UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
Pursuant to Section 13 OR 15 (d) of the Securities Exchange Act of 1934
Date of Report (Date
of earliest event reported): June 11, 2010
| Vishay Intertechnology, Inc. | ||
| (Exact name of registrant as specified in its charter) | ||
| Delaware | 1-7416 | 38-1686453 | ||
| (State or other jurisdiction | (Commission | (I.R.S. Employer | ||
| of incorporation) | File Number) | Identification No.) |
| 63 Lancaster Avenue | ||
| Malvern, PA | 19355-2143 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone
number, including area code: 610-644-1300
| (Former name or former address, if changed since last report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 – Entry into a Material Definitive
Agreement
Effective June 11, 2010,
Vishay Intertechnology, Inc. and its lenders entered into a consent and third
amendment to the Fourth Amended and Restated Credit Agreement (the “Credit
Agreement”). Pursuant to the consent and amendment, the lenders consented to
various items necessary to effectuate the proposed Vishay Precision Group, Inc.
(“VPG”) spin-off transaction, including, upon consummation of such spin-off
transaction, the release of all collateral related to VPG entities.
Additionally, the tangible net worth covenant was revised (such revision to be
effective only in the event such spin-off transaction is consummated),
reflecting the decrease in tangible net worth expected to occur upon the
spin-off of VPG, to $1 billion plus 75% of net proceeds of equity offerings
plus, commencing with the fiscal quarter ending March 31, 2011, 50% of net
income (without offset for losses) for each fiscal quarter ending after December
31, 2010.
This amendment also made
minor modifications to the collateral arrangements and minor increases to
pricing under the Credit Agreement.
Other significant terms
and conditions of the Credit Agreement have not been changed. The Credit
Agreement, as amended, will expire April 20, 2012.
The foregoing
description is qualified in its entirety by reference to the Consent and Third
Amendment to the Fourth Amended and Restated Credit Agreement, which is attached
hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 9.01 – Financial Statements and
Exhibits
(d)
Exhibits
| Exhibit No. | Description | |
| 10.1 | Consent and Third Amendment to the Vishay Intertechnology, Inc. Fourth Amended and Restated Credit Agreement. |
SIGNATURE
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 hereunto duly
authorized.
Date: June 14, 2010
| VISHAY INTERTECHNOLOGY, INC. | ||
| By: | /s/ Lior E. Yahalomi | |
| Name: | Dr. Lior E. Yahalomi | |
| Title: | Executive Vice President and Chief Financial Officer |
|
Exhibit 10.1
CONSENT AND THIRD AMENDMENT TO
VISHAY INTERTECHNOLOGY, INC.
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS CONSENT AND THIRD AMENDMENT
(“Third
Amendment”) is made as of this June 11, 2010, by and among the financial
institutions signatory hereto (individually a “Lender,” and any and all such
financial institutions collectively, the “Lenders”), Comerica Bank, as
Administrative Agent for the Lenders (in such capacity, the “Agent”), Vishay
Intertechnology, Inc. (“Vishay”) and the other Permitted Borrowers as defined
therein (together with Vishay, the “Borrowers”).
RECITALS
A. The Borrowers have entered into that
certain Fourth Amended and Restated Credit Agreement dated as of June 24, 2008
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the “Credit Agreement”) with each of the Lenders and the Agent pursuant
to which the Lenders agreed, subject to the satisfaction of certain terms and
conditions, to extend or to continue to extend financial accommodations to the
Borrowers, as provided therein, which has been previously amended by that
certain First Amendment dated as of December 12, 2008 and that certain Second
Amendment dated as of July 31, 2009.
B. Vishay has notified the Agent and
the Lenders that it and certain of its Subsidiaries intend to transfer their
measurement and foil resistor and related assets (“Measurement and Foil Resistor
Assets”), which will be more particularly described in a Master Separation and
Distribution Agreement (“Separation and Distribution Agreement”) to be entered
into between Vishay and Vishay Precision Group Inc. (“VPG”) substantially in the
form of the draft delivered to Agent on May 19, 2010 (with any material changes
to be acceptable to Agent), to VPG and certain foreign and domestic Subsidiaries
of VPG (collectively, the “VPG Entities”) pursuant to the transaction steps
outlined in Annex A to this Third Amendment
(“Transaction Steps”), and subsequently to spin-off the VPG Entities to the
owners of the Equity Interests of Vishay (“Vishay Shareholders”) by a dividend
of the Equity Interests of the VPG Entities (“VPG Spin-Off”).
C. The Agent and the Lenders have
agreed to consent to the foregoing transactions and to make certain amendments
and modifications to the Credit Agreement in each case as described below, but
only on the terms and conditions set forth in this Third Amendment.
NOW THEREFORE, in consideration of the foregoing
and for other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, Borrowers, Agent and the Lenders agree:
1. The Agent and the requisite Lenders hereby:
(a) consent to (i) the transfer or contribution of the Measurement and Foil
Resistor Assets to the VPG Entities (whether through direct
1
transfers
or contributions or through a series of transfers and contributions by and among
the VPG Entities), (ii) the merger or consolidation of any Subsidiaries that own
any Measurement and Foil Resistor Assets into or with any of the VPG Entities in
order to facilitate the VPG Spin-Off, which such Subsidiaries are identified in
the Separation and Distribution Agreement or the Transaction Steps or otherwise
approved by Agent and (iii) the performance of the other Transaction Steps, all
provided that (x) at the time of any such merger or consolidation, substantially
all of the assets owned by such Subsidiaries consist of Measurement and Foil
Resistor Assets (such Subsidiaries shall be referred to herein as the “Permitted
Spin-Off Subsidiaries”) and (y) the aggregate net book value of the Measurement
and Foil Resistor Assets at the time of the consummation of the VPG Spin-Off
(meaning “total assets” on the date of the VPG Spin-Off, measured in accordance
with GAAP, and presented in a manner consistent with the combined and
consolidated financial statements which appear in VPG’s registration statement
on Form 10 filed with the U.S. Securities and Exchange Commission on March 31,
2010) shall not exceed $250,000,000, all such consents to be given retroactive
effect to the date such actions were taken, (b) consent to the cash payment by
Vishay to VPG, as a capital contribution deemed to have been made immediately
prior to the VPG Spin-Off under Section 2.17 of the Separation and Distribution
Agreement in respect of VPG Net Cash (as defined therein), provided that, (i) at
the time of such payment, no Event of Default under Sections 9.1(a), 9.1(b) or
9.1(j) of the Credit Agreement has occurred and is continuing and (ii) if the
amount of such cash payment had been added to the aggregate net book value of
the Measurement and Foil Resistor Assets at the time of the consummation of the
VPG Spin-Off (as determined above), such aggregate amount would still not have
exceeded $250,000,000; (c) consent to the dividend of the Equity Interests of
the VPG Entities to the Vishay Shareholders, provided that the VPG Entities do
not own any assets other than the Measurement and Foil Resistor Assets and the
Equity Interests of the Permitted Spin-Off Subsidiaries, (d) consent to the
release of the Guaranties of any Permitted Spin-Off Subsidiaries and to the
release of Liens granted to the Agent over the Equity Interests of the Permitted
Spin-Off Subsidiaries and the Measurement and Foil Resistor Assets upon the
receipt by Agent of satisfactory evidence of the consummation of the VPG
Spin-Off in compliance with this Third Amendment, which releases shall be deemed
to occur simultaneously with the consummation of the VPG Spin-Off, (e) agree to
amend Section 7.4 as set forth in this Third Amendment, such amendment to become
effective as of the last day of the fiscal quarter during which the VPG Spin-Off
shall have been consummated and (f) agree (i) that the distributions,
contributions and other transfers (including any sales) of the Measurement and
Foil Assets as part of the Transaction Steps shall not constitute Asset Sales
under the Credit Agreement, (ii) that the transfer of assets, as consented to in
clause (a) above, shall be excluded from the calculation of the limits set forth
in Section 8.2(f) of the Credit Agreement and (iii) that any intercompany loans
made as part of the Transaction Steps (other than any such loans made by Company
or a Domestic Subsidiary (other than VPG) which remain outstanding after the VPG
Spin-Off) shall not be required to be evidenced by Intercompany Notes or
encumbered under any of the Collateral Documents; in each case as to clauses (a)
through (f) hereof, provided that (X) the conditions set forth in Section 19 of
this Third Amendment have been satisfied, (Y) the VPG Spin-Off is consummated on
or before December 31, 2010 and (Z) no Default or Event of Default exists at the
time the VPG Spin-Off is consummated after giving effect to this Third
Amendment. If the VPG Spin-Off is not consummated on or before December 31,
2010, the Company agrees promptly to deliver, or cause to be delivered, to
Agent, with respect to each VPG Entity, the applicable Pledge
2
Agreements,
Guaranties, other Collateral Documents and other documents that would be
required to be delivered with respect to such entity under Section 7.16.
2. Section 1 of the Credit Agreement is hereby
amended as follows:
|
(a) The following definitions are
hereby added to Section 1 of the Credit Agreement:
“Israeli-Owned Subsidiaries”
shall mean each Subsidiary of the Company which is owned, directly or
indirectly, by an Israeli Subsidiary and which is not, itself, an Israeli
Subsidiary.
“Third Amendment” shall mean
the Consent and Third Amendment to Vishay Intertechnology, Inc. Fourth
Amended and Restated Credit Agreement dated as of June 11,
2010.
“VPG Spin-Off” is defined in
Section 1 of the Third Amendment.
“VPG Spin-Off Effective Date”
shall mean the date that the VPG Spin-Off has been
consummated.
(b) The definition of “Equity
Offering”
is amended to add the following sentence to the end of such definition:
“For avoidance of doubt, the
VPG Spin-Off shall not be deemed to be an Equity Offering.”
(c) The following definition is
amended and restated in its entirety, as follows:
“Wholly Owned Subsidiary(ies)”
shall mean any of Company’s direct or indirect Subsidiaries whose Equity
Interests (other than directors’ or qualifying shares to the extent
required under applicable law) are owned entirely by any other Wholly
Owned Subsidiary and/or Company, and for the avoidance of doubt, shall
include the Israeli Subsidiaries and the Israeli-Owned Subsidiaries.
|
3. Section 7.3(h) of the Credit Agreement is
hereby amended and restated as follows:
|
“(h) promptly following the
consummation of the VPG Spin-Off, deliver to Agent evidence satisfactory
to Agent that the VPG Spin-Off has been consummated; and”
|
4. Section 7.4 of the Credit Agreement is
hereby amended and restated (such amendment and restatement not to become
effective unless and until the occurrence of the VPG Spin-Off, as set forth
above), as follows:
3
|
“7.4 Tangible New
Worth. Maintain, on a Consolidated
basis, as of the last day of each fiscal quarter, (i) beginning with the
fiscal quarter ending December 31, 2006 to but not including the fiscal
quarter during which the VPG Spin-Off Effective Date occurs, Tangible Net
Worth in an amount not less than One Billion Dollars ($1,000,000,000),
plus the sum of the Net Income Adjustment and the Equity Offering
Adjustment and (ii) beginning with the fiscal quarter during which the VPG
Spin-Off occurs, Tangible Net Worth in an amount not less than One Billion
Dollars ($1,000,000,000), plus the Equity Offering Adjustment for each
fiscal quarter commencing with such fiscal quarter and, commencing with
the fiscal quarter ending March 31, 2011, the Net Income Adjustment for
each fiscal quarter ending after December 31, 2010.”
|
5. Section 7.16 of the Credit Agreement
is amended to replace the period at the end of subparagraph (a) with a
semicolon, and to insert after semicolon, the following proviso:
|
“provided, however, that,
notwithstanding the foregoing clauses (i) through (iv), above, each
Israeli-Owned Subsidiary shall only be required under this Section 7.16 to
execute and deliver pledges over any Equity Interests owned by it to the
extent that it is also a Foreign Permitted Borrower and then only to the
extent of any Advances made under this Agreement to it (but not securing
any Advances to the Company or any of the other Permitted
Borrowers).”
|
6. Section 7.16 of the Credit Agreement is
amended to replace the period of the end of subparagraph (b) with a semicolon,
and to insert after the semicolon, the following proviso:
|
“provided, however, that
notwithstanding the foregoing clauses (i) through (v), above, no
Subsidiary which is an Israeli-Owned Subsidiary shall be required to
execute and deliver a Guaranty.”
|
7. Section 7.16 of the Credit Agreement is
amended to add the following as new subparagraph (c) immediately following the
end of subparagraph (b):
|
“(c) Collateral
Documents. With respect to each Person
which becomes a Significant Domestic Subsidiary subsequent to June 11,
2010, within thirty days of the date such Person becomes a Significant
Domestic Subsidiary, cause such new Significant Domestic Subsidiary to
execute and deliver to Agent such security agreements and other collateral
loan documents (or, if appropriate, joinder agreements to any such
existing documents), in each case in form and substance reasonably
acceptable to the Agent (but subject to similar limitations and exclusions
as those contained in the existing Collateral Documents), as Agent may
reasonably require to perfect its lien over such assets as may be
perfected against by the filing of Uniform Commercial Code financing
statements in the appropriate filing offices and by the filing of
appropriate evidences of Lien in the United States Patent and Trademark
Office and the United States Copyright Office, (i) excluding, however, for
the avoidance of doubt, (X) any Liens over the following assets: any fee
and leasehold interests in real property, domestic assets registered
and/or located abroad, assets which by their terms expressly prohibit
|
4
|
Vishay or any of its
Significant Domestic Subsidiaries from granting a Lien over such assets
(unless Article 9 of the Uniform Commercial Code specifies that a lien
over such asset may be perfected regardless of such prohibition), bank
accounts, securities accounts and certain other types of assets which, in
the Agent’s sole determination, are of de minimis or limited value) and
(Y) any requirement that Vishay and its Significant Domestic Subsidiaries
execute and deliver, or cause to be executed and delivered, any account
control agreements, landlord collateral access agreement and/or bailee
waivers and (ii) subject only to such Liens as are permitted under the
Credit Agreement, together with such authority documents, opinions and
other related documents as the Agent may reasonably
request.”
|
8. Section 8.2(a) of the Credit
Agreement is amended and restated in its entirety, as follows:
|
“(a) any Subsidiary may be
merged or consolidated with or into Company (so long as Company shall be
the continuing or surviving corporation); any Domestic Subsidiary may be
merged or consolidated with or into any Wholly-Owned Domestic Subsidiary
(so long as such Wholly-Owned Domestic Subsidiary shall be the continuing
or surviving entity); and any Foreign Subsidiary may be merged or
consolidated with or into any Wholly Owned Domestic Subsidiary or into any
Wholly Owned Foreign Subsidiary (excluding the Israeli Subsidiaries and
the Israeli-Owned Subsidiaries) so long as such Wholly-Owned Domestic
Subsidiary or such Wholly Owned Foreign Subsidiary shall be the continuing
or surviving entity); provided that if the merging or consolidating
Foreign Subsidiary is a Permitted Borrower, the survivor shall satisfy the
requirements for becoming a Permitted Borrower hereunder or, if it does
not become a Permitted Borrower, it shall execute and deliver the
documents required pursuant to Sections 2.1(a)(ii) and (iii) as though it
were becoming a Permitted Borrower (subject to the other terms and
conditions hereof);”
|
9. Section 8.2(b) of the Credit Agreement is
amended and restated in its entirety, as follows:
|
“(b) (i) any Israeli
Subsidiary owned directly by Company or any Domestic Subsidiary may merge
with or into another such Israeli Subsidiary or sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to such Subsidiary and (ii) any Israeli Subsidiary not owned
directly by Company or any Domestic Subsidiary may merge with or into
another such Israeli Subsidiary or sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to such Subsidiary and (iii) any Israeli-Owned Subsidiary may
merge or consolidate with any other such Israeli-Owned Subsidiary or sell,
lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to such Subsidiary (provided that, in
the case of each of clause (i), (ii) and (iii) hereof, if the merging or
transferor Subsidiary is a Permitted Borrower, the surviving entity or
transferee shall also satisfy the requirements for becoming a Permitted
Borrower, subject to the other terms and conditions hereof).”
|
5
10. Section 8.2(d) of the Credit
Agreement is amended and restated in its entirety, as follows:
|
“(d) (i) 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; and (ii) 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 Subsidiary or to any other Foreign
Subsidiary, provided, in each case under this clause (ii), that (x) such
Subsidiary is a Wholly Owned Subsidiary, and (y) if the transferor Foreign
Subsidiary is a Permitted Borrower, then the transferee Subsidiary must
also satisfy the requirements for becoming a Permitted Borrower or a
Significant Foreign Subsidiary that has executed and delivered the
documents required pursuant to Sections 2.1(a)(ii) and (iii), as though it
were becoming a Permitted Borrower, subject to the other terms and
conditions hereof, and 7.16 hereof;”
|
11. Section 8.4(i) of the Credit Agreement is
amended to add, at the end of such section (following the words, “pursuant to Section
8.2(f)” but
before the semi-colon), the words “and the representations, warranties
and indemnification provisions given pursuant to the Separation and Distribution
Agreement and any related documents, instruments or other
agreements;”.
12. Section 8.7(d) of the Credit Agreement is
amended and restated in its entirety, as follows:
|
“(d) Intercompany Loans,
Advances, or Investments made on or after the Effective Date hereunder to
Company or any Wholly Owned Domestic Subsidiary, or by Company or any
Subsidiary to Company or any other Wholly Owned Subsidiary (excluding the
Israeli Subsidiaries and the Israeli-Owned Subsidiaries), provided that
(i) any such Intercompany Loan (other than a guaranty) made by Company or
Domestic Subsidiary be evidenced by and funded under an Intercompany Note,
(ii) both before and after giving effect to any such loans, advances or
investments, no Default or Event of Default has occurred and is continuing
under this Agreement (or would result from the making of such Intercompany
Loan, Advance or Investment), (iii) in the case of Intercompany Loans from
a Domestic Subsidiary or Company to a Domestic Subsidiary or Company and
Intercompany Loans from a Foreign Subsidiary to a Foreign Subsidiary, no
notice has been given by Agent (upon the direction of the Required
Lenders) suspending the right to make such Intercompany Loans, (iv) no
repayments of such Intercompany Loan shall be made while a Default or
Event of Default has occurred and is continuing, or could reasonably be
expected to result from such payment, and (v) the terms governing each
such loan or advance to Company or any Subsidiary shall specifically state
that no payments shall be made thereunder if a Default or Event of Default
under this Agreement has occurred and is continuing, or could reasonably
be expected to result therefrom unless Agent otherwise consents in
writing.”
|
13. Section 8.7(e) of the Credit Agreement is
amended and restated in its entirety as follows:
6
|
“(e) Intercompany Loans,
Advances or Investments made on or after the Effective Date by Company or
any Subsidiary to the Israeli Subsidiaries, the Israeli-Owned Subsidiaries
or to any Subsidiary which does not constitute a Wholly Owned Subsidiary
(provided (i) that any such Intercompany Loan (other than a guaranty) made
by Company or a Domestic Subsidiary be evidenced by and funded under an
Intercompany Note), (ii) that at the time any such loan, advance or
investment is made (before and after giving effect thereto) no Default or
Event of Default has occurred and is continuing, (iii) that the aggregate
amount of all such loans, advances and investments shall not exceed, at
any time outstanding, 15% of Tangible Net Worth and (iv) that the terms
governing each such loan or advance to any Subsidiary shall specifically
state that no payments shall be made thereunder if a Default or Event of
Default under this Agreement has occurred and is continuing, or could
reasonably be expected to result therefrom unless Agent otherwise consents
in writing;”
|
14. Section 8.7(f) of the Credit
Agreement is amended and restated in its entirety as follows:
| “(f) Intercompany Loans, Advances or Investments made on or after the Effective Date by one Israeli Subsidiary to another such Subsidiary or to an Israeli-Owned Subsidiary or by an Israeli-Owned Subsidiary to another such Subsidiary or to an Israeli Subsidiary (provided (i) that at the time any such loan, advance or investment is made (before and after giving effect thereto) no Default or Event of Default has occurred and is continuing, and (ii) that the terms governing each such loan or advance shall specifically state that no payments shall be made thereunder if a Default or Event of Default under this Agreement has occurred and is continuing, or could reasonably be expected to result therefrom unless Agent otherwise consents in writing and (iii) if the Subsidiary making such loan, advance or investment is a Permitted Borrower, the Equity Interests of any Subsidiary of such Permitted Borrower receiving such loan, advance or investment shall be pledged to Agent, for and on behalf of the Banks (subject to the other terms and conditions hereof), to secure the obligations of such Permitted Borrower under this Agreement;” |
15. Section 8.9 of the Credit Agreement is
amended to replace the word “and” (in the fifth line thereof,
preceding clause (ii)) with a comma and to add new clause (iii), as
follows:
|
“(iii) transactions effected
pursuant to the Transition Services Agreements entered into under the
Separation and Distribution Agreement, or otherwise to comply with its
obligations under the Separation and Distribution Agreement.”
|
16. Section 8.13 is amended to change the
caption thereof to “Amendment of Subordinated
Debt and Other Debt Documents,
Permitted Securitizations and Documents Related to the VPG
Spin-Off” and to add, after the words
“any Permitted
Securitization”
(in the fifth line thereof, preceding the comma) the words “or the Separation and Distribution
Agreement or any material documents, agreements or instruments related
thereto.”
7
17. Section 12.15 of the Credit
Agreement is amended to add, at the end of subparagraph (b) thereof (immediately
following clause (iv)), new clause (v), as follows:
|
“Furthermore, (x) the Lenders
agree to release or not require the delivery of, and hereby irrevocably
authorize Agent to release or not require the delivery of, any Guaranty by
the Israeli-Owned Subsidiaries or any Pledge Agreement over the Equity
Interests of any Foreign Significant Subsidiary by any Israeli-Owned
Subsidiary, except to the extent such Israeli-Owned Subsidiary is a
Foreign Permitted Borrower and then only to the extent of any Advances
made under this Agreement to it (but not securing any Advances to the
Company or any of the other Permitted Borrowers), (y) the Lenders agree
that, notwithstanding the terms and conditions set forth in paragraph
17(b) of the Second Amendment, (i) Vishay Europe Sales GmbH shall not be
required to execute and deliver a pledge of its accounts receivable and
(ii) Vishay Europe shall not be required to execute and deliver a pledge
over the Intercompany Loans outstanding from its material Subsidiaries and
(z) nothing in this Section 12.15 shall be deemed to require the release,
and the Lenders shall not be obligated to release, any Lien over the
Equity Interests of Vishay Israel.”
|
18. Schedule 4.1 attached to the Credit
Agreement is hereby deleted and Schedule 4.1 attached hereto as Annex B is inserted in its
place.
19. This Third Amendment shall become
effective (according to the terms hereof) on the date (the “Third Amendment
Effective Date”) that the following conditions have been fully satisfied by the
Borrowers:
|
(a) Agent shall have received
counterpart copies (by facsimile or email) of (i) this Third Amendment (in
form and substance acceptable to Agent), duly executed and delivered by
the Borrowers and the requisite Lenders, and (ii) that certain
Reaffirmation of Guaranty by the Significant Domestic Subsidiaries, in
each case with original signatures to follow promptly thereafter.
(b) Agent shall have received such
resolutions, authority documents and opinions of counsel as Agent may
reasonably require, in form and substance reasonably satisfactory to
Agent.
(c) Agent shall have received such
other documentation as it may reasonably request within a reasonable time
period following such request, giving consideration to the extent and
nature of the information so requested.
(d) Borrowers shall have paid to
the Agent, for distribution to each Lender that approved and executed this
Third Amendment (“Approving Lender”), a nonrefundable amendment fee in an
amount equal to seven and one half (7.50) basis points on such Approving
Lender’s Percentage of the Revolving Credit Aggregate Commitment and the
Term Loan, immediately prior to giving effect to the Third Amendment and
to the Agent all fees and other amounts, if any, that are due and owing to
the Agent as of the Third Amendment Effective Date.
|
8
20. Each of the Borrowers hereby
represents and warrants that, after giving effect to any amendments, consents
and waivers contained herein, execution and delivery of this Third Amendment and
the performance by each of them of their respective obligations under the Credit
Agreement as amended hereby (herein, as so amended, the “Amended Credit
Agreement”) are within its company powers, have been duly authorized, are not in
contravention of law or the terms of its operating agreement or other
organizational documents, as applicable, and except as have been previously
obtained, do not require the consent or approval, material to the amendments set
forth herein, of any governmental body, agency or authority, and the Amended
Credit Agreement will constitute the valid and binding obligations of the
Borrowers, as applicable, enforceable in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance, ERISA or similar laws affecting
the enforcement of creditors’ rights generally and by general principles of
equity (whether enforcement is sought in a proceeding in equity or at
law).
21. Except as specifically set forth herein,
this Third Amendment shall not be deemed to amend or alter in any respect the
terms and conditions of the Credit Agreement (including without limitation all
conditions and requirements for Advances and any financial covenants) or any of
the other Loan Documents, or to constitute a waiver or release by any of the
Lenders or the Agent of any right, remedy, Collateral, Default or Event of
Default under the Credit Agreement or any of the other Loan Documents, except to
the extent specifically set forth herein. Each of the Borrowers hereby
acknowledges and agrees that this Third Amendment and the amendments contained
herein do not constitute any course of dealing or other basis for altering any
obligation of the Borrowers, any other Credit Party or any other party or any
rights, privilege or remedy of the Lenders under the Credit Agreement, any other
Loan Document, any other agreement or document, or any contract or instrument
except as expressly set forth herein. Furthermore, this Third Amendment shall
not affect in any manner whatsoever any rights or remedies of the Lenders or the
Agent with respect to any other non-compliance by the Borrowers with the Credit
Agreement or the other Loan Documents not waived or otherwise amended hereby,
whether in the nature of a Default or Event of Default, and whether now in
existence or subsequently arising, and shall not apply to any other transaction.
22. Each of the Borrowers hereby acknowledges
and confirms that it does not possess any claim, cause of action, demand,
defense, and other right of action whatsoever, in law or equity against the
Agent or any of the Lenders (collectively, the “Lender Parties”), prior to or as
of the date of this Third Amendment by reason of any cause or matter of any kind
or nature whatsoever, including, but not limited to, any cause or matter arising
from, relating to, or connected with, in any manner the Credit Agreement, any of
the Loan Documents, any related document, instrument or agreement or this Third
Amendment (including, without limitation, any payment, performance, validity or
enforceability of any or all of the indebtedness, covenants, agreements, rights,
remedies, obligations and liabilities under the Credit Agreement, any of the
Loan Documents, any related document, instrument or agreement or this Third
Amendment) or any transactions relating to any of the foregoing, or any or all
actions, courses of conduct or other matters in any manner whatsoever relating
to or otherwise connected with any of the foregoing.
9
23. Each of the Borrowers hereby
reaffirms, confirms, ratifies and agrees to be bound by each of its covenants,
agreements and obligations under the Credit Agreement, as amended as of the date
hereof, and each other Loan Document previously executed and delivered by it, or
executed and delivered in accordance with this Third Amendment. Each reference
in the Credit Agreement to “this Agreement” or “the Credit Agreement” shall be
deemed to refer to Credit Agreement as amended by this Third Amendment and each
previous amendment thereto.
24. Unless otherwise defined to the contrary
herein, all capitalized terms used in this Third Amendment shall have the
meanings set forth in the Credit Agreement.
25. This Third Amendment shall be a contract
made under and governed by the internal laws of the State of Michigan, and may
be executed in counterpart, in accordance with the Credit
Agreement.
26. Each of the Borrowers and the Agent agrees
that any copy of this Third Amendment (or any other Loan Document) signed by
them and transmitted by facsimile, email or any other delivery method shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence.
10
IN WITNESS WHEREOF, the Borrowers, the Lenders and
Agent have each caused this Third Amendment to be executed by their respective
duly authorized officers or agents, as applicable, all as of the date first set
forth above.
|
AGENT:
|
||
|
COMERICA BANK,
as Agent,
Swing Line Lender, Issuing Lender and Lender
|
||
| By: |
/s/
|
|
| Its: | Vice President | |
| COMPANY: | ||
|
VISHAY INTERTECHNOLOGY,
INC.
|
||
|
By:
|
/s/ Peter G. Henrici
|
|
| Its: |
Secretary
|
|
|
PERMITTED BORROWERS:
|
||
|
SILICONIX INCORPORATED
|
||
| By: |
/s/
Peter G. Henrici
|
|
| Its: |
Secretary
|
|
|
SILICONIX TECHNOLOGY
C.V.
|
||
| By: |
/s/
Peter G. Henrici
|
|
|
Peter
G. Henrici of Siliconix Semiconductor, Inc., a General Partner of
Siliconix Technology, C.V.
|
||
| Its: |
Secretary
|
|
CONSENT TO THIRD AMENDMENT
TO FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT
AND RESTATED CREDIT AGREEMENT
The undersigned Lender hereby
consents and agrees to the amendments, terms and conditions set forth in that
certain Third Amendment to Fourth Amended and Restated Credit Agreement dated
June 11, 2010.
Dated: June
11, 2010
|
JPMorgan Chase Bank, N.A.
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Vice
President
|
|
|
Bank
of America, N.A.
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Senior Vice President
|
|
|
Bank
Leumi U.S.A.
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Vice
President
|
|
|
Wells
Fargo Bank, N.A
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Director
|
|
|
Bank
of Tokyo-
|
||
| Mistubishi UFJ Trust Company | ||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Vice
President
|
|
|
Bank
Hapoalim B.M.
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Senior Vice President
|
|
|
Intesa
Sanpaolo S.p.A.
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Vice
President
|
|
|
PNC
Bank, N.A.
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Vice
President
|
|
|
TD
Bank, N.A.
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Senior Vice President
|
|
|
HSBC
Bank U.S.A., N.A.
|
||
| (Lender) | ||
| By: |
/s/
|
|
| Its: |
Vice
President
|
|