor of Agent and the Banks as additional rights and remedies,
and not in derogation of the rights and remedies provided
hereunder.
9. NEGATIVE COVENANTS
Company covenants and agrees that so long as any Indebtedness
or any commitment to make Advances under this Agreement remains
outstanding, it will not, and will not allow any of its
Subsidiaries, without the prior written consent of Agent, to
violate any of the covenants set forth in Sections 8.1 through
8.12, inclusive, of the Vishay Loan Agreement, as fully as though
the obligations set forth therein were expressly set forth herein
as the obligations of the Company and its Subsidiaries.
10. DEFAULTS
10.1 Events of Default. Any of the following events is an
"Event of Default":
(a) non-payment of the principal or interest, when
due, under any of the Term Notes issued hereunder in
accordance with the terms thereof;
(b) default in the payment of any money by Company
under this Agreement or any of the other Loan Documents or by
Company under the DM Loan Agreement, or by Vishay or any of
the Permitted Borrowers under the Vishay Loan Agreement or the
Target Company Loan Agreement, other than, in each case, as
set forth in subsection (a) above, within three (3) days of
the date the same is due and payable;
(c) default in the observance or performance of any
of the other conditions, covenants or agreements set forth in
this Agreement (subject, in the case of any covenants
incorporated by reference herein from the Vishay Loan
Agreement, to any applicable grace periods provided
thereunder) or any of the Loan Documents by any party thereto
or the occurrence of any other default or Event of Default, as
the case may be, hereunder or thereunder;
(d) any representation or warranty made by Company
herein (subject, in the case of any representations and
warranties incorporated by reference herein from the Vishay
Loan Agreement, to any applicable grace periods provided
thereunder) or in any instrument submitted pursuant hereto or
by any other party to the Loan Documents proves untrue in any
material adverse respect when made or deemed made;
(e) any provision of the Vishay Guaranty, the
Domestic Guaranty or the Permitted Borrowers Guaranty shall at
<PAGE>
<PAGE> 33 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
any time for any reason (other than in accordance with its
terms or the terms of this Agreement) cease to be valid and
binding and enforceable against Vishay or the Significant
Subsidiaries, as applicable, or the validity, binding effect
or enforceability thereof shall be contested by any Person, or
Vishay or any of the Significant Subsidiaries shall deny that
it has any or further liability or obligation under the Vishay
Guaranty, the Domestic Guaranty or the Permitted Borrowers
Guaranty, as applicable, or the Vishay Guaranty, the Domestic
Guaranty or the Permitted Borrowers Guaranty shall be
terminated, invalidated or set aside or in any way cease to
give or provide to the Banks and the Agent the benefits
purported to be created thereby;
(f) default in the payment of any other obligation
of Vishay, Company or their respective Subsidiaries for
borrowed money in excess of One Million Dollars ($1,000,000)
(or the Alternative Currency equivalent thereof), individually
or in the aggregate, resulting in acceleration thereof prior
to its expressed maturity;
(g) the rendering of any judgment or judgments for
the payment of money in excess of the sum of One Million
Dollars ($1,000,000) (or the Alternative Currency equivalent
thereof) in the aggregate against Vishay, Company or any of
their respective Subsidiaries and such judgments shall remain
unpaid, unvacated, unbonded or unstayed by appeal or otherwise
for a period of thirty (30) consecutive days, except as
covered by adequate insurance with a reputable carrier and an
action is pending in which an active defense is being made
with respect thereto;
(h) if a creditors' committee shall have been
appointed for the business of Company or any of its
Subsidiaries; or if Company or any of its Subsidiaries shall
have made a general assignment for the benefit of creditors or
shall have been adjudicated bankrupt, or shall have filed a
voluntary petition in bankruptcy or for reorganization or to
effect a plan or arrangement with creditors or shall fail to
pay its debts generally as such debts become due in the
ordinary course of business (except as contested in good faith
and for which adequate reserves are made in such party's
financial statements) or otherwise sought protection or
exercised any rights under other, similar laws in effect in
any foreign jurisdiction; or shall file an answer to a
creditor's petition or other petition filed against it,
admitting the material allegations thereof for an adjudication
in bankruptcy or for reorganization; or shall have applied for
or permitted the appointment of a receiver or trustee or
custodian for any of its property or assets; or such receiver,
trustee or custodian shall have been appointed for any of its
property or assets (otherwise than upon application or consent
<PAGE>
<PAGE> 34 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
of Company or any of its Subsidiaries) and such appointment
has not been dismissed or stayed within thirty (30) days from
the date of appointment or if an order for relief or otherwise
approving any petition for reorganization of Company or any of
its respective Subsidiaries shall be entered and shall not be
dismissed or stayed within thirty (30) days from the date of
entry thereof.
10.2 Exercise of Remedies. If an Event of Default has
occurred and is continuing hereunder: (a) the Agent shall, at the
direction of the Majority Banks, declare the entire unpaid
principal Indebtedness, including the Term Notes, immediately due
and payable, without presentment, notice or demand, all of which
are hereby expressly waived by Vishay and Company; (b) upon
occurrence of any Event of Default specified in subsection 10.1(h),
above, and notwithstanding the lack of any declaration by Agent
under preceding clause (a), the entire unpaid principal
Indebtedness, including the Term Notes, shall become automatically
due and payable unless such acceleration is delayed or waived by
the Agent at the direction of the Banks; and (c) the Agent shall,
if directed to do so by the Majority Banks or the Banks, as
applicable (subject to the terms hereof), exercise any remedy
permitted by this Agreement, the Loan Documents or law.
10.3 Rights Cumulative. No delay or failure of Agent and/or
Banks in exercising any right, power or privilege hereunder shall
affect such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise thereof, or
the exercise of any other power, right or privilege. The rights of
Banks under this Agreement are cumulative and not exclusive of any
right or remedies which Banks would otherwise have.
10.4 Waiver by Vishay and Company of Certain Laws. To the
extent permitted by applicable law, Vishay and Company hereby agree
to waive, and do hereby absolutely and irrevocably waive and
relinquish the benefit and advantage of any marshalling, valuation,
stay, appraisement, extension or redemption laws now existing or
which may hereafter exist, which, but for this provision, might be
applicable to any sale made under the judgment, order or decree of
any court, on any claim for interest on the Term Notes, and further
hereby irrevocably agree to waive the right to trial by jury with
respect to any and all actions or proceedings in which Agent or the
Banks (or any of them), on one hand, and Vishay, the Company or any
of their respective Subsidiaries, on the other hand, are parties,
whether or not such actions or proceedings arise out of this
Agreement or the Loan Documents, or otherwise. These waivers have
been voluntarily given, with full knowledge of the consequences
thereof.
10.5 Waiver of Defaults. No Event of Default shall be waived
by the Banks except in a writing signed by an officer of the Agent
in accordance with Section 12.11 hereof. No single or partial
<PAGE>
<PAGE> 35 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
exercise of any right, power or privilege hereunder, nor any delay
in the exercise thereof, shall preclude other or further exercise
of the Banks' rights by Agent. No waiver of any Default or Event of
Default shall extend to any other or further Default or Event of
Default. No forbearance on the part of the Agent or any Bank in
enforcing any of the Banks' rights shall constitute a waiver of any
of their rights. Company expressly agrees that this Section may not
be waived or modified by the Banks or Agent by course of
performance, estoppel or otherwise.
10.6 Cross-Default. In addition to the other Events of
Default specified herein, any failure to perform and discharge when
due, after allowance for any applicable cure period, any of the
obligations, covenants and agreements required to be performed
under the provisions of any instruments evidencing or securing any
other present and future borrowings of Company from the Banks (or
from Agent) in renewal or extension of, or related to this
Agreement or any of the other Loan Documents, shall be an Event of
Default under the provisions of this Agreement entitling Agent,
with the consent of the Majority Banks (without notice or any cure
period except as expressly provided herein or therein), to exercise
any and all rights and remedies provided hereby. Any Event of
Default under this Agreement or under any of the Loan Documents
shall also constitute a default under all other instruments
securing this or any other present or future borrowings, or any
agreements in relation thereto, entitling Agent and the Banks to
exercise any and all rights and remedies provided therein.
11. AGENT
11.1 Appointment of Agent. Each Bank and the holder of each
Term Note appoints and authorizes Agent to act on behalf of such
Bank or holder under the Loan Documents and to exercise such powers
hereunder and thereunder as are specifically delegated to or
required of Agent by the terms hereof and thereof, together with
such powers as may be reasonably incidental thereto. Each Bank
agrees (which agreement shall survive any termination of this
Agreement) to reimburse Agent for all reasonable out-of-pocket
expenses (including in-house and outside attorneys' fees) incurred
by Agent hereunder or in connection herewith or with any Default or
Event of Default or in enforcing the obligations of Company under
this Agreement or the Loan Documents or any other instrument
executed pursuant hereto, and for which Agent is not reimbursed by
Company, pro rata according to such Bank's Percentage. Agent shall
not be required to take any action under the Loan Documents, or to
prosecute or defend any suit in respect of the Loan Documents,
unless indemnified to its satisfaction by the Banks against loss,
costs, liability and expense. If any indemnity furnished to Agent
shall become impaired, it may call for additional indemnity and
cease to do the acts indemnified against until such additional
indemnity is given.
<PAGE>
<PAGE> 36 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
11.2 Deposit Account with Agent. Company hereby authorizes
Agent to charge its general deposit accounts, if any, maintained
with Agent for the amount of any principal, interest, or other
amounts or costs due under this Agreement when the same becomes due
and payable under the terms of this Agreement or the Term Notes.
11.3 Exculpatory Provisions. Agent agrees to exercise its
rights and powers, and to perform its duties, as Agent hereunder
and under the Loan Documents in accordance with its usual customs
and practices in bank-agency transactions, but only upon and
subject to the express terms and conditions of Section 11, hereof
(and no implied covenants or other obligations shall be read into
this Agreement against the Agent); neither Agent nor any of its
directors, officers, employees or agents shall be liable to any
Bank for any action taken or omitted to be taken by it or them
under this Agreement or any document executed pursuant hereto, or
in connection herewith or therewith, except for its or their own
willful misconduct or gross negligence, nor be responsible to any
Bank for any recitals or warranties herein or therein made by any
Person, nor for the effectiveness, enforceability, validity or due
execution (other than its own execution and delivery) of this
Agreement or any document executed pursuant hereto, or any security
thereunder, nor to make any inquiry respecting the performance by
Company or any of its Subsidiaries of its obligations hereunder or
thereunder. Nor shall Agent have, or be deemed to have, a fiduciary
relationship with any Bank by reason of this Agreement. Agent shall
be entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing
which it believes to be genuine and to have been presented by a
proper person.
11.4 Successor Agents. Agent may resign as such at any time
upon at least thirty (30) days prior notice to Company and all
Banks. If Agent at any time shall resign or if the office of Agent
shall become vacant for any other reason, Majority Banks shall, by
written instrument, appoint a successor Agent (satisfactory to such
Majority Banks) which shall thereupon become Agent hereunder and
shall be entitled to receive from the prior Agent such documents of
transfer and assignment as such successor Agent may reasonably
request. Such successor Agent shall succeed to all of the rights
and obligations of the retiring Agent as if originally named. The
retiring or removed Agent shall duly assign, transfer and deliver
to such successor Agent all moneys at the time held by the retiring
or removed Agent hereunder after deducting therefrom its expenses
for which it is entitled to be reimbursed. Upon such succession of
any such successor Agent, the retiring agent shall be discharged
from its duties and obligations hereunder, except for its gross
negligence or willful misconduct arising prior to its retirement
hereunder, and the provisions of this Section 11 shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
<PAGE>
<PAGE> 37 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
11.5 Loans by Agent. Agent shall have the same rights and
powers with respect to the credit extended by it and the Term Notes
held by it as any Bank and may exercise the same as if it were not
Agent, and the term "Bank" and, when appropriate, "holder" shall
include Agent in its individual capacity.
11.6 Credit Decisions. Each Bank acknowledges that it has,
independently of Agent and each other Bank and based on financial
statements and such other documents, information and investigations
as it has deemed appropriate, made its own credit decision to
extend credit hereunder from time to time. Each Bank also
acknowledges that it will, independently of Agent and each other
Bank and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue
to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under
this Agreement or any document executed pursuant hereto.
11.7 Notices by Agent. Agent shall give prompt notice to
each Bank of its receipt of each notice or request required or
permitted to be given to Agent by Vishay and/or Company pursuant to
the terms of this Agreement and shall promptly distribute to the
Banks and reports required from Vishay and/or the Company or its
Subsidiaries under the terms hereof received by Agent, in its
capacity as Agent.
11.8 Agent's Fees. Commencing on September 30, 1994, and on
each succeeding anniversary date thereof until the Indebtedness has
been repaid, Company shall cause Vishay to pay to Agent, in
Dollars, an annual agency fee set forth (or to be set forth from
time to time) in a letter agreement between Vishay and Agent. The
Agent's Fees described in this Section are not refundable under any
circumstances.
11.9 Nature of Agency. The appointment of Agent as agent is
for the convenience of Banks, Vishay and Company in making Advances
of the Term Loan, collecting fees and principal and interest on the
Term Loan and dealing with the Collateral. No Bank is purchasing
the Term Loan from Agent and this Agreement is not intended to be
a purchase or participation agreement.
11.10 Actions; Confirmation of Agent's Authority to Act in
Event of Default. Subject to the terms of this Agreement and to the
direction of the Majority Banks, Agent is hereby expressly
authorized to act in all litigation and in all other respects as
the representative of the Banks where Agent considers it to be
necessary or desirable in order to carry out the purposes of this
Agreement or the Loan Documents. Without necessarily accepting
service of process or designating Agent to do so in its stead, each
Bank hereby agrees with each other Bank and with Agent, without
intending to confer or conferring any rights on any other party,
(a) that it shall be bound by any litigation brought by or against
<PAGE>
<PAGE> 38 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
Agent by the Company, any Subsidiary or any other party in
connection with the Term Loan and Indebtedness or any other rights,
duties or obligations arising hereunder or under this Agreement or
the Loan Documents and (b) that it now irrevocably waives the
defense of procedural impediment or failure to name or join such
Bank as an indispensable party; provided however that each Bank
reserves the right, subject to applicable law, to intervene or
otherwise appear in such litigation, and to retain its own counsel
in connection therewith. In conducting such litigation hereunder on
behalf of the Banks, Agent shall, subject to the terms hereof,
accept the direction of the Majority Banks or all of the Banks, as
the case may be, and shall at all times be indemnified by the Banks
as provided in Sections 11.1 and 11.12 hereof. Agent shall
undertake to give each Bank prompt notice of any litigation
commenced against Agent and/or the Banks with respect to this
Agreement, the Loan Agreement or the Loan Documents or any matter
referred to herein or therein.
11.11 Authority of Agent to Enforce Term Notes and This
Agreement. Each Bank, subject to the terms and conditions of this
Agreement including without limitation Sections 12.10, 12.14 and
12.15 hereof, authorizes the Agent with full power and authority as
attorney-in-fact to institute and maintain actions, suits or
proceedings for the collection and enforcement of the Term Notes
and to file such proofs of debt or other documents as may be
necessary to have the claims of the Banks allowed in any proceeding
relative to the Company or any of its Subsidiaries, or their
creditors or affecting their properties, and to take such other
actions which Agent considers to be necessary or desirable for the
protection, collection and enforcement of the Term Notes, this
Agreement or the Loan Documents.
11.12 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such, to the extent not reimbursed by the
Company, pro rata according to their respective Percentages, from
and against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating
to or arising out of this Agreement or any of the other Loan
Documents or any action taken or omitted to be taken or suffered in
good faith by the Agent hereunder, provided that no Bank shall be
liable for any portion of any of the foregoing items resulting from
the gross negligence or willful misconduct of the Agent or any of
its officers, employees, directors or agents.
11.13 Knowledge of Default. It is expressly understood and
agreed that the Agent shall be entitled to assume that no default
or Event of Default has occurred and is continuing, unless the
officers of the Agent immediately responsible for matters
concerning this Agreement shall have actual (rather than
constructive) knowledge of such occurrence or shall have been
<PAGE>
<PAGE> 39 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
notified in writing by a Bank that such Bank considers that a
default or an Event of Default has occurred and is continuing, and
specifying the nature thereof. Upon obtaining actual knowledge of
any default or Event of Default as described above, the Agent shall
promptly, but in any event within three (3) Business Days after
obtaining knowledge thereof, notify each Bank of such default or
Event of Default and the action, if any, the Agent proposes be
taken with respect thereto.
11.14 Agent's Authorization; Action by Banks. Except as
otherwise expressly provided herein, whenever the Agent is
authorized and empowered hereunder on behalf of the Banks to give
any approval or consent, or to make any request, or to take any
other action on behalf of the Banks (including without limitation
the exercise of any right or remedy hereunder or under the other
Loan Documents), the Agent shall be required (but only to the
extent otherwise required hereunder) to give such approval or
consent, or to make such request or to take such other action only
when so requested in writing by the Majority Banks or the Banks, as
applicable hereunder. Action that may be taken by Majority Banks or
all of the Banks, as the case may be (as provided for hereunder)
may be taken (a) pursuant to a vote at a meeting (which may be held
by telephone conference call) as to which all of the Banks have
been given reasonable advance notice, or (b) pursuant to the
written consent of the requisite Percentages of the Banks as
required hereunder, provided that all of the Banks are given
reasonable advance notice of the requests for such consent.
11.15 Enforcement Actions by the Agent. Except as otherwise
expressly provided under this Agreement or in any of the other Loan
Documents and subject to the terms hereof, Agent will take such
action, assert such rights and pursue such remedies under this
Agreement and the other Loan Documents as the Majority Banks or all
of the Banks, as the case may be (as provided for hereunder), shall
direct. Except as otherwise expressly provided in any of the Loan
Documents, Agent will not (and will not be obligated to) take any
action, assert any rights or pursue any remedies under this
Agreement or any of the other Loan Documents in violation or
contravention of any express direction or instruction of the
Majority Banks or all of the Banks, as the case may be (as provided
for hereunder). Agent may refuse (and will not be obligated) to
take any action, assert any rights or pursue any remedies under
this Agreement or any of the other Loan Documents in the absence of
the express written direction and instruction of the Majority Banks
or all of the Banks, as the case may be (as provided for
hereunder). In the event Agent fails, within a commercially
reasonable time, to take such action, assert such rights, or pursue
such remedies as the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall direct in conformity
with this Agreement, the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall have the right to
take such action, to assert such rights, or pursue such remedies on
<PAGE>
<PAGE> 40 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
behalf of all of the Banks unless the terms hereof otherwise
require the consent of all the Banks to the taking of such actions
(in which event all of the Banks must join in such action). Except
as expressly provided above or elsewhere in this Agreement or the
other Loan Documents, no Bank (other than the Agent, acting in its
capacity as Agent) shall be entitled to take any enforcement action
of any kind under any of the Loan Documents.
11.16 Co-Agents and Lead Managers. NationsBank has been
designated by the Company as "Co-Agent" and BHF and Signet have
been designated by the Company as "Lead Managers" under this
Agreement. Other than its rights and remedies as a Bank hereunder,
each such Co-Agent and Lead Manager shall have no administrative,
collateral or other rights or responsibilities, provided, however,
that each such Co-Agent and Lead Manager shall be entitled to the
benefits afforded to Agent under Sections 12.5 and 12.6 hereof.
12. MISCELLANEOUS
12.1 Accounting Principles. Where the character or amount of
any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, it shall
be done in accordance with generally accepted accounting principles
consistently applied.
12.2 Consent to Jurisdiction. Company hereby irrevocably
submits to the non-exclusive jurisdiction of any United States
Federal or Michigan state court sitting in Detroit in any action or
proceeding arising out of or relating to this Agreement or any of
the Loan Documents and Company hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and
determined in any such United States Federal or Michigan state
court. Company irrevocably consents to the service of any and all
process in any such action or proceeding brought in any court in or
of the State of Michigan by the delivery of copies of such process
to Company at its address specified on the signature page hereto or
by certified mail directed to such address. Nothing in this Section
shall affect the right of the Banks and the Agent to serve process
in any other manner permitted by law or limit the right of the
Banks or the Agent (or any of them) to bring any such action or
proceeding against the Company or any of its or their property in
the courts of any other jurisdiction. The Company hereby
irrevocably waives any objection to the laying of venue of any such
suit or proceeding in the above described courts.
12.3 Law of Michigan. This Agreement and the Term Notes have
been delivered at Detroit, Michigan, U.S.A., and shall be governed
by and construed and enforced in accordance with the laws of the
State of Michigan except as and to the extent expressed to the
contrary in any of the Loan Documents. Whenever possible each
provision of this Agreement shall be interpreted in such manner as
<PAGE>
<PAGE> 41 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
Agreement.
12.4 Interest. In the event the obligation of Vishay and/or
the Company to pay interest on the principal balance of the Term
Notes is or becomes in excess of the maximum interest rate which
Vishay and/or the Company is permitted by law to contract or agree
to pay, giving due consideration to the execution date of this
Agreement, then, in that event, the rate of interest applicable
with respect to such Bank's Percentage shall be deemed to be
immediately reduced to such maximum rate and all previous payments
in excess of the maximum rate shall be deemed to have been payments
in reduction of principal and not of interest.
12.5 Closing Costs; Other Costs and Expenses. Company shall
pay or reimburse Agent for payment of, on demand (a) all closing
costs and expenses, including, by way of description and not
limitation, house and outside attorney fees and advances, appraisal
and accounting fees, title and lien search fees, and required
travel costs, incurred by Agent in connection with the commitment,
consummation and closing of the loans contemplated hereby, or in
connection with any refinancing or restructuring of the loans or
advances provided under this Agreement or the other Loan Documents,
or any amendment thereof requested by Company; and (b) all stamp
and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing or recording of
this Agreement and the Loan Documents and the consummation of the
transactions contemplated hereby, and any and all liabilities with
respect to or resulting from any delay in paying or omitting to pay
such taxes or fees. Furthermore, all reasonable costs and expenses,
including without limitation attorney fees, and costs and expenses
to Environmental Auditors retained by Agent hereunder, incurred by
Agent in revising, preserving, protecting, exercising or enforcing
any of its or any of the Banks' rights against Company, or
otherwise incurred by Agent and the Banks (using a single law firm
retained by Agent, with the approval of the Majority Banks) in
connection with any Event of Default or the enforcement of the
loans (whether incurred through negotiations, legal proceedings or
otherwise), including by way of description and not limitation,
such charges in any court or bankruptcy proceedings or arising out
of any claim or action by any person against Agent or any Bank
which would not have been asserted were it not for Agent's or such
Bank's relationship with Company hereunder or otherwise, shall also
be paid by Company. All of said amounts required to be paid by
Company hereunder and not paid forthwith upon demand, as aforesaid,
shall bear interest, from the date incurred to the date payment is
received by Agent, at the Prime-based Rate, plus three percent
(3%).
<PAGE>
<PAGE> 42 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
12.6 Notices. Except as otherwise provided herein, all
notices or demands hereunder to the parties hereto shall be
sufficient if made in writing and delivered by messenger or
deposited in the mail, postage prepaid, certified mail, and
addressed to the parties as set forth on the signature pages of
this Agreement.
12.7 Further Action. Company, from time to time upon written
request of Agent, will make, execute, acknowledge and deliver or
cause to be made, executed, acknowledged and delivered, all such
further and additional instruments, and take all such further
action as may be required to carry out the intent and purpose of
this Agreement, and to provide for the Advances under and payment
of the Term Notes, according to the intent and purpose herein and
therein expressed.
12.8 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of Company and the Banks and
their respective successors and assigns. The foregoing shall not
authorize any assignment by Company of its rights or duties
hereunder, and no such assignment shall be made (or effective)
without the prior written approval of the Banks. Nor may any Bank
sell, assign, transfer, grant participation in, or otherwise
dispose of all or any portion of their respective Term Notes, or of
its right, title and interest therein or thereto or in or to this
Agreement, except in accordance with and subject to the
requirements set forth in Section 13.8 of the Vishay Loan
Agreement, which shall be deemed incorporated by reference herein.
12.9 Indulgence. No delay or failure of Agent and the Banks
in exercising any right, power or privilege hereunder shall affect
such right, power or privilege nor shall any single or partial
exercise thereof preclude any further exercise thereof, nor the
exercise of any other right, power or privilege. The rights of
Agent and the Banks hereunder are cumulative and are not exclusive
of any rights or remedies which Agent and the Banks would otherwise
have.
12.10 Counterparts. This Agreement may be executed in several
counterparts, and each executed copy shall constitute an original
instrument, but such counterparts shall together constitute but one
and the same instrument.
12.11 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or any Loan Document, nor consent to
any departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Majority Banks, 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 no amendment, waiver or
consent shall, unless in writing and signed by all the Banks, do
any of the following: (a) increase any commitment of the Banks
<PAGE>
<PAGE> 43 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
hereunder or subject the Banks to any additional obligations, (b)
reduce or forgive the principal of, or interest on, the Term Notes
or any fees or other amounts payable hereunder, (c) postpone any
date fixed for any payment of principal of, or interest on, the
Term Notes or any fees or other amounts payable hereunder, (d)
waive any Event of Default specified in Sections 10.1(a) or (b)
hereof (provided that if, at the relevant time, only Bid Advances
are outstanding under the DM Loan Agreement or the Vishay Loan
agreement, the prior written approval of all Banks shall be
required to waive, whether consent, waiver or amendment, any Event
of Default under this Agreement), (e) release or defer the granting
or perfecting of a lien or security interest or release any
guaranty or similar undertaking by any Person, except in each case
as shall be otherwise expressly provided in this Agreement or any
Loan Document, (f) take any action which requires the signing of
all Banks pursuant to the terms of this Agreement or any Loan
Document, (g) change the definitions of "Majority Banks" or
"Interest Periods" (h) change the aggregate unpaid principal amount
of the Term Notes which shall be required for the Banks or any of
them to take any action under this Agreement or any Loan Document,
(i) except for conversions from Deutsche Marks to Dollars under
Section 3.5 hereof or reconversions from Dollars to Deutsche Marks
under Section 3.6 hereof, as the case may be, change the currency
in which the Term Loan is denominated or (j) change this Section
12.11, and provided further, however, that no amendment, waiver, or
consent shall, unless in writing and signed by the Agent in
addition to all the Banks, affect the rights or duties of the Agent
under this Agreement or any Loan Document.
12.12 Taxes and Fees. Should any tax (other than a tax based
upon the net income of any Bank), recording or filing fee become
payable in respect of this Agreement or any of the Loan Documents
or any amendment, modification or supplement hereof or thereof,
Vishay agrees to pay or cause Company to pay the same together with
any interest or penalties thereon, and Company and Vishay agree to
hold the Agent and the Banks harmless with respect thereto.
12.13 Confidentiality. Each Bank agrees that it will not
disclose without the prior consent of the Company (other than to
its employees, to another Bank or to its auditors or counsel), any
confidential information with respect to the Company or any of its
Subsidiaries which is furnished pursuant to this Agreement or any
of the Loan Documents; provided that any Bank may disclose any such
information (a) as has become generally available to the public or
has been lawfully obtained by such Bank from any third party under
no duty of confidentiality to the Company, (b) as may be required
or appropriate in any report, statement or testimony submitted to,
or in respect to any inquiry, by, any municipal, state or federal
regulatory body having or claiming to have jurisdiction over such
Bank, including the Board of Governors of the Federal Reserve
System of the United States or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States
<PAGE>
<PAGE> 44 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
or elsewhere) or their successors, (c) as may be required or
appropriate in respect to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Bank, and (e) to any
permitted transferror or assignee or any approved participant of,
or with respect to, the Term Notes, as aforesaid.
12.14 Withholding Taxes. If any Bank is not incorporated
under the laws of the United States or a state thereof, such Bank
shall promptly deliver to the Agent two executed copies of (i)
Internal Revenue Service Form 1001 specifying the applicable tax
treaty between the United States and the jurisdiction of such
Bank's domicile which provides for the exemption from withholding
on interest payments to such Bank, (ii) Internal Revenue Service
Form 4224 evidencing that the income to be received by such Bank
hereunder is effectively connected with the conduct of a trade or
business in the United States or (iii) other evidence satisfactory
to the Agent that such Bank is exempt from United States income tax
withholding with respect to such income. Such Bank shall amend or
supplement any such form or evidence as required to insure that it
is accurate, complete and non-misleading at all times. Promptly
upon notice from the Agent of any determination by the Internal
Revenue Service that any payments previously made to such Bank
hereunder were subject to United States income tax withholding when
made, such Bank shall pay to the Agent the excess of the aggregate
amount required to be withheld from such payments over the
aggregate amount actually withheld by the Agent. In addition, from
time to time upon the reasonable request and at the sole expense of
the Company or any Permitted Borrower, each Bank and the Agent
shall (to the extent it is able to do so based upon applicable
facts and circumstances), complete and provide the Company or any
Permitted Borrower with such forms, certificates or other documents
as may be reasonably necessary to allow the Company or any
Permitted Borrower, as applicable, to make any payment under this
Agreement or the other Loan Documents without any withholding for
or on the account of any tax under Section 5.1(d) hereof (or with
such withholding at a reduced rate), provided that the execution
and delivery of such forms, certificates or other documents does
not adversely affect or otherwise restrict the right and benefits
(including without limitation economic benefits) available to such
Bank or the Agent, as the case may be, under this Agreement or any
of the other Loan Documents, or under or in connection with any
transactions not related to the transactions contemplated hereby.
12.15 Effective Upon Execution. This Agreement shall become
effective upon the execution hereof by Banks, Agent, Vishay and
Company and shall remain effective until the Indebtedness has been
repaid and discharged in full and no commitment to make Advances
hereunder, under the Vishay Loan Agreement or under the DM Loan
Agreement remains outstanding.
<PAGE>
<PAGE> 45 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
12.16 Severability. In case any one or more of the
obligations of the Company under this Agreement, the Notes or any
of the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of the Company shall
not in any way be affected or impaired thereby, and such
invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the
obligations of the Company under this Agreement, the Notes or any
of the other Loan Documents in any other jurisdiction.
12.17 Table of Contents and Headings. The table of contents
and the headings of the various subdivisions hereof are for
convenience of reference only and shall in no way modify or affect
any of the terms or provisions hereof.
12.18 Construction of Certain Provisions. If any provision of
this Agreement or any of the Loan Documents refers to any action to
be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is
taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
12.19 Independence of Covenants. Each covenant hereunder
shall be given independent effect (subject to any exceptions stated
in such covenant) so that if a particular action or condition is
not permitted by any such covenant (taking into account any such
stated exception), the fact that it would be permitted by an
exception to, or would be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default or an
Event of Default if such action is taken or such condition exists.
12.20 Reliance on and Survival of Various Provisions. All
terms, covenants, agreements, representations and warranties of the
Company or any party to any of the Loan Documents made herein or in
any of the Loan Documents or in any certificate, report, financial
statement or other document furnished by or on behalf of the
Company, any such party in connection with this Agreement or any of
the Loan Documents shall be deemed to have been relied upon by the
Banks, notwithstanding any investigation heretofore or hereafter
made by any Bank or on such Bank's behalf, and those covenants and
agreements of the Company set forth in Section 4.6 hereof (together
with any other indemnities of the Company contained elsewhere in
this Agreement or in any of the Loan Documents) and of Banks set
forth in Section 13.13 hereof shall survive the repayment in full
of the Indebtedness and the termination of any commitments to make
Advances hereunder.
12.21 Complete Agreement. This Agreement, the Term Notes, the
Loan Documents and any agreements, certificates, or other documents
given to evidence or secure the Indebtedness ("Loan Documents") and
the Commitment Letter contain the entire agreement of the parties,
<PAGE>
<PAGE> 46 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
hereto (provided that in the event of any inconsistency between
this Agreement and the other Loan Documents, on one hand, and the
Commitment Letter, on the other hand, this Agreement and the other
Loan Documents shall control), and none of the parties shall be
bound by anything not expressed in writing.
WITNESS the due execution hereof as of the day and year first
above written.
COMERICA BANK VISHAY BETEILIGUNGS GmbH
as Agent
By:__________________________ By:__________________________
Its:_________________________ Its:_________________________
Comerica Bank Building c/o Vishay Intertechnology, Inc.
One Detroit Center 63 Lincoln Highway
500 Woodward Avenue Malvern, Pennsylvania 19355
Detroit, Michigan 48275 Attention: Mr. Robert A. Freece
Attn: National Division
<PAGE>
<PAGE> 47 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
BANKS:
COMERICA BANK
By:______________________________
Its:_____________________________
Comerica Bank Building
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48275
Attention: National Division
Telex: 235808
Fax No.: (313) 222-3330
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:______________________________
Its:_____________________________
NationsBank Corporate Center
100 North Tryon Street
NC 1007-08-04
Charlotte, NC 28255-0086
Attn: Mr. M. Gregory Seaton
Telex: 669959
Fax No.: (704) 386-3271
BERLINER HANDELS-UND FRANKFURTER
BANK KGaA
By: _____________________________
Its: ____________________________
Bockenheimer Landstr. 10
60323 Frankfurt/Main 1
Germany
Attn: Mr. Hans-Jurgen Scholz
Telex: 411 026
Fax No.: 4969/718-3011
<PAGE>
<PAGE> 48 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
BANK HAPOALIM, B.M.
By:______________________________
Its:_____________________________
3 Penn Center Plaza
Philadelphia, Pennsylvania 19102
Attn: Mr. Andrew Niesen
Telex: 902022
Fax No.: (215) 665-2217
SIGNET BANK/MARYLAND
By:______________________________
Its:_____________________________
7 St. Paul Street
Baltimore, Maryland 21202
Attn: Ms. Janice E. Godwin
Telex: 87638
Fax No.: (301) 625-6365
CORESTATES BANK, N.A.,
formerly known as and continuing
to do business under the name of
THE PHILADELPHIA NATIONAL BANK
By:______________________________
Its:_____________________________
1345 Chestnut Street
F.C. 1-8-3-14
Philadelphia, Pennsylvania 19107
Attn: Mr. James A. Bennett
Telex: 845400
Fax No.: (215) 973-7820
<PAGE>
<PAGE> 49 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
BANK LEUMI le-ISRAEL, B.M.
By:______________________________
Its:_____________________________
1511 Walnut Street
Philadelphia, Pennsylvania 19102
Attn: Mr. Joseph A. McBride
Telex: 173090
Fax No.: (215) 563-8688
MERIDIAN BANK
By:______________________________
Its:_____________________________
1650 Market Street
Suite 3600
Philadelphia, Pennsylvania 19103
Attn: Mr. John M. Fessick
Telex: 173003
Fax No.: (215) 854-3774
ABN AMRO BANK N.V. NEW YORK BRANCH
By:______________________________
Its:_____________________________
and
By:______________________________
Its:_____________________________
500 Park Avenue
Second Floor
New York, New York 10022
Attn: Mr. James B. Sieger
Telex: 423721
Fax No.: (212) 759-4792
<PAGE>
<PAGE> 50 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
CREDIT LYONNAIS NEW YORK BRANCH
By:______________________________
Its:_____________________________
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Steve Levi
Telex:___________________________
Fax No.: (212) 459-3179
CREDIT SUISSE
By:______________________________
Its:_____________________________
And By:__________________________
Its:_____________________________
12 East 49th Street
New York, New York 10017
Attn: Ms. Eileen O'Connel Fox
Telex: 420149
Fax No.: (212) 238-5389
<PAGE>
<PAGE> 51 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
=============================================================================
SCHEDULE 1.7 (ROEDERSTEIN LOAN AGREEMENT)
Pricing Matrix (Determination of Pricing Levels)
- -----------------------------------------------------------------------------
Applicable Margin for Advances
of the Term Loan
- -----------------------------------------------------------------------------
Prime-based Deutsche Mark-
Rate based Rate
=============================================================================
If Leverage Ratio is less than or
equal to 1.5:1.0
OR 0.00% .625%
If Rating Level 1 is in effect
- -----------------------------------------------------------------------------
If Leverage Ratio is greater than
1.5:1.0, but less than or equal to
2.0:1.0
OR 0.00% .75%
If Rating Level 2 is in effect
- -----------------------------------------------------------------------------
If Leverage Ratio is greater than
2.0:1.0, but less than or equal to
3.9:1.0
OR 0.00% .875%
If Rating Level 3 is in effect
- -----------------------------------------------------------------------------
If Leverage Ratio is greater than
3.9:1.0
OR .125% 1.125%
If Rating Level 4 is in effect
=============================================================================
<PAGE>
<PAGE> 52 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
EXHIBIT "A"
TERM NOTE
DM______________________________________ July ___, 1994
On or before December 31, 1997 (the "Term Loan Maturity
Date"), FOR VALUE RECEIVED, Vishay Beteiligungs GmbH, a German
corporation (formerly Draloric Electronic GmbH) ("Company")
promises to pay to the order of ____________________________________
("Bank") at Detroit, Michigan, care of Agent, for the account of
Bank's Eurocurrency Lending Office, in Deutsche Marks, the sum of
_________________________________________ (DM _____________________)
together with interest thereon, as hereinafter set forth, in
accordance with that certain Amended and Restated Roederstein
DM 104,315,990.20 Term Loan Agreement ("Agreement") dated as of
July ___ , 1994, by and among Company, certain banks, including
the Bank, and Comerica Bank, a Michigan banking corporation, as
Agent for such banks. Notwithstanding the foregoing, in the event
the Term Loan (as defined in the Agreement) is converted to
Dollars pursuant to the Agreement, this Note shall be payable in
Dollars, and the principal payments specified below shall be due
and payable as set forth in the Agreement.
Until the Term Loan Maturity Date, when the entire unpaid
principal balance of the Term Loan and all accrued interest and
other sums outstanding thereon shall be paid in full (subject to
the terms of the Agreement), the principal Indebtedness evidenced
by this Term Note shall be repaid on the following dates and in
the following amounts (irrespective of and in addition to any
principal payments under the Agreement based on Excess Cash Flow
or any optional prepayments thereunder):
(a) on or before December 31, 1994, (Bank's percentage
of DM 18,700,000);
(b) on or before December 31, 1995, (Bank's percentage
of DM 34,100,000);
(c) on or before December 31, 1996, (Bank's percentage
of DM 37,000,000); and
(d) on or before the Term Loan Maturity Date, the
entire remaining unpaid principal balance of such Indebtedness
and accrued interest and other sums thereon shall be due and
payable in full.
There shall be no readvance or reborrowing of any principal
reductions of this Note.
Each of the Advances made hereunder shall bear interest at
the Deutsche Mark-based Rate, as determined under the Agreement,
<PAGE>
<PAGE> 53 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
or, if applicable from time to time under the Agreement, the
Prime-based Rate.
All accrued and unpaid interest on the Indebtedness
outstanding under this Note from time to time shall be due and
payable in full, in immediately available funds, (a) whenever the
Deutsche Mark-based Rate shall be in effect, (i) on the last day
of each Interest Period, and, (ii) if such Interest Period is
longer than 3 months, at intervals of 3 months after the first
day of the applicable Interest Period, and (b) whenever the
Prime-based Rate shall be then in effect (after conversion of the
Term Loan to an Advance of Dollars as a Prime-based Advance as
provided in the Agreement), commencing on the last day of the
calendar quarter coinciding with or next following the date of
such conversion and on the last day of each calendar quarter
thereafter, and on the date of any reconversion to a Deutsche
Mark-based Advance pursuant to the Agreement, until the Term Loan
Maturity Date, when the entire Indebtedness, including all
accrued interest, shall be due and payable in full.
In the event and so long as any default or Event of Default
shall exist under this Note or any Event of Default shall exist
under the Agreement, interest shall be payable daily on the
principal balance of the Indebtedness then outstanding at a per
annum rate equal to the Applicable Interest Rate plus three
percent (3%) for the remainder of the then-existing Interest
Period, if any, and, at all other times, if the principal
Indebtedness hereunder is then denominated in Dollars as provided
in the Agreement, at a per annum rate equal to the Prime-based
Rate plus three percent (3%), and, if the principal Indebtedness
hereunder is then denominated in Deutsche Marks, (a) at a per
annum rate calculated by the Agent, whose determination shall be
conclusive absent manifest error, on a daily basis, equal to
three percent (3%) above the interest rate per annum at which one
(1) day (or, if such amount due remains unpaid for more than
three (3) Business Days, then for such other period of time as
the Agent may elect which shall in no event be longer than six
(6) months) deposits in Deutsche Marks in the amount of such
overdue payment due to the Agent are offered by the Agent's
Eurocurrency Lending Office for the applicable period determined
as provided above, or (b) if at any such time such deposits are
not offered by the Agent's Eurocurrency Lending Office, then at a
rate per annum equal to three percent (3%) above the rate
determined by the Agent to be its aggregate marginal cost
(including the cost of maintaining any required reserves or
deposit insurance) of carrying the amount (in Deutsche Marks) of
the Indebtedness then outstanding.
Interest accruing under this Note at the Deutsche Mark-based
Rate shall be computed on a basis of a 360 day year and assessed
for the actual number of days elapsed from the first day of the
Interest Period applicable thereto, to, but not including the
last day thereof. Interest accruing at the Prime-based Rate shall
<PAGE>
<PAGE> 54 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
be computed on the basis of a 360 day year and assessed for the
actual number of days elapsed, and in such computation effect
shall be given to any change in the interest rate resulting from
a change in the Prime-based Rate on the date of such change in
the Prime-based Rate. Interest accruing under this Note shall be
repaid in Deutsche Marks, unless the Prime-based Rate is
applicable thereto, in which event said interest shall be repaid
in Dollars.
The amount and date of the extension of the Term Loan, any
Advances thereof, the Applicable Intereat Rates and the amount of
interest accruing thereon and Interest Periods for Advances, and
the amount and date of any repayments, shall be noted on Agent's
records, which records shall be conclusive evidence thereof,
absent manifest error.
This Note evidences borrowings under, is subject to, is
secured in accordance with, and may be accelerated or matured
under, the terms of the Agreement, to which reference is hereby
made. Definitions and terms of the Agreements are hereby
incorporated herein.
As additional security for this Note, Company grants Bank a
lien on all property and assets including deposits and other
credits of the Company, at any time in possession or control of
or owing by Bank for any purpose.
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.
Company hereby waives presentment for payment, demand,
protest and notice of dishonor and nonpayment of this Note and
agrees that no obligations 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.
Nothing herein shall limit any right granted Bank by any
other instrument or by law.
VISHAY BETEILIGUNGS GmbR,
a German corporation
By:_____________________________
Its:____________________________
<PAGE>
<PAGE> 55 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
EXHIBIT "B"
TERM LOAN RATE REQUEST
A. Request
The undersigned authorized officer of Vishay Beteiligungs
GmbH (formerly Draloric Electronic GmbH) ("Company") in
accordance with Section 3.1 of the Amended and Restated
Roederstein DM 104,315,990.20 Term Loan Agreement, dated as of
July __, 1994, among Company, certain Banks and Comerica Bank, a
Michigan banking corporation, as Agent for the Banks (the
"Agreement"), hereby requests Comerica Bank, in its capacity as
Agent under the Agreement to refund or convert DM _______________/1
of the indebtedness evidenced on by the Term Notes with a
Deutsche Mark-based Advance on ________________________, 19___./2
The Interest Period for the requested Advance shall be _______________./3
B. Application of Proceeds
The proceeds of this Advance shall be applied to
refund/convert/4 the following outstanding Advance(s)
- --------------
1/ Insert amount of requested Advance. This amount, plus the
amount of any other outstanding Indebtedness under the Term Notes
to be then combined therewith having the same Interest Period, if
any, shall not be less than DM 5,000,000 or $2,000,000, as
applicable, unless the balance remaining outstanding on the Term
Loan is less, in which case such lesser amount shall control, and
at any time the Company shall not have more than 2 Interest
Periods in effect with respect to the Term Loan.
2/ Insert date at least four (4) Business Days after the date
of Request. Such date must be the Business Day subsequent to the
last day of the applicable Deutsche Mark-based Interest Period.
3/ Insert, as applicable, "1 month", "2 months", "3 months"
or "6 months".
4/ Strike inapplicable term to indicate whether a conversion
or refunding.
<PAGE>
<PAGE> 56 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
Type Last Day of
of Interest Principal
Advance Period Outstanding
------- ---------- -----------
C. Request Irrevocable
Upon Agent's receipt of this Term Loan Rate Request, this
Term Loan Rate Request shall be irrevocable.
D. Maturity Date
Company shall not be entitled to request any Advance with an
Interest Period ending after the Term Loan Maturity Date.
E. Defined Terms
Capitalized terms used herein, unless specifically defined
to the contrary herein, have the meanings given them in the
Agreement.
Dated this _______ day of _____________________________, 19___.
VISHAY BETEILIGUNGS GmbH
By:_________________________
Its:_________________________
(This form of Term Loan Rate Request (including footnotes) is
subject in all respects to the terms and conditions of the
Agreement which shall govern in the event of any inconsistencies
or omissions.)
<PAGE>
<PAGE> 57 -- EXHIBIT 10.3 (DM 104,315,990.20 TERM LOAN AGREEMENT)
EXHIBIT "C"
Percentages
Comerica Bank 15.42%
NationsBank of North Carolina, N.A. 15.42%
Berliner Handels-Und Frankfurter Bank 11.67%
Signet Bank Maryland 11.66%
Bank Hapoalim, B.M. 8.33%
CoreStates Bank, N.A. 8.33%
ABN AMRO Bank N.V. 8.33%
Credit Lyonnais New York Branch 8.33%
Bank Leumi le-Israel, B.M. 4.17%
Credit Suisse 4.17%
Meridian Bank 4.17%
<PAGE>
<PAGE>
<PAGE> 1 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
______________________________________________________________________________
______________________________________________________________________________
VISHAY INTERTECHNOLOGY, INC.
$200,000,000 ACQUISITION
LOAN AGREEMENT
DATED AS OF JULY 18, 1994
COMERICA BANK, AS AGENT
NATIONSBANK OF NORTH CAROLINA, N.A., AS CO-AGENT
BERLINER HANDELS-UND FRANKFURTER BANK KGAA
AND SIGNET/BANK MARYLAND, AS LEAD MANAGERS
_____________________________________________________________________________
_____________________________________________________________________________
<PAGE>
<PAGE> 2 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
TABLE OF CONTENTS
-----------------
Page
----
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 "Acquisition Loan(s)" . . . . . . . . . . . . . . . . . 1
1.2 "Advance(s)". . . . . . . . . . . . . . . . . . . . . . 1
1.3 "Agent" . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 "Agent's Correspondent" . . . . . . . . . . . . . . . . 1
1.5 "Agent's Fees". . . . . . . . . . . . . . . . . . . . . 2
1.6 "Alternate Base Rate" . . . . . . . . . . . . . . . . . 2
1.7 "Alternative Currency". . . . . . . . . . . . . . . . . 2
1.8 "Applicable Fee Percentage" . . . . . . . . . . . . . . 2
1.9 "Applicable Interest Rate". . . . . . . . . . . . . . . 2
1.10 "Applicable Margin" . . . . . . . . . . . . . . . . . . 2
1.11 "Banks" . . . . . . . . . . . . . . . . . . . . . . . . 2
1.12 "Bridge Loan" . . . . . . . . . . . . . . . . . . . . . 2
1.13 "Bridge Loan Commitment Fee". . . . . . . . . . . . . . 2
1.14 "Bridge Loan Extension Fee" . . . . . . . . . . . . . . 2
1.15 "Bridge Loan Maturity Date" . . . . . . . . . . . . . . 3
1.16 "Bridge Notes". . . . . . . . . . . . . . . . . . . . . 3
1.17 "Business Day". . . . . . . . . . . . . . . . . . . . . 3
1.18 "Closing Fee" . . . . . . . . . . . . . . . . . . . . . 3
1.19 "Commitment Letter" . . . . . . . . . . . . . . . . . . 3
1.20 "Company" . . . . . . . . . . . . . . . . . . . . . . . 3
1.21 "Default" . . . . . . . . . . . . . . . . . . . . . . . 3
1.22 "DM Loan Agreement" . . . . . . . . . . . . . . . . . . 3
1.23 "DM Loan Documents" . . . . . . . . . . . . . . . . . . 3
1.24 "DM Revolving Credit" and "DM Term Loan". . . . . . . . 3
1.25 "Dollars" and the sign "$". . . . . . . . . . . . . . . 4
1.26 "Domestic Advance". . . . . . . . . . . . . . . . . . . 4
1.27 "Domestic Guaranty" . . . . . . . . . . . . . . . . . . 4
1.28 "Domestic Subsidiaries" . . . . . . . . . . . . . . . . 4
1.29 "Draloric". . . . . . . . . . . . . . . . . . . . . . . 4
1.30 "Eurocurrency Adjusted Rate". . . . . . . . . . . . . . 4
1.31 "Eurocurrency-based Advance". . . . . . . . . . . . . . 5
1.32 "Eurocurrency-based Rate" . . . . . . . . . . . . . . . 5
1.33 "Eurocurrency-Interest Period". . . . . . . . . . . . . 5
1.34 "Eurocurrency Lending Office" . . . . . . . . . . . . . 5
1.35 "Event of Default". . . . . . . . . . . . . . . . . . . 5
1.36 "Excess Cash Flow". . . . . . . . . . . . . . . . . . . 5
1.37 "Federal Funds Effective Rate". . . . . . . . . . . . . 5
1.38 "Fees". . . . . . . . . . . . . . . . . . . . . . . . . 6
1.39 "Fixed Rate". . . . . . . . . . . . . . . . . . . . . . 6
1.40 "Fixed Rate Option" . . . . . . . . . . . . . . . . . . 6
1.41 "Fixed Rate Election" . . . . . . . . . . . . . . . . . 6
1.42 "Foreign Subsidiaries". . . . . . . . . . . . . . . . . 6
1.43 "Funding Expiration Date" . . . . . . . . . . . . . . . 6
1.44 "GAAP". . . . . . . . . . . . . . . . . . . . . . . . . 6
1.45 "Guaranties". . . . . . . . . . . . . . . . . . . . . . 6
1.46 "hereof", "hereto", "hereunder" . . . . . . . . . . . . 6
1.47 "HLT Determination" . . . . . . . . . . . . . . . . . . 6
<PAGE>
<PAGE> 3 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
TABLE OF CONTENTS
-----------------
(Continued)
Page
----
1.48 "Indebtedness". . . . . . . . . . . . . . . . . . . . . 7
1.49 "Interest Period" . . . . . . . . . . . . . . . . . . . 7
1.50 "Internal Revenue Code" . . . . . . . . . . . . . . . . 8
1.51 "Lien". . . . . . . . . . . . . . . . . . . . . . . . . 8
1.52 "Loan Agreements" . . . . . . . . . . . . . . . . . . . 8
1.53 "Loan Documents". . . . . . . . . . . . . . . . . . . . 8
1.54 "Majority Banks". . . . . . . . . . . . . . . . . . . . 8
1.55 "Moody's Rating". . . . . . . . . . . . . . . . . . . . 8
1.56 "New Banks" . . . . . . . . . . . . . . . . . . . . . . 8
1.57 "Notes" . . . . . . . . . . . . . . . . . . . . . . . . 8
1.58 "Percentage". . . . . . . . . . . . . . . . . . . . . . 8
1.59 "Permitted Borrowers Guaranty". . . . . . . . . . . . . 9
1.60 "Permitted Company Encumbrances". . . . . . . . . . . . 9
1.61 "Permitted Encumbrances". . . . . . . . . . . . . . . . 9
1.62 "Permitted Encumbrances of the
Subsidiaries". . . . . . . . . . . . . . . . . . . . . 10
1.63 "Permitted Transferee". . . . . . . . . . . . . . . . . 10
1.64 "Person". . . . . . . . . . . . . . . . . . . . . . . . 10
1.65 "Prime Rate". . . . . . . . . . . . . . . . . . . . . . 10
1.66 "Prime-based Advance" . . . . . . . . . . . . . . . . . 10
1.67 "Prime-based Rate". . . . . . . . . . . . . . . . . . . 10
1.68 "Prior Banks" . . . . . . . . . . . . . . . . . . . . . 10
1.69 "Rating Level". . . . . . . . . . . . . . . . . . . . . 11
1.70 "Rating Level 1". . . . . . . . . . . . . . . . . . . . 11
1.71 "Rating Level 2". . . . . . . . . . . . . . . . . . . . 11
1.72 "Rating Level 3". . . . . . . . . . . . . . . . . . . . 11
1.73 "Rating Level 4". . . . . . . . . . . . . . . . . . . . 11
1.74 "Reference Banks" . . . . . . . . . . . . . . . . . . . 11
1.75 "Request for Bridge Loan Advance and Rate
Request" . . . . . . . . . . . . . . . . . . . . . . . 11
1.76 "Request for Term Loan Advance and Rate
Request" . . . . . . . . . . . . . . . . . . . . . . . 11
1.77 "Roederstein Loan Agreement". . . . . . . . . . . . . . 11
1.78 "Roederstein Loan Documents". . . . . . . . . . . . . . 11
1.79 "S & P Rating". . . . . . . . . . . . . . . . . . . . . 11
1.80 "Seller". . . . . . . . . . . . . . . . . . . . . . . . 11
1.81 "Shares", "share capital", "capital stock",
"stock" . . . . . . . . . . . . . . . . . . . . . . . . 11
1.82 "Significant Domestic Subsidiaries" . . . . . . . . . . 12
1.83 "Significant Foreign Subsidiaries". . . . . . . . . . . 12
1.84 "Significant Subsidiaries". . . . . . . . . . . . . . . 12
1.85 "Stock Purchase Agreement". . . . . . . . . . . . . . . 12
1.86 "Subsidiary(ies)" . . . . . . . . . . . . . . . . . . . 12
1.87 "Target Company". . . . . . . . . . . . . . . . . . . . 12
1.88 "Target Company Acquisition". . . . . . . . . . . . . . 12
1.89 "Target Company Loan Documents" . . . . . . . . . . . . 12
<PAGE>
<PAGE> 4 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
TABLE OF CONTENTS
-----------------
(Continued)
Page
----
1.90 "Term Loan" . . . . . . . . . . . . . . . . . . . . . . 12
1.91 "Term Loan Maturity Date" . . . . . . . . . . . . . . . 12
1.92 "Term Notes". . . . . . . . . . . . . . . . . . . . . . 12
1.93 "Vishay Guaranty" . . . . . . . . . . . . . . . . . . . 13
1.94 "Vishay Loan Agreement" . . . . . . . . . . . . . . . . 13
1.95 "Vishay Loan Documents" . . . . . . . . . . . . . . . . 13
1.96 "VBG" . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.97 "Yield Maintenance Payment" . . . . . . . . . . . . . . 13
2. TERM LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.1 Commitment. . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Repayment of Principal. . . . . . . . . . . . . . . . . 13
2.3 Excess Cash Flow Recapture. . . . . . . . . . . . . . . 14
2.4 Accrual of Interest.. . . . . . . . . . . . . . . . . . 14
2.5 Prime-based Interest Payments.. . . . . . . . . . . . . 14
2.6 Eurocurrency-based Interest Payments. . . . . . . . . . 15
2.7 Interest Payments on Conversions. . . . . . . . . . . . 15
2.8 Interest on Default.. . . . . . . . . . . . . . . . . . 15
2.9 Requests for and Refundings and Conversions
of Advances.. . . . . . . . . . . . . . . . . . . . . . 16
2.10 Disbursement of Advances. . . . . . . . . . . . . . . . 17
2.11 Fixed Rate Election.. . . . . . . . . . . . . . . . . . 19
2.12 Prime-based Advance in Absence of Election
or Upon Default.. . . . . . . . . . . . . . . . . . . . 21
2.13 Prepayment. . . . . . . . . . . . . . . . . . . . . . . 21
2.14 Use of Term Loan Proceeds . . . . . . . . . . . . . . . 22
3. BRIDGE LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Commitment. . . . . . . . . . . . . . . . . . . . . . . 22
3.2 Repayment of Principal. . . . . . . . . . . . . . . . . 23
3.3 Extension of Funding Expiration Date. . . . . . . . . . 23
3.4 Accrual of Interest.. . . . . . . . . . . . . . . . . . 23
3.5 Prime-based Interest Payments.. . . . . . . . . . . . . 23
3.6 Eurocurrency-based Interest Payments. . . . . . . . . . 24
3.7 Interest Payments on Conversions. . . . . . . . . . . . 24
3.8 Interest on Default.. . . . . . . . . . . . . . . . . . 24
3.9 Request for and Refundings and Conversions
of Advances.. . . . . . . . . . . . . . . . . . . . . . 25
3.10 Disbursement of Advances. . . . . . . . . . . . . . . . 27
3.11 Prime-based Advance in Absence of Election
or Upon Default.. . . . . . . . . . . . . . . . . . . . 28
3.12 Prepayment. . . . . . . . . . . . . . . . . . . . . . . 28
3.13 Bridge Loan Extension Fee.. . . . . . . . . . . . . . . 29
3.14 Bridge Loan Commitment Fee. . . . . . . . . . . . . . . 30
<PAGE>
<PAGE> 5 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
TABLE OF CONTENTS
-----------------
(Continued)
Page
----
3.15 Use of Bridge Loan Proceeds.. . . . . . . . . . . . . . 30
4. MARGIN ADJUSTMENTS; HLT DETERMINATION; SPECIAL
LIMITATION . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 Margin Adjustments. . . . . . . . . . . . . . . . . . . 30
4.2 HLT Determination.. . . . . . . . . . . . . . . . . . . 31
4.3 Special Limitation. . . . . . . . . . . . . . . . . . . 32
5. CONDITIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.1 Vishay Loan Agreement . . . . . . . . . . . . . . . . . 32
5.3 Vishay's Certificate. . . . . . . . . . . . . . . . . . 34
5.4 Payment of Agent's and Other Fees . . . . . . . . . . . 34
5.5 Other Documents and Instruments . . . . . . . . . . . . 34
6. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 34
7. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 34
7.1 Vishay Loan Agreement . . . . . . . . . . . . . . . . . 34
7.2 Incorporation of Vishay Loan Agreement. . . . . . . . . 35
8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 35
9. DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.1 Events of Default.. . . . . . . . . . . . . . . . . . . 35
9.2 Exercise of Remedies. . . . . . . . . . . . . . . . . . 38
9.3 Rights Cumulative.. . . . . . . . . . . . . . . . . . . 38
9.4 Waiver by Company of Certain Laws.. . . . . . . . . . . 38
9.5 Waiver of Defaults. . . . . . . . . . . . . . . . . . . 39
9.6 Cross-Default.. . . . . . . . . . . . . . . . . . . . . 39
10. PAYMENTS, RECOVERIES AND COLLECTIONS.. . . . . . . . . . . . . 39
10.1 Payment Procedure.. . . . . . . . . . . . . . . . . . . 39
10.2 Application of Proceeds.. . . . . . . . . . . . . . . . 41
10.3 Pro-rata Recovery.. . . . . . . . . . . . . . . . . . . 41
10.4 Deposits and Accounts.. . . . . . . . . . . . . . . . . 42
11. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS.. . . . . . . 42
11.1 Reimbursement of Prepayment Costs.. . . . . . . . . . . 42
11.2 Eurocurrency Lending Office.. . . . . . . . . . . . . . 42
11.3 Circumstances Affecting Eurocurrency-based
<PAGE>
<PAGE> 6 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
TABLE OF CONTENTS
-----------------
(Continued)
Page
----
Rate Availability.. . . . . . . . . . . . . . . . . . . 42
11.4 Laws Affecting Eurocurrency-based Advance
Availability. . . . . . . . . . . . . . . . . . . . . . 43
11.5 Increased Cost of Eurocurrency-based
Advances. . . . . . . . . . . . . . . . . . . . . . . . 43
11.6 Indemnity.. . . . . . . . . . . . . . . . . . . . . . . 45
11.7 Judgment Currency.. . . . . . . . . . . . . . . . . . . 45
11.8 Other Increased Costs.. . . . . . . . . . . . . . . . . 45
12. AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
12.1 Appointment of Agent. . . . . . . . . . . . . . . . . . 46
12.2 Deposit Account with Agent. . . . . . . . . . . . . . . 47
12.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . 47
12.4 Successor Agents. . . . . . . . . . . . . . . . . . . . 47
12.5 Loans by Agent. . . . . . . . . . . . . . . . . . . . . 48
12.6 Credit Decisions. . . . . . . . . . . . . . . . . . . . 48
12.7 Notices by Agent. . . . . . . . . . . . . . . . . . . . 48
12.8 Agent's Fees. . . . . . . . . . . . . . . . . . . . . . 48
12.9 Nature of Agency. . . . . . . . . . . . . . . . . . . . 48
12.10 Actions; Confirmation of Agent's Authority
to Act in Event of Default. . . . . . . . . . . . . . . 48
12.11 Authority of Agent to Enforce Notes and This
Agreement.. . . . . . . . . . . . . . . . . . . . . . . 49
12.12 Indemnification.. . . . . . . . . . . . . . . . . . . . 49
12.13 Knowledge of Default. . . . . . . . . . . . . . . . . . 49
12.14 Agent's Authorization; Action by Banks. . . . . . . . . 50
12.15 Enforcement Actions by the Agent. . . . . . . . . . . . 50
12.16 Co-Agent and Lead Managers. . . . . . . . . . . . . . . 51
13. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 51
13.1 Accounting Principles.. . . . . . . . . . . . . . . . . 51
13.2 Consent to Jurisdiction.. . . . . . . . . . . . . . . . 51
13.3 Law of Michigan.. . . . . . . . . . . . . . . . . . . . 51
13.4 Interest. . . . . . . . . . . . . . . . . . . . . . . . 52
13.5 Closing Costs.. . . . . . . . . . . . . . . . . . . . . 52
13.6 Notices.. . . . . . . . . . . . . . . . . . . . . . . . 53
13.7 Further Action. . . . . . . . . . . . . . . . . . . . . 53
13.8 Successors and Assigns. . . . . . . . . . . . . . . . . 53
13.9 Indulgence. . . . . . . . . . . . . . . . . . . . . . . 53
13.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . 53
13.11 Amendment and Waiver. . . . . . . . . . . . . . . . . . 53
13.12 Taxes and Fees. . . . . . . . . . . . . . . . . . . . . 54
13.13 Confidentiality.. . . . . . . . . . . . . . . . . . . . 54
13.14 Withholding Taxes.. . . . . . . . . . . . . . . . . . . 55
<PAGE>
<PAGE> 7 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
TABLE OF CONTENTS
-----------------
(Continued)
Page
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13.15 Effective Upon Execution. . . . . . . . . . . . . . . . 55
13.16 Severability. . . . . . . . . . . . . . . . . . . . . . 55
13.17 Table of Contents and Headings. . . . . . . . . . . . . 56
13.18 Construction of Certain Provisions. . . . . . . . . . . 56
13.19 Independence of Covenants.. . . . . . . . . . . . . . . 56
13.20 Reliance on and Survival of Various
Provisions. . . . . . . . . . . . . . . . . . . . . . . 56
13.21 Complete Agreement. . . . . . . . . . . . . . . . . . . 56
EXHIBITS
FORM OF TERM NOTE . . . . . . . . . . . . . . . . . . . . . . . . . .A
FORM OF REQUEST FOR TERM LOAN ADVANCE AND RATE REQUEST. . . . . . . .B
FORM OF FIXED RATE ELECTION . . . . . . . . . . . . . . . . . . . . .C
FORM OF BRIDGE NOTE . . . . . . . . . . . . . . . . . . . . . . . . .D
FORM OF REQUEST FOR BRIDGE LOAN ADVANCE AND RATE REQUEST. . . . . . .E
PERCENTAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F
<PAGE>
<PAGE> 8 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
LOAN AGREEMENT
--------------
THIS LOAN AGREEMENT ("Agreement") is made as of the 18th day
of July, 1994, among Comerica Bank, successor by merger to
Manufacturers Bank, N.A., formerly known as Manufacturers National
Bank of Detroit, NationsBank of North Carolina, N.A., formerly
known as NCNB National Bank of North Carolina, Berliner Handels-und
Frankfurter Bank KGaA, Signet Bank/Maryland, formerly known as
Union Trust Company of Maryland, CoreStates Bank, N.A., formerly
known as and continuing to do business under the name of The
Philadelphia National Bank, Bank Hapoalim, B.M., ABN AMRO Bank N.V.
New York Branch, Credit Lyonnais New York Branch, Meridian Bank,
Bank Leumi le-Israel, B.M. and Credit Suisse (individually, "Bank",
and collectively "Banks") Comerica Bank, as agent for the Banks (in
such capacity, "Agent") and Vishay Intertechnology, Inc., a
Delaware corporation ("Company").
RECITALS:
A. Company has requested that the Banks extend credit in
the form of the Acquisition Loans (as defined below) in the
aggregate amount of up to Two Hundred Million Dollars
($200,000,000), all on the terms set forth herein.
B. Pursuant to the Commitment Letter (as defined below),
the Banks are prepared to extend such credit as aforesaid, but only
on the terms and conditions set forth herein.
NOW THEREFORE, COMPANY, AGENT AND THE BANKS AGREE:
1. DEFINITIONS
For the purposes of this Agreement the following terms will
have the following meanings:
1.1 "Acquisition Loan(s)" shall mean the non-amortizing
Term Loan and the Bridge Loan to be advanced hereunder.
1.2 "Advance(s)" shall mean the borrowings requested by
Company and made by Banks under Sections 2.1 and 3.1 of this
Agreement, including any refundings or conversions of such
borrowings hereunder.
1.3 "Agent" shall mean Comerica Bank, a Michigan banking
corporation, successor by merger to Manufacturers Bank, N.A., or
any successor appointed in accordance with Section 12.4 hereof.
1.4 "Agent's Correspondent" shall mean, for Advances in
Eurodollars, Agent's Grand Cayman Branch (or for the account of
said branch office, at Agent's main office in Detroit, Michigan,
United States); or at such other bank or banks as Agent may from
time to time designate by written notice to Company and the Banks.
<PAGE>
<PAGE> 9 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
1.5 "Agent's Fees" shall mean those fees and expenses
required to be paid by Company to Agent under Section 12.8 hereof.
1.6 "Alternate Base Rate" shall mean, for any day, an
interest rate per annum equal to the Federal Funds Effective Rate
in effect on such day, plus one-half percent (1/2%).
1.7 "Alternative Currency" shall have the meaning specified
in the Vishay Loan Agreement.
1.8 "Applicable Fee Percentage" shall mean, as of any date
of determination thereof, the applicable percentage used to
calculate the fees due and payable hereunder, determined by
reference to the appropriate columns in the Pricing Matrix attached
to this Agreement as Schedule 1.8.
1.9 "Applicable Interest Rate" shall mean the Eurocurrency-
based Rate or the Prime-based Rate, as selected by Company from
time to time subject to the terms and conditions of this Agreement,
and, if elected by the Company pursuant to Section 2.11 hereof
(with respect to the Term Loan), the Fixed Rate.
1.10 "Applicable Margin" shall mean, as of any date of
determination thereof, the applicable interest rate margin,
determined by reference to the appropriate columns in the Pricing
Matrix attached to this Agreement as Schedule 1.8.
1.11 "Banks" shall mean Comerica Bank, successor by merger
to Manufacturers Bank, N.A., formerly known as Manufacturers
National Bank of Detroit ("Comerica"), NationsBank of North
Carolina, N.A., formerly known as NCNB National Bank of North
Carolina ("NationsBank"), Berliner Handels-und Frankfurter Bank
KGaA ("BHF"), Signet Bank/Maryland, formerly known as Union Trust
Company of Maryland ("Signet"), Bank Hapoalim, B.M. ("Hapoalim"),
CoreStates Bank, N.A., formerly known as and continuing to do
business under the name of Philadelphia National Bank, ABN AMRO
Bank N.V. New York Branch ("ABN-AMRO") Credit Lyonnais New York
Branch ("Credit Lyonnais"), Meridian Bank, Bank Leumi le-Israel,
B.M., Credit Suisse, and any assignee which becomes a Bank pursuant
to Section 13.8 hereof.
1.12 "Bridge Loan" shall mean the bridge loan in an
aggregate amount not to exceed One Hundred Million Dollars
($100,000,000) to be advanced by the Banks to the Company pursuant
to Section 3 of this Agreement.
1.13 "Bridge Loan Commitment Fee" shall mean the commitment
fee payable to Agent for distribution to the Banks pursuant to
Section 3.14 hereof.
1.14 "Bridge Loan Extension Fee" shall mean the extension
fee payable to Agent for distribution to the Banks pursuant to
<PAGE>
<PAGE> 10 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Section 3.13 hereof, consisting of Installments 1 through 4 as set
forth (and defined) in said Section 3.13.
1.15 "Bridge Loan Maturity Date" shall mean July 18, 1996.
1.16 "Bridge Notes" shall mean the bridge notes described in
Section 3.1 hereof, made by the Company to each of the Banks in the
form annexed to this Agreement as Exhibit "D".
1.17 "Business Day" shall mean any day on which commercial
banks are open for domestic and international business (including
dealings in foreign exchange) in Detroit, London, New York and
(except with respect to any Prime-based Advances) Frankfurt am
Main.
1.18 "Closing Fee" shall mean the remaining installment of
the up-front fee in the amount of $558,750 to be paid by Company to
the Agent and distributed to the Banks pursuant to the Commitment
Letter (and Section II of the Summary of Terms and Conditions
attached thereto), subject to a reduction in the aggregate amount
of $192,000 in the event, on or before the date of this Agreement
(by written notice to Agent), Company has cancelled the Banks'
commitments for funding the Acquisition Loans (such fee reduction
to be allocated among the Banks in accordance with the Commitment
Letter and the Summary of Terms and Conditions, as aforesaid).
1.19 "Commitment Letter" shall mean that certain commitment
letter dated June 28, 1994 and issued to the Company by the Agent,
for itself and for and on behalf of the Banks, with respect to the
credit to be amended, renewed, increased and/or extended under the
terms and conditions of this Agreement, the DM Loan Agreement, the
Roederstein Loan Agreement and the Vishay Loan Agreement.
1.20 "Company" shall mean Vishay Intertechnology, Inc., a
Delaware corporation.
1.21 "Default" shall mean any event which with the giving of
notice or the passage of time, or both, would constitute an Event
of Default under this Agreement.
1.22 "DM Loan Agreement" shall mean that certain Amended and
Restated Draloric/VBG DM 40,000,000 Revolving Credit and DM
9,506,000 Term Loan Agreement, dated as of the date hereof, among
VBG, the Banks and Agent, as amended from time to time.
1.23 "DM Loan Documents" shall mean the DM Loan Agreement
and all notes, guaranties and other security or loan documents
executed by VBG pursuant to or in connection with the DM Loan
Agreement.
1.24 "DM Revolving Credit" and "DM Term Loan" shall mean the
Revolving Credit and the Term Loan, respectively, as extended by
<PAGE>
<PAGE> 11 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
the Banks to VBG pursuant to the DM Loan Documents (and as defined
therein).
1.25 "Dollars" and the sign "$" shall mean lawful money
of the United States of America.
1.26 "Domestic Advance" shall mean any Advance other than a
Eurocurrency-based Advance.
1.27 "Domestic Guaranty" shall have the meaning specified in
the Vishay Loan Agreement.
1.28 "Domestic Subsidiaries" shall mean those Subsidiaries
of the Company which are chartered or incorporated under the laws
of the United States of America, or any state, territory,
possession or any political subdivision thereof.
1.29 "Draloric" shall mean Draloric Electronic, GmbH, a
German corporation, formerly known as Vishay Electronic, GmbH.
1.30 "Eurocurrency Adjusted Rate" shall mean the quotient
of:
(i) the per annum interest rate at which Agent's
Eurocurrency Lending Office offers deposits in
the relevant eurocurrency to United States
regional prime banks in the eurocurrency
market in an amount comparable to the relevant
Eurocurrency-based Advance and for a period
equal to the relevant Eurocurrency-Interest
Period at approximately 11:00 A.M. Detroit
time two (2) Business Days prior to the first
day of such Eurocurrency-Interest Period,
divided by
(ii) a percentage equal to 100% minus the maximum
rate on such date at which Agent is required
to maintain reserves on `Eurocurrency
Liabilities' as defined in and pursuant to
Regulation D of the Board of Governors of the
Federal Reserve System or, if such regulation
or definition is modified, and as long as
Agent is required to maintain reserves against
a category of liabilities which includes
eurocurrency deposits or includes a category
of assets which includes eurocurrency loans,
the rate at which such reserves are required
to be maintained on such category,
such sum to be rounded upward, if necessary, to the nearest whole
multiple of 1/16th of 1%.
<PAGE>
<PAGE> 12 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
1.31 "Eurocurrency-based Advance" shall mean any Advance
which bears interest at the Eurocurrency-based Rate.
1.32 "Eurocurrency-based Rate" shall mean a per annum
interest rate which is the Applicable Margin (subject in each case,
if applicable, to adjustment under Section 4.1 hereof) above (or
below) the Eurocurrency Adjusted Rate.
1.33 "Eurocurrency-Interest Period" shall mean an Interest
Period of one, two, three or six months as selected by Company, for
a Eurocurrency-based Advance pursuant to Section 2.9 or 3.9 hereof.
1.34 "Eurocurrency Lending Office" shall mean, (a) with
respect to the Agent, Agent's office located at its Grand Caymans
Branch or such other branch of Agent, domestic or foreign, as it
may hereafter designate as its Eurocurrency Lending Office by
notice to Company and the Banks and (b) as to each of the Banks,
its office, branch or affiliate located at its address set forth on
the signature pages hereof (or identified thereon as its
Eurocurrency Lending Office), or at such other office, branch or
affiliate of such Bank as it may hereafter designate as its
Eurocurrency Lending Office by notice to Company and Agent.
1.35 "Event of Default" shall mean each of the Events of
Default specified in Section 9.1 hereof.
1.36 "Excess Cash Flow" shall mean for any fiscal year
(using the terms contained in the Company's Consolidated financial
statements for its fiscal year ending December 31, 1993 and the
sources and uses statement contained in Company's 10-K Report filed
with the Federal Securities and Exchange Commission in respect of
such period), net cash provided by operating activities for such
fiscal year, less purchase of property and equipment for such
fiscal year, less principal payments on long-term debt for such
fiscal year (including all principal payments based on Excess Cash
Flow made on any Indebtedness pursuant to the Loan Agreements, if
any, during such fiscal year, but excluding all payments on the
Revolving Credit under the Vishay Loan Agreement, the Revolving
Credit under the DM Loan Agreement or any other revolving loan
facility utilized at any time by Company or any of its
Subsidiaries), all calculated based upon Company's annual
Consolidated financial statements required to be delivered to Agent
and the Banks under Section 7.3(b) of the Vishay Loan Agreement.
1.37 "Federal Funds Effective Rate" shall mean, for any day,
a fluctuating interest rate per annum equal to the weighted average
of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
<PAGE>
<PAGE> 13 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
transactions received by Agent from three Federal funds brokers of
recognized standing selected by it.
1.38 "Fees" shall mean the Bridge Loan Commitment Fee, the
Bridge Loan Extension Fee and the Agent's Fees.
1.39 "Fixed Rate" shall mean the per annum fixed rate of
interest for the Term Loan established by the Agent under Section
3.17 hereof, such rate to be based on (a) an average of the funding
cost of each of the Reference Banks on that date which is three (3)
Business Days prior to the effective date of the Company's election
of the Fixed Rate Option (subject to Section 3.11 hereof), as
determined by each such Reference Bank in the interbank swap market
for the weighted average life of the Term Loan then remaining, plus
(b) the Applicable Margin which would then be in effect for
Eurocurrency-based Rate Advances of the Term Loan if the Company
had selected such rate, subject to any applicable margin adjustment
under Section 4.1 hereof, giving immediate effect thereto based on
the most current quarterly financial statement delivered by the
Company under Section 7.3(b) or 7.3(c) hereof, as the case may be.
1.40 "Fixed Rate Option" shall mean the Company's right,
subject to and in accordance with Section 3.11 hereof, to elect the
Fixed Rate as the Applicable Interest Rate for the Term Loan.
1.41 "Fixed Rate Election" shall mean the Company's written
election of the Fixed Rate as the Applicable Interest Rate for the
Term Loan, submitted by the Company under Section 3.11 hereof, in
the form attached hereto as Exhibit "C."
1.42 "Foreign Subsidiaries" shall mean all of the Company's
Subsidiaries other than the Domestic Subsidiaries.
1.43 "Funding Expiration Date" shall mean the initial
Funding Expiration Date of October 18, 1994, subject to any
extension thereof in accordance with Section 3.3 of this Agreement.
1.44 "GAAP" shall mean generally accepted accounting
principles in the United States of America, as in effect from time
to time, applied on a consistent basis.
1.45 "Guaranties" shall mean the Company Guaranty, the
Domestic Guaranty, and the Permitted Borrowers Guaranty.
1.46 "hereof", "hereto", "hereunder" and similar terms shall
refer to this Agreement and not to any particular paragraph or
provision of this Agreement.
1.47 "HLT Determination" shall mean any determination by the
Agent or by the Majority Banks, or by applicable federal or state
regulatory authorities (including without limitation any central
bank or other governmental body having jurisdiction over any of the
<PAGE>
<PAGE> 14 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Banks) that the Indebtedness (or any specific loan facility or
portion thereof pursuant to this Agreement or the other Loan
Agreements) would be classified as a "highly-leveraged transaction"
or an "HLT" under applicable federal or state law, regulations or
guidelines in effect from time to time, provided that (a), with any
determination of HLT status by Agent or the Majority Banks, Agent
shall have given Company not less than thirty (30) days prior
written notice thereof, accompanied by a certificate setting forth
the basis for such determination (which shall be presumed correct
absent manifest error) and (b) with respect to any determination of
HLT status by a federal or state regulatory authority, Agent shall
have given written notice thereof to Company, accompanied by a copy
of such determination (if in writing).
1.48 "Indebtedness" shall mean all indebtedness and
liabilities, whether direct or indirect, absolute or contingent,
owing by Company to the Banks (or any of them) or to the Agent, in
any manner and at any time, under this Agreement or the Loan
Documents, whether evidenced by the Notes, arising under the DM
Loan Agreement (or any promissory notes issued thereunder), the
Roederstein Loan Agreement (or any promissory notes issued
thereunder), the Vishay Loan Agreement (or any promissory notes
issued thereunder), the Vishay Guaranty, the Domestic Guaranty, the
Permitted Borrowers Guaranty, or otherwise, due or hereafter to
become due, now owing or that may hereafter be incurred by the
Company or any of its Subsidiaries to, or acquired by, the Banks
(or any of them) or by Agent hereunder or thereunder, and any
judgments that may hereafter be rendered on such indebtedness or
any part thereof, with interest according to the rates and terms
specified, or as provided by law, and any and all consolidations,
amendments, renewals, replacements or extensions of any of the
foregoing.
1.49 "Interest Period" shall mean either a Eurocurrency-
Interest Period commencing on the day a Eurocurrency-based Advance
is made, or on the effective date of an election of the
Eurocurrency-based Rate made under Section 2.9 or 3.9, hereof,
provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the
next succeeding Business Day, except that as to a
Eurocurrency-Interest Period, if the next succeeding Business
Day falls in another calendar month, the Eurocurrency-Interest
Period shall end on the next preceding Business Day, and when
a Eurocurrency-Interest Period begins on a day which has no
numerically corresponding day in the calendar month during
which such Eurocurrency-Interest Period is to end, it shall
end on the last Business Day of such calendar month, and
<PAGE>
<PAGE> 15 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
(b) no Interest Period shall extend beyond the then
effective maturity date of the Note or Notes to which such
Interest Period is to apply.
1.50 "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time, and the regulations
promulgated thereunder.
1.51 "Lien" shall mean any pledge, assignment,
hypothecation, mortgage, security interest, deposit arrangement,
option, trust receipt, conditional sale or title retaining
contract, sale and leaseback transaction, or any other type of
lien, charge or encumbrance, whether based on common law, statute
or contract.
1.52 "Loan Agreements" shall mean this Agreement, the Vishay
Loan Agreement, the DM Loan Agreement, and the Roederstein Loan
Agreement.
1.53 "Loan Documents" shall mean collectively, this
Agreement, the Notes, the Guaranties, the DM Loan Documents, the
Roederstein Loan Documents, Vishay Loan Documents and any other
documents, instruments or agreements executed pursuant to or in
connection with any such document, this Agreement, the DM Loan
Agreement, the Roederstein Loan Agreement, or the Vishay Loan
Agreement, as such documents may be amended from time to time.
1.54 "Majority Banks" shall mean at any time Banks holding
66-2/3% of the aggregate principal amount of the Indebtedness then
outstanding under this Agreement and the other Loan Documents
(excluding any Bid Notes issued under Vishay Loan Agreement or the
DM Loan Agreement except upon the occurrence and during the
continuance of an Event of Default, provided that the Indebtedness
under any such Bid Notes shall not be included for purposes of
Section 9.2(w) hereof), or, if no such Indebtedness is then
outstanding, Banks holding 66-2/3% of the Percentages.
1.55 "Moody's Rating" shall mean the rating by Moody's
Investors Services, Inc. (or any successor thereto) of Company's
long-term, senior unsecured debt.
1.56 "New Banks" shall mean Credit Lyonnais and Credit
Suisse.
1.57 "Notes" shall mean the Term Notes or the Bridge Notes,
or any or all of the Term Notes and the Bridge Notes, as the
context indicates, and in the absence of such indication, all such
notes.
1.58 "Percentage" shall mean, with respect to any Bank, its
percentage share, as set forth on Exhibit "F", hereto, of the Term
<PAGE>
<PAGE> 16 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Loan and/or the Bridge Loan, as the context indicates, as such
Exhibit may be revised from time to time by Agent in accordance
with Section 13.8(d) of the Vishay Loan Agreement.
1.59 "Permitted Borrowers Guaranty" shall have the meaning
specified in the Vishay Loan Agreement.
1.60 "Permitted Company Encumbrances" shall mean, in
addition to Permitted Encumbrances, those liens and encumbrances of
the Company identified in Schedule 1.60, hereto.
1.61 "Permitted Encumbrances" shall mean, with respect to
any Person:
(a) the liens and encumbrances granted under or
established by this Agreement or the Loan Documents;
(b) liens for taxes not yet due and payable or
which are being contested in good faith by appropriate
proceedings diligently pursued, provided that such provision
for the payment of all such taxes known to such Person has
been made on the books of such Person as may be required by
GAAP;
(c) mechanics', materialmen's, banker's, carriers',
warehousemen's and similar liens and encumbrances arising in
the ordinary course of business and securing obligations of
such Person that are not overdue for a period of more than 60
days or are being contested in good faith by appropriate
proceedings diligently pursued, provided that in the case of
any such contest (i) any proceedings commenced for the
enforcement of such liens and encumbrances shall have been
duly suspended; and (ii) such provision for the payment of
such liens and encumbrances has been made on the books of such
Person as may be required by GAAP;
(d) liens arising in connection with worker's
compensation, unemployment insurance, old age pensions
(subject to the applicable provisions of this Agreement) and
social security benefits which are not overdue or are being
contested in good faith by appropriate proceedings diligently
pursued, provided that in the case of any such contest (i) any
proceedings commenced for the enforcement of such liens shall
have been duly suspended; and (ii) such provision for the
payment of such liens has been made on the books of such
Person as may be required by GAAP; and
(e) (i) liens incurred in the ordinary course of
business to secure the performance of statutory obligations
arising in connection with progress payments or advance
payments due under contracts with the United States or any
foreign government or any agency thereof entered into in the
<PAGE>
<PAGE> 17 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
ordinary course of business and (ii) liens incurred or
deposits made in the ordinary course of business to secure the
performance of statutory obligations, bids, leases, fee and
expense arrangements with trustees and fiscal agents and other
similar obligations (exclusive of obligations incurred in
connection with the borrowing of money, any lease-purchase
arrangements or the payment of the deferred purchase price of
property), provided that full provision for the payment of all
such obligations set forth in clauses (i) and (ii) has been made
on the books of such Person as may be required by GAAP; and
(f) any minor imperfections of title, including but
not limited to easements, covenants, rights-of-way or other
similar restrictions, which, either individually or in the
aggregate do not materially adversely affect the present or
future use of the property to which they relate, which would
have a material adverse effect on the sale or lease of such
property, or which would render title thereto unmarketable.
1.62 "Permitted Encumbrances of the Subsidiaries" shall
mean, in addition to Permitted Encumbrances, those liens and
encumbrances of the Subsidiaries identified in Schedule 1.62,
hereto.
1.63 "Permitted Transferee" shall mean a "Permitted
Transferee" as defined in the Company's current Certificate of 3
Incorporation, and any subsequent amendment of the definition of
such term approved by the Majority Banks.
1.64 "Person" shall mean an individual, corporation,
partnership, trust, incorporated or unincorporated organization,
joint venture, joint stock company, or a government or any agency
or political subdivision thereof or other entity of any kind.
1.65 "Prime Rate" shall mean the per annum interest rate
established by Agent as its prime rate for its borrowers as such
rate may vary from time to time, which rate is not necessarily the
lowest rate on loans made by Agent at any such time.
1.66 "Prime-based Advance" shall mean an Advance which bears
interest at the Prime-based Rate.
1.67 "Prime-based Rate" shall mean that rate of interest
which is the greater of (i) the Prime Rate or (ii) the Alternate
Base Rate, plus in each case the Applicable Margin (subject in each
case, if applicable, to adjustment under Section 4.1 hereof).
1.68 "Prior Banks" shall mean the Banks, other than the New
Banks.
<PAGE>
<PAGE> 18 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
1.69 "Rating Level" shall mean Rating Level 1, 2, 3 or 4 as
then in effect hereunder.
1.70 "Rating Level 1" shall mean an S & P rating of BBB+ (or
higher) and a Moody's rating of Baa1 (or higher).
1.71 "Rating Level 2" shall mean an S & P rating of BBB (or
higher) and a Moody's rating of Baa2 (or higher).
1.72 "Rating Level 3" shall mean an S & P rating of BBB- (or
higher) and a Moody's rating of Baa3 (or higher).
1.73 "Rating Level 4" shall mean the rating level (if any)
which exists whenever the Company does not qualify for Rating Level
1, Rating Level 2 or Rating Level 3.
1.74 "Reference Banks" shall mean Comerica, NationsBank and
BHF, or such other Banks as may be agreed to constitute the
"Reference Banks" by Company, Agent and the Majority Banks.
1.75 "Request for Bridge Loan Advance and Rate Request"
shall mean a request for advance and rate request issued by Company
(with respect to the Bridge Loan) under Section 3.9 of this
Agreement in the form annexed hereto as Exhibit "E".
1.76 "Request for Term Loan Advance and Rate Request" shall
mean a request for advance and rate request issued by the Company
(with respect to the Term Loan) under Section 2.9 of this Agreement
in the form annexed hereto as Exhibit "B".
1.77 "Roederstein Loan Agreement" shall mean that certain
Roederstein DM 104,315,990.20 Term Loan Agreement dated as of the
date hereof, among VBG, the Banks and Agent, as amended from time
to time.
1.78 "Roederstein Loan Documents" shall mean the Roederstein
Loan Agreement and all notes, and other loan documents (or any
assignments thereof) executed by VBG or any of its Subsidiaries
pursuant to or in connection with the Roederstein Loan Agreement,
as such documents may be amended from time to time.
1.79 "S & P Rating" shall mean the rating by Standard &
Poor's Corporation (or any successor thereto) of Company's long-
term, senior unsecured debt.
1.80 "Seller" shall mean Thomas & Betts Corporation, a New
Jersey Corporation.
1.81 "Shares", "share capital", "capital stock", "stock" and
words of similar import shall mean and refer to the equity capital
interest under applicable law of any Person in a corporation,
howsoever such interest is created or arises, whether such capital
<PAGE>
<PAGE> 19 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
consists of common stock, preferred stock or preference shares, or
other stock, and whether such capital is evidenced by a
certificate, share register entry or otherwise.
1.82 "Significant Domestic Subsidiaries" shall have the
meaning specified in the Vishay Loan Agreement.
1.83 "Significant Foreign Subsidiaries" shall have the
meaning specified in the Vishay Loan Agreement.
1.84 "Significant Subsidiaries" shall mean the Significant
Domestic Subsidiaries and the Significant Foreign Subsidiaries.
1.85 "Stock Purchase Agreement" shall mean that certain
stock purchase agreement dated as of July 12, 1994 entered into
between Seller (and certain of its subsidiaries), as sellers, and
the Company, as purchasers, as amended (subject to the terms
hereof), from time to time.
1.86 "Subsidiary(ies)" shall mean any other corporation,
association, joint stock company, or business trust of which more
than fifty percent (50%) of the outstanding voting stock is owned
either directly or indirectly by Company or one or more of its
Subsidiaries or by Company and one or more of its Subsidiaries, or
the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by Company
and/or its Subsidiaries.
1.87 "Target Company" shall mean Vitramon, Incorporated, a
Delaware corporation.
1.88 "Target Company Acquisition" shall mean the acquisition
by the Company, subject to the terms hereof, of all of the issued
and outstanding shares of stock of the Target Company for the price
and on the terms set forth in the Stock Purchase Agreement.
1.89 "Target Company Loan Documents" shall mean this
Agreement, and all notes and other loan documents executed by
Company or any of its Subsidiaries pursuant to or in connection
with the Target Company Loan Agreement, as such documents may be
amended from time to time.
1.90 "Term Loan" shall mean that certain non-amortizing term
loan in an aggregate amount not to exceed One Hundred Million
Dollars ($100,000,000) to be advanced by the Banks to the Company
pursuant to Section 2 of this Agreement.
1.91 "Term Loan Maturity Date" shall mean, July 18, 2001.
1.92 "Term Notes" shall mean the term notes described in
Section 2.1 hereof, made by Company to each of the Banks in the
form annexed to this Agreement as Exhibit "A".
<PAGE>
<PAGE> 20 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
1.93 "Vishay Guaranty" shall have the meaning specified in
the Vishay Loan Agreement.
1.94 "Vishay Loan Agreement" shall mean that certain Amended
and Restated Vishay Intertechnology, Inc. $302,500,000 Revolving
Credit and Term Loan Agreement dated as of the date hereof among
Vishay, Agent and the Banks, as amended from time to time.
1.95 "Vishay Loan Documents" shall mean this Agreement, the
Vishay Loan Agreement and all notes and other loan documents
executed by Company pursuant to or in connection with such Loan
Agreements as such documents may be amended from time to time.
1.96 "VBG" shall mean Vishay Beteiligungs GmbH, a German
corporation, formerly known as Draloric Electronic GmbH.
1.97 "Yield Maintenance Payment" shall mean the yield
maintenance payment required to be paid by the Company under
Section 3.13(b) hereof in connection with any prepayment of the
Term Loan following the Company's Fixed Rate Election hereunder.
Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings set forth in the Vishay Loan
Agreement.
2. TERM LOAN
2.1 Commitment. Subject to the terms and conditions of this
Agreement (including without limitation those conditions specified
or incorporated by reference in Section 6 hereof), each Bank,
severally and for itself alone, agrees to advance to the Company,
in a single Advance in Dollars on or before the Funding Expiration
Date, sums not to exceed in the aggregate such Bank's respective
Percentage of the Term Loan. Advances of the Term Loan shall be
evidenced by Term Notes executed and delivered by the Company to
each of the Banks concurrently herewith in the form attached hereto
as Exhibit "A" (with appropriate insertions acceptable to the Banks
in form and substance) and in the face amount of each Bank's
respective Percentage thereof. The commitment of the Banks to fund
the Term Loan shall expire and be of no further force and effect at
the close of Agent's business on the Funding Expiration Date, after
which date the Company shall no longer be entitled to the Advance
of the Term Loan.
2.2 Repayment of Principal. The Term Notes, and all
principal, interest and other sums outstanding thereunder, shall
mature and become due and payable in full on the Term Loan Maturity
Date. Subject to the terms hereof (including without limitation
acceleration under Section 9.2, below), no periodic installments of
principal shall be required under the Term Notes except to the
extent that Company is required to make principal payments based on
Excess Cash Flow under Section 2.3 hereof.
<PAGE>
<PAGE> 21 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
2.3 Excess Cash Flow Recapture. Until the Company's
election of the Fixed Rate in accordance with Section 2.11 hereof,
the Term Loan shall be subject to required principal reductions in
the amount of twenty-five percent (25%) of Excess Cash Flow, to be
applied pro rata to the Term Notes issued by the Company hereunder
(based on the principal amounts outstanding under such Notes at the
time any such payments are made hereunder), payable in respect of
each calendar year (or portion thereof) from 1994 through 2000, on
the earlier of (i) the respective dates of Company's delivery of
financial statements for such calendar years under Section 7.3(b)
of the Vishay Loan Agreement hereof or (ii) May 31st of the
succeeding year, as applicable, commencing on May 31, 1995 and on
each May 31st thereafter until the Term Loan Maturity Date;
provided, however, that payments of Excess Cash Flow under this
Section 2.3 shall be required only if (i) the Term Loan under the
Vishay Loan Agreement has been paid and discharged in full on or
before the applicable dates set forth above (and only to the extent
that twenty-five percent (25%) of Excess Cash Flow for the
applicable fiscal year has not been applied to reduce such Term
Loan in respect of such fiscal year) or if the Company has elected
the Fixed Rate as the Applicable Interest Rate for such Term Loan
under Section 3.1 thereof and (ii) if the Term Loan under the
Roederstein Loan Agreement has been paid and discharged in full on
or before the applicable dates set forth above (and only to the
extent that twenty-five percent (25%) of Excess Cash Flow for the
applicable fiscal year has not been applied to reduce such Term
Loan in respect of such fiscal year).
Principal reductions based on Excess Cash Flow shall be in addition
to any optional prepayments made prior thereto. There shall be no
readvance or re-borrowing of any principal reductions of the Term
Loan hereunder.
2.4 Accrual of Interest. Each Advance of Indebtedness
evidenced by the Term Notes from time to time outstanding hereunder
shall, from and after the date of such Advance, bear interest at
its Applicable Interest Rate. The amount and date of each Advance,
its Applicable Interest Rate, its Interest Period, and the amount
and date of any repayment shall be noted on Agent's records, which
records will be conclusive evidence thereof, absent manifest error.
2.5 Prime-based Interest Payments. Interest on the unpaid
balance of Indebtedness evidenced by the Term Notes which is funded
or carried as a Prime-based Advance from time to time shall accrue
from the date of such Advance to the Term Loan Maturity Date (or
until refunded, converted or paid), at a per annum interest rate
equal to the Prime-based Rate, and shall be payable in immediately
available funds quarterly commencing on the last day of the
calendar quarter in which the Advance under the applicable Term
Notes is made, and continuing on the last day of each calendar
quarter thereafter until the Term Loan Maturity Date. Interest
accruing at the Prime-based Rate shall be computed on the basis of
<PAGE>
<PAGE> 22 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
a 360-day year and assessed for the actual number of days elapsed,
and in such computation effect shall be given to any change in the
interest rate resulting from a change in the Prime-based Rate on
the date of such change in the Prime-based Rate.
2.6 Eurocurrency-based Interest Payments. Interest on
Indebtedness evidenced by the Term Notes which is funded or carried
as a 1-month, 2-month and 3-month Eurocurrency-based Advance from
time to time shall accrue at its Applicable Interest Rate and shall
be payable in immediately available funds on the last day of the
Interest Period applicable thereto. Interest on Indebtedness
evidenced by the Term Notes which is funded or carried as a 6-month
Eurocurrency-based Advance outstanding from time to time shall be
payable in immediately available funds at intervals of 3 months
after the first day of the applicable Interest Period, and on the
last day of the applicable Interest Period. Interest accruing at
the Eurocurrency-based Rate shall be computed on the basis of a
360-day year and assessed for the actual number of days elapsed
from the first day of the Interest Period applicable thereto to,
but not including, the last day thereof.
2.7 Interest Payments on Conversions. Notwithstanding
anything to the contrary in the preceding Sections, all accrued and
unpaid interest on any Advance of the Term Loan converted pursuant
to Section 2.9 hereof shall be due and payable in full on the date
such Advance of the Term Loan is converted.
2.8 Interest on Default. In the event and so long as any
Event of Default shall exist under any Term Note or under this
Agreement, interest shall be payable daily on all Advances
evidenced by the Term Notes from time to time outstanding at a per
annum rate equal to the Applicable Interest Rate, plus three
percent (3%) for the remainder of the then existing Interest
Period, if any, and at all other such times, with respect to
Domestic Advances from time to time outstanding, at a per annum
rate equal to the Prime-based Rate plus three percent (3%), and,
with respect to Eurocurrency-based Advances from time to time
outstanding under the Term Notes, (i) at a per annum rate
calculated by the Agent, whose determination shall be conclusive
absent manifest error, on a daily basis, equal to three percent
(3%) above the interest rate per annum at which one (1) day
deposits (or, if such amount due remains unpaid for more than three
(3) Business Days, then for such other period of time as the Agent
may elect which shall in no event be longer than six (6) months) in
the relevant eurocurrency in the amount of such overdue payment due
to the Agent are offered by the Eurocurrency Lending Office for the
applicable period determined as provided above, or (ii) if at any
such time such deposits are not offered by the Eurocurrency Lending
Office, then at a rate per annum equal to three percent (3%) above
the rate determined by the Agent to be its aggregate marginal cost
(including the cost of maintaining any required reserves or deposit
insurance) of carrying the amount of such Eurocurrency Advance.
<PAGE>
<PAGE> 23 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
2.9 Requests for and Refundings and Conversions of
Advances. Company may request the Advance of the Term Loan and,
until the exercise of the Fixed Rate Option, refund any Advance of
the Term Loan in the same type of Advance or convert any Advance of
the Term Loan to any other type of Advance of the Term Loan only
after delivery to Agent of a Request for Term Loan Advance and Rate
Request executed by an authorized officer of Company and subject to
the following:
(a) each such Request for Term Loan Advance and
Rate Request shall set forth the information required on the
Request for Advance form annexed hereto as Exhibit "B",
including without limitation:
(i) the proposed date of Advance, which must be a
Business Day;
(ii) whether the Advance is a refunding or
conversion of an outstanding Advance; and
(iii) whether such Advance is to be a Prime-based
Advance or a Eurocurrency-based Advance, and,
except in the case of a Prime-based Advance,
the first Interest Period applicable thereto.
(b) each such Request for Term Loan Advance and
Rate Request shall be delivered to Agent by 12 Noon (Detroit
time) four (4) Business Days prior to the proposed date of
Advance, except in the case of a Prime-based Advance, for
which the Request for Advance must be delivered by 11 a.m. on
the proposed date of Advance;
(c) the principal amount of such Advance, plus the
amount of any other outstanding Indebtedness evidenced by the
Term Notes to be then combined therewith having the same
Applicable Interest Rate and Interest Period, if any, shall be
(i) in the case of a Prime-based Advance at least One Million
Dollars ($1,000,000) and (ii) in the case of a Eurocurrency-
based Advance at least Five Million Dollars ($5,000,000);
(d) no Advance shall have an Interest Period ending
after the Term Loan Maturity Date.
(e) upon completion of the Advance there shall be
no more than one (1) Interest Period and one (1) Applicable
Interest Rate (including the Prime-based Rate) with respect to
Indebtedness evidenced by the Term Notes;
(f) a Request for Term Loan Advance and Rate
Request, once delivered to Agent, shall not be revocable by
Company;
<PAGE>
<PAGE> 24 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
(g) each Request for Term Loan Advance and Rate
Request shall constitute and include a certification by the
Company as of the date thereof that:
(i) both before and after the Advance, the
obligations of the Company and its
Subsidiaries set forth in this Agreement and
the Loan Documents to which such Persons are
parties are valid, binding and enforceable
obligations of the Company and its
Subsidiaries, as the case may be;
(ii) all conditions to Advances of the Term Loan
have been satisfied, and shall remain
satisfied to the date of Advance;
(iii) there is no Default or Event of Default in
existence, and none will exist upon the making
of the Advance;
(iv) the representations and warranties contained
in this Agreement and the Loan Documents are
true and correct in all material respects and
shall be true and correct in all material
respects as of the making of the Advance; and
(v) the execution of the Request for Advance will
not violate the material terms and conditions
of any material contract, agreement or other
borrowing of Company or any of its
Subsidiaries;
(h) each Request for Term Loan Advance, and Rate
Request shall be accompanied by such documents, instruments
and other materials required hereunder or otherwise necessary
to evidence satisfaction of all conditions to Advances of the
Term Loan.
In the event with respect to any Advance Company shall fail to
timely exercise its option in accordance with this Section 2.9,
then the principal amount thereof which is not then prepaid shall
be converted to a Prime-based Advance in accordance with Section
2.12 hereof (Agent to notify Company promptly of the occurrence
thereof).
2.10 Disbursement of Advances.
(a) Upon receiving any Request for Term Loan
Advance and Rate Request from Company in compliance with
Section 2.9 hereof, Agent shall promptly notify each Bank by
wire, telex or by telephone (confirmed by wire, telecopy or
telex) of the amount of such Advance to be made and the date
<PAGE>
<PAGE> 25 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
such Advance is to be made by said Bank pursuant to its
Percentage of the Advance. Unless such Bank's commitment to
make Advances hereunder shall have been suspended or
terminated in accordance with this Agreement, each Bank shall
make available to Agent the amount of its Percentage of the
Advance in immediately available funds, as follows:
(i) for Prime-based Advances, at the office of
Agent located at One Detroit Center, 500
Woodward Avenue, Detroit, Michigan 48226, not
later than 2:00 p.m. (Detroit time) on the
date of such Advance; and
(ii) for Eurocurrency-based Advances, at the
Agent's Correspondent for the account of the
Eurocurrency Lending Office of the Agent, not
later than 12 Noon (the time of the Agent's
Correspondent) on the date of such Advance.
(b) Subject to submission of an executed Request
for Term Loan Advance and Rate Request by Company without
exceptions noted in the compliance certification therein,
Agent shall make available to Company the aggregate of the
amounts, in Dollars, so received by it from the Banks in like
funds:
(i) for Prime-based Advances, not later than 4:00
p.m. (Detroit time) on the date of such
Advance by deposit to an account of the
Company maintained with Agent, or to such
other account or third party as Company may
reasonably direct;
(ii) for Eurocurrency-based Advances, not later
than 4:00 p.m. (the time of the Agent's
Correspondent) on the date of such Advance, by
deposit to an account of the Company
maintained with Agent's Correspondent, or to
such other account or third party as Company
may reasonably direct.
(c) Agent shall deliver the documents and papers
received by it for the account of each Bank to such Bank or
upon its order. Unless Agent shall have been notified by any
Bank prior to the date of any proposed Advance that such Bank
does not intend to make available to Agent such Bank's
Percentage of the Advance, Agent may assume that such Bank has
made such amount available to Agent on such date, as aforesaid
and may, in reliance upon such assumption, make available to
Company a corresponding amount. If such amount is not in fact
made available to Agent by such Bank, as aforesaid, Agent
shall be entitled to recover such amount on demand from such
<PAGE>
<PAGE> 26 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Bank. If such Bank does not pay such amount forthwith upon
Agent's demand therefor, the Agent shall promptly notify
Company and Company shall pay such amount to Agent. Agent
shall also be entitled to recover from such Bank or Company,
as the case may be, interest on such amount in respect of each
day from the date such amount was made available by Agent to
Company to the date such amount is recovered by Agent, at a
rate per annum equal to:
(i) in the case of such Bank, with respect to
Prime-based Advances, the Federal Funds
Effective Rate, and with respect to
Eurocurrency-based Advances, Agent's aggregate
marginal cost (including the cost of
maintaining any required reserves or deposit
insurance and of any fees, penalties,
overdraft charges or other costs or expenses
incurred by Agent as a result of such failure
to deliver funds hereunder) of carrying such
amount; and
(ii) in the case of Company, the rate of interest
then applicable to the Term Loan.
The obligation of any Bank to make any Advance hereunder shall
not be affected by the failure of any other Bank to make any
Advance hereunder, and no Bank shall have any liability to the
Company or its Subsidiaries, the Agent, any other Bank, or any
other party for another Bank's failure to make any loan or
Advance hereunder.
2.11 Fixed Rate Election. (a) The Fixed Rate Election shall
set forth the information required on the Fixed Rate Election form
attached hereto as Exhibit "C" and shall constitute Company's
certification that the conditions required under subparagraph (c),
below, have been satisfied and that Company is entitled to elect
the Fixed Rate hereunder;
(b) The Fixed Rate Election shall be delivered to Agent
by 11:00 a.m. (Detroit time) not less than five (5) nor
greater than ten (10) Business Days prior to the proposed
effective date of such election, and once delivered to Agent
by the Company, shall not be revocable by Company;
(c) In order for the Fixed Rate to become effective,
the following conditions shall be satisfied by the Company
(unless waived by the Banks) on or before the proposed
effective date of the Fixed Rate Election, and shall remain
satisfied on the actual effective date thereof:
(i) As of the proposed effective date of
the Fixed Rate Election, and as of the
<PAGE>
<PAGE> 27 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
actual effective date thereof, no
Eurocurrency-based Advance of the Term
Loan shall be outstanding;
(ii) All accrued interest outstanding under
the Term Notes as of the effective date
of the Fixed Rate Election has been paid
and discharged in full;
(iii) both before and after the effective date
of such election, the obligations of
Company set forth in this Agreement are
valid, binding and enforceable
obligations of Company;
(iv) there is no Default or Event of Default
in existence, and none will exist upon
the effective date of such election;
and
(v) the execution of such election will not
violate the terms and conditions of any
material contract, agreement or other
borrowing of Company or any of its
Subsidiaries;
(d) Subject to the foregoing, the Fixed Rate Election
shall become effective (and the Fixed Rate shall become the
Applicable Interest Rate for the Term Loan) on the proposed
effective date of the Fixed Rate Election, as specified by the
Company, whereupon Agent will notify Company and the Banks
promptly of the Fixed Rate established by it hereunder. If a
Fixed Rate Election has been submitted by Company hereunder,
the Prime-base Rate shall be the only rate available to
Company for the refunding or conversion of outstanding
Advances of the Term Loan after such submission.
(e) Company shall be entitled to deliver only one
Fixed Rate Election for the Term Loan while this
Agreement is in effect, and once so elected, the Fixed
Rate shall, subject to the terms hereof, remain the
Applicable Interest Rate for the Term Loan so long as the
Term Loan is outstanding hereunder.
(f) Interest accruing at the Fixed Rate shall be
payable in immediately available funds quarterly
commencing on the last day of the calendar quarter in
which the Fixed Rate Election shall have been made by the
Company, and continuing on the last day of each calendar
quarter thereafter until the Term Loan Maturity Date,
shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed. In the
<PAGE>
<PAGE> 28 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
event and so long as any Event of Default shall exist
under any Term Note or under the Vishay Loan Agreement or
any of the other Loan Documents, interest shall be
payable daily on the Indebtedness evidenced by the Term
Notes from time to time outstanding at a per annum rate
equal to the Fixed Rate, plus three percent (3%).
2.12 Prime-based Advance in Absence of Election or Upon
Default. If, as to any outstanding Eurocurrency-based Advance,
Agent has not received payment on the last day of the Interest
Period applicable thereto, or does not receive a timely Request for
Term Loan Advance and Rate Request meeting the requirements of
Section 2.9 with respect to the refunding or conversion of such
Advance, or if on such day a Default or Event of Default shall have
occurred and be continuing, the principal amount thereof which is
not then prepaid in the case of a Eurocurrency-based Advance shall
be converted automatically to a Prime-based Advance and the Agent
shall thereafter promptly notify Company of said action.
2.13 Prepayment. (a) Company may prepay all or part of the
outstanding balance of any Prime-based Advance(s) under its Term
Notes at any time (subject to not less than one (1) Business Day's
notice to Agent), provided that the amount of any partial
prepayment by such party shall be at least One Million Dollars
($1,000,000) and the aggregate balance of Prime-based Advance(s)
remaining outstanding on such Notes shall be at least One Million
Dollars ($1,000,000). Company may prepay all or part of any
Eurocurrency-based Advance (subject to not less than three (3)
Business Days' notice to Agent) only on the last day of the
Interest Period applicable thereto, provided that the amount of any
such partial prepayment by such party shall be at least One Million
Dollars ($1,000,000), and the unpaid portion of such Advance which
is refunded or converted by such party under Section 2.9 hereof
shall be at least Five Million Dollars ($5,000,000). Furthermore,
no such prepayment may be made using funds advanced, directly or
indirectly, by the Banks under this Agreement or the DM Loan
Agreement. Upon Agent's request in connection with any prepayment,
Company shall provide evidence satisfactory to the Majority Banks
that the source of funding for such prepayment consists of new
equity, surplus cash (not the result of any Advance under this
Agreement) or otherwise was not derived, directly or indirectly,
from any Advance hereunder. Any prepayment made in accordance with
this Section shall be without premium or penalty (subject to
Section 10 hereof), but there shall be no readvance or reborrowing
of any principal reductions of the Term Loan (whether or not such
principal reductions constitute prepayments).
(b) Once the Fixed Rate becomes the applicable Interest
Rate for the Term Loan hereunder, at its option and upon not less
than five (5) business days prior written notice to Agent, Company
may prepay the principal balance outstanding under the Term Loan in
whole or in part (in amounts of not less than Five Million Dollars
<PAGE>
<PAGE> 29 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
($5,000,000) only upon payment to the Agent, for distribution to
the Banks pro rata, of a Yield Maintenance Payment in an amount
calculated by Agent to make the Banks whole (to the extent of the
interest which would have been earned by the Banks but for the
occurrence of such prepayment) on the basis of the discounted net
present values of the interest payments that would otherwise be
payable on the principal amount of the Term Loan being prepaid,
after taking into account the amount of interest which would be
payable on each interest payment due date if the principal amount
being repaid were reinvested at the Current Market Rate (defined
below).
As used herein, "Current Market Rate" shall mean a per annum
interest rate equal to one-half percentage point (.5%) above the
rate reasonably determined by Agent (based on quotations from
established dealers) to be in effect two (2) days prior to the
repayment date in the secondary market for United States Treasury
Securities of a comparable amount and with a comparable term to
maturity as the principal amount being prepaid hereunder. For
purposes of computation, the discount rate for each computation
will be the Current Market Rate for the relevant principal
installment.
Upon any involuntary prepayment of the Term Loan hereunder, whether
by acceleration, or otherwise, the Company shall pay to Agent, for
distribution to the Banks pro rata, a Yield Maintenance Payment in
an amount equal to the Yield Maintenance Payment which would have
been due and payable hereunder if the Company had voluntarily
elected to prepay the Term Loan (in an amount equal to such
involuntary prepayment) on such date of involuntary prepayment.
2.14 Use of Term Loan Proceeds. The proceeds of the Term
Loan shall be used by the Company solely for the purpose of funding
amounts required to be paid by it for or in connection with the
Target Company Acquisition, including without limitation provision
for transfer taxes, stamp duties and brokerage fees resulting
directly from such Acquisition.
3. BRIDGE LOAN
3.1 Commitment. Subject to the terms and conditions of this
Agreement (including without limitation those conditions specified
or incorporated by reference in Section 6 hereof) and subject to
the prior or concurrent Advance, in its entirety, of the Term Loan
under Section 2 hereof, each Bank, severally and for itself alone,
agrees to advance to the Company, in a single Advance in Dollars on
or before Agent's close of business on the Funding Expiration Date,
sums not to exceed in the aggregate such Bank's respective
Percentage of the Bridge Loan. Advances of the Bridge Loan shall be
evidenced by Bridge Notes executed and delivered by the Company to
each of the Banks concurrently herewith in the form attached hereto
as Exhibit "D" (with appropriate insertions acceptable to the Banks
<PAGE>
<PAGE> 30 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
in form and substance) and in the face amount of each Bank's
respective Percentage thereof. The commitment of the Banks to fund
the Bridge Loan shall expire and be of no further force and effect
at the close of Agent's business on the Funding Expiration Date
(subject to Section 3.3 hereof), after which date the Company shall
no longer be entitled to the Advance of the Bridge Loan.
3.2 Repayment of Principal. The Bridge Notes, and all
principal, interest and other sums outstanding thereunder, shall
mature and become due and payable in full on the Bridge Loan
Maturity Date. Subject to the terms hereof (including without
limitation acceleration under Section 9.2, below), no periodic
installments of principal shall be required under the Bridge Notes.
There shall be no readvance or reborrowing of any principal
reductions of the Bridge Loan.
3.3 Extension of Funding Expiration Date. So long as no
Default or Event of Default has occurred and is continuing on the
date of its request therefor (or upon the effective date of any
such extension), the Company may extend the initial Funding
Expiration Date, or any succeeding Funding Expiration Date as
extended hereunder, upon written notice to Agent prior to the
Funding Expiration Date then in effect, as follows:
(a) From October 18, 1994 to January 18, 1995,
provided that Installment 1 of the Bridge Loan Extension Fee
has been paid or is paid concurrently with such request for
extension;
(b) From January 18, 1995 to April 18, 1995,
provided that Installment 2 of the Bridge Loan Extension Fee
has been paid or is paid concurrently with such request;
(c) From April 18, 1995 to July 18, 1995, provided
that Installment 3 of the Bridge Loan Extension Fee has been
paid or is paid concurrently with such request; and
(d) From July 18, 1995 to July 18, 1996, provided
that Installment 4 of the Bridge Loan Extension Fee has been
paid or is paid concurrently with such request.
3.4 Accrual of Interest. Each Advance of Indebtedness
evidenced by the Bridge Notes from time to time outstanding
hereunder shall, from and after the date of such Advance, bear
interest at its Applicable Interest Rate. The amount and date of
each Advance, its Applicable Interest Rate, its Interest Period,
and the amount and date of any repayment shall be noted on Agent's
records, which records will be conclusive evidence thereof, absent
manifest error.
3.5 Prime-based Interest Payments. Interest on the unpaid
balance of Indebtedness evidenced by the Bridge Notes which is
<PAGE>
<PAGE> 31 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
funded or carried as a Prime-based Advance from time to time shall
accrue from the date of such Advance to the Bridge Loan Maturity
Date (or until refunded, converted or paid), at a per annum
interest rate equal to the Prime-based Rate, and shall be payable
in immediately available funds quarterly commencing on the last day
of the calendar quarter in which the Advance under the applicable
Bridge Notes is made, and continuing on the last day of each
calendar quarter thereafter until the Bridge Loan Maturity Date.
Interest accruing at the Prime-based Rate shall be computed on the
basis of a 360-day year and assessed for the actual number of days
elapsed, and in such computation effect shall be given to any
change in the interest rate resulting from a change in the Prime-
based Rate on the date of such change in the Prime-based Rate.
3.6 Eurocurrency-based Interest Payments. Interest on
Indebtedness evidenced by the Bridge Notes which is funded or
carried as a 1-month, 2-month and 3-month Eurocurrency-based
Advance from time to time shall accrue at its Applicable Interest
Rate and shall be payable in immediately available funds on the
last day of the Interest Period applicable thereto. Interest on
Indebtedness evidenced by the Bridge Notes which is funded or
carried as a 6-month Eurocurrency-based Advance outstanding from
time to time shall be payable in immediately available funds at
intervals of 3 months after the first day of the applicable
Interest Period, and on the last day of the applicable Interest
Period. Interest accruing at the Eurocurrency-based Rate shall be
computed on the basis of a 360-day year and assessed for the actual
number of days elapsed from the first day of the Interest Period
applicable thereto to, but not including, the last day thereof.
3.7 Interest Payments on Conversions. Notwithstanding
anything to the contrary in the preceding Sections, all accrued and
unpaid interest on any Advance of the Bridge Loan converted
pursuant to Section 3.9 hereof shall be due and payable in full on
the date such Advance of the Bridge Loan is converted.
3.8 Interest on Default. In the event and so long as any
Event of Default shall exist under any Bridge Note or under this
Agreement, interest shall be payable daily on all Advances
evidenced by the Bridge Notes from time to time outstanding at a
per annum rate equal to the Applicable Interest Rate, plus three
percent (3%) for the remainder of the then existing Interest
Period, if any, and at all other such times, with respect to
Domestic Advances from time to time outstanding, at a per annum
rate equal to the Prime-based Rate plus three percent (3%), and,
with respect to Eurocurrency-based Advances from time to time
outstanding under the Bridge Notes, (i) at a per annum rate
calculated by the Agent, whose determination shall be conclusive
absent manifest error, on a daily basis, equal to three percent
(3%) above the interest rate per annum at which one (1) day
deposits (or, if such amount due remains unpaid for more than three
(3) Business Days, then for such other period of time as the Agent
<PAGE>
<PAGE> 32 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
may elect which shall in no event be longer than six (6) months) in
the relevant eurocurrency in the amount of such overdue payment due
to the Agent are offered by the Eurocurrency Lending Office for the
applicable period determined as provided above, or (ii) if at any
such time such deposits are not offered by the Eurocurrency Lending
Office, then at a rate per annum equal to three percent (3%) above
the rate determined by the Agent to be its aggregate marginal cost
(including the cost of maintaining any required reserves or deposit
insurance) of carrying the amount of such Eurocurrency Advance.
3.9 Request for and Refundings and Conversions of Advances.
Company may request the Advance of the Bridge Loan, refund any
Advance of the Bridge Loan in the same type of Advance or convert
any Advance of the Bridge Loan to any other type of Advance of the
Bridge Loan only after delivery to Agent of a Request for Bridge
Loan Advance and Rate Request executed by an authorized officer of
Company and subject to the following:
(a) each such Request for Bridge Loan Advance and
Rate Request shall set forth the information required on the
Request for Advance form annexed hereto as Exhibit "E",
including without limitation:
(i) the proposed date of Advance, which must be a
Business Day;
(ii) whether the Advance is a refunding or
conversion of an outstanding Advance; and
(iii) whether such Advance is to be a Prime-based
Advance or a Eurocurrency-based Advance, and,
except in the case of a Prime-based Advance,
the first Interest Period applicable thereto.
(b) each such Request for Bridge Loan Advance and
Rate Request shall be delivered to Agent by 12 Noon (Detroit
time) four (4) Business Days prior to the proposed date of
Advance, except in the case of a Prime-based Advance, for
which the Request for Advance must be delivered by 11 a.m. on
the proposed date of Advance;
(c) the principal amount of such Advance, plus the
amount of any other outstanding Indebtedness evidenced by the
Bridge Notes to be then combined therewith having the same
Applicable Interest Rate and Interest Period, if any, shall be
(i) in the case of a Prime-based Advance at least One Million
Dollars ($1,000,000) and (ii) in the case of a Eurocurrency-
based Advance at least Five Million Dollars ($5,000,000);
(d) no Advance shall have an Interest Period ending
after the Bridge Loan Maturity Date. In the event with respect
to any Advance Company shall fail to timely exercise its
<PAGE>
<PAGE> 33 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
option in accordance with this Section 3.9, then the principal
amount thereof which is not then prepaid shall be converted to
a Prime-based Advance in accordance with Section 3.11 hereof
(Agent to notify Company promptly of the occurrence thereof);
(e) upon completion of the Advance there shall be
no more than one (1) Interest Period and one (1) Applicable
Interest Rate (including the Prime-based Rate) with respect to
Indebtedness evidenced by the Bridge Notes;
(f) a Request for Bridge Loan Advance and Rate
Request, once delivered to Agent, shall not be revocable by
Company;
(g) each Request for Bridge Loan Advance and Rate
Request shall constitute and include a certification by the
Company as of the date thereof that:
(i) both before and after the Advance, the
obligations of the Company and its
Subsidiaries set forth in this Agreement and
the Loan Documents to which such Persons are
parties are valid, binding and enforceable
obligations of the Company and its
Subsidiaries, as the case may be;
(ii) all conditions to Advances of the Bridge Loan
have been satisfied, and shall remain
satisfied to the date of Advance;
(iii) there is no Default or Event of Default in
existence, and none will exist upon the making
of the Advance;
(iv) the representations and warranties contained
in this Agreement and the Loan Documents are
true and correct in all material respect and
shall be true and correct in all material
respects as of the making of the Advance; and
(v) the execution of the Request for Advance will
not violate the material terms and conditions
of any material contract, agreement or other
borrowing of Company or any of its
Subsidiaries;
(h) each Request for Bridge Loan Advance, and Rate
Request shall be accompanied by such documents, instruments
and other materials required hereunder or otherwise necessary
to evidence satisfaction of all conditions to Advances of the
Bridge Loan.
<PAGE>
<PAGE> 34 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
3.10 Disbursement of Advances.
------------------------
(a) Upon receiving any Request for Bridge Loan
Advance and Rate Request from Company in compliance with
Section 3.9 hereof, Agent shall promptly notify each Bank by
wire, telex or by telephone (confirmed by wire, telecopy or
telex) of the amount of such Advance to be made and the date
such Advance is to be made by said Bank pursuant to its
Percentage of the Advance. Unless such Bank's commitment to
make Advances hereunder shall have been suspended or
terminated in accordance with this Agreement, each Bank shall
make available to Agent the amount of its Percentage of the
Advance in immediately available funds, as follows:
(i) for Prime-based Advances, at the office of
Agent located at One Detroit Center, 500
Woodward Avenue, Detroit, Michigan 48226, not
later than 2:00 p.m. (Detroit time) on the
date of such Advance; and
(ii) for Eurocurrency-based Advances, at the
Agent's Correspondent for the account of the
Eurocurrency Lending Office of the Agent, not
later than 12 Noon (the time of the Agent's
Correspondent) on the date of such Advance.
(b) Subject to submission of an executed Request
for Bridge Loan Advance and Rate Request by Company without
exceptions noted in the compliance certification therein,
Agent shall make available to Company the aggregate of the
amounts, in Dollars, so received by it from the Banks in like
funds:
(i) for Prime-based Advances, not later than 4:00
p.m. (Detroit time) on the date of such
Advance by deposit to an account of the
Company maintained with Agent, or to such
other account or third party as Company may
reasonably direct;
(ii) for Eurocurrency-based Advances, not later
than 4:00 p.m. (the time of the Agent's
Correspondent) on the date of such Advance, by
deposit to an account of the Company
maintained with Agent's Correspondent, or to
such other account or third party as Company
may reasonably direct.
(c) Agent shall deliver the documents and papers
received by it for the account of each Bank to such Bank or
upon its order. Unless Agent shall have been notified by any
Bank prior to the date of any proposed Advance that such Bank
<PAGE>
<PAGE> 35 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
does not intend to make available to Agent such Bank's
Percentage of the Advance, Agent may assume that such Bank has
made such amount available to Agent on such date, as aforesaid
and may, in reliance upon such assumption, make available to
Company a corresponding amount. If such amount is not in fact
made available to Agent by such Bank, as aforesaid, Agent
shall be entitled to recover such amount on demand from such
Bank. If such Bank does not pay such amount forthwith upon
Agent's demand therefor, the Agent shall promptly notify
Company and Company shall pay such amount to Agent. Agent
shall also be entitled to recover from such Bank or Company,
as the case may be, interest on such amount in respect of each
day from the date such amount was made available by Agent to
Company to the date such amount is recovered by Agent, at a
rate per annum equal to:
(i) in the case of such Bank, with respect to
Prime-based Advances, the Federal Funds
Effective Rate, and with respect to
Eurocurrency-based Advances, Agent's aggregate
marginal cost (including the cost of
maintaining any required reserves or deposit
insurance and of any fees, penalties,
overdraft charges or other costs or expenses
incurred by Agent as a result of such failure
to deliver funds hereunder) of carrying such
amount; and
(ii) in the case of Company, the rate of interest
then applicable to the Bridge Loan.
The obligation of any Bank to make any Advance hereunder shall
not be affected by the failure of any other Bank to make any
Advance hereunder, and no Bank shall have any liability to the
Company or its Subsidiaries, the Agent, any other Bank, or any
other party for another Bank's failure to make any loan or
Advance hereunder.
3.11 Prime-based Advance in Absence of Election or Upon
Default. If, as to any outstanding Eurocurrency-based Advance,
Agent has not received payment on the last day of the Interest
Period applicable thereto, or does not receive a timely Request for
Term Loan Advance and Rate Request meeting the requirements of
Section 3.9 with respect to the refunding or conversion of such
Advance, or if on such day a Default or Event of Default shall have
occurred and be continuing, the principal amount thereof which is
not then prepaid in the case of a Eurocurrency-based Advance shall
be converted automatically to a Prime-based Advance and the Agent
shall thereafter promptly notify Company of said action.
3.12 Prepayment. Company may prepay all or part of the
outstanding balance of any Prime-based Advance(s) under its Bridge
<PAGE>
<PAGE> 36 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Notes at any time (subject to not less than one (1) Business Day's
notice to Agent), provided that the amount of any partial
prepayment by such party shall be at least One Million Dollars
($1,000,000) and the aggregate balance of Prime-based Advance(s)
remaining outstanding on such Notes shall be at least One Million
Dollars ($1,000,000). Company may prepay all or part of any
Eurocurrency-based Advance (subject to not less than three (3)
Business Days' notice to Agent) only on the last day of the
Interest Period applicable thereto, provided that the amount of any
such partial prepayment by such party shall be at least One Million
Dollars ($1,000,000), and the unpaid portion of such Advance which
is refunded or converted by such party under Section 3.9 hereof
shall be at least Five Million Dollars ($5,000,000). Furthermore,
no such prepayment may be made using funds advanced, directly or
indirectly, by the Banks under this Agreement or the DM Loan
Agreement. Upon Agent's request in connection with any prepayment,
Company shall provide evidence satisfactory to the Majority Banks
that the source of funding for such prepayment consists of new
equity, surplus cash (not the result of any Advance under this
Agreement) or otherwise was not derived, directly or indirectly,
from any Advance hereunder. Any prepayment made in accordance with
this Section shall be without premium or penalty (subject to
Section 10 hereof), but there shall be no readvance or reborrowing
of any principal reductions of the Bridge Loan (whether or not such
principal reductions constitute prepayments).
3.13 Bridge Loan Extension Fee. From the date hereof to the
Bridge Loan Maturity Date, (i) unless (if the Bridge Loan has not
been funded prior thereto) the Banks' commitment to fund the Bridge
Loan has been cancelled by written notice to Agent prior thereto or
(ii) unless (if the Bridge Loan has been funded prior thereto) the
Bridge Loan has been paid and discharged in full prior thereto, as
the case may be, the Company shall pay to the Banks a Bridge Loan
Extension Fee as follows:
(a) on or before October 18, 1994, the sum of Fifty
Thousand Dollars ($50,000) ("Installment 1");
(b) on or before January 18, 1995, the sum of Fifty
Thousand Dollars ($50,000) ("Installment 2");
(c) on or before April 18, 1995, the sum of Fifty Thousand
Dollars ($50,000) ("Installment 3"); and
(d) on or before July 18, 1995, the sum of Two Hundred
Thousand Dollars ($200,000) ("Installment 4").
Whenever any payment of the Bridge Loan Extension Fee shall be due
and payable on a day which is not a Business Day, the date for
payment thereof shall be extended to the next Business Day. Upon
receipt of each payment of the Bridge Loan Extension Fee, Agent
shall make prompt payment to each Bank of its share of the Bridge
<PAGE>
<PAGE> 37 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Loan Extension Fee based on the respective percentages of the
Banks. The Bridge Loan Extension Fee shall not be refundable under
any circumstances.
3.14 Bridge Loan Commitment Fee. From and after the date
hereof to (but not including) the date of funding of the Bridge
Loan by the Banks hereunder, the Company shall pay to the Agent,
for distribution to the Banks based on their respective
percentages, a Bridge Loan Commitment Fee equal to the Applicable
Fee Percentage per annum times One Hundred Million Dollars
($100,000,000), calculated on a daily basis. The Bridge Loan
Commitment Fee shall be payable quarterly in arrears commencing on
September 30, 1994 and on the last day of each calendar quarter
thereafter and, unless funded concurrently with the execution and
delivery of this Agreement, on the date of funding of the Bridge
Loan, and shall be computed on the basis of a year of three hundred
sixty (360) days and assessed for the actual number of days
elapsed. Whenever any payment of the Bridge Loan Commitment Fee
shall be due and payable on a day which is not a Business Day, the
date for payment shall be extended to the next Business Day. Upon
receipt of each such payment of the Bridge Loan Commitment Fee,
Agent shall make prompt payment to each Bank of its share of the
Bridge Loan Commitment Fee based upon the respective percentages of
the Banks. It is expressly understood that the Bridge Loan
Commitment Fee shall not be refundable under any circumstances.
3.15 Use of Bridge Loan Proceeds. The proceeds of the Bridge
Loan shall be used by the Company solely for the purpose of funding
amounts (in addition to the proceeds of the Term Loan) required to
be paid by it for or in connection with the Target Company
Acquisition, including without limitation provision for transfer
taxes, stamp duties and brokerage fees resulting directly from such
Acquisition.
4. MARGIN ADJUSTMENTS; HLT DETERMINATION; SPECIAL
LIMITATION
4.1 Margin Adjustments. Adjustments to the Applicable
Margin, based on Schedule 4.1, shall be implemented on a quarterly
basis as follows:
(i) Such Margin adjustments shall be given
prospective effect only, effective (A) as to all Prime-based
Advances outstanding hereunder, immediately upon required date of
delivery of the financial statements required to be delivered under
Section 7.3(b) and 7.3(c) of the Vishay Loan Agreement establishing
applicability of the appropriate adjustments, if any, or on the
obtaining and/or any change in the Rating Level then in effect, as
applicable and (B) as to each Eurocurrency-based Advance
outstanding hereunder, effective upon the expiration of the
applicable Interest Period(s), if any, in effect on (x) the
required date of delivery of the latest of such financial
<PAGE>
<PAGE> 38 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
statements required to be delivered hereunder during such Interest
Period(s) or (y) the date of the obtaining and/or any change in the
Rating Level in effect hereunder, as applicable, in each case with
no retroactivity or claw-back.
(ii) With respect to Eurocurrency-based Advances
outstanding hereunder, an adjustment hereunder, after becoming
effective, shall remain in effect only through the end of the
applicable Interest Period(s) for such Eurocurrency-based Advances
if any; provided, however, that upon the delivery of quarterly
financial statements demonstrating any change in the Leverage Ratio
or the obtaining and/or change in the Rating Level then in effect,
as aforesaid, or the occurrence of any other event which under the
terms hereof causes such adjustment no longer to be applicable,
then any such subsequent adjustment or no adjustment, as the case
may be, shall be effective (and said pricing shall thereby be
adjusted up or down, as applicable), with the commencement of each
Interest Period following such change or event, all in accordance
with the preceding subparagraph.
4.2 HLT Determination. In the event at any time (whether
before or after the funding of the Acquisition Loans) of an HLT
Determination, the Agent, the Banks and the Company shall commence
negotiations in good faith to agree upon whether and, if so, the
extent to which fees, interest rates and/or margins hereunder
should be increased so as to reflect such HLT Determination and to
compensate the Banks and Agent for additional costs, expenses
and/or fees which result from or are associated with any such HLT
Determination, including without limitation any costs resulting
from any requirement that additional capital be allocated to the
Indebtedness, or any portion thereof. If Company and the Majority
Banks agree that fees, interest rates and/or margins should be
increased, and agree on the amount of such increase or increases,
this Agreement may be amended to give effect to such increase or
increases as provided in Section 13.11 hereof. If Company and
Majority Banks fail to agree on whether and, if so, the extent to
which fees, interest rates and/or margins hereunder should be
increased within 60 days after notice to Company of an HLT
Determination as herein provided, then (i) the Agent shall, if
requested by the Majority Banks, by written notice to the Company
terminate the commitments of the Banks to fund and/or maintain
Advances of the Revolving Credit under the Vishay Loan Agreement
and the DM Revolving Credit, and if still outstanding, any
commitment to fund Advances of the Acquisition Loans, and such
commitments shall thereupon terminate, (ii) Company shall be
obligated to repay all outstanding Indebtedness at the end of the
Interest Period applicable thereto and (iii) the Company may, at
its option, on at least ten Business Days' written notice to the
Agent (which shall promptly notify the Banks thereof) prepay all
<PAGE>
<PAGE> 39 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Indebtedness outstanding hereunder and under the other Loan
Agreements by paying the aggregate principal amount thereof,
together, with all accrued interest thereon to the date of
prepayment; provided that, if the Company prepays any fixed rate
loans or Advances carried at the Eurocurrency-based Rate or any
comparable rate, pursuant to this Section 4.2, Company shall
compensate the Banks for any resulting funding losses as provided
in Section 11.1 hereof. Subject to compliance by Company with this
Section 4.2, the Banks acknowledge that an HLT Determination shall
not constitute a Default or an Event of Default hereunder.
4.3 Special Limitation. In the event, as a result of
increases in the value of any of the Alternative Currencies against
the Dollar or for any other reason, the obligation of any of the
Banks to advance additional funds hereunder and under the other
Loan Agreements (taking into account the Dollar Amount of the
Indebtedness outstanding from time to time under the other Loan
Agreements, and any other Indebtedness required to be aggregated
under 12 USCA 84, as amended, the regulations promulgated
thereunder, or other, similar applicable law) is determined by such
Bank to exceed its then applicable legal lending limit under 12
USCA 84, as amended, and the regulations promulgated thereunder, or
other, similar applicable laws, the amount of additional funds
which such Bank shall be obligated to advance hereunder and under
the other Loan Agreements shall immediately be reduced to the
maximum amount which such Bank may legally advance (as determined
by such Bank), the obligation of each of the remaining Banks
hereunder shall be proportionately reduced, based on the applicable
Percentages, and, to the extent necessary under such laws and
regulations (as determined by each of the Banks, with respect to
the applicability of such laws and regulations to itself), the
Company shall reduce, or cause to be reduced, complying to the
extent practicable with the remaining provisions hereof, the
Indebtedness outstanding hereunder or under the other Loan
Agreements by an amount sufficient to comply with such maximum
amounts. Upon any such reduction in the obligations of the Banks
under this Section 4.3, Company shall have the right, subject to
the terms and conditions of this Agreement (but subsequent to
Company's compliance with its obligation to reduce the Indebtedness
outstanding hereunder), to add to the Banks providing financing
hereunder a bank reasonably acceptable to the Agent for the purpose
of restoring the shortfall created by the reduction in such
obligations of the Banks.
5. CONDITIONS.
The obligations of Banks to make Advances of the Term Loan and
the Bridge Loan pursuant to this Agreement are subject to the
following conditions:
5.1 Vishay Loan Agreement. All of the conditions required
to be satisfied for the making of Advances under the Vishay Loan
<PAGE>
<PAGE> 40 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Agreement (as defined therein) shall have been satisfied or waived
in accordance with the terms and conditions thereof.
5.2 Special Conditions. The following special terms and
conditions ("Special Conditions"), together with the other terms
and conditions set forth herein, shall have been satisfied:
(a) On the date of funding each of the Acquisition
Loans, there shall have been no material adverse change in the
condition (financial or otherwise), properties, business,
results or operations of Target Company and its subsidiaries
to be acquired pursuant to the Stock Purchase Agreement (taken
as a whole) from that existing as of the date of the
Commitment Letter (as determined with reference to the summary
financial information of the Target Company contained in the
Confidential Information Memorandum dated June 3, 1994
("Confidential Offering Memorandum") or distributed by the
Company at the June 10, 1994 Bank Meeting); nor shall any
omission, inconsistency, inaccuracy, or any change in
presentation or accounting standards which renders such
financial statements materially misleading have been
determined by Agent or the Banks to exist;
(b) Agent shall have received (i) environmental
audits covering each parcel of real property of Target Company
or its subsidiaries located in the United States, such
environmental audits to be performed by Company's present
outside environmental consultants, or by environmental
engineers satisfactory to Agent and the Banks, (ii)
environmental audits covering the material foreign facilities
of Target Company and its Subsidiaries, such environmental
audits to be performed by Company's internal environmental
compliance staff, (iii) information satisfactory in form and
substance to the Banks as to all environmental liabilities of
Target Company and its subsidiaries, generally (including
foreign facilities), which, upon the Target Company
Acquisition, could materially adversely affect the Company or
its material Subsidiaries, taking into account any
environmental escrows, holdbacks, reserves or indemnifications
established in connection with the Acquisition, and (iv)
audits and other information (performed by internal or
external auditors, as aforesaid) disclosing, in each case
(other than as approved by the Banks and Agent), no
environmental condition for which material remedial action
could be required by any governmental agency and no material
violations of applicable environmental laws or regulations,
and otherwise in form and substance satisfactory to Agent and
the Banks;
(c) Agent shall have received payment of the
remaining installment of the Closing Fee and satisfactory
evidence of (i) all governmental, third party and/or other
<PAGE>
<PAGE> 41 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
approvals, permits, registrations and the like, necessary or
appropriate in connection with the Target Company Acquisition
or any other transaction contemplated thereby, (ii) the
corporate approval of all of the documents (including loan
documents), instruments and transactions related to the Target
Company Acquisition or the Acquisition Loans; and (iii)
opinions of legal counsel for Company and its Subsidiaries
covering such matters as required by and otherwise in form and
content satisfactory to Agent and its counsel with respect to
such transactions; and
(d) On or before the funding of the Acquisition
Loans, the Target Company Acquisition shall be consummated in
accordance with the terms and conditions of the Stock Purchase
Agreement.
5.3 Vishay's Certificate. The Agent shall have received,
with a signed counterpart for each Bank, a certificate of a
responsible senior officer of Company, dated the date hereof,
stating that the conditions referred to (with respect to the Vishay
Loan Agreement) in Section 5.1 and 5.2, hereof, have been fully
satisfied.
5.4 Payment of Agent's and Other Fees. Company shall have
paid to the Agent the Agent's Fees and all costs and expenses
required hereunder.
5.5 Other Documents and Instruments. The Agent shall have
received, with a photocopy for each Bank, the Loan Documents, and
all such instruments and documents shall be satisfactory in form
and substance to the Majority Banks.
6. REPRESENTATIONS AND WARRANTIES
Company ratifies, confirms and, by reference thereto (as fully
as though such matters were expressly set forth herein), represents
and warrants with respect to itself and its Subsidiaries those
matters set forth in Sections 6.1 through 6.21, inclusive, of the
Vishay Loan Agreement and such representations and warranties of
Company shall be deemed to be continuing representations and
warranties during the life of this Agreement.
7. AFFIRMATIVE COVENANTS
Company covenants and agrees that it will, and, as applicable,
will cause its Subsidiaries to, so long as any of the Banks is
committed to make any Advances under this Agreement and thereafter
so long as any Indebtedness remains outstanding under this
Agreement:
7.1 Vishay Loan Agreement. Comply with the covenants set
forth in Sections 7.1 through 7.15, inclusive, of the Vishay Loan
<PAGE>
<PAGE> 42 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Agreement, as fully as though the obligations set forth therein
were expressly set forth herein as the obligations of the Company
and its Subsidiaries.
7.2 Incorporation of Vishay Loan Agreement. To the full
extent set forth in Sections 5 through 9 hereof, and elsewhere
herein, the provisions of the Vishay Loan Agreement are
incorporated herein by reference and shall remain in full force and
effect for the benefit of Agent and the Banks, notwithstanding any
amendment, supplement or termination of the Vishay Loan Agreement
after the date hereof. Any amendments to the representations,
warranties, covenants or other provisions of the Vishay Loan
Agreement incorporated by reference herein which are contained in
any future amendment or supplement thereto shall be deemed to run
in favor of Agent and the Banks as additional rights and remedies,
and not in derogation of the rights and remedies provided
hereunder.
8. NEGATIVE COVENANTS
Company covenants and agrees that so long as any Indebtedness
or any commitment to make Advances under this Agreement remains
outstanding, it will not, and will not allow any of its
Subsidiaries, without the prior written consent of Agent, to
violate any of the covenants set forth in Sections 8.1 through
8.12, inclusive, of the Vishay Loan Agreement, as fully as though
the obligations set forth therein were expressly set forth herein
as the obligations of the Company and its Subsidiaries.
9. DEFAULTS
9.1 Events of Default. Any of the following events is an
"Event of Default":
(a) non-payment of the principal or interest, when
due, under any of the Notes issued hereunder, in accordance
with the terms thereof;
(b) Default in the payment of any money by Company
under this Agreement (other than as set forth in subsection
(a), above), or by VBG under the DM Loan Agreement or by VBG
under the Roederstein Loan Agreement or by the Company, VBG or
Draloric under the Vishay Loan Agreement (other than, in each
case, as set forth therein), within three (3) days of the date
the same is due and payable;
(c) default in the observance or performance of any
of the other conditions, covenants or agreements set forth in
this Agreement or any of the Loan Documents by any party
thereto (provided that, with respect to the covenants set
forth in Sections 7.8, 7.10, 7.12, 7.13 and 7.14 of the Vishay
Loan Agreement, such event has continued for thirty (30)
<PAGE>
<PAGE> 43 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
consecutive days) or the occurrence of any other default or
Event of Default, as the case may be hereunder or thereunder;
(d) any representation or warranty made by Company
or any of its Subsidiaries herein or in any instrument
submitted pursuant hereto or by any other party to the Loan
Documents proves untrue in any material adverse respect when
made; provided that, with respect to any misrepresentation or
breach of warranty arising subsequent to the date hereof under
Sections 6.7, 6.8, 6.13 through 6.15 and 6.18 of the Vishay
Loan Agreement solely by virtue of the nature of the
representations and warranties hereunder as continuing, (i) as
to Section 6.8 of the Vishay Loan Agreement, any applicable
cure period existing in respect of such matters shall have
expired and (ii) as to the remaining Sections of this
Agreement specified in this subparagraph (d), such
misrepresentation or breach of warranty hereunder shall have
continued for a period of thirty (30) consecutive days;
(e) any provision of the Vishay Guaranty, the
Domestic Guaranty or the Permitted Borrowers Guaranty shall at
any time for any reason (other than in accordance with its
terms or the terms of this Agreement) cease to be valid and
binding and enforceable against Company or the Significant
Subsidiaries, as applicable, or the validity, binding effect
or enforceability thereof shall be contested by any Person, or
Company or any of the Significant Subsidiaries shall deny that
it has any or further liability or obligation under the Vishay
Guaranty, the Domestic Guaranty or the Permitted Borrowers
Guaranty, as applicable, or the Vishay Guaranty, the Domestic
Guaranty or the Permitted Borrowers Guaranty shall be
terminated, invalidated or set aside or in any way cease to
give or provide to the Banks and the Agent the benefits
purported to be created thereby;
(f) default in the payment of any other obligation
of Company or its Subsidiaries for borrowed money in excess of
One Million Dollars ($1,000,000) (or the Alternative Currency
equivalent thereof), individually or in the aggregate,
resulting in the acceleration thereof prior to its expressed
maturity;
(g) the rendering of any judgment or judgments for
the payment of money in excess of the sum of One Million
Dollars ($1,000,000) (or the Alternative Currency equivalent
thereof) in the aggregate against Company or any of its
Subsidiaries and such judgments shall remain unpaid,
unvacated, unbonded or unstayed by appeal or otherwise for a
period of thirty (30) consecutive days, except as covered by
adequate insurance with a reputable carrier and an action is
pending in which an active defense is being made with respect
thereto;
<PAGE>
<PAGE> 44 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
(h) any Person shall engage in any Prohibited
Transaction involving any Pension Plan, (ii) any Accumulated
Funding Deficiency, whether or not waived, shall exist with
respect to any Pension Plan or any Lien in favor of the PBGC
or a Pension Plan shall arise on the assets of the Company or
any ERISA Affiliate, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or
to terminate, any Single Employer Plan, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of
ERISA, or (v) the Company or any ERISA Affiliate shall, or in
the reasonable opinion of the Majority Banks is likely to,
incur any liability in connection with a withdrawal from, or
the insolvency, bankruptcy or reorganization of, a
Multiemployer Plan; and in each case in clauses (i) through
(v) above, (x) a period of sixty (60) days, or more, has
elapsed from the occurrence of such event or condition and (y)
such event or condition, together with all other such events
or conditions, if any, could reasonably be expected to subject
the Company or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition
of the Company and its Subsidiaries taken as a whole;
(i) (A) any one Person or group of Persons acting
in concert shall acquire or control, directly or indirectly,
whether by ownership, proxy, voting trust or otherwise, forty
percent (40%) or more of the voting power of the issued and
outstanding stock of Company, other than (x) any Person or
group of Persons beneficially owning, directly or indirectly,
as of the date hereof capital stock of the Company with 40% or
more of such voting power or (y) any Permitted Transferee; or
(B) individuals who constitute the Continuing Directors cease
for any reason to constitute at least a majority of the
Company's directors (for purposes of this Section 9.1(i)(B),
"Continuing Director" means any director who is currently a
director and any director who is nominated or elected by a
majority of Continuing Directors who are then directors);
(j) If a creditors' committee shall have been
appointed for the business of Company or any of its
Subsidiaries; or if Company or any of its Subsidiaries shall
have made a general assignment for the benefit of creditors or
shall have been adjudicated bankrupt, or shall have filed a
voluntary petition in bankruptcy or for reorganization or to
effect a plan or arrangement with creditors or shall fail to
pay its debts generally as such debts become due in the
ordinary course of business (except as contested in good faith
and for which adequate reserves are made in such party's
financial statements); or shall file an answer to a creditor's
petition or other petition filed against it, admitting the
material allegations thereof for an adjudication in bankruptcy
<PAGE>
<PAGE> 45 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
or for reorganization; or shall have applied for or permitted
the appointment of a receiver or trustee or custodian for any
of its property or assets; or such receiver, trustee or
custodian shall have been appointed for any of its property or
assets (otherwise than upon application or consent of Company,
or any of its Subsidiaries) and such appointment has not been
dismissed or stayed within thirty (30) days from the date of
the appointment or if an order for relief or otherwise
approving any petition for reorganization of Company or any of
its Subsidiaries shall be entered and shall not be dismissed
or stayed within thirty (30) days from the date of entry
thereof.
9.2 Exercise of Remedies. If an Event of Default has
occurred and is continuing hereunder: (w) the Agent shall, if
directed to do so by the Majority Banks, declare the Banks'
commitments to lend hereunder immediately and automatically
terminated; (x) the Agent shall, if directed to do so by the
Majority Banks, declare the entire unpaid principal Indebtedness,
including the Notes, immediately due and payable, without
presentment, notice or demand, all of which are hereby expressly
waived by Company; (y) upon the occurrence of any Event of Default
specified in subsection 9.1 (i), above, and notwithstanding the
lack of any declaration by Agent under preceding clause (w) or (x),
the entire unpaid principal Indebtedness, including the Notes,
shall become automatically due and payable; and (z) the Agent
shall, if directed to do so by the Majority Banks or the Banks, as
applicable (subject to the terms hereof), exercise any remedy
permitted by this Agreement, the Loan Documents or law.
9.3 Rights Cumulative. No delay or failure of Agent and/or
Banks in exercising any right, power or privilege hereunder shall
affect such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise thereof, or
the exercise of any other power, right or privilege. The rights of
Banks under this Agreement are cumulative and not exclusive of any
right or remedies which Banks would otherwise have.
9.4 Waiver by Company of Certain Laws. To the extent
permitted by applicable law, Company hereby agrees to waive, and
does hereby absolutely and irrevocably waive and relinquish the
benefit and advantage of any valuation, stay, appraisement,
extension or redemption laws now existing or which may hereafter
exist, which, but for this provision, might be applicable to any
sale made under the judgment, order or decree of any court, on any
claim for interest on the Notes, and further hereby irrevocably
agrees to waive the right to trial by jury with respect to any and
all actions or proceedings in which Agent or the Banks (or any of
them), on one hand, and the Company, on the other hand, are
parties, whether or not such actions or proceedings arise out of
this Agreement or the Loan Documents, or otherwise. These waivers
<PAGE>
<PAGE> 46 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
have been voluntarily given, with full knowledge of the
consequences thereof.
9.5 Waiver of Defaults. No Event of Default shall be waived
by the Banks except in a writing signed by an officer of the Agent
in accordance with Section 13.11 hereof. No single or partial
exercise' of any right, power or privilege hereunder, nor any delay
in the exercise thereof, shall preclude other or further exercise
of the Banks' rights by Agent. No waiver of any Default or Event of
Default shall extend to any other or further Default or Event of
Default. No forbearance on the part of the Agent or any Bank in
enforcing any of the Banks' rights shall constitute a waiver of any
of their rights. Company expressly agrees that this Section may not
be waived or modified by the Banks or Agent by course of
performance, estoppel or otherwise.
9.6 Cross-Default. In addition to the other Events of
Default specified herein, any failure to perform and discharge when
due, after allowance for any applicable cure period, any of the
obligations, covenants and agreements required to be performed
under the provisions of any instruments evidencing or securing any
other present and future borrowings of Company from the Banks (or
from Agent) in renewal or extension of, or related to this
Agreement or any of the Loan Document shall be an Event of Default
under the provisions of this Agreement entitling Agent, with the
consent of the Majority Banks, (without notice or any cure period
except as expressly provided herein or therein) to exercise any and
all rights and remedies provided hereby. Any Event of Default under
this Agreement or under any of the Loan Documents shall also
constitute a default under all other instruments securing this or
any other present or future borrowings, or any agreements in
relation thereto, entitling Agent and the Banks to exercise any and
all rights and remedies provided therein.
10. PAYMENTS, RECOVERIES AND COLLECTIONS.
10.1 Payment Procedure.
(a) All payments by Company of principal of, or
interest on, the Term Notes or the Bridge Notes or of any
Fees, shall be made without setoff or counterclaim on the date
specified for payment under this Agreement not later than
11:00 a.m. (Detroit time) in Dollars in immediately available
funds to Agent, for the ratable account of the Banks, at
Agent's office located at One Detroit Center, Detroit,
Michigan 48226, in respect of Domestic Advances. Upon receipt
of each such payment, the Agent shall make prompt payment to
each Bank, or, in respect of Eurocurrency-based Advances, such
Bank's Eurocurrency Lending Office, in like funds and
currencies, of all amounts received by it for the account of
such Bank.
<PAGE>
<PAGE> 47 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
(b) Unless the Agent shall have been notified by
the Company prior to the date on which any payment to be made
by the Company is due that the Company does not intend to
remit such payment, the Agent may, in its discretion, assume
that the Company has remitted such payment when so due and the
Agent may, in reliance upon such assumption, make available to
each Bank on such payment date an amount equal to such Bank's
share of such assumed payment. If the Company has not in fact
remitted such payment to the Agent, each Bank shall forthwith
on demand repay to the Agent in the applicable currency the
amount of such assumed payment made available to such Bank,
together with the interest thereon, in respect of each day
from and including the date such amount was made available by
the Agent to such Bank to the date such amount is repaid to
the Agent at a rate per annum equal to (i) for Domestic
Advances, the Federal Funds Effective Rate (daily average), as
the same may vary from time to time, and (ii) with respect to
Eurocurrency-based Advances, Agent's aggregate marginal cost
(including the cost of maintaining any required reserves or
deposit insurance and of any fees, penalties, overdraft
charges or other costs or expenses incurred by Agent) of
carrying such amount.
(c) Whenever any payment to be made hereunder
(other than payments in respect of any Eurocurrency-based
Advance) shall otherwise be due on a day which is not a
Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be
included in computing interest, if any, in connection with
such payment. Whenever any payment of principal of, or
interest on, a Eurocurrency-based Advance shall be due on a
day which is not a Business Day the date of payment thereof
shall be extended to the next succeeding Business Day unless
as a result thereof it would fall in the next calendar month,
in which case it shall be shortened to the next preceding
Business Day and, in the case of a payment of principal,
interest thereon shall be payable for such extended or
shortened time, if any.
(d) All payments to be made by the Company under
this Agreement or any of the Notes shall be made without set-
off or counterclaim, as aforesaid, and without deduction for
or on account of any present or future withholding or other
taxes of any nature imposed by any governmental authority or
of any political subdivision thereof or any federation or
organization of which such governmental authority may at the
time of payment be a member, unless Company is compelled by
law to make payment subject to such tax. In such event,
Company shall:
(i) pay to the Agent, for Agent's own account
and/or, as the case may be, for the account of
<PAGE>
<PAGE> 48 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
the Banks such additional amounts as may be
necessary to ensure that the Agent and/or such
Banks receive a net amount in the applicable
currency equal to the full amount which would
have been receivable had payment not been made
subject to such tax; and
(ii) remit such tax to the relevant taxing
authorities according to applicable law, and
send to the Agent such certificates or
certified copy receipts as the Agent shall
reasonably require as proof of the payment by
the Company or the applicable Permitted
Borrower, of any such taxes payable by the
Company or any Permitted Borrower.
As used herein, the terms "tax", "taxes" and "taxation"
include all existing taxes, levies, imposts, duties, charges, fees,
deductions and withholdings and any restrictions or conditions
resulting in a charge together with interest thereon and fines and
penalties with respect thereto which may be imposed by reason of
any violation or default with respect to the law regarding such
tax, assessed as a result of or in connection with the transactions
in any Alternative Currency hereunder, or the payment and or
receipt of funds in any Alternative Currency hereunder, or the
payment or delivery of funds into or out of any jurisdiction other
than the United States (whether assessed against Company, Agent or
any of the Banks).
10.2 Application of Proceeds. Notwithstanding anything to
the contrary in this Agreement, upon the occurrence and during the
continuance of any Event of Default, any offsets or voluntary
payments by the Company, any of its Subsidiaries or others and any
other sums received or collected in respect of the Indebtedness,
shall be applied, first, to the Notes pro rata, based on the
aggregate Indebtedness then outstanding thereunder (or in such
other order and manner as determined by all of the Banks), next, to
any other Indebtedness on a pro rata basis, and then, if there is
any excess, to the Company.
10.3 Pro-rata Recovery. If any Bank shall obtain any payment
or other recovery (whether voluntary, involuntary, by application
of offset or otherwise) on account of principal of, or interest on,
any of the Term Notes or the Bridge Notes in excess of its pro rata
share of payments then or thereafter obtained by all Banks upon
principal of and interest on all such Notes or Bridge Notes, such
Bank shall purchase from the other Banks such participations in the
Term Notes and Bridge Notes held by them as shall be necessary to
cause such purchasing Bank to share the excess payment or other
recovery ratably in accordance with the Percentage held by each of
them in such Notes; provided, however, that if all or any portion
of the excess payment or other recovery is thereafter recovered
<PAGE>
<PAGE> 49 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
from such purchasing holder, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but
without interest.
10.4 Deposits and Accounts. In addition to and not in
limitation of any rights of any Bank or other holder of any of the
Notes under applicable law, each Bank and each other such holder
shall, upon acceleration of the Indebtedness under the Notes and
without notice or demand of any kind, have the right to appropriate
and apply to the payment of the Notes owing to it (whether or not
then due) any and all balances, credits, deposits, accounts or
moneys of Company then or thereafter with such Bank or other
holder; provided, however, that any such amount so applied by any
Bank or other holder on any of the Notes owing to it shall be
subject to the provisions of Section 10.3, hereof.
11. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS.
11.1 Reimbursement of Prepayment Costs. As to any
Eurocurrency-based Advance, if any prepayment thereof shall occur
on any day other than the last day of an Interest Period (whether
pursuant to this Agreement or by acceleration, or otherwise), or if
the rate applicable to such Advance shall be changed during any
Interest Period pursuant to this Agreement, Company shall reimburse
each of the Banks on demand for any costs incurred by such Banks as
a result of the timing thereof, including but not limited to any
net costs incurred in liquidating or employing deposits from third
parties, to each Bank which shall have delivered to Company a
certificate setting forth the basis for determining such costs,
which certificate shall be conclusively presumed correct save for
manifest error.
11.2 Eurocurrency Lending Office. For any Advance to which
the Eurocurrency-based Rate is applicable, if Agent or a Bank, as
applicable, shall designate a Eurocurrency Lending Office which
maintains books separate from those of the rest of Agent, Agent or
such Bank, as the case may be, shall have the option of maintaining
and carrying the relevant Advance on the books of such Eurocurrency
Lending Office.
11.3 Circumstances Affecting Eurocurrency-based Rate
Availability. If with respect to any Interest Period Agent or the
Banks (after consultation with Agent) shall determine that, by
reason of circumstances affecting the foreign exchange and
interbank markets generally, deposits in Eurodollars in the
applicable amounts are not being offered to the Agent for such
Interest Period, then Agent shall forthwith give notice thereof to
the Company. Thereafter, until Agent notifies Company that such
circumstances no longer exist, (i) the obligation of Banks to make
Eurocurrency-based Advances, and the right of Company to convert an
Advance to or refund an Advance as a Eurocurrency-based Advance, as
the case may be, shall be suspended, and (ii) the Company shall
<PAGE>
<PAGE> 50 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
repay in full (or cause to be repaid in full) the then outstanding
principal amount of each such Eurocurrency-based Advance covered
hereby, together with accrued interest thereon, any amounts payable
under Section 11.6, hereof, and all other amounts payable hereunder
on the last day of the then current Interest Period applicable to
such Advance. Upon the date for repayment as aforesaid and unless
Company notifies Agent to the contrary within two (2) Business Days
after receiving a notice from Agent pursuant to this Section, such
outstanding principal amount shall be converted to a Prime-based
Advance as of the last day of such Interest Period.
11.4 Laws Affecting Eurocurrency-based Advance Availability.
If, after the date hereof, the introduction of, or any change in,
any applicable law, rule or regulation or in the interpretation or
administration thereof by any governmental authority charged with
the interpretation or administration thereof, or compliance by any
of the Banks (or any of their respective Eurocurrency Lending
Offices) with any request or directive (whether or not having the
force of law) of any such authority, shall make it unlawful or
impossible for any of the Banks (or any of their respective
Eurocurrency Lending Offices) to honor its obligations hereunder to
make or maintain any Advance with interest at the Eurocurrency-
based Rate, such Bank shall forthwith give notice thereof to
Company and to Agent. Thereafter, (a) the obligations of Banks to
make Eurocurrency-based Advances and the right of Company to
convert an Advance or refund an Advance as a Eurocurrency-based
Advance shall be suspended and thereafter Company may select as
Applicable Interest Rates only those which remain available and
which are permitted to be selected hereunder, and (b) if any of the
Banks may not lawfully continue to maintain an Advance to the end
of the then current Interest Period applicable thereto as a
Eurocurrency-based Advance, the applicable Advance shall
immediately be converted to a Prime-based Advance (in the Dollar
Amount thereof) and the Prime-based Rate shall be applicable
thereto for the remainder of such Interest Period. For purposes of
this Section, a change in law, rule, regulation, interpretation or
administration shall include, without limitation, any change made
or which becomes effective on the basis of a law, rule, regulation,
interpretation or administration presently in force, the effective
date of which change is delayed by the terms of such law, rule,
regulation, interpretation or administration.
11.5 Increased Cost of Eurocurrency-based Advances. If the
adoption after the date hereof, or any change after the date hereof
in, any applicable law, rule or regulation of any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Agent or
any of the Banks (or any of their respective Eurocurrency Lending
Offices) with any request or directive (whether or not having the
force of law) made by any such authority, central bank or
comparable agency after the date hereof:
<PAGE>
<PAGE> 51 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
(a) shall subject any of the Banks (or any of their
respective Eurocurrency Lending Offices) to any tax, duty or
other charge with respect to any Advance or any Note or shall
change the basis of taxation of payments to any of the Banks
(or any of their respective Eurocurrency Lending Offices) of
the principal of or interest on any Advance or any Note or any
other amounts due under this Agreement in respect thereof
(except for changes in the rate of tax on the overall net
income of any of the Banks or any of their respective
Eurocurrency Lending Offices imposed by the jurisdiction in
which such Bank's principal executive office or Eurocurrency
Lending Office is located); or
(b) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by any of the
Banks (or any of their respective Eurocurrency Lending
Offices) or shall impose on any of the Banks (or any of their
respective Eurocurrency Lending Offices) or the foreign
exchange and interbank markets any other condition affecting
any Advance or any of the Notes;
and the result of any of the foregoing is to increase the costs to
any of the Banks of maintaining any part of the Indebtedness
hereunder as a Eurocurrency-based Advance or to reduce the amount
of any sum received or receivable by any of the Banks under this
Agreement or under the Notes in respect of a Eurocurrency-based
Advance, then such Bank shall promptly notify Agent, and Agent
shall promptly notify Company of such fact and demand compensation
therefor and, within fifteen (15) days after such notice, Company
agrees to pay to such Bank such additional amount or amounts as
will compensate such Bank or Banks for such increased cost or
reduction. Agent will promptly notify Company of any event of which
it has knowledge which will entitle Banks to compensation pursuant
to this Section, or which will cause Company to incur additional
liability under Section 10.1(d) hereof, provided that Agent shall
incur no liability whatsoever to the Banks or Company in the event
it fails to do so. A certificate of Agent (or such Bank, if
applicable) setting forth the basis for determining such additional
amount or amounts necessary to compensate such Bank or Banks shall
be conclusively presumed to be correct save for manifest error. For
purposes of this Section, a change in law, rule, regulation,
interpretation, administration, request or directive shall include,
without limitation, any change made or which becomes effective on
the basis of a law, rule, regulation, interpretation,
administration, request or directive presently in force, the
effective date of which change is delayed by the terms of such law,
rule, regulation, interpretation, administration, request or
directive.
<PAGE>
<PAGE> 52 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
11.6 Indemnity. The Company will indemnify Agent and each of
the Banks against any loss or expense which may arise or be
attributable to the Agent's and each Bank's obtaining, liquidating
or employing deposits or other funds acquired to effect, fund or
maintain the Advances (a) as a consequence of any failure by the
Company to make any payment when due of any amount due hereunder in
connection with a Eurocurrency-based Advance, (b) due to any
failure of the Company to borrow on a date specified therefor in a
request for advance or rate request (c) due to any payment or
prepayment of any Eurocurrency-based Advance on a date other than
the last day of the Interest Period for such Advance. Such loss or
expense shall be calculated based upon the present value, as
applicable, of payments due from the Company with respect to a
deposit obtained by the Agent or any of the Banks in order to fund
such Advance to the Company. The Agent's and each Bank's, as
applicable, calculations of any such loss or expense shall be
furnished to the Company and shall be conclusive, absent manifest
error.
11.7 Judgment Currency. The obligation of the Company to
make payments of the principal of and interest on the Notes and any
other amounts payable hereunder in the currency specified for such
payment herein or in the Notes shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment, which is
expressed in or converted into any other currency, except to the
extent that such tender or recovery shall result in the actual
receipt by each of the Banks of the full amount of the particular
Permitted Currency expressed to be payable herein or in the Notes.
The Agent shall, using all amounts obtained or received from the
Company pursuant to any such tender or recovery in payment of
principal of and interest on the Notes, promptly purchase the
applicable Permitted Currency at the most favorable spot exchange
rate determined by the Agent to be available to it. The obligation
of the Company to make payments in the applicable Permitted
Currency shall be enforceable as an alternative or additional cause
of action solely for the purpose of recovering in the applicable
Permitted Currency the amount, if any, by which such actual receipt
shall fall short of the full amount of the Permitted Currency
expressed to be payable herein or in the Notes.
11.8 Other Increased Costs. In the event that at any time
after the date of this Agreement any change in law such as
described in Section 11.5 hereof, shall, in the opinion of the
Agent or any of the Banks (as certified to Agent in writing by such
Bank) require that any Indebtedness or commitment under this
Agreement or the other Loan Agreements be treated as an asset or
otherwise be included for purposes of calculating the appropriate
amount of capital to be maintained by each of the Banks or any
corporation controlling such Banks, as the case may be, the Agent
shall notify the Company. The Company and the Agent shall
thereafter negotiate in good faith an agreement to increase the
Fees or other fees payable to the Agent, for the benefit of the
<PAGE>
<PAGE> 53 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Banks under this Agreement, which in the opinion of the Agent, will
adequately compensate the Banks for the costs associated with such
change in law. If such increase is approved in writing by the
Company within thirty (30) days from the date of the notice to the
Company from the Agent, the Fees or other fees (if applicable)
payable by the Company under this Agreement shall, effective from
the date of such agreement, include the amount of such agreed
increase. If the Company and the Agent are unable to agree on such
an increase within thirty (30) days from the date of the notice to
the Company, the Company shall have the option, exercised by
written notice to the Agent within forty-five (45) days from the
date of the aforesaid notice to the Company from the Agent, to
terminate the Revolving Credit, the DM Revolving Credit, the Banks'
commitments to fund the Acquisition Loans hereunder or other
commitments, if applicable, in which event, all sums then
outstanding to Banks and to Agent hereunder shall be due and
payable in full. If (a) the Company and the Agent fail to agree on
an increase in the Fees or other fees (if applicable), or (b) the
Company fails to give timely notice that it has elected to exercise
its option to terminate the Revolving Credit, the DM Revolving
Credit, the Banks' commitments to fund the Acquisition Loans
hereunder or such other commitments, if applicable, as set forth
above, then the Revolving Credit and other commitments hereunder
shall automatically terminate as of the last day of the aforesaid
forty-five (45) day period, in which event all sums then
outstanding to Banks and to Agent hereunder shall be due and
payable in full.
12. AGENT
12.1 Appointment of Agent. Each Bank and the holder of each
Note appoints and authorizes Agent to act on behalf of such Bank or
holder under the Loan Documents and to exercise such powers
hereunder and thereunder as are specifically delegated to or
required of Agent by the terms hereof and thereof, together with
such powers as may be reasonably incidental thereto. Each Bank
agrees (which agreement shall survive any termination of this
Agreement) to reimburse Agent for all reasonable out-of-pocket
expenses (including in-house and outside attorneys' fees) incurred
by Agent hereunder or in connection herewith or with any Default or
Event of Default or in enforcing the obligations of Company under
this Agreement or the other Loan Documents or any other instrument
executed pursuant hereto, and for which Agent is not reimbursed by
Company, pro rata according to such Bank's Percentage. Agent shall
not be required to take any action under the Loan Documents, or to
prosecute or defend any suit in respect of the Loan Documents,
unless indemnified to its satisfaction by the Banks against loss,
costs, liability and expense. If any indemnity furnished to Agent
shall become impaired, it may call for additional indemnity and
cease to do the acts indemnified against until such additional
indemnity is given.
<PAGE>
<PAGE> 54 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
12.2 Deposit Account with Agent. Company hereby authorizes
Agent to charge its general deposit account, if any, maintained
with Agent for the amount of any principal, interest, or other
amounts or costs due under this Agreement when the same becomes due
and payable under the terms of this Agreement or the Term Notes.
12.3 Exculpatory Provisions. Agent agrees to exercise its
rights and powers, and to perform its duties, as Agent hereunder
and under the Loan Documents in accordance with its usual customs
and practices in bank-agency transactions, but only upon and
subject to the express terms and conditions of Section 12, hereof
(and no implied covenants or other obligations shall be read into
this Agreement against the Agent); neither Agent nor any of its
directors, officers, employees or agents shall be liable to any
Bank for any action taken or omitted to be taken by it or them
under this Agreement or any document executed pursuant hereto, or
in connection herewith or therewith, except for its or their own
willful misconduct or gross negligence, nor be responsible for any
recitals or warranties herein or therein made by any Person, nor
for the effectiveness, enforceability, validity or due execution
(other than its own due execution and delivery) of this Agreement
or any document executed pursuant hereto, or any security
thereunder, nor to make any inquiry respecting the performance by
Company or any of its Subsidiaries of its obligations hereunder or
thereunder. Nor shall Agent have, or be deemed to have, a fiduciary
relationship with any Bank by reason of this Agreement. Agent shall
be entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing
which it believes to be genuine and to have been presented by a
proper person.
12.4 Successor Agents. Agent may resign as such at any time
upon at least 30 days prior notice to Company and all Banks. If
Agent at any time shall resign or if the office of Agent shall
become vacant for any other reason, Majority Banks shall, by
written instrument, appoint a successor Agent (satisfactory to such
Majority Banks) which shall thereupon become Agent hereunder and
shall be entitled to receive from the prior Agent such documents of
transfer and assignment as such successor Agent may reasonably
request. Such successor Agent shall succeed to all of the rights
and obligations of the retiring Agent as if originally named. The
retiring or removed Agent shall duly assign, transfer and deliver
to such successor Agent all moneys at the time held by the retiring
or removed Agent hereunder after deducting therefrom its expenses
for which it is entitled to be reimbursed. Upon such succession of
any such successor Agent, the retiring agent shall be discharged
from its duties and obligations hereunder, except for its gross
negligence or willful misconduct arising prior to its retirement
hereunder, and the provisions of this Section 12 shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
<PAGE>
<PAGE> 55 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
12.5 Loans by Agent. Agent shall have the same rights and
powers with respect to the credit extended by it and the Notes held
by it as any Bank and may exercise the same as if it were not
Agent, and the term "Bank" and, when appropriate, "holder" shall
include Agent in its individual capacity.
12.6 Credit Decisions. Each Bank acknowledges that it has,
independently of Agent and each other Bank and based on the
financial statements of Company and its Subsidiaries and such other
documents, information and investigations as it has deemed
appropriate, made its own credit decision to extend credit
hereunder from time to time. Each Bank also acknowledges that it
will, independently of Agent and each other Bank and based on such
other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions
as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any document
executed pursuant hereto.
12.7 Notices by Agent. Agent shall give prompt notice to
each Bank of its receipt of each notice or request required or
permitted to be given to Agent by Company pursuant to the terms of
this Agreement and shall promptly distribute to the Banks any
reports received from the Company or any of its Subsidiaries under
the terms hereof, or other material information or documents
received by Agent, in its capacity as Agent, from the Company, or
its Subsidiaries.
12.8 Agent's Fees. Commencing on September 30, 1994, and on
each succeeding anniversary date thereof until the Indebtedness has
been repaid and no commitment to fund any loan hereunder is
outstanding, the Company shall pay to Agent an annual agency fee
set forth (or to be set forth from time to time) in a letter
agreement between Company and Agent. The Agent's Fees described in
this Section 12.8 shall not be refundable under any circumstances.
12.9 Nature of Agency. The appointment of Agent as agent is
for the convenience of Banks and the Company in making Advances of
the Term Loan, the Bridge Loan or any other Indebtedness of Company
hereunder, and collecting fees and principal and interest on the
Indebtedness. No Bank is purchasing any Indebtedness from Agent and
this Agreement is not intended to be a purchase or participation
agreement.
12.10 Actions; Confirmation of Agent's Authority to Act in
Event of Default. Subject to the terms and conditions of this
Agreement and to the direction of the Majority Banks, Agent is
hereby expressly authorized to act in all litigation and in all
other respects as the representative of the Banks where Agent
considers it to be necessary or desirable in order to carry out the
purposes of this Agreement or the Loan Documents. Without
necessarily accepting service of process or designating Agent to do
<PAGE>
<PAGE> 56 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
so in its stead, each Bank hereby agrees with each other Bank and
with Agent, without intending to confer or conferring any rights on
any other party, (a) that it shall be bound by any litigation
brought by or against Agent by the Company, any Subsidiary or any
other party in connection with the Indebtedness or any other
rights, duties or obligations arising hereunder or under this
Agreement or the Loan Documents and (b) that it now irrevocably
waives the defense of procedural impediment or failure to name or
join such Bank as an indispensable party; provided however that
each Bank reserves the right, subject to applicable law, to
intervene or otherwise appear in such litigation, and to retain its
own counsel in connection therewith. In conducting such litigation
hereunder on behalf of the Banks, Agent shall, subject to the terms
hereof, accept the direction of the Majority Banks or all of the
Banks, as the case may be, and shall at all times be indemnified by
the Banks as provided in Sections 12.1 and 12.12 hereof. Agent
shall undertake to give each Bank prompt notice of any litigation
commenced against Agent and/or the Banks with respect to this
Agreement, the Loan Agreement or the Loan Documents or any matter
referred to herein or therein.
12.11 Authority of Agent to Enforce Notes and This Agreement.
Each Bank, subject to the terms and conditions of this Agreement
(including without limitation Sections 12.10, 12.14 and 12.15
hereof), authorizes the Agent with full power and authority as
attorney-in-fact to institute and maintain actions, suits or
proceedings for the collection and enforcement of the Notes and to
file such proofs of debt or other documents as may be necessary to
have the claims of the Banks allowed in any proceeding relative to
the Company, any of its Subsidiaries, or its creditors or affecting
its properties, and to take such other actions which Agent
considers to be necessary or desirable for the protection,
collection and enforcement of the Notes, this Agreement or the
other Loan Documents.
12.12 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such, to the extent not reimbursed by the
Company, pro rata according to their respective Percentages, from
and against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating
to or arising out of this Agreement or any of the other Loan
Documents or any action taken or omitted to be taken or suffered in
good faith by the Agent hereunder, provided that no Bank shall be
liable for any portion of any of the foregoing items resulting from
the gross negligence or willful misconduct of the Agent or any of
its officers, employees, directors or agents.
12.13 Knowledge of Default. It is expressly understood and
agreed that the Agent shall be entitled to assume that no Default
or Event of Default has occurred and is continuing, unless the
<PAGE>
<PAGE> 57 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
officers of the Agent immediately responsible for matters
concerning this Agreement shall have actual (rather than
constructive) knowledge of such occurrence or shall have been
notified in writing by a Bank that such Bank considers that a
Default or an Event of Default has occurred and is continuing, and
specifying the nature thereof. Upon obtaining actual knowledge of
any Default or Event of Default as described above, the Agent shall
promptly, but in any event within three (3) Business Days after
obtaining knowledge thereof, notify each Bank of such Default or
Event of Default and the action, if any, the Agent proposes be
taken with respect thereto.
12.14 Agent's Authorization; Action by Banks. Except as
otherwise expressly provided herein, whenever the Agent is
authorized and empowered hereunder on behalf of the Banks to give
any approval or consent, or to make any request, or to take any
other action on behalf of the Banks (including without limitation
the exercise of any right or remedy hereunder or under the other
Loan Documents), the Agent shall be required to give such approval
or consent, or to make such request or to take such other action
only when so requested in writing by the Majority Banks or the
Banks, as applicable hereunder. Action that may be taken by
Majority Banks or all of the Banks, as the case may be (as provided
for hereunder) may be taken (i) pursuant to a vote at a meeting
(which may be held by telephone conference call) as to which all of
the Banks have been given reasonable advance notice, or (ii)
pursuant to the written consent of the requisite Percentages of the
Banks as required hereunder, provided that all of the Banks are
given reasonable advance notice of the requests for such consent.
12.15 Enforcement Actions by the Agent. Except as otherwise
expressly provided under this Agreement or in any of the other Loan
Documents and subject to the terms hereof, Agent will take such
action, assert such rights and pursue such remedies under this
Agreement and the other Loan Documents as the Majority Banks or all
of the Banks, as the case may be (as provided for hereunder), shall
direct. Except as otherwise expressly provided in any of the Loan
Documents, Agent will not (and will not be obligated to) take any
action, assert any rights or pursue any remedies under this
Agreement or any of the other Loan Documents in violation or
contravention of any express direction or instruction of the
Majority Banks or all of the Banks, as the case may be (as provided
for hereunder). Agent may refuse (and will not be obligated) to
take any action, assert any rights or pursue any remedies under
this Agreement or any of the other Loan Documents in the absence of
the express written direction and instruction of the Majority Banks
or all of the Banks, as the case may be (as provided for
hereunder). In the event Agent fails, within a commercially
reasonable time, to take such action, assert such rights, or pursue
such remedies as the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall direct in conformity
with this Agreement, the Majority Banks or all of the Banks, as the
<PAGE>
<PAGE> 58 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
case may be (as provided for hereunder), shall have the right to
take such action, to assert such rights, or pursue such remedies on
behalf of all of the Banks unless the terms hereof otherwise
require the consent of all the Banks to the taking of such actions
(in which event all of the Banks must join in such action). Except
as expressly provided above or elsewhere in this Agreement or the
other Loan Documents, no Bank (other than the Agent, acting in its
capacity as Agent) shall be entitled to take any enforcement action
of any kind under any of the Loan Documents.
12.16 Co-Agent and Lead Managers. NationsBank has been
designated by the Company as "Co-Agent" and BHF and Signet have
been designated by the Company as "Lead Managers" under this
Agreement. Other than its rights and remedies as a Bank hereunder,
each such Co-Agent and Lead Manager shall have no administrative,
collateral or other rights or responsibilities, provided, however,
that each such Co-Agent and Lead Manager shall be entitled to the
benefits afforded to Agent under Sections 12.5 and 12.6 hereof.
13. MISCELLANEOUS
13.1 Accounting Principles. Where the character or amount of
any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, it shall
be done in accordance with GAAP.
13.2 Consent to Jurisdiction. The Company hereby irrevocably
submits to the non-exclusive jurisdiction of any United States
Federal or Michigan state court sitting in Detroit in any action or
proceeding arising out of or relating to this Agreement or any of
the Loan Documents and the Company hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and
determined in any such United States Federal or Michigan state
court. The Company irrevocably consents to the service of any and
all process in any such action or proceeding brought in any court
in or of the State of Michigan by the delivery of copies of such
process to the Company at its address specified on the signature
page hereto or by certified mail directed to such address. Nothing
in this Section shall affect the right of the Banks and the Agent
to serve process in any other manner permitted by law or limit the
right of the Banks or the Agent (or any of them) to bring any such
action or proceeding against the Company or any of its Subsidiaries
in the courts of any other jurisdiction. The Company hereby
irrevocably waives any objection to the laying of venue of any such
suit or proceeding in the above described courts.
13.3 Law of Michigan. This Agreement, the Notes and the
other Loan Documents executed have been delivered at Detroit,
Michigan, and shall be governed by and construed and enforced in
accordance with the laws of the State of Michigan, except as and to
the extent expressed to the contrary in any of the Loan Documents.
<PAGE>
<PAGE> 59 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
13.4 Interest. In the event the obligation of the Company to
pay interest on the principal balance of the Notes is or becomes in
excess of the maximum interest rate which the Company is permitted
by law to contract or agree to pay, giving due consideration to the
execution date of this Agreement, then, in that event, the rate of
interest applicable with respect to such Bank's Percentage shall be
deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to
have been payments in reduction of principal and not of interest.
13.5 Closing Costs. Company shall pay or reimburse Agent for
payment of, on demand (a) all closing costs and expenses,
including, by way of description and not limitation, house and
outside attorney fees and advances, appraisal and accounting fees,
title and lien search fees, and required travel costs, incurred by
Agent in connection with the commitment, consummation and closing
of the loans contemplated hereby, or in connection with any
refinancing or restructuring of the loans or advances provided
under this Agreement or the other Loan Documents, or any amendment
thereof requested by Company; and (b) all stamp and other taxes and
fees payable or determined to be payable in connection with the
execution, delivery, filing or recording of this Agreement and the
Loan Documents and the consummation of the transactions
contemplated hereby, and any and all liabilities with respect to or
resulting from any delay in paying or omitting to pay such taxes or
fees. Furthermore, all reasonable costs and expenses, including
without limitation attorney fees, and costs and expenses to
Environmental Auditors retained by Agent hereunder, incurred by
Agent in revising, preserving, protecting, exercising or enforcing
any of its or any of the Banks' rights against Company or any of
its Subsidiaries, or otherwise incurred by Agent and the Banks
(using a single law firm retained by Agent, with the approval of
the Majority Banks) in connection with any Event of Default or the
enforcement of the loans (whether incurred through negotiations,
legal proceedings or otherwise), including by way of description
and not limitation, such charges in any court or bankruptcy
proceedings or arising out of any claim or action by any person
against Agent or any Bank which would not have been asserted were
it not for Agent's or such Bank's relationship with Company
hereunder or otherwise, shall also be paid by Company. All of said
amounts required to be paid by Company hereunder and not paid
forthwith upon demand, as aforesaid, shall bear interest, from the
date incurred to the date payment is received by Agent, at the
Prime-based Rate, plus three percent (3%).
<PAGE>
<PAGE> 60 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
13.6 Notices. Except as otherwise provided herein, all
notices or demand hereunder to the parties hereto shall be
sufficient if made in writing and delivered by messenger or
deposited in the mail, postage prepaid, certified mail, and
addressed to the parties as set forth on the signature pages of
this Agreement.
13.7 Further Action. Company, from time to time, upon
written request of Agent will make, execute, acknowledge and
deliver or cause to be made, executed, acknowledged and delivered,
all such further and additional instruments, and take all such
further action as may be required to carry out the intent and
purpose of this Agreement, and to provide for Advances under and
payment of the Notes, according to the intent and purpose herein
and therein expressed.
13.8 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of Company and the Banks and
their respective successors and assigns. The foregoing shall not
authorize any assignment by Company of its rights or duties
hereunder, and no such assignment shall be made (or effective)
without the prior written approval of the Banks. Nor may any Bank
sell, assign, transfer, grant participation in, or otherwise
dispose of all or any portion of their respective Notes, or of its
right, title and interest therein or thereto or in or to this
Agreement, except in accordance with and subject to the
requirements set forth in Section 13.8 of the Vishay Loan
Agreement, which shall be deemed incorporated by reference herein.
13.9 Indulgence. No delay or failure of Agent and the Banks
in exercising any right, power or privilege hereunder shall affect
such right, power or privilege nor shall any single or partial
exercise thereof preclude any further exercise thereof, nor the
exercise of any other right, power or privilege. The rights of
Agent and the Banks hereunder are cumulative and are not exclusive
of any rights or remedies which Agent and the Banks would otherwise
have.
13.10 Counterparts. This Agreement may be executed in several
counterparts, and each executed copy shall constitute an original
instrument, but such counterparts shall together constitute but one
and the same instrument.
13.11 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or any Loan Document, nor consent to
any departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Majority Banks, 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 no amendment, waiver or
consent shall, unless in writing and signed by all the Banks, do
any of the following: (a) increase any commitment of the Banks
<PAGE>
<PAGE> 61 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
hereunder or subject the Banks to any additional obligations, (b)
reduce or forgive the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, (c) postpone any date
fixed for any payment of principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, (d) waive any Event of
Default specified in Sections 9.1(a) or (b) hereof (provided that
if, at the relevant time, only Bid Advances are outstanding under
the Vishay Loan Agreement or the DM Loan Agreement, the prior
written approval of all Banks shall be required to waive, whether
by consent, waiver or amendment, any Event of Default under this
Agreement), (e) release or defer the granting or perfecting of a
lien or security interest in any collateral, or release any
guaranty or similar undertaking of any Person except, in each case,
as shall be otherwise expressly provided in this Agreement or any
Loan Document, (f) take any action which requires the signing of
all Banks pursuant to the terms of this Agreement or any Loan
Document, (g) change the definitions of "Majority Banks" or
"Interest Periods", (h) change the aggregate unpaid principal
amount of the Notes which shall be required for the Banks or any of
them to take any action under this Agreement or any Loan Document,
or (i) change this Section 13.11, and provided further, however,
that no amendment, waiver, or consent shall, unless in writing and
signed by the Agent in addition to all the Banks, affect the rights
or duties of the Agent under this Agreement or any Loan Document.
All references in this Agreement to "Banks" or "the Banks" shall
refer to all Banks, unless expressly stated to refer to Majority
Banks.
13.12 Taxes and Fees. Should any tax (other than a tax based
upon the net income of any Bank or Agent), recording or filing fee
become payable in respect of this Agreement or any of the Loan
Documents or any amendment, modification or supplement hereof or
thereof, the Company agrees to pay the same together with any
interest or penalties thereon and agrees to hold the Agent and the
Banks harmless with respect thereto.
13.13 Confidentiality. Each Bank agrees that it will not
disclose without the prior consent of the Company, (other than to
its employees, to another Bank or to its auditors or counsel) any
confidential information with respect to the Company or any of its
Subsidiaries which is furnished pursuant to this Agreement or any
of the Loan Documents; provided that any Bank may disclose any such
information (a) as has become generally available to the public or
has been lawfully obtained by such Bank from any third party under
no duty of confidentiality to the Company, (b) as may be required
or appropriate in any report, statement or testimony submitted to,
or in respect to any inquiry, by, any municipal, state or federal
regulatory body having or claiming to have jurisdiction over such
Bank, including the Board of Governors of the Federal Reserve
System of the United States or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States
or elsewhere) or their successors, (c) as may be required or
<PAGE>
<PAGE> 62 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
appropriate in respect to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Bank, and (e) to any
permitted transferee or assignee or to any approved participant of,
or with respect to, the Notes, as aforesaid.
13.14 Withholding Taxes. If any Bank is not incorporated
under the laws of the United States or a state thereof, such Bank
shall promptly deliver to the Agent two executed copies of (i)
Internal Revenue Service Form 1001 specifying the applicable tax
treaty between the United States and the jurisdiction of such
Bank's domicile which provides for the exemption from withholding
on interest payments to such Bank, (ii) Internal Revenue Service
Form 4224 evidencing that the income to be received by such Bank
hereunder is effectively connected with the conduct of a trade or
business in the United States or (iii) other evidence satisfactory
to the Agent that such Bank is exempt from United States income tax
withholding with respect to such income. Such Bank shall amend or
supplement any such form or evidence as required to insure that it
is accurate, complete and non-misleading at all times. Promptly
upon notice from the Agent of any determination by the Internal
Revenue Service that any payments previously made to such Bank
hereunder were subject to United States income tax withholding when
made, such Bank shall pay to the Agent the excess of the aggregate
amount required to be withheld from such payments over the
aggregate amount actually withheld by the Agent. In addition, from
time to time upon the reasonable request and at the sole expense of
the Company or any Permitted Borrower, each Bank and the Agent
shall (to the extent it is able to do so based upon applicable
facts and circumstances), complete and provide the Company or any
Permitted Borrower with such forms, certificates or other documents
as may be reasonably necessary to allow the Company or any
Permitted Borrower, as applicable, to make any payment under this
Agreement or the other Loan Documents without any withholding for
or on the account of any tax under Section 10.1(d) hereof (or with
such withholding at a reduced rate), provided that the execution
and delivery of such forms, certificates or other documents does
not adversely affect or otherwise restrict the right and benefits
(including without limitation economic benefits) available to such
Bank or the Agent, as the case may be, under this Agreement or any
of the other Loan Documents, or under or in connection with any
transactions not related to the transactions contemplated hereby.
13.15 Effective Upon Execution. This Agreement shall become
effective upon the execution hereof by Banks, Agent and the Company
and the issuance by the Company of the Notes hereunder, and shall
remain effective until the Indebtedness has been repaid and
discharged in full and no commitment to extend any credit hereunder
or under any of the other Loan Agreements remains outstanding.
13.16 Severability. In case any one or more of the
obligations of the Company under this Agreement, the Notes or any
<PAGE>
<PAGE> 63 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
of the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of the Company shall
not in any way be affected or impaired thereby, and such
invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the
obligations of the Company under this Agreement, the Notes or any
of the other Loan Documents in any other jurisdiction.
13.17 Table of Contents and Headings. The table of contents
and the headings of the various subdivisions hereof are for
convenience of reference only and shall in no way modify or affect
any of the terms or provisions hereof.
13.18 Construction of Certain Provisions. If any provision of
this Agreement or any of the Loan Documents refers to any action to
be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is
taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
13.19 Independence of Covenants. Each covenant hereunder
shall be given independent effect (subject to any exceptions stated
in such covenant) so that if a particular action or condition is
not permitted by any such covenant (taking into account any such
stated exception), the fact that it would be permitted by an
exception to, or would be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default or an
Event of Default if such action is taken or such condition exists.
13.20 Reliance on and Survival of Various Provisions. All
terms, covenants, agreements, representations and warranties of the
Company or any party to any of the Loan Documents made herein or in
any of the Loan Documents or in any certificate, report, financial
statement or other document furnished by or on behalf of the
Company, any such party in connection with this Agreement or any of
the Loan Documents shall be deemed to have been relied upon by the
Banks, notwithstanding any investigation heretofore or hereafter
made by any Bank or on such Bank's behalf, and those covenants and
agreements of the Company set forth in Section 11.6 hereof
(together with any other indemnities of the Company contained
elsewhere in this Agreement or in any of the Loan Documents) and of
Banks set forth in Section 13.13 hereof shall survive the repayment
in full of the Indebtedness and the termination of any commitments
to make Advances hereunder.
13.21 Complete Agreement. This Agreement, the Notes, any
Requests for Advance hereunder, the other Loan Documents and any
agreements, certificates, or other documents given to secure the
Indebtedness and the Commitment Letter, contain the entire
agreement of the parties hereto (provided that in the event of any
inconsistency between this Agreement and the other Loan Documents,
<PAGE>
<PAGE> 64 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
on one hand, and the Commitment Letter, on the other hand, this
Agreement and the other Loan Documents shall control), and none of
the parties hereto shall be bound by anything not expressed in
writing.
WITNESS the due execution hereof as of the day and year first
above written.
COMPANY: AGENT:
VISHAY INTERTECHNOLOGY, INC. COMERICA BANK, As Agent
By: By:
------------------------- ---------------------------
Its: Vice President Its: Vice President
63 Lincoln Highway One Detroit Center
Malvern, Pennsylvania 19355 500 Woodward Avenue
Detroit, Michigan 48226
Attention: National Division
<PAGE>
<PAGE> 65 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
BANKS:
COMERICA BANK
By:
------------------------------
Its:
------------------------------
Comerica Bank Building
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48275
Attention: National Division
Telex: 235808
Fax No.: (313) 222-3330
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:
------------------------------
Its:
------------------------------
NationsBank Corporate Center
100 North Tryon Street
NC 1007-08-04
Charlotte, NC 28255-0086
Attn: Mr. M. Gregory Seaton
Telex: 669959
Fax No.: (704) 386-3271
BERLINER HANDELS-UND FRANKFURTER
BANK KGaA
By:
------------------------------
Its:
------------------------------
Bockenheimer Landstr. 10
60323 Frankfurt/Main 1
Germany
Attn: Mr. Hans-Jurgen Scholz
Telex: 411 026
Fax No.: 4969/718-3011
<PAGE>
<PAGE> 66 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
BANK HAPOALIM, B.M.
By:
------------------------------
Its:
------------------------------
3 Penn Center Plaza
Philadelphia, Pennsylvania 19102
Attn: Mr. Andrew Niesen
Telex: 902022
Fax No.: (215) 665-2217
SIGNET BANK/MARYLAND
By:
------------------------------
Its:
------------------------------
7 St. Paul Street
Baltimore, Maryland 21202
Attn: Ms. Janice E. Godwin
Telex: 87638
Fax No.: (301) 625-6365
CORESTATES BANK, N.A.,
formerly known as and continuing
to do business under the name of
THE PHILADELPHIA NATIONAL BANK
By:
------------------------------
Its:
------------------------------
1345 Chestnut Street
F.C. 1-8-3-14
Philadelphia, Pennsylvania 19107
Attn: Mr. James A. Bennett
Telex: 845400
Fax No.: (215) 973-7820
<PAGE>
<PAGE> 67 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
BANK LEUMI le-ISRAEL, B.M.
By:
------------------------------
Its:
------------------------------
1511 Walnut Street
Philadelphia, Pennsylvania 19102
Attn: Mr. Joseph A. McBride
Telex: 173090
Fax No.: (215) 563-8688
MERIDIAN BANK
By:
------------------------------
Its:
------------------------------
1650 Market Street
Suite 3600
Philadelphia, Pennsylvania 19103
Attn: Mr. John M. Fessick
Telex: 173003
Fax No.: (215) 854-3774
ABN AMRO BANK N.V. NEW YORK BRANCH
By:
------------------------------
Its:
------------------------------
and
By:
------------------------------
Its:
------------------------------
500 Park Avenue
Second Floor
New York, New York 10022
Attn: Mr. James B. Sieger
Telex: 423721
Fax No.: (212) 759-4792
<PAGE>
<PAGE> 68 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
CREDIT LYONNAIS NEW YORK BRANCH
By:
-------------------------------
Its:
-------------------------------
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Steve Levi
Telex:
Fax No.: (212) 459-3179
CREDIT SUISSE
By:
------------------------------
Its:
------------------------------
And By:
------------------------------
Its:
------------------------------
12 East 49th Street
New York, New York 10017
Attn: Ms. Eileen O'Connel Fox
Telex: 420149
Fax No.: (212) 238-5389
<PAGE>
<PAGE> 69 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
SCHEDULE 1.8 (ACQUISITION LOAN AGREEMENT)
Pricing Matrix (Determination of Pricing Levels)
<TABLE>
<CAPTION>
Applicable Margin for Advances Applicable Margin for Advances Applicable Fee
for the Term Loan of the Bridge Loan Percentage For
Prime-based Eurocurrency- Prime-based Eurocurrency- Bridge Loan
Rate based Rate Rate based Rate Commitment Fee
<S> <C> <C> <C> <C> <C>
If Leverage Ratio is
less than or equal
to 3.9:1.0
OR
If Rating Level 3
(or higher) is in 0.00% 1.0% 0.00% 1.125% .25%
effect
If Leverage Ratio is
greater than
3.9:1.0
OR
If Rating Level 4 .125% 1.0% .125% 1.375% .375%
is in effect
<PAGE>
<PAGE> 70 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
EXHIBIT "A"
TERM NOTE
---------
$_____________________________ JULY___, 1994
On or before July , 2001 (the "Term Loan Maturity Date"), FOR VALUE
RECEIVED, Vishay Intertechnology, Inc., a Delaware corporation ("Company")
promises to pay to the order of (insert name of Bank) ("Bank") at Detroit,
Michigan, care of Agent, in lawful money of the United States of America the
indebtedness or so such of the sum of (insert Amount Derived from Percentages)
with interest thereon as hereinafter set forth, all in accordance with that
certain Vishay Intertechnology, Inc. $200,000,000 Acquisition Loan Agreement
("Agreement") dated as of July _, 1994, made by and among the Company,
certain banks, including the Bank, and Comerica Bank as Agent for such
banks.
The unpaid principal indebtedness from time to time outstanding under
this Note shall bear interest at the Eurocurrency-based Rate, the Prime-based
Rate or the Fixed Rate as elected by Company or as otherwise determined under
the Agreement.
There shall be no readvance or reborrowing of any principal reductions of
this Note.
Interest on the unpaid balance of all Prime-based Advances or after the
Fixed Rate Election shall be payable in United States Dollars quarterly
commencing on September 30, 1994 and on the last day of each calendar quarter
thereafter until the Term Loan Maturity Date. Interest accruing at the
Prime-based Rate or the Fixed Rate shall be computed on the basis of a 360
day year and assessed for the actual number of days elapsed, and in such
computation effect shall be given to changes in the Prime-based Rate on the
change in the Prime-based Rate.
Interest on each 1 month, 2 month and 3 month Eurocurrency-based Advance
shall be payable in United States Dollars on the last day of the Interest
Period applicable thereto. Interest on each 6 month Eurocurrency-based Advance
shall be payable in United States Dollars at intervals of 3 months after the
first day of the applicable Interest Period and on the last day of the
Interest Period applicable thereto. Interest accruing at the Eurocurrency-
based Rate shall be computed on the basis of a 360 day year and assessed for
the actual number of days elapsed from the first day of the Interest Period
applicable thereto, but not including, the last day thereof.
In the event and so long as a default or Event of Default shall exist
under this Note or under the Agreement, interest shall
<PAGE>
<PAGE> 71 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
be payable daily on all Advances from time to time outstanding hereunder at a
per annum rate equal to the Applicable Interest Rate plus three percent (3%)
for the remainder of the then existing Interest Period, if any, and at all
other times, with respect to Domestic Advances from time to time outstanding,
at a per annum rate equal to the Prime-based Rate or the Fixed Rate, as
applicable, plus three percent (3%), and with respect to Eurocurrency-based
Advances from time to time outstanding under this Note, (i) at a per annum
rate calculated by the Agent, whose determination shall be conclusive absent
manifest error, on a daily basis, equal to three percent (3%) above the
interest rate per annun at which one (1) day deposits (or, if such amount due
remains unpaid for more than three (3) Business Days, then for such other
period of time as the Agent may elect which shall in no event be longer than
six (6) months) in the relevant Eurocurrency in the amount of such overdue
payment due to the Agent are offered by the Eurocurrency Lending Office for the
applicable period determined as provided above, or (ii) if at any such time
such deposits are not offered by the Eurocurrency Lending Office, then at a
rate per annum equal to three percent (3%) above the rate determined by the
Agent to be its aggregate marginal cost (including the cost of maintaining
any required reserves or deposit insurance) of carrying the amount of such
Eurocurrency Advance.
The amount and date of each Advance of the Term Loan, its Applicable
Interest Rate and Interest Period, and the amount and date of any repayments
shall be noted on Agent's records, which records will be conclusive evidence
thereof, absent manifest error.
This Note is a note under which prepayments may be made from time to
time, but only in accordance with the terms and conditions of the Agreement,
including without limitation, after the Fixed Rate Election, the payment of
Yield Maintenance Payments.
This Note evidences borrowings under, is subject to, is secured in
accordance with, and may be accelerated or matured under, the terms of the
Agreement, to which reference is hereby made. Definitions and terms of the
Agreement are hereby incorporated herein.
As additional security for this Note, Company grants Bank a lien on all
property and assets including deposits and other credits of the Company, at
any time in possession or control of or owing by Bank for any purpose.
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.
Company 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
<PAGE>
<PAGE> 72 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
extension, indulgence, release, or forbearance granted by any holder of
this Note to any party now or hereafter liable hereon or any preaunt or
subsequent owner of any property, real or personal, which,is now or
hereafter security for this Note.
Nothing herein shall limit any right granted Bank by any other instrument
or by law.
VISHAY INTERTECNOLOGY, INC.,
a Delaware corporation
By:
-----------------------------
Its:
-----------------------------
<PAGE>
<PAGE> 73 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
EXHIBIT "B"
REQUEST FOR TERM LOAN ADVANCE AND RATE REQUEST
----------------------------------------------
To: Comerica Bank ("Agent")
A. Request
-------
The undersigned authorized officer of Vishay Intertechnology,
Inc. ("Company") in accordance with Section 2.9 of the Vishay
Intertechnology, Inc. $200,000,000 Acquisition Loan Agreement dated
as of July ___, 1994, among Company, certain Banks and Comerica
Bank, as Agent for the Banks (the "Agreement"), hereby requests the
Agent under the Agreement to make, refund or convert, as
applicable, a (an) _______________/1 Advance of the Term Loan to the
undersigned on __________, 19__,/2 in the amount of $__________/3
under the Term Notes ("Notes") dated July ___, 1994 made by Company
to said Banks.
The Interest Period for the requested Advance shall be _____
________________./4
____________________
1/ Insert, as applicable, "Eurocurrency-based" or "Prime-based."
2/ Insert date at least four (4) Business Days after the date of
Request, if Request is for Eurocurrency-based Advance and, if
Request involves the conversion or renewal of any outstanding
Eurocurrency-based Advance, date must be the Business Day
subsequent to the last day of the applicable Eurocurrency-based
Interest Period.
3/ Insert amount of requested Advance. This amount, together with
the amount of any other outstanding indebtedness evidenced by the
Term Notes to be then combined therewith having the same Applicable
Interest Rate and Interest Period, if any, shall not be less than
(x) $500,000 in the case of a Prime-based Advance, or (y)
$1,000,000 (or the applicable foreign currency equivalent thereof)
in the case of a Eurocurrency-based Advance, and upon completion of
the Advance there shall be no more than 1 Interest Period and 1
Applicable Interest Rate (including the Prime-based Rate).
4/ For Eurocurrency-based Advance insert, as applicable, "1
month", "2 months", "3 months" or "6 months." Such Interest Period
(i) may not end after the Term Loan Maturity Date; and (ii) must
leave a sufficient portion of the Term Loan subject to an Interest
Period ending on the last day of the quarter to enable Company to
make required principal repayments.
<PAGE>
<PAGE> 74 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
B. Application of Proceeds
-----------------------
The proceeds of this Advance shall be applied to
refund/convert/5 the following outstanding Advances:
Type of Last Day of Principal
Advance Interest Period Outstanding
C. Request Irrevocable
-------------------
Upon Agent's receipt of this Request For Term Loan Advance,
this Request For Term Loan Advance shall be irrevocable.
D. Certification
-------------
The undersigned hereby certifies that:
(1) both before and after the Advance, the obligations of the
Company and its Subsidiaries set forth in the Agreement
and any of the Loan Documents to which such Persons are
parties are and shall be valid, binding and enforceable
obligations of the Company and its Subsidiaries;
(2) all conditions to Advances of the Term Loan have been
satisfied, and shall remain satisfied to the date of
Advance;
(3) there is no Event of Default in existence, and no event
which, with the giving of notice or the lapse of time, or
both, would constitute such an Event of Default, and none
will exist upon the making of the Advance;
(4) the representations and warranties contained in the
Agreement and the Loan Documents are true and correct in
all material respects and shall be true and correct in
all material respects as of the making of the Advance;
and
(5) the execution of this Request for Term Loan Advance will
not violate the material terms and conditions of any
material contract, agreement or other borrowing of
Company or its Subsidiaries
____________________
5/ Strike inapplicable term to indicate whether a conversion or
refunding.
<PAGE>
<PAGE> 75 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
E. Defined Terms
-------------
Capitalized terms used herein, unless specifically defined to
the contrary herein, have the meanings given them in the Agreement.
Dated this ____ day of ________________, 1994.
VISHAY INTERTECHNOLOGY, INC.
By:___________________________
Its:__________________________
(This form of Request for Term Loan Advance (including footnotes)
is subject in all respects to the terms and conditions of the
Agreement which shall govern in the event of any inconsistencies or
omissions.)
<PAGE>
<PAGE> 76 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
EXHIBIT "C"
FIXED RATE ELECTION
-------------------
To: Comerica Bank ("Agent")
Re: Vishay Intertechnology, Inc. $200,000,OOO Acquisition Loan
Agreement dated as of July _, 1994 (the "Agreement"), among
Vishay Intertechnology, Inc. ("Company"), Agent and certain
Banks
Pursuant to Section 2.11 of the Agreement, the Company elects
the Fixed Rate as the Applicable Interest Rate for the remaining
balance of the Term Loan.
The Company certifies to the matters specified in Section
2.11(c) of the Agreement.
Capitalized terms used herein, unless specifically defined
to the contrary herein, have the meanings given them in the
Agreement.
Dated: VISHAY INTERTECHNOLOGY, INC.
-------------------------
By:
------------------------
Its:
------------------------
<PAGE>
<PAGE> 77 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
EXHIBIT "D"
BRIDGE NOTE
-----------
$_______________________ JULY _____ , 1994
On or before July___, 1996 (the "Bridge Loan Maturity Date,) , FOR VALUE
RECEIVED, Vishay Intertechnology, Inc., a Delaware corporation ("Company")
promises to pay to the order of (Insert Bank) ("Bank") at
Detroit, Michigan, care of Agent, in lawful money of the United States of
America the Indebtedness or so much of the sum of (Amount Derived from
Percentages) which may, from time to time, have been advanced and then be
outstanding hereunder, together with interest thereon, as hereinafter set
forth, in accordance with that certain Vishay Intertechnoloby, Inc.
$200,000,000 Acquisition Loan Agreement ("Agreement") dated as of July___ ,
1994, made by and among Company, certain banks, including the Bank, and
Comerica Bank as Agent for such banks.
The unpaid principal indebtedness from time to time outstanding under
this Note shall bear interest at the Eurocurrency-based Rate or the
Prime-based Rate as elected by Company or as otherwise determined under the
Agreement.
There shall be no readvance or reborrowing of any principal reductions
of this Note.
Interest on the unpaid balance of all Prime-based Advances shall be
payable in United States Dollars quarterly commencing on September 30, 1994
and on the last day of each calendar quarter thereafter until the Term Loan
Maturity Date. Interest accruing at the Prime-based Rate shall be computed
on the basis of a 360 day year and assessed for the actual number of days
elapsed, and in such computation effect shall be given to changes in the
Prime-based Rate on the date of such change in the Prime-based Rate.
Interest on each 1 month, 2 month and 3 month Eurocurrency-based
Advance shall be payable in United States Dollars on the last day of the
Interest Period applicable thereto. Interest on each 6 month Eurocurrency-
based Advance shall be payable in United States Dollars at intervals of 3
months after the first day of the applicable Interest Period and on the last
day of the Interest Period applicable thereto. Interest accruing at the
Eurocurrency-based Rate shall be computed on the basis of a 360 day year and
assessed for the actual number of days elapsed from the first day of the
Interest Period applicable thereto, but not including, the last day thereof.
<PAGE>
<PAGE> 78 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
In the event and so long as a default or Event of Default shall exist
under this Note or under the Agreement, interest shall be payable daily on
all Advances from time to time outstanding hereunder at a per annum rate
equal to the Applicable Interest Rate plus three percent (3%) for the remainder
of the then existing Interest Period, if any, and at all other times, with
respect to Domestic Advances from time to time outstanding, at a per annum
rate equal to the Prime-based Rate plus three percent (3%), and with respect
to Eurocurrency-based Advances from time to time outstanding under this Note,
(i) at a per annum rate calculated by the Agent, whose determination shall
be conclusive absent manifest error, on a daily basis, equal to three percent
(3%) above the interest rate per annum at which one (1) day deposits (or, if
such amount due remains unpaid for more than three (3) Business Days, then
for such other period of time as the Agent may elect which shall in no event
be longer than six (6) months) in the relevant Eurocurrency in the amount of
such overdue payment due to the Agent are offered by the Eurocurrency Lending
Office for the applicable period determined as provided above, or (ii) if at
any such time such deposits are not offered by the Eurocurrency Lending Office,
then at a rate per annum equal to three percent (3%) above the rate determined
by the Agent to be its aggregate marginal cost (including the cost of
maintaining any required reserves or deposit insurance) of carrying the amount
of such Eurocurrency Advance.
The amount and date of each Advance of the Term Loan, its Applicable
Interest Rate and Interest Period, and the amount and date of any repayments
shall be noted on Agent's records, which records will be conclusive evidence
thereof, absent manifest error.
This Note is a note under which prepayments may be made from time to time,
but only in accordance with the terms and conditions of the Agreement.
This Note evidences borrowings under, is subject to, is secured in
accordance with, and may be accelerated or matured under, the terms of the
Agreement, to which reference is hereby made. Definitions and terms of the
Agreement are hereby incorporated herein.
As additional security for this Note, Company grants Bank a lien on
all property and assets including deposits and other credits of the Company,
at any time in possession or control of or owing by Bank for any purpose.
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.
Company 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
<PAGE>
<PAGE> 79 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
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.
Nothing herein shall limit any right granted Bank by any other instrument
or by law.
VISHAY INTERTECHNOLOGY, INC.,
a Delaware corporation
By:
--------------------------
Its:
---------------------------
<PAGE>
<PAGE> 80 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
EXHIBIT "E"
REQUEST FOR BRIDGE LOAN ADVANCE AND RATE REQUEST
------------------------------------------------
To: Comerica Bank ("Agent")
A. Reguest
The undersigned authorized officer of Vishay Intertechnology,
Inc. ("Company") in accordance with Section 3.9 of the Vishay Intertechnology,
Inc. $200,000,000 Acquisition Loan Agreement dated as of July _, 1994,
among Company, certain Banks and Comerica Bank, as Agent for the Banks (the
"Agreement") hereby requests the Agent under the Agreement to Make, refund
or convert, as applicable, a (an)_________________/1 Advance of the Term Loan
to the undersigned on__________ 19__,/2 in the amount of $________________ /3
under the Term Notes ("Notes") dated July _, 1994 made by Company to said
Banks.
The Interest Period for the requested Advance shall be
_________________./4
- ----------------------
1/Insert, as applicable, "Eurocurrency-based" or "Prime-based".
2/Insert date at least four (4) Business Days after the date of Request,
if Request is for Eurocurrency-based Advance and, if Request involves
the conversion or renewal of any outstanding Eurocurrency-based Advance,
date must be the Business Day subsequent to the last day of the applicable
Eurocurrency-based Interest Period.
3/Insert amount of requested Advance. This amount, together with the
amount of any other outstanding indebtedness evidenced by the Term Notes
to be then combined therewith having the same Applicable Interest Rate and
Interest Period, if any, shall not be less than (x) $500,000 in the case of
a Prime-based Advance or (y) $1,000,000 (or applicable foreign currency
equivalent thereof) in the case of a Eurocurrency-based Advance, and upon
completion of the Advance there shall be no more than 1 Interest Period and
1 Applicable Interest Rate (including the Prime-based Rate).
4/For Eurocurrency-based Advance insert, as applicable, "1 month",
"2 months", "3 months" or "6 months." Such Interest Period (i) may not end
after the Term Loan Maturity Date; and (ii) must leave a sufficient portion
of the Term Loan subject to an Interest Period ending on the last day of
the quarter to enable Company to make required principal repayments.
<PAGE>
<PAGE> 81 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
B. Application of Proceeds
-----------------------
The proceeds of this Advance shall be applied to
refund/convert/5 the following outstanding Advances:
Type of Last Day of Principal
Advance Interest Period Outstanding
C. Request Irrevocable
------------------
Upon Agent's receipt of this Request For Term Loan Advance,
this Request For Term Loan Advance shall be irrevocable.
D. Certification
-------------
The undersigned hereby certifies that:
(1) both before and after the Advance, the obligations of the
Company and its Subsidiaries set forth in the Agreement and
any of the Loan Documents to which such Persons are parties
are and shall be valid, binding and enforceable obligations
of the Company and its Subsidiaries;
(2) all conditions to Advances of the Term Loan have been
satisfied, and shall remain satisfied to the date of Advance;
(3) there is no Event of Default in existence, and no event which,
with the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, and none will exist upon
the making of the Advance;
(4) the representations and warranties contained in the Agreement
and the Loan Documents are true and correct in all material
respects and shall be true and correct in all material respects
as of the making of the Advance; and
(5) the execution of this Request for Term Loan Advance will
not violate the material terms and conditions of any material
contract, agreement or other borrowing of Company or its
Subsidiaries.
- --------------------
5/Strike inapplicable term to indicate whether a conversion or refunding.
<PAGE>
<PAGE> 82 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
E. Defined Terms
-------------
Capitalized terms used herein, unless specifically defined to
the contrary herein, have the meanings given them in the Agreement.
Dated this day of , 1994.
----- ----------------
VISHAY INTERTECHNOLOGY, INC.
By:
----------------------------
Its:
----------------------------
(This form of Request for Term Loan Advance (including footnotes)
is subject in all respects to the terms and conditions of the
Agreement which shall govern in the event of any inconsistencies or
omissions.)
<PAGE>
<PAGE> 83 -- Exhibit 10.4 ($200,000,000 Acquisition Loan Agreement)
EXHIBIT "F"
Percentages
-----------
Comerica Bank 15.42%
NationsBank of North Carolina, N.A. 15.42%
Berliner Handels-Und Frankfurter Bank 11.67%
Signet Bank Maryland 11.66%
Bank Hapoalim, B.M. 8.33%
CoreStates Bank, N.A. 8.33%
ABN AMRO Bank N.V. 8.33%
Credit Lyonnais New York Branch 8.33%
Bank Leumi le-Israel, B.M. 4.17%
Credit Suisse 4.17%
Meridian Bank 4.17%
<PAGE>
</TABLE>
<PAGE>
<PAGE> 1 -- Exhibit 10.5 (Vishay Guaranty)
AMENDED AND RESTATED
VISHAY GUARANTY
Vishay Intertechnology, Inc., a Delaware corporation
("Guarantor") desires to see the success of its Subsidiaries (as
defined below), as follows:
(a) the Permitted Borrowers, as defined in that
certain Amended and Restated Vishay Intertechnology, Inc.
$302,500,000 Revolving Credit and Term Loan Agreement dated
as of July 18, 1994 among Guarantor, Comerica Bank, a
Michigan banking corporation, successor by merger to
Manufacturers Bank, N.A., formerly known as Manufacturers
National Bank of Detroit, as Agent ("Agent") and the Banks
(as hereinafter defined), (as amended from time to time, the
"Vishay Loan Agreement") and furthermore, Guarantor shall
receive direct and/or indirect benefits from extensions of
credit made or to be made pursuant to the Vishay Loan
Agreement to the Permitted Borrowers; and
(b) Vishay Beteiligungs GmbH, formerly known as
Draloric Electronic GmbH ("Debtor"), a German corporation
(and one of the Permitted Borrowers), and furthermore,
Guarantor shall receive direct and/or indirect benefits from
extensions of credit made or to be made to Debtor pursuant
to that certain Amended and Restated Draloric/VBG DM
40,000,000 Revolving Credit and DM 9,506,000 Term Loan
Agreement dated as of July 18, 1994, (as amended from time
to time, the "DM Loan Agreement") among Debtor, Agent and
the Banks and that certain Amended and Restated Roederstein
DM 104,315,990.20 Term Loan Agreement of even date herewith
among Debtor, Agent and the Banks (as amended from time to
time, the "Roederstein Loan Agreement").
NOW, THEREFORE, to induce each of the Banks (as defined in
the Vishay Loan Agreement) to enter into and perform its
obligations under the Vishay Loan Agreement, the DM Loan
Agreement, the Roederstein Loan Agreement and that certain Vishay
Intertechnology, Inc. $200,000,000 Acquisition Loan Agreement of
even date herewith among Debtor, Agent and the Banks, the
Guarantor has executed and delivered this Amended and Restated
Guaranty ("Guaranty") as an amendment and restatement of prior
guaranties executed by the Guarantor.
1. Definitions. Unless otherwise provided herein, all
capitalized terms in this Guaranty shall have the meanings
specified in the Vishay Loan Agreement, and if not defined
therein, then in the DM Loan Agreement or the Roederstein Loan
Agreement, as the context requires.
2. Guaranty. The Guarantor hereby guarantees to the Banks
the due and punctual payment to the Banks when due, whether by
<PAGE>
<PAGE> 2 -- Exhibit 10.5 (Vishay Guaranty)
acceleration or otherwise, of all amounts, including interest,
due and owing under:
(a) (i) any and all Revolving Credit Notes,
("Revolving Credit Notes") made or to be made to the order
of the Banks by the Permitted Borrowers and any of them,
from time to time pursuant to the terms and conditions of
the Vishay Loan Agreement; (ii) all other Indebtedness of
the Permitted Borrowers, and any of them, under or in
connection with the Vishay Loan Agreement; and (iii) all
extensions, renewals and amendments of or to such notes or
such other Indebtedness (as defined in the Vishay Loan
Agreement), or any replacements or substitutions therefor;
all of the foregoing being payable in accordance with such
Revolving Credit Notes and the Vishay Loan Agreement; and
(b) those certain Revolving Credit Notes made by
Debtor to the order of the Banks pursuant to the DM Loan
Agreement ("DM Revolving Notes"), those certain Bid Notes
made by Debtor to the order of the Banks pursuant to the DM
Loan Agreement ("Bid Notes"), and those certain Term Notes
("DM Term Notes") made by Debtor to the order of the Banks
pursuant to the DM Loan Agreement (the DM Revolving Notes,
the Bid Notes and the DM Term Notes being referred to
collectively herein as the "DM Notes"), and all extensions,
renewals and amendments of or to such notes or such other
Indebtedness (as defined in the DM Loan Agreement) or any
replacements or substitutions therefor, all payable in
accordance with the terms and conditions of such DM Notes
and the DM Loan Agreement; and
(c) those certain Term Notes made or to be made by
Debtor to the order of the Banks pursuant to the Roederstein
Loan Agreement ("Roederstein Term Notes") and all
extensions, renewals and amendments of or to such notes or
such other Indebtedness (as defined in the Roederstein Loan
Agreement) or any replacements or substitutions therefor,
all payable in accordance with the terms and conditions of
such Roederstein Term Notes and the Roederstein Loan
Agreement;
and hereby agrees that if any Permitted Borrower (including
Debtor) shall fail to pay any of such amounts when and as the
same shall be due and payable, or shall fail to perform and
discharge any covenant, representation or warranty in accordance
with the terms of the DM Notes, the DM Loan Agreement, the
Revolving Credit Notes, Vishay Loan Agreement, the Roederstein
Term Notes, or the Roederstein Loan Agreement, or any other loan
or collateral documents executed in connection therewith (the
"Loan Documents") the Guarantor will forthwith pay to the Agent,
on behalf of the Banks, an amount equal to any such amount or
cause each of the Permitted Borrowers, and/or Debtor, as the case
<PAGE>
<PAGE> 3 -- Exhibit 10.5 (Vishay Guaranty)
may be, to perform and discharge any such covenant,
representation or warranty, as the case may be, and will pay any
and all damages that may be incurred or suffered in consequence
thereof by Agent or any of the Banks and all reasonable expenses,
including reasonable attorneys' fees, that may be incurred by
Agent in enforcing such covenant, representation or warranty of
any Permitted Borrower (including Debtor), as the case may be,
and in enforcing the covenants and agreements of this Guaranty.
3. Unconditional Character of Guaranty. The obligations of
Guarantor under this Guaranty shall be absolute and
unconditional, and shall be a guaranty of payment and not of
collection, irrespective of the validity, regularity or
enforceability of the Revolving Credit Notes, the Vishay Loan
Agreement, the DM Notes, the DM Loan Agreement, the Roederstein
Term Notes, the Roederstein Loan Agreement, or any of the other
Loan Documents (including, without limitation, the Domestic
Guaranty, the Permitted Borrowers Guaranty, and the Roederstein
Loan Documents), or any provision thereof, the absence of any
action to enforce the same, any waiver or consent with respect to
any provision thereof, the recovery of any judgment against any
Person or action to enforce the same, any failure or delay in the
enforcement of the obligations of the Permitted Borrowers under
the Revolving Credit Notes and the Vishay Loan Agreement, of the
Debtor under the DM Notes and the DM Loan Agreement, or of Debtor
under the Roederstein Term Notes and the Roederstein Loan
Agreement, or any of the other Loan Documents, any failure by
Guarantor to have countersigned any request for advance by any of
the Permitted Borrowers under the Vishay Loan Agreement, or any
setoff, counterclaim, recoupment, limitation, defense or
termination. Guarantor hereby waives diligence, demand for
payment, filing of claims with any court, any proceeding to
enforce any provision of the Revolving Credit Notes executed by
the Permitted Borrowers, the Vishay Loan Agreement, the DM Notes
and the DM Loan Agreement, or the Roederstein Term Notes, the
Roederstein Loan Agreement or any of the other Loan Documents,
any right to require a proceeding first against any of the
Permitted Borrowers (including Debtor), or against any other
guarantor or other party providing collateral, or to exhaust any
security for the performance of the obligations of any of the
Permitted Borrowers (including Debtor), any protest, presentment,
notice or demand whatsoever, and Guarantor hereby covenants that
this Guaranty shall not be terminated, discharged or released
except, subject to Section 6.8 hereof, upon payment in full of
all amounts due and to become due from the Permitted Borrowers
(including Debtor) as and to the extent described above, and only
to the extent of any such payment, performance and discharge.
Guarantor further covenants that no security now or subsequently
held by the Agent or the Banks for the payment of the
Indebtedness evidenced by the Revolving Credit Notes made by the
Permitted Borrowers under the Vishay Loan Agreement, for the
payment of the Indebtedness evidenced by the DM Notes made by
<PAGE>
<PAGE> 4 -- Exhibit 10.5 (Vishay Guaranty)
Debtor under the DM Loan Agreement or for the payment of the
Indebtedness evidenced by the Roederstein Term Notes made by
Debtor under the Roederstein Loan Agreement, or otherwise
evidenced or incurred (including, without limitation, the
Domestic Guaranty and the Permitted Borrowers Guaranty and any
security for any of the foregoing), whether in the nature of a
security interest, pledge, lien, assignment, setoff, suretyship,
guaranty, indemnity, insurance or otherwise, and no act, omission
or other conduct of Agent or the Banks in respect of such
security, shall affect in any manner whatsoever the unconditional
obligation of this Guaranty, and that the Agent and each of the
Banks, in their respective sole discretion and without notice to
Guarantor, may release, exchange, enforce, apply the proceeds of
and otherwise deal with any such security without affecting in
any manner the unconditional obligation of this Guaranty.
Without limiting the generality of the foregoing, such
obligations, and the rights of the Agent to enforce the same, on
behalf of the Banks, by proceedings, whether by action at law,
suit in equity or otherwise, shall not be in any way affected by
(i) any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding up or other
proceeding involving or affecting any or all of the Permitted
Borrowers, Debtor or others or (ii) any change in the ownership
of any of the capital stock of any or all of the Permitted
Borrowers, or the Debtor, or any other party providing collateral
for any indebtedness covered by Guaranty, or any of their
respective Affiliates.
Guarantor hereby waives to the full extent possible under
applicable law:
(a) any defense based upon the doctrine of marshalling
of assets or upon an election of remedies by Agent or the Banks,
including, without limitation, an election to proceed by non-
judicial rather than judicial foreclosure, which destroys or
otherwise impairs the subrogation rights of the Guarantor or the
right of the Guarantor to proceed against the Permitted
Borrowers, or any of them, or the Debtor, for reimbursement, or
both;
(b) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that
of the principal;
(c) any duty on the part of Agent or the Banks to
disclose to the Guarantor any facts Agent or the Banks may now or
hereafter know about any of the Permitted Borrowers or the
Debtor, regardless of whether Agent or any Bank has reason to
believe that any such facts materially increase the risk beyond
that which the Guarantor intends to assume or has reason to
<PAGE>
<PAGE> 5 -- Exhibit 10.5 (Vishay Guaranty)
believe that such facts are unknown to the Guarantor or has a
reasonable opportunity to communicate such facts to the
Guarantor, since the Guarantor acknowledges that it is fully
responsible for being and keeping informed of the financial
condition of each of the Permitted Borrowers and the Debtor and
of all circumstances bearing on the risk of non-payment of any
Indebtedness (defined as applicable) hereby guaranteed;
(d) any defense arising because of Agent's or the
Banks' election, in any proceeding instituted under the Federal
Bankruptcy Code, of the application of Section 1111(b)(2) of the
Federal Bankruptcy Code;
(e) any claim for reimbursement, contribution,
indemnity or subrogation which such Guarantor may have or obtain
against the Permitted Borrowers, Debtor, or any of them by reason
of the payment by Guarantor of any Indebtedness; and
(f) any other event or action (excluding Guarantor's
compliance with the provisions hereof) that would result in the
discharge by operation of law or otherwise of the Guarantor from
the performance or observance of any obligation, covenant or
agreement contained in this Guaranty.
The Agent and each of the Banks may deal with the Permitted
Borrowers, or any of them, and the Debtor and any security held
by them for the obligations of the Permitted Borrowers, or any of
them, and the Debtor (as aforesaid) in the same manner and as
freely as if this Guaranty did not exist and the Agent shall be
entitled, on behalf of Banks, without notice to Guarantor, among
other things, to grant to the Permitted Borrowers, or any of
them, and/or the Debtor, such extension or extensions of time to
perform any act or acts as may seem advisable to the Agent (on
behalf of the Banks) at any time and from time to time, and to
permit the Permitted Borrowers, or any of them, and/or the
Debtor, to incur additional indebtedness to Agent, the Banks, or
any of them, without terminating, affecting or impairing the
validity or enforceability of this Guaranty or the obligations of
Guarantor hereunder.
The Agent may proceed, either in its own name (on behalf of
the Banks) or in the name of the Guarantor, or otherwise, to
protect and enforce any or all of its rights under this Guaranty
by suit in equity, action at law or by other appropriate
proceedings, or to take any action authorized or permitted under
applicable law, and shall be entitled to require and enforce the
performance of all acts and things required to be performed
hereunder by the Guarantor. Each and every remedy of the Agent
and of the Banks shall, to the extent permitted by law, be
cumulative and shall be in addition to any other remedy given
hereunder or now or hereafter existing at law or in equity.
<PAGE>
<PAGE> 6 -- Exhibit 10.5 (Vishay Guaranty)
No waiver or release shall be deemed to have been made by
the Agent or any of the Banks of any of its rights hereunder
unless the same shall be in writing and signed by or on behalf of
the Banks, and any such waiver shall be a waiver or release only
with respect to the specific matter involved and shall in no way
impair the rights of the Agent or any of the Banks or the
obligations of Guarantor under this Guaranty in any other respect
at any other time.
At the option of the Agent, Guarantor may be joined in any
action or proceeding commenced by the Agent against the Permitted
Borrowers, or any of them, and/or the Debtor or any of the other
parties providing collateral for any indebtedness covered by this
Guaranty in connection with or based upon the Revolving Credit
Notes made by the Permitted Borrowers, the Vishay Loan Agreement,
the DM Notes, the DM Loan Agreement, the Roederstein Term Notes,
the Roederstein Loan Agreement or any of the other Loan Documents
or other Indebtedness (defined as applicable, as aforesaid), or
any provision thereof, and recovery may be had against Guarantor
in such action or proceeding or in any independent action or
proceeding against Guarantor, without any requirement that the
Agent or the Banks first assert, prosecute or exhaust any remedy
or claim against the Permitted Borrowers, or any of them, the
Debtor and/or any of the other parties providing collateral for
any Indebtedness covered by this Guaranty.
4. Continuing Obligation for DM Term Notes. Guarantor
acknowledges that, by virtue of this Guaranty (and prior
guaranties amended and restated hereby), Guarantor has continued
as an obligor on the Indebtedness evidenced by the DM Term Notes
without any interruption whatsoever in such status as obligor,
Guarantor having previously been obligated on such Indebtedness
as primary obligor.
5. Release of Collateral for Guaranty. Concurrently
herewith, Comerica Bank, as agent under the Prior Loan
Agreements, and the Prior Banks, have undertaken to release the
Collateral delivered to secure the Prior Guaranty (as hereafter
defined).
6. Miscellaneous.
6.1 Governing Law. This Guaranty has been delivered in
Michigan and shall be interpreted and the rights of the parties
hereunder shall be determined under the laws of, and be
enforceable in, the State of Michigan, Guarantor hereby
consenting to the jurisdiction of state and all federal courts
sitting in such state.
6.2 Severability. If any term or provision of this Guaranty
or the application thereof to any circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
<PAGE>
<PAGE> 7 -- Exhibit 10.5 (Vishay Guaranty)
Guaranty, or the application of such term or provision to
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the
fullest extent permitted by law.
6.3 Notice. All notices and other communications to be made
or given pursuant to this Guaranty shall be sufficient if made or
given in writing and delivered by messenger or deposited in the
U.S. mails, registered or certified first class mail, and
addressed as provided under the Vishay Loan Agreement, or at such
other addresses as directed by any of such parties to the others,
as applicable, in compliance with this paragraph.
6.4 Right of Offset. Guarantor acknowledges the rights of
the Agent and of each of the Banks to offset against the
Indebtedness of Guarantor to the Banks under this Guaranty, any
amount owing by the Agent or the Banks, or either or any of them
to the Guarantor, whether represented by any deposit of Guarantor
with the Agent or any of the Banks or otherwise.
6.5 Right to Cure. Guarantor shall have the right to cure
any Event of Default under the Vishay Loan Agreement (with
respect to obligations of the Permitted Borrowers), the DM Loan
Agreements (with respect to Debtor), the Roederstein Loan
Agreement (with respect to Debtor) or the Loan Documents;
provided that such cure is effected within the applicable grace
period or period for cure, if any; and provided further that such
cure can be effected in compliance with the Vishay Loan Agreement
(with respect to the obligations of any of the Permitted
Borrowers), DM Loan Agreement (with respect to the obligations of
Debtor), or Roederstein Loan Agreement (with respect to the
obligations of Debtor) and other Loan Documents (including
without limitation the Vishay Loan Agreement). Except to the
extent of payments of principal and/or interest on the Revolving
Credit Notes made by the Permitted Borrowers, the DM Notes or the
Roederstein Term Notes actually received by the Agent (or the
Banks) pursuant to such cure, the exercise of such right to cure
by Guarantor shall not reduce or otherwise affect the liability
of Guarantor under this Guaranty.
6.6 Financial Statements. The Guarantor shall provide Agent
(with a copy for each of the Banks), commencing as of the date of
this Guaranty, with quarterly and annual financial statements
substantially in accordance with the requirements set forth in
the Vishay Loan Agreement.
6.7 Amendments. The terms of this Guaranty may not be
waived, altered, modified, amended, supplemented or terminated in
any manner whatsoever except as provided herein and in accordance
with the Vishay Loan Agreement, the DM Loan Agreement and the
Roederstein Loan Agreement.
<PAGE>
<PAGE> 8 -- Exhibit 10.5 (Vishay Guaranty)
6.8 Release. Upon the satisfaction by Guarantor of its
obligations hereunder and its direct obligations under the Vishay
Loan Agreement and Roederstein Loan Agreement and its Notes
executed pursuant thereto, and when Guarantor is no longer
subject to any obligation hereunder or thereunder, the Agent
shall deliver to Guarantor, upon written request therefor, (i) a
written release of this Guaranty and (ii) appropriate discharges
of any Collateral provided by Guarantor for this Guaranty;
provided however that, the effectiveness of this Guaranty shall
continue or be reinstated, as the case may be, in the event: (x)
that any payment received or credit given by the Agent or the
Banks, or any of them, is returned, disgorged, rescinded or
required to be recontributed to any party as an avoidable
preference, impermissible setoff, fraudulent conveyance,
restoration of capital or otherwise under any applicable state,
federal or national law of any jurisdiction, including laws
pertaining to bankruptcy or insolvency, and this Guaranty shall
thereafter be enforceable against Guarantor as if such returned,
disgorged, recontributed or rescinded payment or credit has not
been received or given by the Agent or the Banks, and whether or
not the Agent or any Bank relied upon such payment or credit or
changed its position as a consequence thereof or (y) that any
liability is imposed, or sought to be imposed against the Agent
or the Banks, or any of them, relating to the environmental
condition of any property mortgaged or pledged to Agent on behalf
of the Banks by Guarantor, any Permitted Borrower or Debtor or
any other party as collateral (in whole or part) for any
indebtedness or obligation evidenced or secured by this Guaranty,
whether such condition is known or unknown, now exists or
subsequently arises (excluding only conditions which arise after
acquisition by Agent or any Bank of any such property, in lieu of
foreclosure or otherwise, due to the wrongful act or omission of
Agent or such Bank) in which event this Guaranty shall thereafter
be enforceable against Guarantor to the extent of all
liabilities, costs and expenses (including reasonable attorneys
fees) incurred by Agent or Banks as the direct or indirect result
of any such environmental condition. For purposes of this
Guaranty "environmental condition" includes, without limitation,
conditions existing with respect to the surface or ground water,
drinking water supply, land surface or subsurface strata and the
ambient air.
6.9 Consent to Jurisdiction; Waiver of Jury Trial.
Guarantor hereby irrevocably submits to the non-exclusive
jurisdiction of any United States Federal or Michigan state court
sitting in Detroit in any action or proceeding arising out of or
relating to this Guaranty or any of the Loan Documents and
Guarantor hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in any such
United States Federal or Michigan state court. Guarantor
irrevocably consents to the service of any and all process in any
such action or proceeding brought in any court in or of the State
<PAGE>
<PAGE> 9 -- Exhibit 10.5 (Vishay Guaranty)
of Michigan by the delivery of copies of such process to
Guarantor at its address specified in Section 6.3 hereof or by
certified mail direct to such address. This Guaranty is subject
to the waiver of jury trial contained in Section 9.4 of the
Vishay Loan Agreement.
6.10 Amendment and Restatement. This Guaranty is given in
substitution for and amends and restates and replaces in its
entirety the Amended and Restated Vishay Guaranty dated as of
January 29, 1993 (the "Prior Guaranty") executed and delivered by
Guarantor in connection with the Vishay Loan Agreement, the DM
Loan Agreement and the Roederstein Loan Agreement. Nothing herein
contained shall impair or otherwise affect the security interests
or liens established or continued thereunder or in connection
therewith, which security interests and liens shall continue in
full force and effect.
IN WITNESS WHEREOF, the undersigned Guarantor has executed
this Guaranty as of July 18, 1994.
VISHAY INTERTECHNOLOGY, INC.
By:_____________________________
Its:_______________________
ACCEPTED BY:
COMERICA BANK, as Agent, on
behalf of the Banks
By:_____________________________
Its:_______________________
<PAGE>
<PAGE>
<PAGE> 1 -- Exhibit 10.6 (Domestic Guaranty)
DOMESTIC GUARANTY
The undersigned, Dale Holdings, Inc., Dale Electronics,
Inc., Measurements Group, Inc., and Vishay Sprague Holdings
Corp., each a corporation organized under the laws of Delaware
and Sprague Sanford, Inc., a Maine corporation (collectively, the
"Guarantors") desire to see the success of one another and Vishay
Intertechnology, Inc., a Delaware corporation ("Company"), Vishay
Beteiligungs GmbH (formerly known as Draloric Electronic GmbH), a
German corporation ("Debtor"), and the Permitted Borrowers, and
shall receive direct and/or indirect benefits from extensions of
credit granted to Company, Debtor, and the Permitted Borrowers
under and in connection with that certain Amended and Restated
Vishay Intertechnology, Inc. $302,500,000 Revolving Credit and
Term Loan Agreement dated as of the date hereof among Company,
Comerica Bank, a Michigan banking corporation, successor by
merger to Manufacturers Bank, N.A., formerly known as
Manufacturers National Bank of Detroit, as Agent ("Agent") and
the Banks (as hereinafter defined) (as amended from time to time,
the "Vishay Loan Agreement"), the Amended and Restated
Draloric/VBG DM 40,000,000 Revolving Credit and DM 9,506,000 Term
Loan Agreement dated as of the date hereof (as amended from time
to time, the "DM Loan Agreement") among Debtor, Agent and the
Banks, that certain Amended and Restated Roederstein DM
104,315,990.20 Term Loan Agreement of even date herewith among
Debtor, Agent and the Banks (as amended from time to time the
"Roederstein Loan Agreement") and that certain Vishay
Intertechnology, Inc. $200,000,000 Acquisition Loan Agreement of
even date herewith among Company, Agent and the Banks (as amended
from time to time, the "Acquisition Loan Agreement").
NOW, THEREFORE, to induce each of the Banks (as defined in
the Vishay Loan Agreement) to enter into and perform its
obligations under the Vishay Loan Agreement, the DM Loan
Agreement, the Roederstein Loan Agreement and the Acquisition
Loan Agreement, each of the Guarantors has executed and delivered
this guaranty ("Guaranty") as an amendment and restatement of
prior guaranties executed by the Guarantors.
1. Definitions. Unless otherwise provided herein, all
capitalized terms in this Guaranty shall have the meanings
specified in the Vishay Loan Agreement, and if not defined
therein, then in the DM Loan Agreement, the Roederstein Loan
Agreement or the Acquisition Loan Agreement, as the context
requires.
2. Guaranty. Each of the Guarantors hereby, jointly and
severally, guarantees to the Banks the due and punctual payment
to the Banks when due, whether by acceleration or otherwise, of
all amounts, including interest, which may from time to time be
due and owing under:
<PAGE>
<PAGE> 2 -- Exhibit 10.6 (Domestic Guaranty)
(a)(i) any and all Revolving Credit Notes made or to be
made to the order of the Banks by Company or the Permitted
Borrowers, or any of them, from time to time pursuant to the
terms and conditions of the Vishay Loan Agreement; (ii) any
and all Bid Notes ("Bid Notes") made or to be made to the
order of the Banks (as Bid Lenders) by Company from time to
time pursuant to the terms and conditions of the Vishay Loan
Agreement; (iii) any and all Term Notes made or to be made
by Company to the order of the Banks pursuant to the terms
and conditions of the Vishay Loan Agreement; (iv) all other
Indebtedness of the Company, Permitted Borrowers, or any of
them, under or in connection with the Vishay Loan Agreement;
and (v) all extensions, renewals and amendments of or to
such notes or such other Indebtedness (as defined in the
Vishay Loan Agreement), or any replacements or substitutions
therefor; all payable in accordance with the terms of such
Revolving Credit Notes, Bid Notes, Term Notes, and the
Vishay Loan Agreement;
(b)(i) any and all Term Notes made or to be made to the
order of the Banks by Company from time to time pursuant to
the terms and conditions of the Acquisition Loan Agreement;
(ii) any and all Bridge Notes made or to be made by Company
to the order of the Banks pursuant to the terms and
conditions of the Acquisition Loan Agreement; (iii) all
other Indebtedness of the Company under or in connection
with the Acquisition Loan Agreement; and (iv) all
extensions, renewals and amendments of or to such notes or
such other Indebtedness (as defined in the Acquisition Loan
Agreement), or any replacements or substitutions therefor;
all payable in accordance with the terms of such Term Notes,
Bridge Notes, and the Acquisition Loan Agreement;
(c) the Revolving Credit Notes made by Debtor to the
order of the Banks, the Bid Notes made by Debtor to the
order of the Banks (as Bid Lenders) and the Term Notes made
by Debtor to the order of the Banks, all pursuant to the
terms and conditions of the DM Loan Agreement (collectively,
the "DM Notes"), and all extensions, renewals and amendments
of or to such notes or such other Indebtedness (as defined
in the DM Loan Agreement) or any replacements or
substitutions therefor; all payable in accordance with the
terms of such DM Notes and DM Loan Agreement; and
(d) all amounts due and owing under those certain Term
Notes made or to be made by Debtor to the order of the Banks
pursuant to the Roederstein Loan Agreement ("Roederstein
Term Notes") and all extensions, renewals and amendments of
or to such notes or such other Indebtedness (as defined in
the Roederstein Loan Agreement) or any replacements or
substitutions therefor, all payable in accordance with the
<PAGE>
<PAGE> 3 -- Exhibit 10.6 (Domestic Guaranty)
terms and conditions of such Roederstein Term Notes and the
Roederstein Loan Agreement;
and each of the Guarantors hereby jointly and severally agrees
that if Company, any Permitted Borrower or Debtor shall fail to
pay any of such amounts when and as the same shall be due and
payable, or shall fail to perform and discharge any covenant,
representation or warranty in accordance with the terms of the DM
Notes, the DM Loan Agreement, the Revolving Credit Notes, the Bid
Notes, Term Notes, the Vishay Loan Agreement, the Roederstein
Term Notes, the Roederstein Loan Agreement, or the Acquisition
Loan Agreement (or the Bridge Notes or Term Notes issued
thereunder) or any other loan or collateral documents executed in
connection therewith (the "Loan Documents") the Guarantors will
forthwith pay to the Agent, on behalf of the Banks, an amount
equal to any such amount or cause the Company, each of the
Permitted Borrowers, and/or Debtor, as the case may be, to
perform and discharge any such covenant, representation or
warranty, as the case may be, and will pay any and all damages
that may be incurred or suffered in consequence thereof by Agent
or any of the Banks and all reasonable expenses, including
reasonable attorneys fees, that may be incurred by Agent in
enforcing such covenant, representation or warranty of the
Company, any Permitted Borrower, or Debtor, as the case may be,
and in enforcing the covenants and agreements of this Guaranty.
3. Unconditional Character of Guaranty. The obligations of
each of the Guarantors under this Guaranty shall be absolute and
unconditional, and shall be a guaranty of payment and not of
collection, irrespective of the validity, regularity or
enforceability of the Revolving Credit Notes, the Bid Notes, the
Term Notes, the Vishay Loan Agreement, the DM Notes, the DM Loan
Agreement, the Roederstein Term Notes, the Roederstein Loan
Agreement, or the Acquisition Loan Agreement (and any Term Notes
and Bridge Notes issued under the Acquisition Loan Agreement) or
any of the other Loan Documents (including, without limitation,
the Vishay Guaranty, the Permitted Borrowers Guaranty, the
Roederstein Loan Documents and Acquisition Loan Documents), or
any provision thereof, the absence of any action to enforce the
same, any waiver or consent with respect to any provision
thereof, the recovery of any judgment against any person or
action to enforce the same, any failure or delay in the
enforcement of the obligations of Company or the Permitted
Borrowers under the Revolving Credit Notes, the Bid Notes, the
Term Notes, or under the Vishay Loan Agreement or the Acquisition
Loan Agreement, the Term Notes and Bridge Notes issued under the
Acquisition Loan Agreement, of the Debtor under the DM Notes and
the DM Loan Agreement, or of the Company or Debtor under the
Roederstein Term Notes and the Roederstein Loan Agreement, or any
of the other Loan Documents, any failure by Company to have
countersigned any request for advance by any of the Permitted
Borrowers under the Vishay Loan Agreement, or any setoff,
<PAGE>
<PAGE> 4 -- Exhibit 10.6 (Domestic Guaranty)
counterclaim, recoupment, limitation, defense or termination.
Each of the Guarantors hereby waives diligence, demand for
payment, filing of claims with any court, any proceeding to
enforce any provision of the Revolving Credit Notes, the Bid
Notes, the Term Notes, the Vishay Loan Agreement, the DM Notes
and the DM Loan Agreement, the Roederstein Term Notes, the
Roederstein Loan Agreement, or the Acquisition Loan Agreement,
the Term Notes and Bridge Notes issued under the Acquisition Loan
Agreement or any of the other Loan Documents, any right to
require a proceeding first against Company, any of the Permitted
Borrowers or Debtor, or against any other guarantor or other
party providing collateral, or to exhaust any security for the
performance of the obligations of Company, any of the Permitted
Borrowers or Debtor, any protest, presentment, notice or demand
whatsoever, and each Guarantor hereby covenants that this
Guaranty shall not be terminated, discharged or released except,
subject to Section 6.8 hereof, upon payment in full of all
amounts due and to become due from Company, the Permitted
Borrowers, and the Debtor as and to the extent described above,
and only to the extent of any such payment, performance and
discharge. Each Guarantor hereby further covenants that no
security now or subsequently held by the Agent or the Banks for
the payment of the Indebtedness evidenced by the Revolving Credit
Notes made by Company and the Permitted Borrowers under the
Vishay Loan Agreement or the Bid Notes or Term Notes made or to
be made by Company under the Vishay Loan Agreement, or the Term
Notes and Bridge Notes made or to be made by Company under the
Acquisition Loan Agreement, or for the payment of the
Indebtedness evidenced by the DM Notes made by Debtor under the
DM Loan Agreement, or for the payment of the Indebtedness
evidenced by the Roederstein Term Notes made or to be made by
Debtor under the Roederstein Loan Agreement, or otherwise
evidenced or incurred (including, without limitation, the Vishay
Guaranty, the Permitted Borrowers Guaranty, and any security for
any of the foregoing), whether in the nature of a security
interest, pledge, lien, assignment, setoff, suretyship, guaranty,
indemnity, insurance or otherwise, and no act, omission or other
conduct of Agent or the Banks in respect of such security, shall
affect in any manner whatsoever the unconditional obligations of
this Guaranty, and that the Agent and each of the Banks, in their
respective sole discretion and without notice to any of the
Guarantors, may release, exchange, enforce, apply the proceeds of
and otherwise deal with any such security without affecting in
any manner the unconditional obligations of this Guaranty.
Without limiting the generality of the foregoing, such
obligations, and the rights of the Agent to enforce the same, on
behalf of the Banks, by proceedings, whether by action at law,
suit in equity or otherwise, shall not be in any way affected by
(i) any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding up or other
proceeding involving or affecting the Company, any or all of the
<PAGE>
<PAGE> 5 -- Exhibit 10.6 (Domestic Guaranty)
Permitted Borrowers, Debtor, any or all of Guarantors or others
or (ii) any change in the ownership of any of the capital stock
of any or all of the Permitted Borrowers, Company, the Debtor, or
any or all of the Guarantors, or any other party providing
collateral for any indebtedness covered by Guaranty, or any of
their respective Affiliates.
Each of the Guarantors hereby waives to the full extent
possible under applicable law:
(a) any defense based upon the doctrine of marshalling
of assets or upon an election of remedies by Agent or the Banks,
including, without limitation, an election to proceed by non-
judicial rather than judicial foreclosure, which destroys or
otherwise impairs the subrogation rights of any of the Guarantors
or the rights of any of the Guarantors to proceed against the
Company, the Permitted Borrowers or any of them, or the Debtor,
or any or all of the other Guarantors, for reimbursement, or
both;
(b) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that
of the principal;
(c) any duty on the part of Agent or the Banks to
disclose to any of the Guarantors any facts Agent or the Banks
may now or hereafter know about the Company, any of the Permitted
Borrowers or the Debtor, regardless of whether Agent or any Bank
has reason to believe that any such facts materially increase the
risk beyond that which any of the Guarantors intend to assume or
has reason to believe that such facts are unknown to any of the
Guarantors or has a reasonable opportunity to communicate such
facts to the Guarantors, since each of the Guarantors
acknowledges that it is fully responsible for being and keeping
informed of the financial condition of the Company, each of the
Permitted Borrowers and the Debtor and of all circumstances
bearing on the risk of non-payment of any Indebtedness hereby
guaranteed;
(d) any defense arising because of Agent's or the
Banks' election, in any proceeding instituted under the Federal
Bankruptcy Code, of the application of Section 1111(b) (2) of the
Federal Bankruptcy Code;
(e) any claim for reimbursement, contribution,
indemnity or subrogation which such Guarantor may have or obtain
against Company, the Permitted Borrowers, Debtor, or any of them
by reason of the payment by such Guarantor of any Indebtedness;
and
<PAGE>
<PAGE> 6 -- Exhibit 10.6 (Domestic Guaranty)
(f) any other event or action (excluding compliance by
the Guarantors with the provisions hereof) that would result in
the discharge by operation of law or otherwise of the Guarantors,
or any of them, from the performance or observance of any
obligation, covenant or agreement contained in this Guaranty.
The Agent and each of the Banks may deal with the Company,
the Permitted Borrowers, or any of them, and the Debtor and any
security held by them for the obligations of the Company, the
Permitted Borrowers, or any of them, and the Debtor (as
aforesaid) in the same manner and as freely as if this Guaranty
did not exist and the Agent shall be entitled, on behalf of
Banks, without notice to any of the Guarantors, among other
things, to grant to the Company, the Permitted Borrowers, or any
of them, and/or the Debtor such extension or extensions of time
to perform any act or acts as may seem advisable to the Agent (on
behalf of the Banks) at any time and from time to time, and to
permit the Company, the Permitted Borrowers, or any of them,
and/or the Debtor to incur additional indebtedness to Agent, the
Banks, or any of them, without terminating, affecting or
impairing the validity or enforceability of this Guaranty or the
obligations of the Guarantors hereunder.
The Agent may proceed, either in its own name (on behalf of
the Banks) or in the name of each or any of the Guarantors, or
otherwise, to protect and enforce any or all of its rights under
this Guaranty by suit in equity, action at law or by other
appropriate proceedings, or to take any action authorized or
permitted under applicable law, and shall be entitled to require
and enforce the performance of all acts and things required to be
performed hereunder by the Guarantors. Each and every remedy of
the Agent and of the Banks shall, to the extent permitted by law,
be cumulative and shall be in addition to any other remedy given
hereunder or now or hereafter existing at law or in equity.
No waiver or release shall be deemed to have been made by
the Agent or any of the Banks of any of its rights hereunder
unless the same shall be in writing and signed by or on behalf of
the Banks, and any such waiver shall be a waiver or release only
with respect to the specific matter and Guarantor or Guarantors
involved, and shall in no way impair the rights of the Agent or
any of the Banks or the obligations of the Guarantors under this
Guaranty in any other respect at any other time.
At the option of the Agent, any number of, or all of the
Guarantors may be joined in any action or proceeding commenced by
the Agent against the Company, the Permitted Borrowers, or any of
them, and/or the Debtor or any of the other parties providing
collateral for any indebtedness covered by this Guaranty in
connection with or based upon the Revolving Credit Notes made by
the Company and the Permitted Borrowers, the Bid Notes or Term
Notes made or to be made by the Company under the Vishay Loan
<PAGE>
<PAGE> 7 -- Exhibit 10.6 (Domestic Guaranty)
Agreement, the Vishay Loan Agreement, the Acquisition Loan
Agreement (and the Term Notes and Bridge Notes issued
thereunder), the DM Notes made or to be made by Debtor, the DM
Loan Agreement, the Roederstein Term Notes made or to be made by
Company and Debtor, the Roederstein Loan Agreement, or any of the
other Loan Documents or other Indebtedness (defined as
applicable, as aforesaid), or any provision thereof, and recovery
may be had against any or all of the Guarantors in such action or
proceeding or in any independent action or proceeding against any
of them, without any requirement that the Agent or the Banks
first assert, prosecute or exhaust any remedy or claim against
the Company, the Permitted Borrowers, or any of them, the Debtor
and/or any of the other parties providing collateral for any
Indebtedness covered by this Guaranty.
4. Representations and Warranties. Each of the Guarantors
(i) ratifies, confirms and, by reference thereto (as fully as
though such matters were expressly set forth herein), represents
and warrants with respect to itself those matters set forth in
Sections 6.1, 6.3, through 6.8, inclusive, 6.10, 6.12 and 6.14
through 6.21, inclusive, of the Vishay Loan Agreement, and such
representations and warranties shall be deemed to be continuing
representations and warranties true and correct in all material
respects so long as this Guaranty shall be in effect; and (ii)
agrees not to engage in any action or inaction, the result of
which would cause a violation of any term or condition of the
Vishay Loan Agreement.
5. Release of Collateral for Guaranty. Concurrently
herewith, Comerica Bank, as agent under the Prior Loan
agreements, and the Prior Banks, have undertaken to release the
Collateral delivered to secure the Prior Guaranty (as hereafter
defined).
6. Miscellaneous.
6.1 Governing Law. This Guaranty has been delivered in
Michigan and shall be interpreted and the rights of the parties
hereunder shall be determined under the laws of, and be
enforceable in, the State of Michigan, the Guarantors hereby
consenting to the jurisdiction of state and all federal courts
sitting in such state.
6.2 Severability. If any term or provision of this Guaranty
or the application thereof to any circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
Guaranty, or the application of such term or provision to
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the
fullest extent permitted by law.
<PAGE>
<PAGE> 8 -- Exhibit 10.6 (Domestic Guaranty)
6.3 Notice. All notices and other communications to be made
or given pursuant to this Guaranty shall be sufficient if made or
given in writing and delivered by messenger or deposited in the
U.S. mails, registered or certified first class mail, and
addressed as provided under the Vishay Loan Agreement, with
notice to any Guarantor to be sent care of Company (and addressed
as aforesaid), or at such other addresses as directed by any of
such parties to the others, as applicable, in compliance with
this paragraph.
6.4 Right of Offset. The Guarantors each acknowledge the
rights of the Agent and of each of the Banks to offset against
their respective Banks under this Guaranty, any amount owing by
the Agent or the Banks, or either or any of them to such
Guarantors, whether represented by any deposit of such Guarantors
with the Agent or any of the Banks or otherwise.
6.5 Financial Statements. The Guarantors shall provide
Agent (with a copy for each of the Banks), commencing as of the
date of this Guaranty, with quarterly and annual financial
statements substantially in accordance with the requirements set
forth in the Vishay Loan Agreement.
6.6 Amendments; Joinder of Additional Guarantors. The terms
of this Guaranty may not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except as
provided herein and in accordance with the Vishay Loan Agreement,
the DM Loan Agreement and the Roederstein Loan Agreement and the
Acquisition Loan Agreement. In accordance with Section 7.17 of
the Vishay Loan Agreement, Vitramon, Incorporated and Vitramon
Acquisition, Inc., Subsidiaries of the Company, shall become
obligated as Guarantors hereunder (each as fully as though an
original signatory hereto) by executing and delivering to Agent
and the Banks that certain joinder agreement in the form attached
to this Guaranty as Exhibit "A."
6.7 Joint and Several Obligation, etc. The obligation of
each of the Guarantors under this Guaranty shall be several and
also joint, each with all and also each with any one or more of
the others, and may be enforced against each severally, any two
or more jointly, or some severally and some jointly. Any one or
more of the Guarantors may be released from its obligations
hereunder with or without consideration for such release and the
obligations of the other Guarantors hereunder shall be in no way
affected thereby. Agent, on behalf of Banks, may fail or elect
not to prove a claim against any bankrupt or insolvent Guarantor
and thereafter, Agent and the Bank may, without notice to any
Guarantors, extend or renew any part or all of any indebtedness
of any of the Guarantors, and may permit any of the Guarantors to
incur additional indebtedness, without affecting in any manner
the unconditional obligation of the remaining Guarantors. Such
<PAGE>
<PAGE> 9 -- Exhibit 10.6 (Domestic Guaranty)
action shall not affect any right of contribution among the
Guarantors.
6.8 Release. (a) Upon the satisfaction of the obligations
of the Guarantors hereunder, and when none of the Guarantors is
subject to any obligation hereunder or under the Vishay Loan
Agreement, the Agent shall deliver to the Guarantors, upon
written request therefor, (i) a written release of this Guaranty
and (ii) appropriate discharges of any Collateral provided by the
Guarantors for this Guaranty; provided however that, the
effectiveness of this Guaranty shall continue or be reinstated,
as the case may be, in the event: (x) that any payment received
or credit given by the Agent or the Banks, or any of them, is
returned, disgorged, rescinded or required to be recontributed to
any party as an avoidable preference, impermissible setoff,
fraudulent conveyance, restoration of capital or otherwise under
any applicable state, federal or national law of any
jurisdiction, including laws pertaining to bankruptcy or
insolvency, and this Guaranty shall thereafter be enforceable
against the Guarantors as if such returned, disgorged,
recontributed or rescinded payment or credit has not been
received or given by the Agent or the Banks, and whether or not
the Agent or any Bank relied upon such payment or credit or
changed its position as a consequence thereof or (y) that any
liability is imposed, or sought to be imposed against the Agent
or the Banks, or any of them, relating to the environmental
condition of any of property mortgaged or pledged to Agent on
behalf of the Banks by any Guarantor, Company, any Permitted
Borrower, the VS Parties or Debtor or any other party as
collateral (in whole or part) for any indebtedness or obligation
evidenced or secured by this Guaranty, whether such condition is
known or unknown, now exists or subsequently arises (excluding
only conditions which arise after acquisition by Agent or any
Bank of any such property, in lieu of foreclosure or otherwise,
due to the wrongful act or omission of Agent or such Bank) in
which event this Guaranty shall thereafter be enforceable against
the Guarantors to the extent of all liabilities, costs and
expenses (including reasonable attorneys fees) incurred by Agent
or Banks as the direct or indirect result of any such
environmental condition. For purposes of this Guaranty
"environmental condition" includes, without limitation,
conditions existing with respect to the surface or ground water,
drinking water supply, land surface or subsurface strata and the
ambient air.
(b) This Guaranty shall also be subject to release
under Section 13.21 of the Vishay Loan Agreement.
6.9 Consent to Jurisdiction. Guarantors hereby irrevocably
submit to the non-exclusive jurisdiction of any United States
Federal or Michigan state court sitting in Detroit in any action
or proceeding arising out of or relating to this Guaranty or any
<PAGE>
<PAGE> 10 -- Exhibit 10.6 (Domestic Guaranty)
of the Loan Documents and Guarantors hereby irrevocably agree
that all claims in respect of such action or proceeding may be
heard and determined in any such United States Federal or
Michigan state court. Guarantors irrevocably consent to the
service of any and all process in any such action or proceeding
brought in any court in or of the State of Michigan (and to the
receipt of any and all notices hereunder) by the delivery of
copies of such process to Guarantors at their respective
addresses specified in Section 6.3 hereof or by certified mail
direct to such address.
6.10 Jury Trial Waiver. Guarantors hereby irrevocably agree
to waive the right to trial by jury with respect to any and all
actions or proceedings in which Agent or the Banks (or any of
them), on one hand, and the Company or any of the Guarantors, on
the other hand, are parties, whether or not such actions or
proceedings arise out of this Agreement or the Loan Documents or
otherwise.
6.11 Limitation under Applicable Insolvency Laws.
Notwithstanding anything to the contrary contained herein, it is
the intention of the Guarantors, Agent and the Banks that the
amount of the respective Guarantors' obligations hereunder shall
be in, but not in excess of, the maximum amount thereof not
subject to avoidance or recovery by operation of applicable law
governing bankruptcy, reorganization, arrangement, adjustment of
debts, relief of debtors, dissolution, insolvency, fraudulent
transfers or conveyances or other similar laws (collectively,
"Applicable Insolvency Laws"). To that end, but only in the
event and to the extent that the Guarantors' respective
obligations hereunder or any payment made pursuant thereto would,
but for the operation of the foregoing proviso, be subject to
avoidance or recovery under Applicable Insolvency Laws, the
amount of the Guarantors' respective obligations hereunder shall
be limited to the largest amount which, after giving effect
thereto, would not, under Applicable Insolvency Laws, render the
Guarantor's respective obligations hereunder unenforceable or
avoidable or subject to recovery under Applicable Insolvency
Laws. To the extent any payment actually made hereunder exceeds
the limitation contained in this Section 6.11, then the amount of
such excess shall, from and after the time of payment by the
Guarantors (or any of them), be reimbursed by the Banks upon
demand by such Guarantors. The foregoing proviso is intended
solely to preserve the rights of the Agent and the Banks
hereunder against the Guarantors to the maximum extent permitted
by Applicable Insolvency Laws and neither Vishay nor any
Guarantor nor any other Person shall have any right or claim
under this Section 6.11 that would not otherwise be available
under Applicable Insolvency Laws.
6.12 Amendment and Restatement. This Guaranty is given in
substitution for and amends and restates and replaces in its
<PAGE>
<PAGE> 11 -- Exhibit 10.6 (Domestic Guaranty)
entirety the Amended and Restated Dale Parties and Measurements
Group Guaranty and that certain VS Guaranty, each dated as of
January 29, 1993 executed and delivered by each of the respective
Guarantors in connection with the Prior Loan Agreements. Nothing
herein contained shall impair or otherwise affect the security
interests or liens established thereunder or in connection
therewith, which security interests and liens shall continue in
full force and effect.
IN WITNESS WHEREOF, each of the undersigned Guarantors has
executed this Guaranty as of July 18, 1994.
DALE ELECTRONICS, INC.
By:_____________________________
Its:_______________________
DALE HOLDINGS, INC.
By:_____________________________
Its:_______________________
VISHAY SPRAGUE HOLDINGS CORP.
By:_____________________________
Its:_______________________
MEASUREMENTS GROUP, INC.,
By:_____________________________
Its:_______________________
<PAGE>
<PAGE> 12 -- Exhibit 10.6 (Domestic Guaranty)
SPRAGUE SANFORD, INC.,
By:_____________________________
Its:_______________________
ACCEPTED BY:
COMERICA BANK, as Agent,
on behalf of the Banks
By:__________________________
Its:____________________
<PAGE>
<PAGE> 1 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
Execution Copy
AMENDED AND RESTATED
PERMITTED BORROWERS GUARANTY
The undersigned, Vilna Equities Holding B.V., a Netherlands
corporation, Vishay Beteiligungs GmbH, a German corporation,
formerly known as Draloric Electronic GmbH ("VBG"), Draloric
Electronic GmbH, a German corporation, formerly known as Vishay
Electronic GmbH ("Draloric"), E-Sil Components Ltd., an English
corporation, Sfernice, S.A. ("Sfernice"), a French corporation,
Roederstein Spezialfabriken fur Bauelemente der Elektronik und
Kondersatoren der Starkstromtechnik GmbH, a German corporation
("Roederstein"), (together, the "Guarantors") each desires to see
the success of one another and of the foreign Subsidiaries of
Vishay Intertechnology, Inc., a Delaware corporation ("Vishay"),
and each shall receive direct and/or indirect benefits from
extensions of credit granted to VBG and Draloric (the "Permitted
Borrowers") under and in connection with the Amended and Restated
Vishay Intertechnology, Inc. $302,500,000 Revolving Credit and Term
Loan Agreement dated as of July 18, 1994, among Vishay, Comerica
Bank, a Michigan banking corporation, successor by merger to
Manufacturers Bank, N.A., formerly known as Manufacturers National
Bank of Detroit, as Agent ("Agent") and the Banks (as hereinafter
defined) (as amended from time to time, the "Vishay Loan
Agreement"), from extensions of credit to VBG under and in
connection with the Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan Agreement dated as of
July 18, 1994 among VBG, Agent and the Banks (as amended from time
to time, the "DM Loan Agreement"), and from extensions of credit to
VBG under and in connection with that certain Amended and Restated
Roederstein DM 104,315,990.20 Term Loan Agreement of even date
herewith among VBG, Agent and the Banks (as amended from time to
time, the "Roederstein Loan Agreement").
NOW THEREFORE, to induce each of the Banks (as defined in the
Vishay Loan Agreement) to extend credit from time to time under the
Vishay Loan Agreement, the DM Loan Agreement, the Roederstein Loan
Agreement and the Acquisition Loan Agreement (as defined in the
Vishay Loan Agreement), each of the Guarantors has executed and
delivered this Amended and Restated Guaranty ("Guaranty").
1. Definitions. Unless otherwise provided herein, all
capitalized terms in this Guaranty shall have the meanings
specified in the Vishay Loan Agreement, and if not defined therein,
then in the DM Loan Agreement or the Roederstein Loan Agreement, as
the context requires.
<PAGE>
<PAGE> 2 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
2. Guaranty.
(a) Each of the Guarantors hereby guarantees to the
Banks the due and punctual payment to the Banks when due,
whether by acceleration or otherwise, of: (i) all amounts
which may from time to time be due and owing by each and any
of the Permitted Borrowers (collectively, the "Permitted
Borrowers") under those certain Revolving Credit Notes made or
to be made by the Permitted Borrowers to the order of the
Banks pursuant to the terms and conditions of the Vishay Loan
Agreement; (ii) all other Indebtedness of the Permitted
Borrowers, or any of them, under or in connection with the
Vishay Loan Agreement; and (iii) all extensions, renewals and
amendments of or to such Revolving Credit Notes or other
Indebtedness incurred for the accounts or the benefit of the
Permitted Borrowers, or any of them, or any replacements or
substitutions therefor, all payable with interest thereon and
otherwise in accordance with the terms of such Revolving
Credit Notes and Vishay Loan Agreement;
(b) Each of the Guarantors, excepting only Sfernice and
VBG (which is directly obligated under the DM Notes referred
to below), hereby guarantees to the Banks the due and punctual
payment to the Banks when due, whether by acceleration or
otherwise, of all amounts due and owing by VBG under those
certain Revolving Credit Notes ("DM Revolving Notes"), those
certain Bid Notes ("Bid Notes") and those certain Term Notes
("DM Term Notes") made by VBG to the order of the Banks
pursuant to the terms and conditions of the DM Loan Agreement
(the DM Revolving Notes, the Bid Notes and the DM Term Notes
being referred to collectively herein as the "DM Notes"), and
all extensions, renewals, and amendments of or to such notes
or such other Indebtedness (as defined in the DM Loan
Agreement) or any replacements or substitutions therefor, all
payable with interest thereon and otherwise in accordance with
the terms of the DM Notes and the DM Loan Agreement;
(c) Sfernice hereby guarantees to the Banks the due and
punctual payment to the Banks when due, whether by
acceleration or otherwise, of (i) all amounts due and owing by
VBG under the DM Revolving Notes and the Bid Notes (but not
the DM Term Notes) and (ii) all extensions, renewals and
amendments of or to such DM Revolving Notes, the Bid Notes or
other Indebtedness (excluding only the DM Term Notes) incurred
for the account of or the benefit of VBG, or any replacements
or substitutions therefor, all payable with interest thereon
and otherwise in accordance with the terms of such DM
Revolving Notes, the Bid Notes and the DM Loan Agreement;
(d) Each of the Guarantors, excepting only VBG (which is
directly obligated under the Roederstein Term Notes referred
to below), hereby guarantees to the Banks the due and punctual
<PAGE>
<PAGE> 3 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
payment to the Banks when due, whether by acceleration or
otherwise, of all amounts due and owing by VBG under those
certain Roederstein Term Notes ("Roederstein Term Notes") made
or to be made by VBG to the order of the Banks pursuant to the
terms and conditions of the Roederstein Loan Agreement, and
all extensions, renewals, and amendments of or to such notes
or such other Indebtedness (as defined in the Roederstein Loan
Agreement) or any replacements or substitutions therefor, all
payable with interest thereon and otherwise in accordance with
the terms of the Roederstein Term Notes and the Roederstein
Loan Agreement;
and each of the Guarantors hereby jointly and severally agrees that
if any Permitted Borrower or any other Person who is or becomes
primarily liable therefor shall fail to pay any of such amounts
when and as the same shall be due and payable, or shall fail to
perform and discharge any covenant, representation or warranty in
accordance with the terms of the Revolving Credit Notes, Vishay
Loan Agreement, DM Notes, DM Loan Agreement, Roederstein Term
Notes, Roederstein Loan Agreement or any of the other Loan
Documents, the Guarantors, to the extent of their respective
obligations as set forth herein, shall each be obligated forthwith
to pay to Agent on behalf of the Banks an amount equal to any such
amount or cause any other Person then primarily liable therefor to
perform and discharge any such covenant, representation or
warranty, as the case may be, and will pay any and all damages that
may be incurred or suffered in consequence thereof by Agent and all
reasonable expenses, including reasonable attorneys' fees, that may
be incurred by Agent in enforcing such covenant, representation or
warranty of any of the Guarantors, as applicable, and in enforcing
the covenants and agreements of this Guaranty.
3. Unconditional Character of Guaranty. The obligations of
each of the Guarantors under this Guaranty, to the full extent of
their respective guarantees of Indebtedness hereunder, shall be
absolute and unconditional, and shall be a guaranty of payment and
not of collection, irrespective of the validity, regularity or
enforceability of the Revolving Credit Notes, the Vishay Loan
Agreement, the DM Notes, the DM Loan Agreement, the Roederstein
Term Notes, the Roederstein Loan Agreement, or any of the other
Loan Documents (including, without limitation, the Vishay Guaranty,
the Domestic Guaranty, or the Roederstein Loan Documents), or any
provision thereof, the absence of any action to enforce the same,
any waiver or consent with respect to any provision thereof, the
recovery of any judgment against any Person or action to enforce
the same, any failure or delay in the enforcement of the direct
obligations of any of the Permitted Borrowers under the Revolving
Credit Notes, of any of the Permitted Borrowers under the Vishay
Loan Agreement, of VBG under the DM Notes or the DM Loan Agreement,
or of VBG under the Roederstein Term Notes or the Roederstein Loan
Agreement, or of any of them under any of the other Loan Documents,
or failure by Vishay to have countersigned any request for an
<PAGE>
<PAGE> 4 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
advance by any Permitted Borrower under the Vishay Loan Agreement,
or any setoff, counterclaim, recoupment, limitation, defense or
termination. Each of the Guarantors hereby waives diligence, demand
for payment, filing of claims with any court, any proceeding to
enforce any provision of the Revolving Credit Notes, the Vishay
Loan Agreement, the DM Notes, the DM Loan Agreement, the
Roederstein Term Notes, the Roederstein Loan Agreement, or any of
the other Loan Documents, any right to require a proceeding first
against any other Person who is or becomes principally obligated
under such Revolving Credit Notes, such DM Notes or Vishay under
the Revolving Credit Notes or Draloric under the DM Notes or the
Roederstein Term Notes, or any other guarantor or surety, or to
exhaust any security for the performance of the obligations of the
Person who is principally obligated under such Revolving Credit
Notes, DM Notes or Roederstein Term Notes, any protest,
presentment, notice or demand whatsoever, and the Guarantors each
hereby covenant that this Guaranty shall not be terminated,
discharged or released except, subject to Section 6.8 hereof, upon
payment in full of all amounts due and to become due from each of
them, as and to the extent described above, and only to the extent
of any such payment, performance and discharge. Each Guarantor
further covenants that no security now or subsequently held by the
Agent or the Banks for the payment of the Indebtedness evidenced by
the Revolving Credit Notes, the DM Notes or the Roederstein Term
Notes or incurred under the Vishay Loan Agreement, the DM Loan
Agreement or the Roederstein Loan Agreement, or otherwise evidenced
or incurred, whether in the nature of a security interest, pledge,
lien, assignment, setoff, suretyship, guaranty, indemnity,
insurance or otherwise, and no act, omission or other conduct of
Agent or the Banks in respect of such security, shall affect in any
manner whatsoever the unconditional obligation of this Guaranty,
and that the Agent and each of the Banks, in their respective sole
discretion and without notice to any of the Guarantors, may
release, exchange, enforce, apply the proceeds of and otherwise
deal with any such security without affecting in any manner the
unconditional obligation of this Guaranty.
Without limiting the generality of the foregoing, such
obligations, and the rights of the Agent on behalf of the Banks to
enforce the same by proceedings, whether by action at law, suit in
equity or otherwise, shall not be in any way affected, to the
extent permitted by applicable law, by (i) any insolvency,
bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding up or other proceeding involving or affecting
Vishay, VBG, Draloric, any other Subsidiary, or any or all of the
Guarantors or any other Person or (ii) any change in the ownership
of any of the capital stock of Vishay, VBG, Draloric, any other
Subsidiary, any or all of the Guarantors or any other party
providing collateral for indebtedness covered by this Guaranty, or
any of their respective Affiliates.
<PAGE>
<PAGE> 5 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
Each of the Guarantors hereby waives, to the full extent
possible under applicable law:
(a) any defense based upon the doctrine of marshalling
of assets or upon an election of remedies by the Agent or the
Banks, including, without limitation, an election to proceed by
non-judicial rather than judicial foreclosure, which destroys or
otherwise impairs the subrogation rights of any of the Guarantors
or the right of the Guarantors, or any of them, to proceed against
Vishay, VBG, Draloric or any or all of the other Guarantors for
reimbursement, or both;
(b) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of
the principal;
(c) any duty on the part of Agent or the Banks to
disclose to any of the Guarantors any facts Agent or the Banks may
now or hereafter know about Vishay, VBG, Draloric or any of the
other Guarantors, regardless of whether the Agent or any Bank has
reason to believe that any such facts materially increase the risk
beyond that which such undersigned intends to assume, or has reason
to believe that such facts are unknown to any or all of the
undersigned, or has a reasonable opportunity to communicate such
facts to the undersigned since each of the undersigned acknowledges
that it is fully responsible for being and keeping informed of the
financial condition of Vishay, VBG, Draloric and each of the other
Guarantors and of all circumstances bearing on the risk of non-
payment of any Indebtedness hereby guaranteed;
(d) any defense arising because of the Agent's or the
Banks' election, in any proceeding instituted under the Federal
Bankruptcy Code, of the application of Section 1111(b)(2) of the
Federal Bankruptcy Code or any similar laws, rules or decisions of
any jurisdiction which affect creditor's rights generally and which
may be or become applicable to the obligations of any of the
Guarantors under this Guaranty;
(e) any claim for reimbursement, contribution, indemnity
or subrogation which such Guarantor may have or obtain against VBG,
Draloric, or any Guarantor or any of them by reason of the payment
by such Guarantor of any Indebtedness; and
(f) any other event or action (excluding compliance by
the Guarantors with the provisions hereof) that would result in the
discharge by operation of law or otherwise of the Guarantors, or
any of them, from the performance or observance of any obligation,
covenant or agreement contained in this Guaranty.
The Agent and each of the Banks may deal with each of the
Guarantors and any security held by Agent or the Banks, or any of
<PAGE>
<PAGE> 6 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
them, for the obligations of the Guarantors (as aforesaid) in the
same manner and as freely as if this Guaranty did not exist and the
Agent on behalf of the Banks shall be entitled without notice to
any of the Guarantors, among other things, to grant to Vishay, VBG,
Draloric and any or all of the Subsidiaries or Guarantors such
extension or extensions of time to perform any act or acts as may
seem advisable to the Agent on behalf of the Banks at any time and
from time to time, and to permit Vishay, VBG, Draloric and any or
all of the Subsidiaries or Guarantors to incur additional
indebtedness to Agent, the Banks, or either or any of them, without
terminating, affecting or impairing the validity or enforceability
of this Guaranty or the obligations of the Guarantors hereunder.
The Agent may proceed, either in its own name (on behalf of
the Banks) or in the name of each or any of the Guarantors, or
otherwise, to protect and enforce any or all of its rights under
this Guaranty by suit in equity, action at law or by other
appropriate proceedings, or to take any action authorized or
permitted under applicable law, and shall be entitled to require
and enforce the performance of all acts and things required to be
performed hereunder by the Guarantors. Each and every remedy of the
Agent on behalf of the Banks shall, to the extent permitted by law,
be cumulative and shall be in addition to any other remedy given
hereunder or now or hereafter existing at law or in equity.
No waiver or release shall be deemed to have been made by the
Agent or the Banks of any of its rights hereunder unless the same
shall be in writing and signed by or on behalf of the Banks, and
any such waiver shall be a waiver or release only with respect to
the specific matter involved and shall in no way impair the rights
of the Agent or the Banks or the obligations of the Guarantors
under this Guaranty in any other respect at any other time.
At the option of the Agent, any number of, or all of the
undersigned may be joined in any action or proceeding commenced by
the Agent against Vishay, VBG, Draloric, any Subsidiary or any of
the other Guarantors, or any of the other parties providing
collateral for any indebtedness covered by this Guaranty in
connection with or based upon the Revolving Credit Notes, the
Vishay Loan Agreement, the DM Notes, the DM Loan Agreement, the
Roederstein Term Notes, the Roederstein Loan Agreement, or any of
the other Loan Documents or other Indebtedness, or any provision
thereof, and recovery may be had against each Guarantor in such
action or proceeding or in any independent action or proceeding
against any or all Guarantors, without any requirement that the
Agent or the Banks first assert, prosecute or exhaust any remedy or
claim against the Person principally obligated for such
Indebtedness, or any of the other party providing collateral for
any Indebtedness covered by this Guaranty.
4. Representations and Warranties. Each of the Guarantors
(i) ratifies, confirms and, by reference thereto (as fully as
<PAGE>
<PAGE> 7 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
though such matters were expressly set forth herein), represents
and warrants with respect to itself those matters set forth in
Sections 6.1, 6.3 through 6.8, inclusive, 6.10, 6.12 and 6.14
through 6.21, inclusive, of the Vishay Loan Agreement, and such
representations and warranties shall be deemed to be continuing
representations and warranties true and correct in all material
respects so long as this Guaranty shall be in effect; and (ii)
agrees not to engage in any action or inaction, the result of which
would cause a violation of any term or condition of the Vishay Loan
Agreement.
5. Release of Collateral for Guaranty. Concurrently
herewith, Comerica Bank, as agent under the Prior Loan agreements,
and the Prior Banks, have undertaken to release the Collateral
delivered to secure the Prior Guaranty (as hereafter defined).
6. Miscellaneous.
6.1 Governing Law. This Guaranty shall be deemed
delivered in Michigan and shall be interpreted and the rights of
the parties hereunder shall be determined under the laws of, and be
enforceable in, the State of Michigan.
6.2 Severability. If any term or provision of this
Guaranty or the application thereof to any circumstances shall, to
any extent, be invalid or unenforceable, the remainder of this
Guaranty, or the application of such term or provision to
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the
fullest extent permitted by law.
6.3 Notice. All notices and other communications to be
made or given pursuant to this Guaranty shall be sufficient if made
or given in writing and delivered by messenger or deposited in the
U.S. mails, registered or certified first class mail, and addressed
as provided under the Vishay Loan Agreement, with notice to any
Guarantor to be sent care of Vishay (and addressed as aforesaid),
or at such other addresses as directed by any of such parties to
the others, as applicable, in compliance with this paragraph.
6.4 Right of Offset. The Guarantors each acknowledge the
rights of the Agent and of each of the Banks to offset against
their respective obligations to the Banks under this Guaranty, any
amount owing by the Agent or the Banks, or any of them to such
Guarantors, whether represented by any deposit of such Guarantors
with the Agent or any of the Banks or otherwise.
6.5 Financial Statements. The Guarantors shall provide
Agent, or cause to be provided to Agent (with a copy for each of
the Banks) commencing as of the date of this Guaranty, with
quarterly and annual financial statements substantially in
<PAGE>
<PAGE> 8 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
accordance with the requirements set forth in the Vishay Loan
Agreement and the DM Loan Agreement.
6.6 Amendments. The terms of this Guaranty may not be
waived, altered, modified, amended, supplemented or terminated in
any manner whatsoever except as provided herein and in accordance
with the Vishay Loan Agreement, the DM Loan Agreement and the
Roederstein Loan Agreement.
6.7 Joint and Several Obligation, etc. The obligation of
each of the Guarantors under this Guaranty shall be several and
also joint, each with all and also each with any one or more of the
others, and may be enforced against each severally, any two or more
jointly, or some severally and some jointly. Any one or more of the
Guarantors may be released from its obligations hereunder with or
without consideration for such release and the obligations of the
other Guarantors hereunder shall be in no way affected thereby.
Agent, on behalf of Banks, may fail or elect not to prove a claim
against any bankrupt or insolvent Guarantor and thereafter, Agent
and the Bank may, without notice to any Guarantors, extend or renew
any part or the all of any indebtedness of any of the Permitted
Borrowers, Vishay, VBG, Draloric or any of the Guarantors, and may
permit any such Person to incur additional indebtedness, without
affecting in any manner the unconditional obligation of the
Guarantors. Such action shall not affect any right of contribution
among the Guarantors.
6.8 Release. (a) Upon the satisfaction of the
obligations of the Guarantors hereunder, and when none of the
Guarantors is subject to any obligation hereunder or under the
Vishay Loan Agreement, the DM Loan Agreement or the Roederstein
Loan Agreements, the Agent shall deliver to the Guarantors, upon
written request therefor, (i) a written release of this Guaranty
and (ii) appropriate discharges of any Collateral provided by the
Guarantors for this Guaranty; provided that, the effectiveness of
this Guaranty shall be continued or be reinstated, as the case may
be, in the event: (x) that any payment received or credit given by
the Agent on the Banks is returned, disgorged, rescinded or
required to be recontributed to any party as an avoidable
preference, impermissible setoff, fraudulent conveyance,
restoration of capital or otherwise under any applicable state,
federal or national law of any jurisdiction, including, without
limitation, laws pertaining to bankruptcy or insolvency, in which
event this Guaranty shall thereafter be enforceable against the
Guarantors as if such returned, disgorged, recontributed or
rescinded payment or credit had not been received or given by the
Agent or the Banks, and whether or not the Agent or the Banks
relied upon such payment or credit or changed its position as a
consequence thereof; or (y) that any liability is imposed, or
sought to be imposed, against the Agent or any of the Banks
relating to the environmental condition of any property mortgaged
or pledged to the Agent or the Banks by any Guarantor, or any other
<PAGE>
<PAGE> 9 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
party providing collateral for the indebtedness covered by this
Guaranty, whether such condition is known or unknown, now exists or
subsequently arises (excluding only conditions which arise after
any acquisition by Agent or any Bank of any such property, in lieu
of foreclosure or otherwise, due to the wrongful act or omission of
Agent of any Bank), in which event this Guaranty shall thereafter
be enforceable against the Guarantors to the extent of all
liability, costs and expenses (including reasonable attorneys fees)
incurred by Agent or any Bank as the direct or indirect result of
any such environmental condition. For purposes of this Guaranty,
"environmental condition" includes, without limitation, conditions
existing with respect to the surface or ground water, drinking
water supply, land surface or subsurface strata and the ambient
air.
(b) This Guaranty shall also be subject to release under
Section 13.21 of the Vishay Loan Agreement.
6.9 Limitation With Respect to Sfernice S.A.
Obligations. (a) Notwithstanding any provision to the contrary
contained in this Guaranty, Sfernice shall not be required to pay,
pursuant to this Guaranty, more than the sum of (i) Six Million
Dollars ($6,000,000), plus (ii) the amount of all loans, advances
on open account or other funds furnished or to be furnished for the
benefit of or on behalf of Sfernice or any of its Subsidiaries by
Vishay, VBG or Draloric or any of their respective Subsidiaries
from and after July 21, 1989, the date of the initial guaranty
issued by Sfernice in connection with the Indebtedness, and (iii)
the amount of all sums guaranteed or subject to any other credit
accommodation extended by Vishay, VBG, Draloric or any of their
respective Subsidiaries, or any of the Permitted Borrowers to any
Person, for the benefit of Sfernice or any of its Subsidiaries,
from and after July 21, 1989; provided, however, that the amounts
covered by subparagraphs (ii) and (iii), above shall not include
funds used for the purchase of, or invested in, shares of the
capital stock of Sfernice. Sfernice hereby represents, warrants and
acknowledges to Agent and the Banks that the limitation set forth
in this Section 6.9 has been determined by it (and its board of
directors) on the basis of, and does not exceed, the current
borrowing capacity of Sfernice under French law. The limitation
contained in this Section 6.9 shall not apply to, or otherwise
restrict or reduce in any manner whatsoever the liability of any of
the other Guarantors hereunder, or of any other Person directly or
indirectly liable for Indebtedness under the Vishay Loan Agreement,
the DM Loan Agreement, the Roederstein Loan Agreement, or any of
the other Loan Documents.
(b) This Guaranty shall not become effective as to
Sfernice (only) until approved by the Board of Directors of
Sfernice in accordance with Section 7.21 of the Vishay Loan
Agreement, but shall be immediately effective as to all of the
other Guarantors. Until such approval is obtained by Sfernice, the
<PAGE>
<PAGE> 10 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
Prior Guaranty (as defined below) shall remain in full force and
effect according to its terms as to Sfernice and Sfernice hereby
acknowledges that the Prior Guaranty shall guarantee all of the
Indebtedness described in Sections 2(a) and 2(c) hereof (the
promissory notes referred to therein constituting renewals and
extensions of the Indebtedness secured by the Prior Guaranty). The
commencement of the effectiveness of this Guaranty as to Sfernice
shall be evidenced by the delivery to Agent of appropriate Board
resolutions or other documents and instruments satisfactory in form
and substance to the Agent in its sole discretion.
6.10 Limitation with Respect to VBG, Draloric and
Roederstein. Notwithstanding anything to the contrary herein, in
accordance with Sections 30 and 31 of the German GmbH-Gesetz
(German GmbH-Act), the liabilities of VBG hereunder for
indebtedness incurred by Draloric, the liabilities of Draloric
hereunder for indebtedness incurred by VBG and the liabilities of
Roederstein hereunder for indebtedness incurred by the Permitted
Borrowers shall be limited so that in no case shall enforcement of
such liabilities result in diminishing the assets of VBG, Draloric
or Roederstein below the level required to be maintained by it for
the preservation of its nominal share capital. Nothing contained in
this Section 6.10 shall be construed to restrict enforcement of
direct obligations of VBG, Draloric or Roederstein or the
liquidation of assets of VBG, Draloric or Roederstein for the
purpose of paying such direct obligations, whether or not such
enforcement or liquidation would result in impairment of the
nominal share capital of VBG, Draloric or Roederstein, as the case
may be.
6.11 Consent to Jurisdiction. Guarantors hereby
irrevocably submit to the non-exclusive jurisdiction of any United
States Federal or Michigan state court sitting in Detroit in any
action or proceeding arising out of or relating to this Guaranty or
any of the Loan Documents and Guarantors hereby irrevocably agree
that all claims in respect of such action or proceeding may be
heard and determined in any such United States Federal or Michigan
state court. Guarantors irrevocably consent to the service of any
and all process in any such action or proceeding brought in any
court in or of the State of Michigan (and to the receipt of any and
all notices hereunder) by the delivery of copies of such process to
Guarantors at Vishay's addresses referred to in Section 6.3 hereof
or by certified mail directed to such address.
6.12 Jury Trial Waiver. Guarantors hereby irrevocably
agree to waive the right to trial by jury with respect to any and
all actions or proceedings in which Agent or the Banks (or any of
them), on one hand, and the Company or any of the Guarantors, on
the other hand, are parties, whether or not such actions or
proceedings arise out of this Agreement or the Loan Documents or
otherwise.
<PAGE>
<PAGE> 11 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
6.13 Limitation under Applicable Insolvency Laws.
Notwithstanding anything to the contrary contained herein, it is
the intention of the Guarantors, Agent and the Banks that the
amount of the respective Guarantors' obligations hereunder shall be
in, but not in excess of, the maximum amount thereof not subject to
avoidance or recovery by operation of applicable law governing
bankruptcy, reorganization, arrangement, adjustment of debts,
relief of debtors, dissolution, insolvency, fraudulent transfers or
conveyances or other similar laws (collectively, "Applicable
Insolvency Laws"). To that end, but only in the event and to the
extent that the Guarantors' respective obligations hereunder or any
payment made pursuant thereto would, but for the operation of the
foregoing proviso, be subject to avoidance or recovery under
Applicable Insolvency Laws, the amount of the Guarantors'
respective obligations hereunder shall be limited to the largest
amount which, after giving effect thereto, would not, under
Applicable Insolvency Laws, render the Guarantor's respective
obligations hereunder unenforceable or avoidable or subject to
recovery under Applicable Insolvency Laws. To the extent any
payment actually made hereunder exceeds the limitation contained in
this Section 6.13, then the amount of such excess shall, from and
after the time of payment by the Guarantors (or any of them), be
reimbursed by the Banks upon demand by such Guarantors. The
foregoing proviso is intended solely to preserve the rights of the
Agent and the Banks hereunder against the Guarantors to the maximum
extent permitted by Applicable Insolvency Laws and neither Vishay
nor any Guarantor nor any other Person shall have any right or
claim under this Section 6.13 that would not otherwise be available
under Applicable Insolvency Laws.
6.14 Amendment. This Guaranty shall be deemed to amend
and restate in its entirety that certain Amended and Restated
Permitted Borrowers Guaranty dated as of January 29, 1993 (the
"Prior Guaranty"), and others in connection with the Vishay Loan
Agreement, DM Loan Agreement, and the Roederstein Loan Agreement,
and nothing herein contained shall impair or otherwise affect the
security interests or liens established thereunder or in connection
therewith, which security interests and liens shall continue in
full force and effect.
IN WITNESS WHEREOF, each of the undersigned Guarantors have
executed this Guaranty as of July 18, 1994.
VILNA EQUITIES HOLDING B.V.
By:________________________________
Its:__________________________
<PAGE>
<PAGE> 12 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
VISHAY BETEILIGUNGS GmbH
By:________________________________
Its:__________________________
DRALORIC ELECTRONIC GmbH
By:________________________________
Its:__________________________
E-SIL COMPONENTS LTD.
By:________________________________
Its:__________________________
SFERNICE, S.A.
By:________________________________
Its:__________________________
ROEDERSTEIN SPEZIALFABRIKEN FUR
BAUELEMENTE DER ELEKTRONIK UND
KONDERSATOREN DER STARKSTROMTECHNIK
GmbH
By:________________________________
Its:__________________________
<PAGE>
<PAGE> 13 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
ACCEPTED BY:
COMERICA BANK
as Agent, on behalf of
the Banks
By:________________________________
Its:__________________________
<PAGE>
<PAGE>
<PAGE> 1 -- Exhibit 23 (Accountants' Consent)
Exhibit 23
ACCOUNTANTS' CONSENT
The Boards of Directors
Vitramon, Incoroporated and Vitramon Limited (UK):
We consent to the incorporation by reference in the registration
statements (No. 33-7850 and No. 33-7851) on Form S-8 of Vishay
Intertechnology, Inc. of our report dated June 17, 1994,
except as to note 10, which is as of July 13, 1994, with respect
to the combined balance sheets of Vitramon, Incorporated and
Vitramon Limited (UK) as of January 1, 1994 and January 2, 1993,
and the related combined statements of earnings, shareholder's
equity, and cash flows for the years then ended, which report
appears in the Form 8-K of Vishay Intertechnology, Inc. dated
July 19, 1994.
KPMG Peat Marwick
Short Hills, New Jersey
July 19, 1994
<PAGE>
