EXECUTION COPY
03/02/98
EXHIBIT G-1
COMPANY GUARANTY
(LONG TERM)
This COMPANY GUARANTY is made as of this 2nd day of March, 1998 by
Vishay Intertechnology, Inc., a Delaware corporation ("Guarantor") to Comerica
Bank, as Administrative Agent ("Agent") for and on behalf of the Lenders (as
defined below).
RECITALS
A. Pursuant to that certain Vishay Intertechnology, Inc. Long Term
Revolving Credit Agreement dated as of March 2, 1998 (as amended or otherwise
modified from time to time, the "Credit Agreement") by and among the Guarantor,
the Permitted Borrowers designated therein (by their execution and delivery of
such Credit Agreement or a Permitted Borrower Addendum, as the case may be),
Agent and the lenders which are named in and signatories to the Credit Agreement
("Lenders"), the Lenders have agreed to extend credit to the Permitted Borrowers
and Company on the terms set forth in the Credit Agreement, with such credit
consisting of (i) the Revolving Credit in an aggregate amount, subject to the
terms of the Credit Agreement, not to exceed Eight Hundred Twenty Five Million
Dollars ($825,000,000) at any one time outstanding, (ii) as part of the
Revolving Credit, a facility for the issuance of letter(s) of credit ("Letter(s)
of Credit") for the account of the Guarantor and/or a Permitted Borrower
pursuant to Section 3 of the Credit Agreement, and (iii) as part of the
Revolving Credit, a Swing Line Facility pursuant to Section 2.5 of the Credit
Agreement.
B. As a condition to entering into and performing their respective
obligations under the Credit Agreement, the Lenders, and Agent have required
that Guarantor provide to Agent, for and on behalf of the Lenders, this
Guaranty.
C. Guarantor desires to see the success of the Permitted Borrowers and
furthermore, Guarantor shall receive direct and/or indirect benefits from
extensions of credit made or to be made pursuant to the Credit Agreement to
Permitted Borrowers.
D. Agent is acting as Agent for the Lenders pursuant to Section 12 of
the Credit Agreement.
NOW, THEREFORE, to induce each of the Lenders (as defined in the Credit
Agreement) to enter into and perform its obligations under the Credit Agreement
the Guarantor has executed and delivered this guaranty (as amended and otherwise
modified from time to time "Guaranty").
1
1. Definitions. Unless otherwise provided herein, all capitalized terms
in this Guaranty shall have the meanings specified in the Credit Agreement. The
term "Lenders" as used herein shall include any successors or assigns of the
Lenders, in accordance with the Credit Agreement.
2. Guaranty. The Guarantor hereby guarantees to the Lenders the due and
punctual payment to the Lenders when due, whether by acceleration or otherwise,
of all amounts, including, without limitation, principal, interest (including
interest accruing on or after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding by or against
any of the Permitted Borrowers, whether or not a claim for post-filing or
post-petition interest is allowed in such a proceeding), and all other
liabilities and obligations, direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter incurred, which may arise under, out
of, or in connection with all Indebtedness of any of the Permitted Borrowers
under or in connection with the Credit Agreement or the Loan Documents, whether
such Indebtedness is now existing or hereafter arising including, but not
limited to:
(a) the aggregate principal amount of all outstanding Advances
under the Credit Agreement, from time to time pursuant to the terms and
conditions of the Credit Agreement;
(b) any and all Letter of Credit Agreements executed or to be
executed by any of the Permitted Borrowers, and any of them, from time
to time pursuant to the Credit Agreement, and any Letters of Credit
issued or to be issued thereunder; and
(c) all extensions, renewals and amendments of or to the
Credit Agreement, any Notes issued thereunder, or such other
Indebtedness, or any replacements or substitutions therefor;
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, and reasonable costs and expenses (including without limitation,
all reasonable fees and disbursements of counsel to the Agent or any Lender) or
otherwise, and hereby agrees that if any of the Permitted Borrowers 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 Credit Agreement or any of the other Loan
Documents (subject, in each case to any applicable periods of grace or cure),
the Guarantor will forthwith pay to the Agent, on behalf of the Lenders, an
amount equal to any such amount and will pay any and all damages that may be
incurred or suffered in consequence thereof by Agent or any of the Lenders 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 Permitted Borrowers, 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 Credit Agreement, the Letter of Credit Agreements, the
Letters of Credit or any of the other Loan Documents (including, without
limitation, the Domestic Guaranty, the Foreign Guaranty) or any provision
thereof, the
2
absence of any action to enforce the same, any waiver or consent with respect to
or any amendment of 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 Credit
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 Credit Agreement, or any setoff, counterclaim, recoupment, limitation,
defense or termination, whether with or without notice to the Guarantor.
Guarantor hereby waives diligence, demand for payment, filing of claims with any
court, any proceeding to enforce any provision of the Credit Agreement, the
Letter of Credit Agreements, the Letters of Credit, or any of the other Loan
Documents, any right to require a proceeding first against any of the Permitted
Borrowers, 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, 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 4.7 hereof, upon final payment
in full subject to no revocation or rescission of all amounts due and to become
due from the Permitted Borrowers 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 Lenders
for the payment of the Indebtedness evidenced by the Register and the accounts
maintained by each Lender pursuant to the Credit Agreement, or for the payment
of any other Indebtedness of the Permitted Borrowers to the Agent or the Lenders
under the Credit Agreement, the Letter of Credit Agreements, the Letters of
Credit or the other Loan Documents, 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
Lenders 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
Lenders, 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 Lenders, 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 any or all of
the Permitted Borrowers, or others or (ii) any change in the ownership of any of
the capital stock of any or all of the Permitted Borrowers, or any other party
providing collateral for any indebtedness covered by this 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 Lenders, 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, for reimbursement, or both;
3
(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 Lenders to disclose
to the Guarantor any facts Agent or the Lenders may now or hereafter know about
any of the Permitted Borrowers, regardless of whether Agent or any Lender has
reason to believe that any such facts materially increase the risk beyond that
which the Guarantor intends to assume or has reason to 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 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 Lenders'
election, in any proceeding instituted under the Federal Bankruptcy Code, of the
application of Section 1111(b)(2) of the Federal Bankruptcy Code;
(e) until the Indebtedness is irrevocably paid in full, any
claim for reimbursement, contribution, indemnity or subrogation which such
Guarantor may have or obtain against the Permitted Borrowers, 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 Lenders may deal with the Permitted
Borrowers, or any of them, and any security held by them for the obligations of
the Permitted Borrowers, or any of them, (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 Lenders, without notice to Guarantor, among other things, to grant to
the Permitted Borrowers, or any of them, such extension or extensions of time to
perform any act or acts as may seem advisable to the Agent (on behalf of the
Lenders) at any time and from time to time, and to permit the Permitted
Borrowers, or any of them, to incur additional indebtedness to Agent, the
Lenders, 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
Lenders) 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 Lenders 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.
4
No waiver or release shall be deemed to have been made by the Agent or
any of the Lenders of any of their respective rights hereunder unless the same
shall be in writing and signed by or on behalf of the Lenders, 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
Lenders 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, or any of the other parties providing Collateral for any indebtedness
covered by this Guaranty in connection with or based upon the Credit Agreement,
Letter of Credit Agreements, the Letters of Credit 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 Lenders first assert, prosecute or exhaust
any remedy or claim against the Permitted Borrowers, or any of them, and/or any
of the other parties providing Collateral for any Indebtedness covered by this
Guaranty.
4. Miscellaneous.
4.1 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.
4.2 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.
4.3 Notice. All notices and other communications to be made or given
pursuant to this Guaranty shall be sufficient if made or given as provided in
Section 13.6 of the Credit Agreement, or at such other addresses as directed by
any of such parties to the others, as applicable, in compliance with such
paragraph.
4.4 Right of Offset. Guarantor acknowledges the rights of the Agent and
of each of the Lenders to offset against the Indebtedness of Guarantor to the
Lenders under this Guaranty, any amount owing by the Agent or the Lenders, or
either or any of them to the Guarantor, whether represented by any deposit of
Guarantor with the Agent or any of the Lenders or otherwise.
4.5 Right to Cure. Guarantor shall have the right to cure any Event of
Default under the Credit Agreement or the other Loan Documents (with respect to
the obligations of any of the Permitted Borrowers thereunder); 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
Credit Agreement and other Loan Documents (with respect to the obligations of
such
5
Permitted Borrower). Except to the extent of payments of principal and/or
interest on any outstanding Advances under the Credit Agreement made by the
Permitted Borrowers, actually received by the Agent (or the Lenders) 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.
4.6 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 Credit Agreement.
4.7 Release. Upon the satisfaction by Guarantor of its obligations
hereunder and its direct obligations under the Credit Agreement and the Notes
executed pursuant thereto if any, 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 Lenders, 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 Lenders, and whether or not the
Agent or any Lender 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 Lenders, or any of them, relating to the
environmental condition of any property mortgaged or pledged to Agent on behalf
of the Lenders by Guarantor, any Permitted Borrower 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 Lender of any such property, in lieu of foreclosure or
otherwise, due to the wrongful act or omission of Agent or such Lender) 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 Lenders 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.
4.8 Consent to Jurisdiction; Waiver of Jury Trial. This Guaranty is
subject to the waiver of jury trial contained in Section 9.4 of the Credit
Agreement and the Consent to Jurisdiction contained in Section 13.2 of the
Credit Agreement.
4.9 Currency Indemnity. All amounts payable by Guarantor under this
Guaranty shall be paid to Agent at its main office in Detroit, Michigan, or
otherwise as it may from time to time direct, in full, free of any present or
future taxes, levies, imposts, duties, charges, fees or withholdings and without
set-off or counterclaim or any restriction or deduction whatsoever. If
6
Guarantor is compelled by law to make any deduction or withholding, it will
promptly pay to Agent such additional amounts as will result in the net amount
received by Agent being equal to the full amount which would have been
receivable had there been no deduction or withholding. Payment shall be in the
Permitted Currency in which the monies, obligations or liabilities of Guarantor
or the Permitted Borrower were due, owing or incurred, including without
limitation under Section 2.11 of the Credit Agreement. No payment to Agent
(whether under any judgment or court order or otherwise) shall discharge the
obligation or liability in respect of which it was made unless and until Agent
shall have received payment in full in the currency in which such obligation or
liability was due, owing or incurred, including without limitation under Section
2.11 of the Credit Agreement, and to the extent that the amount of such payment
shall on actual conversion into such currency fall short of such obligation or
liability, actual or contingent, expressed in that currency, Agent shall have a
further separate cause of action against Guarantor to recover the amount of the
shortfall. If and to the extent Guarantor fails to pay the amount due on demand,
Agent may in its absolute discretion without notice to Guarantor purchase at any
time thereafter so much of any currency as Agent considers necessary or
desirable to cover the obligations and liabilities of the Permitted Borrowers,
Guarantor and any of them in such currency hereby guaranteed at the then
prevailing spot rate of exchange of Agent (as conclusively determined by Agent)
for purchasing such currency with Dollars and Guarantor hereby agrees to
indemnify Agent against the full Dollar cost incurred by Agent for such
purchase.
[SIGNATURES FOLLOW ON SUCCEEDING PAGE]
7
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty as of March 2, 1998.
VISHAY INTERTECHNOLOGY, INC.
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Executive Vice President
ACCEPTED BY:
COMERICA BANK, as Agent, on
behalf of the Banks
By: /s/ Dan M. Roman
----------------
Dan M. Roman
Its: Vice President
Signature Page
Company Guaranty (Long Term Credit Agreement)