EXECUTION COPY
03/02/98
FOREIGN GUARANTY
(LONG TERM)
This GUARANTY is made as of the 2nd day of March, 1998 by the
undersigned guarantors (each a "Guarantor" and any or all collectively the
"Guarantors") 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 Vishay
Intertechnology, Inc., a Delaware corporation ("Company"), the Permitted
Borrowers designated therein (by their execution and delivery of the Credit
Agreement or of a Permitted Borrower Addendum), 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 Swing Line facility
pursuant to Section 2.5 of the Credit Agreement and (iii) 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 Company and/or a Permitted Borrower pursuant
to Section 3 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
the Guarantors provide to Agent, for and on behalf of the Lenders, among other
Guaranties, this Guaranty.
C. Each of the Guarantors desires to see the success of one another
and, furthermore, shall receive direct and/or indirect benefits from extensions
of credit made or to be made pursuant to the Credit Agreement to the Guarantors.
D. The Agent is acting as Agent for the Lenders pursuant to Section 12
of the Credit Agreement.
NOW THEREFORE, to induce each of the Lenders to extend credit from time
to time under the Credit Agreement, each of the Guarantors has executed and
delivered this Guaranty (as amended or otherwise modified, "Guaranty").
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 permitted assigns
of the Lenders, in accordance with the Credit Agreement.
2. Guaranty. Each of the Guarantors (excepting only any Foreign
Permitted Borrower which is directly obligated as a Permitted Borrower under the
Credit Agreement, as to its own Indebtedness thereunder), hereby guarantees to
the Lenders the due and punctual payment to the Lenders when due, whether by
acceleration or otherwise, of all Indebtedness which may from time to time be
due and owing by each and any of the Foreign Permitted Borrowers under or in
connection with the Credit Agreement, including (i) 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; (ii) all
Indebtedness of the Foreign Permitted Borrowers, or any of them, under or in
connection with Letter of Credit Agreements executed or to be executed by any of
the Foreign Permitted Borrowers; and (iii) all extensions, renewals and
amendments of or to the Indebtedness incurred for the accounts or the benefit of
the Foreign 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 the Credit Agreement;
and each of the Guarantors hereby jointly and severally agrees that if any
Foreign 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 Credit 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 Lenders 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 or any Lender and all reasonable expenses, including reasonable attorneys'
fees, that may be incurred by Agent or any Lender 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 (but with respect to each Guarantor, as
applicable, subject to Section 6.9 through 6.11 hereof), 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 Company Guaranty or the
Domestic Guaranty), or any provision thereof, the 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 direct
obligations of any of the Guarantors under
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the Credit Agreement, the Guaranty, or of any of them under any of the other
Loan Documents, or failure by Company to have countersigned any Request for
Advance by any Foreign Permitted Borrower under the Credit Agreement, or any
setoff, counterclaim, recoupment, limitation, defense or termination whether
with or without notice to any Guarantor. Each of the Guarantors 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 Guarantors, 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 Guarantors, 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 final payment in full (subject to no
revocation or rescission) 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 Lenders for the payment of
the Indebtedness under the Credit Agreement, the Letter of Credit Agreements,
the Letters of Credit, or any of the other Loan Documents however 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 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 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 Lenders 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 Company any
or all of the Guarantors or any other Person or (ii) any change in the ownership
of any of the capital stock of Company, any or all of the Guarantors or any
other party providing collateral for indebtedness covered by this Guaranty, or
any of their respective Affiliates.
Each of the Guarantors hereby waives, to the fullest 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 Lenders, 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 Company, 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;
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(c) any duty on the part of Agent or any of the Lenders to
disclose to any of the Guarantors any facts Agent or the Lenders may now or
hereafter know about Company or any of the other Guarantors, regardless of
whether the Agent or any Lender 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 Company
and each of the other Guarantors and of all circumstances bearing on the risk of
nonpayment of any Indebtedness hereby guaranteed;
(d) any defense arising because of the 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 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, exoneration,
indemnity or subrogation, or any other similar claim, which any Guarantor may
have or obtain against any of the Foreign Permitted Borrowers, by reason of the
existence of this Guaranty, or by reason of the payment by any such Guarantor of
any Indebtedness or the performance of this Guaranty or of any other Loan
Documents, until the Indebtedness has been repaid and discharged in full and no
commitment to extend any credit under the Credit Agreement or any of the Loan
Documents (whether optional or obligatory), or any Letter of Credit, remains
outstanding, and any amounts paid to any Guarantor on account of any such claim
at any time when the obligations of such Guarantor under this Guaranty shall not
have been fully and finally paid shall be held by such Guarantor in trust for
Agent and the Lenders, segregated from other funds of such Guarantor, and
forthwith upon receipt by such Guarantor shall be turned over to Agent in the
exact form received by such Guarantor (duly endorsed to Agent by such Guarantor,
if required), to be applied to such Guarantor's obligations under this Guaranty,
whether matured or unmatured, in such order and manner as Agent may determine;
and
(f) any other event or action (excluding compliance by each of
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 Lenders may deal with each of the Guarantors
and any security held by Agent or the Lenders, or any of them, for the
obligations of the Guarantors, or any of them, (as aforesaid) in the same manner
and as freely as if this Guaranty did not exist and the Agent on behalf of the
Lenders shall be entitled without notice to any of the Guarantors, among other
things, to grant to Company 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 Lenders at any time and from time to
time, and to permit Company, and any or all of the Subsidiaries or Guarantors to
incur additional indebtedness to Agent, the Lenders, or either or any of them,
without
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terminating, affecting or impairing the validity or enforceability of this
Guaranty or the obligations of any of the Guarantors hereunder.
The Agent may proceed, either in its own name (on behalf of the
Lenders) 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
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.
No waiver or release shall be deemed to have been made by the Agent or
the Lenders of any of its 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 the Lenders 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
Company, 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 the Credit Agreement, any Letter of Credit Agreement or Letter
of Credit 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 Lenders 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.
As a separate, additional and continuing obligation, each of the
Guarantors unconditionally and irrevocably undertakes and agrees with Agent
that, should the amounts referred to in Section 2 of this Guaranty not be
recoverable from such Guarantor in its capacity as a guarantor under this
Guaranty for any reason whatsoever (including, without limitation, by reason of
any provision of the Credit Agreement, any Letter of Credit Agreement or Letter
of Credit, or any of the other Loan Documents being or becoming void,
unenforceable, or otherwise invalid under any applicable law) then,
notwithstanding any knowledge thereof by the Agent and the Lenders or any of
them at any time, each of the Guarantors as sole, original and independent and
joint and several obligor, upon demand by Agent, will make payment to Agent of
all such amounts by way of a full indemnity.
4. Currency Indemnity. All amounts payable by each 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 any
Guarantor is compelled by law to make any deduction or withholding, it will
promptly pay to Agent
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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 the Foreign Permitted Borrowers and
any of them were due, owing or incurred. 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, 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 each Guarantor to recover the amount of
the shortfall. If and to the extent any Guarantor fails to pay the amount due on
demand, Agent may in its absolute discretion without notice to such 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 Foreign
Permitted Borrowers 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 each of the Guarantors
hereby agrees to indemnify Agent against the full Dollar cost incurred by Agent
for such purchase.
5. 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 6.10, 6.12 and 6.14 through
6.20, inclusive, of the Credit 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 Credit Agreement.
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,
each of 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 circumstances, or any or all of the obligations
of any of the Guarantors under this Guaranty 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, or the obligations of each of the remaining Guarantors, as the
case may be, shall not be affected thereby, and each term, provision and
obligation of this Guaranty shall be valid and enforceable to the fullest extent
permitted by law.
6.3 Notice. Except as otherwise expressly set forth in this
Guaranty, all notices and other communications provided to any party hereto
under this Guaranty shall be in writing and shall be given by personal delivery,
by mail, by reputable overnight courier, by telex or by facsimile
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and addressed or delivered to at the address set forth on the Administrative
Detail Forms on file with the Agent or at such other address as may be
designated by such party in a notice to the other parties that complies as to
delivery with the terms of this Section 6.3. Any notice, if personally delivered
or if mailed and properly addressed with postage prepaid and sent by registered
or certified mail, shall be deemed given when received or when delivery is
refused; any notice, if given to a reputable overnight courier and properly
addressed, shall be deemed given two (2) Business Days after the date on which
it was sent, unless it is actually received sooner by the named addressee; and
any notice, if transmitted by telex or facsimile, shall be deemed given when
received (answer back confirmed in the case of telexes and receipt confirmed in
the case of telecopies). Agent may, but, except as specifically provided herein,
shall not be required to, take any action on the basis of any notice given to it
by telephone, but the giver of any such notice shall promptly confirm such
notice in writing or by telex or facsimile, and such notice will not be deemed
to have been received until such confirmation is deemed received in accordance
with the provisions of this Section set forth above. If such telephonic notice
conflicts with any such confirmation, the terms of such telephonic notice shall
control.
6.4 Right of Offset. The Guarantors each acknowledge the
rights of the Agent and of each of the Lenders to offset against their
respective obligations to the Lenders under this Guaranty, any amount owing by
the Agent or the Lenders, or any of them to such Guarantors, whether represented
by any deposit of such Guarantors with the Agent or any of the Lenders or
otherwise.
6.5 Right to Cure. Each of the Guarantors shall have the right
to cure any Event of Default under the Credit Agreement or the Loan Documents
with respect to obligations of the other Guarantors thereunder; provided that
such cure is effected within the applicable grace period or period for cure
thereunder, if any; and provided further that such cure can be effected in
compliance with the Credit Agreement (with respect to the obligations of any of
the Foreign Permitted Borrowers). Except to the extent of payments of principal,
interest and/or other sums actually received by the Agent or the Lenders
pursuant to such cure, the exercise of such right to cure by any Guarantor shall
not reduce or otherwise affect the liability of any other Guarantor under this
Guaranty.
6.6 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 Lenders, may fail or elect not to prove a claim against any bankrupt
or insolvent Guarantor and thereafter, Agent and the Lenders may, without notice
to any of the Guarantors, extend or renew any part or all of any indebtedness of
the Company or any of the Permitted Borrowers under the Credit Agreement or
otherwise and may permit any such Person to incur additional indebtedness,
without affecting in any manner the unconditional obligation of each of the
Guarantors. Such action shall not affect any right of contribution among the
Guarantors.
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6.7 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 Credit Agreement. In accordance with Section 7.16 of the Credit
Agreement, each of the Foreign Subsidiaries of the Company which become
Significant Foreign Subsidiaries after the date hereof shall become obligated as
Guarantors hereunder (each as fully as though an original signatory hereto) by
executing and delivering to Agent and the Lenders a joinder agreement in the
form attached hereto as Exhibit A, provided that the liability of the Guarantors
hereunder shall not be affected by the failure of any other Significant Foreign
Subsidiary to execute and deliver a joinder agreement.
6.8 Release. 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 Credit 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 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 Lenders 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 Lenders,
and whether or not the Agent or the Lenders 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 Lenders
relating to the environmental condition of any property mortgaged or pledged to
the Agent or the Lenders by any Guarantor, or any other 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 Lender of any such
property, in lieu of foreclosure or otherwise, due to the wrongful act or
omission of Agent or any Lender), 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 Lender
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 Foreign Law Limitations.
A. Limitation With Respect to Vishay S.A. Obligations. (a)
Notwithstanding any provision to the contrary contained in this Guaranty, Vishay
S.A. ("Vishay France") shall not be required to pay, pursuant to this Guaranty,
more than the sum of (i) Ninety Million French Francs (FRF 90,000,000), 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 Vishay France or any of
its Subsidiaries by the Company, Vishay Europe GmbH ("Vishay Europe") or Vishay
Electronic GmbH
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("Vishay Electronic") or any of their respective Subsidiaries from and after the
date hereof, and (iii) the amount of all sums guaranteed or subject to any other
credit accommodation extended by the Company, Vishay Europe, Vishay Electronic
or any of their respective Subsidiaries, or any of the Foreign Permitted
Borrowers to any Person, for the benefit of Vishay France or any of its
Subsidiaries, from and after the date hereof, provided, however, that the
amounts covered by clauses (ii) and (iii), above shall not include funds used
for the purchase of, or invested in, shares of the capital stock of Vishay
France. Vishay France hereby represents, warrants and acknowledges to Agent and
the Lenders 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 Vishay France 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 Credit Agreement, or any of the other Loan Documents.
B. Limitation With Respect to Nicolitch S.A. Obligations. (a)
Notwithstanding any provision to the contrary contained in this Guaranty,
Nicolitch S.A. ("Nicolitch") shall not be required to pay, pursuant to this
Guaranty, more than the sum of (i) Eighteen Million French Francs (FRF
18,000,000), 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
Nicolitch or any of its Subsidiaries by the Company, Vishay Europe, Vishay
Electronic or Vishay France or any of their respective Subsidiaries from and
after the date hereof, and (iii) the amount of all sums guaranteed or subject to
any other credit accommodation extended by the Company, Vishay Europe, Vishay
Electronic or Vishay France or any of their respective Subsidiaries, or any of
the Foreign Permitted Borrowers to any Person, for the benefit of Nicolitch or
any of its Subsidiaries, from and after the date hereof; provided, however, that
the amounts covered by clauses (ii) and (iii), above shall not include funds
used for the purchase of, or invested in, shares of the capital stock of
Nicolitch. Nicolitch hereby represents, warrants and acknowledges to Agent and
the Lenders 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 Nicolitch 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 Credit Agreement, or any of the other Loan Documents.
C. Limitation With Respect to Sprague France S.A. Obligations. (a)
Notwithstanding any provision to the contrary contained in this Guaranty,
Sprague France S.A. ("Sprague France") shall not be required to pay, pursuant to
this Guaranty, more than the sum of (i) Twelve Million French Francs (FRF
12,000,000), 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
Nicolitch or any of its Subsidiaries by the Company, Vishay Sprague Holdings,
Corp., Vishay Europe, Vishay Electronic or Vishay France or any of their
respective Subsidiaries from and after the date hereof, and (iii) the amount of
all sums guaranteed or subject to any other credit accommodation extended by the
Company, Vishay Sprague Holdings, Corp., Vishay Europe, Vishay Electronic or
Vishay France or any of their respective Subsidiaries, or any of the Foreign
Permitted Borrowers to any Person, for the benefit of Sprague France or any of
its Subsidiaries, from and after the date hereof;
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provided, however, that the amounts covered by clauses (ii) and (iii), above
shall not include funds used for the purchase of, or invested in, shares of the
capital stock of Sprague France. Sprague France hereby represents, warrants and
acknowledges to Agent and the Lenders 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 Sprague France 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 Credit Agreement, or any of the other Loan
Documents.
D. Limitation with Respect to German Guarantors. Notwithstanding
anything to the contrary herein, in accordance with Sections 30 and 31 of the
German GmbH-Gesetz (German GmbH-Act), the liabilities of Vishay Europe, Pamela
Verwaltungsgesellschaft ("Pamela") and Camilla Verwaltungsgesellschaft
("Camilla") hereunder for Indebtedness incurred by their respective shareholders
and the liabilities of Vishay Electronic hereunder for Indebtedness incurred by
Vishay Europe shall be limited so that in no case shall enforcement of such
liabilities result in diminishing the assets of Vishay Europe, Vishay
Electronic, Pamela or Camilla below the level required to be maintained by such
parties for the preservation of their nominal share capital. Nothing contained
in this Section 6.10 shall be construed to restrict enforcement of the direct
obligations of Vishay Europe, Vishay Electronic or Pamela as Foreign Permitted
Borrowers or the liquidation of assets of Vishay Europe, Vishay Electronic or
Pamela 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 Vishay Europe, Vishay Electronic or Pamela, as the case may be.
E. English Law Provisions. Notwithstanding any provision to the
contrary contained in this Guaranty, the following provisions shall apply to the
obligations of E-Sil Components Limited ("E-Sil") as Guarantor:
(a) all amounts which are due and payable hereunder by
E-Sil shall be deemed to be payable on demand;
(b) this Guaranty (as to all Guarantors) is a continuing
security and shall remain in full force and effect until all moneys, obligations
and liabilities due hereunder have been paid, discharged or satisfied in full
notwithstanding the liquidation or other incapacity or any change in the
constitution of any of the Guarantors or in the name and style of any of them or
any settlement or account or other matter whatsoever;
(c) notwithstanding that this Guaranty ceases to be continuing
for any reason whatever the Agent and the Lenders may continue any accounts of
any of the Guarantors or open one or more new accounts and the liability of each
Guarantor hereunder shall not in any manner be reduced or affected by any
subsequent transactions or receipts or payments into or out of any such
accounts;
(d) E-Sil represents and warrants to the Lenders that it has
not taken or received and undertakes that it will not take or receive the
benefit of any security from any Permitted Borrower, any other Guarantor, the
Company or any other Person in respect of its liabilities under
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this Guaranty. If any such security is taken, E-Sil hereby declares that such
security and all moneys at any time received in respect thereof shall be held in
trust for the Agent as a continuing security for the liabilities of the
Guarantors under this Guaranty; and
(e) to the extent that any trust created under the Guaranty
shall be deemed to be subject to English law, for the purpose of the
Perpetuities and Accumulations Act 1964 of the United Kingdom, the perpetuity
period with respect to such trust shall be deemed to be eighty (80) years from
the date of this Guaranty.
6.10 Consent to Jurisdiction. Guarantors hereby irrevocably submit to
the nonexclusive 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 Company's addresses referred to in Section 6.3 hereof
or by certified mail directed to such address.
6.11 JURY TRIAL WAIVER. GUARANTORS AND THE AGENT AND THE LENDERS (BY
ACCEPTING THE BENEFITS HEREOF) 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 LENDERS (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 GUARANTY, THE LOAN DOCUMENTS OR OTHERWISE.
6.12 Limitation under Applicable Insolvency Laws. Notwithstanding
anything to the contrary contained herein, it is the intention of the
Guarantors, Agent and the Lenders 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 6.12, 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 Lenders upon demand by such
Guarantors. The foregoing proviso is intended solely to preserve the rights of
the Agent and the Lenders hereunder against the Guarantors to the maximum extent
permitted by
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Applicable Insolvency Laws and neither Company nor any Guarantor nor any other
Person shall have any right or claim under this Section 6.12 that would not
otherwise be available under Applicable Insolvency Laws.
* * *
[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
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IN WITNESS WHEREOF, each of the undersigned Guarantors has executed
this Guaranty as of March 2, 1998.
PAMELA VERWALTUNGSGESELLSCHAFT GMBH
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
VISHAY SPRAGUE CANADA HOLDINGS, INC.
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
VILNA EQUITIES HOLDINGS, B.V.(NETHERLANDS)
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
VISHAY EUROPE GMBH
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
SIGNATURE PAGE
FOREIGN GUARANTY
LONG TERM CREDIT AGREEMENT
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VISHAY EUROPE GMBH
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
VISHAY ELECTRONIC GMBH
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
E-SIL COMPONENTS LIMITED
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
VISHAY S.A.(FRANCE)
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
SIGNATURE PAGE
FOREIGN GUARANTY
LONG TERM CREDIT AGREEMENT
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NICOLITCH S.A.(FRANCE)
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
SPRAGUE FRANCE S.A.
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
ULTRONIX, INC.
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
TECHNO COMPONENTS CORP.
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
SIGNATURE PAGE
FOREIGN GUARANTY
LONG TERM CREDIT AGREEMENT
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VISHAY THIN FILM, INC.
By: /s/ Richard N. Grubb
--------------------
Richard N. Grubb
Its: Vice President
ACCEPTED BY:
COMERICA BANK
as Agent, on behalf of
the Lenders
By: /s/ Dan M. Roman
----------------
Dan M. Roman
Its: Vice President
SIGNATURE PAGE
FOREIGN GUARANTY
LONG TERM CREDIT AGREEMENT
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EXHIBIT A
TO
FOREIGN GUARANTY
JOINDER AGREEMENT
THIS JOINDER AGREEMENT is dated as of ______________, ____ by
_________________________________, a _________________ corporation
("New Guarantor").
WHEREAS, pursuant to Section 7.16 of that certain Vishay
Intertechnology, Inc. Long Term Revolving Credit Agreement dated as of , 1998
(as amended or otherwise modified from time to time, the "Credit Agreement") by
and among Vishay Intertechnology, Inc. ("Company"), the Permitted Borrowers
designated therein (by execution and delivery of promissory notes), the Lenders
signatory thereto and Comerica Bank, as Agent for the Lenders (in such capacity,
"Agent"), and pursuant to Section 6.7 of that certain Foreign Guaranty dated as
of ____________, 1998 (as amended or otherwise modified from time to time, the
"Guaranty") executed and delivered by the Guarantors named therein
("Guarantors") in favor of Agent, for and on behalf of the Lenders, the New
Guarantor must execute and deliver a Joinder Agreement in accordance with the
Credit Agreement and the Guaranty.
NOW THEREFORE, as a further inducement to Lenders to continue to
provide Credit accommodations to Company and the Permitted Borrowers (as defined
in the Credit Agreement), New Guarantor hereby covenants and agrees as follows:
1. All capitalized terms used herein shall have the meanings
assigned to them in the Credit Agreement unless expressly
defined to the contrary.
2. New Guarantor hereby enters into this Joinder Agreement
in order to comply with Section 7.16 of the Credit
Agreement and Section 6.7 of the Guaranty and does so in
consideration of the Advances made or to be made from
time to time under the Credit Agreement (and the other
Loan Documents, as defined in the Credit Agreement), from
which New Guarantor shall derive direct and indirect
benefit as with the other Guarantors (all as set forth
and on the same basis as in the Guaranty).
3. Subject to paragraph 5 of this Joinder Agreement, New
Guarantor shall be considered, and deemed to be, for all
purposes of the Credit Agreement, the Guaranty and the other
Loan Documents, a Guarantor under the Guaranty and hereby
ratifies and confirms its obligations under the Guaranty, all
in accordance with the terms thereof.
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4. No Default or Event of Default (each such term being defined
in the Credit Agreement) has occurred and is continuing under
the Credit Agreement.
[5. Insert Applicable Foreign Law Limitations and Other
Provisions.]
6. Subject to paragraph 5 of this Joinder Agreement, this Joinder
Agreement shall be governed by the laws of the State of
Michigan and shall be binding upon New Guarantor and its
successors and assigns.
IN WITNESS WHEREOF, the undersigned New Guarantor has executed and
delivered this Joinder Agreement as of ____________, _____.
[NEW GUARANTOR]
By:_______________________
Its:______________________
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