1 --Exibit 10.2 ( Revolving Credit + Term Loan )
Execution Copy
AMENDED AND RESTATED DRALORIC/VBG
DM 40,000,000 REVOLVING CREDIT
AND
DM 9,506,000 TERM LOAN AGREEMENT
DATED AS OF JULY 18, 1994,
COMERICA BANK, AS AGENT
NATIONSBANK OF NORTH CAROLINA, N.A., AS CO-AGENT
BERLINER HANDELS-UND FRANKFURTER BANK KGAA
AND SIGNET BANK/MARYLAND, AS LEAD MANAGERS
2 --Exibit 10.2 ( Revolving Credit + Term Loan )
TABLE OF CONTENTS
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1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 "Absolute Rate" . . . . . . . . . . . . . . . . . . . . 1
1.2 "Absolute Rate Bid Advance" . . . . . . . . . . . . . . 1
1.3 "Absolute Rate Interest Period" . . . . . . . . . . . . 1
1.4 "Acquisition Loan(s)" . . . . . . . . . . . . . . . . . 1
1.5 "Advance(s)". . . . . . . . . . . . . . . . . . . . . . 2
1.6 "Affiliate" . . . . . . . . . . . . . . . . . . . . . . 2
1.7 "Agent" . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 "Agent's Correspondent" . . . . . . . . . . . . . . . . 2
1.9 "Agent's Fees". . . . . . . . . . . . . . . . . . . . . 2
1.10 "Alternate Base Rate" . . . . . . . . . . . . . . . . . 2
1.11 "Alternative Currency". . . . . . . . . . . . . . . . . 2
1.12 "Applicable Fee Percentage" . . . . . . . . . . . . . . 2
1.13 "Applicable Interest Rate". . . . . . . . . . . . . . . 2
1.14 "Applicable Margin" . . . . . . . . . . . . . . . . . . 3
1.15 "Banks" . . . . . . . . . . . . . . . . . . . . . . . . 3
1.16 "Bid Acknowledgment". . . . . . . . . . . . . . . . . . 3
1.17 "Bid Advance" . . . . . . . . . . . . . . . . . . . . . 3
1.18 "Bid Borrowing Request" . . . . . . . . . . . . . . . . 3
1.19 "Bid Lender(s)" . . . . . . . . . . . . . . . . . . . . 3
1.20 "Bid Notes" . . . . . . . . . . . . . . . . . . . . . . 3
1.21 "Bid Offer" . . . . . . . . . . . . . . . . . . . . . . 3
1.22 "Bridge Loan" . . . . . . . . . . . . . . . . . . . . . 4
1.23 "Business Day". . . . . . . . . . . . . . . . . . . . . 4
1.24 "Commitment Letter" . . . . . . . . . . . . . . . . . . 4
1.25 "Company" . . . . . . . . . . . . . . . . . . . . . . . 4
1.26 "Consolidated" and "Consolidating". . . . . . . . . . . 4
1.27 "conversion" or "converted" . . . . . . . . . . . . . . 4
1.28 "Deutsche Mark Equivalent". . . . . . . . . . . . . . . 4
1.29 "Deutsche Mark-based Rate". . . . . . . . . . . . . . . 4
1.30 "Deutsche Mark Adjusted Rate" . . . . . . . . . . . . . 4
1.31 "Deutsche Mark Principal Limit" . . . . . . . . . . . . 5
1.32 "DM-based Advance". . . . . . . . . . . . . . . . . . . 5
1.33 "DM Bid Advance". . . . . . . . . . . . . . . . . . . . 5
1.34 "DM Bid Margin" . . . . . . . . . . . . . . . . . . . . 5
1.35 "DM Interest Period". . . . . . . . . . . . . . . . . . 5
1.36 "Dollar Amount" . . . . . . . . . . . . . . . . . . . . 6
1.37 "Dollars" and the sign "$". . . . . . . . . . . . . . . 6
1.38 "Domestic Guaranty" . . . . . . . . . . . . . . . . . . 6
1.39 "Draloric". . . . . . . . . . . . . . . . . . . . . . . 6
1.40 "Eurocurrency Lending Office" . . . . . . . . . . . . . 6
1.41 "Event of Default". . . . . . . . . . . . . . . . . . . 6
1.42 "Federal Funds Effective Rate". . . . . . . . . . . . . 6
1.43 "Fixed Charge Coverage Ratio" . . . . . . . . . . . . . 6
1.44 "GAAP". . . . . . . . . . . . . . . . . . . . . . . . . 6
1.45 "Guaranties". . . . . . . . . . . . . . . . . . . . . . 7
3 --Exibit 10.2 ( Revolving Credit + Term Loan )
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1.46 "Hazardous Materials" and "Hazardous
Materials Laws" . . . . . . . . . . . . . . . . . . . 7
1.47 "hereof", "hereto", "hereunder" . . . . . . . . . . . . 7
1.48 "HLT Determination" . . . . . . . . . . . . . . . . . . 7
1.49 "Indebtedness". . . . . . . . . . . . . . . . . . . . . 7
1.50 "Interest Period" . . . . . . . . . . . . . . . . . . . 7
1.51 "Loan Agreements" . . . . . . . . . . . . . . . . . . . 8
1.52 "Loan Documents". . . . . . . . . . . . . . . . . . . . 8
1.53 "Majority Banks". . . . . . . . . . . . . . . . . . . . 8
1.54 "Moody's Rating". . . . . . . . . . . . . . . . . . . . 8
1.55 "New Banks" . . . . . . . . . . . . . . . . . . . . . . 8
1.56 "Non-Amortizing Term Loan". . . . . . . . . . . . . . . 8
1.57 "Notes" . . . . . . . . . . . . . . . . . . . . . . . . 8
1.58 "Percentage". . . . . . . . . . . . . . . . . . . . . . 8
1.59 "Permitted Borrowers" . . . . . . . . . . . . . . . . . 8
1.60 "Permitted Encumbrances". . . . . . . . . . . . . . . . 9
1.61 "Person". . . . . . . . . . . . . . . . . . . . . . . . 10
1.62 "Prime Rate". . . . . . . . . . . . . . . . . . . . . . 10
1.63 "Prime-based Advance" . . . . . . . . . . . . . . . . . 10
1.64 "Prime-based Rate". . . . . . . . . . . . . . . . . . . 10
1.65 "Prior Agreements". . . . . . . . . . . . . . . . . . . 10
1.66 "Prior Banks" . . . . . . . . . . . . . . . . . . . . . 10
1.67 "Prior DM Loan Agreement" . . . . . . . . . . . . . . . 10
1.68 "Prior Vishay Loan Agreement" . . . . . . . . . . . . . 10
1.69 "Rating Level". . . . . . . . . . . . . . . . . . . . . 11
1.70 "Rating Level 1". . . . . . . . . . . . . . . . . . . . 11
1.71 "Rating Level 2". . . . . . . . . . . . . . . . . . . . 11
1.72 "Rating Level 3". . . . . . . . . . . . . . . . . . . . 11
1.73 "Rating Level 4". . . . . . . . . . . . . . . . . . . . 11
1.74 "Request for Advance" . . . . . . . . . . . . . . . . . 11
1.75 "Revolving Credit". . . . . . . . . . . . . . . . . . . 11
1.76 "Revolving Credit Commitment Fee" . . . . . . . . . . . 11
1.77 "Revolving Credit Facility Fee" . . . . . . . . . . . . 11
1.78 "Revolving Credit Maturity Date". . . . . . . . . . . . 11
1.79 "Revolving Credit Maximum Amount" . . . . . . . . . . . 11
1.80 "Revolving Credit Notes". . . . . . . . . . . . . . . . 11
1.81 "Roederstein Loan Agreement". . . . . . . . . . . . . . 11
1.82 "Roederstein Loan Documents". . . . . . . . . . . . . . 12
1.83 "S & P Rating". . . . . . . . . . . . . . . . . . . . . 12
1.84 "Shares", "share capital", "capital stock",
"stock" . . . . . . . . . . . . . . . . . . . . . . . 12
1.85 "Subsidiary(ies)" . . . . . . . . . . . . . . . . . . . 12
1.86 "Target Company". . . . . . . . . . . . . . . . . . . . 12
1.87 "Target Company Acquisition". . . . . . . . . . . . . . 12
1.88 "Target Company Loan Agreement" . . . . . . . . . . . . 12
1.89 "Target Company Loan Documents" . . . . . . . . . . . . 12
4 --Exibit 10.2 ( Revolving Credit + Term Loan )
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1.90 "Term Loan" . . . . . . . . . . . . . . . . . . . . . . 12
1.91 "Term Loan Maturity Date" . . . . . . . . . . . . . . . 12
1.92 "Term Loan Rate Request". . . . . . . . . . . . . . . . 13
1.93 "Term Notes". . . . . . . . . . . . . . . . . . . . . . 13
1.94 "Vishay". . . . . . . . . . . . . . . . . . . . . . . . 13
1.95 "Vishay Guaranty" . . . . . . . . . . . . . . . . . . . 13
1.96 "Vishay Loan Agreement" . . . . . . . . . . . . . . . . 13
2. REVOLVING CREDIT; BID ADVANCES . . . . . . . . . . . . . . . . 13
2.1 Commitment. . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Accrual of Interest and Maturity. . . . . . . . . . . . 13
2.3 Requests for and Refundings of Advances.. . . . . . . . 13
2.4 Disbursement of Advances. . . . . . . . . . . . . . . . 15
2.5 Bid Advances. . . . . . . . . . . . . . . . . . . . . . 16
2.6 No Dollar Advance Availability. . . . . . . . . . . . . 23
2.7 Revolving Credit Facility Fee.. . . . . . . . . . . . . 23
2.8 Revolving Credit Commitment Fee.. . . . . . . . . . . . 23
2.9 Optional Reduction or Termination of
Revolving Credit Maximum Amount.. . . . . . . . . . . 24
2.10 Extension of Revolving Credit Maturity
Date. . . . . . . . . . . . . . . . . . . . . . . . . 24
2.11 Revolving Credit as Renewal; Application of
Advances. . . . . . . . . . . . . . . . . . . . . . . 25
3. TERM LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.1 Commitment. . . . . . . . . . . . . . . . . . . . . . . 25
3.2 Repayment of Term Loan. . . . . . . . . . . . . . . . . 25
3.3 Accrual of Interest.. . . . . . . . . . . . . . . . . . 26
3.4 Deutsche Mark-Based Interest Payments.. . . . . . . . . 26
3.5 Term Loan Rate Requests and Refundings. . . . . . . . . 26
3.6 Prime-based Rate Applicability and Interest
Payments. . . . . . . . . . . . . . . . . . . . . . . 27
3.7 Term Loan as Renewal. . . . . . . . . . . . . . . . . . 27
4. INTEREST PAYMENTS AND PERIODS: REVOLVING CREDIT, BID ADVANCES
AND TERM CREDIT. . . . . . . . . . . . . . . . . . . . . . . . 27
4.1 Interest Payments.. . . . . . . . . . . . . . . . . . . 27
4.2 Interest Calculation. . . . . . . . . . . . . . . . . . 28
4.3 Interest Period Selection.. . . . . . . . . . . . . . . 28
4.4 Limited Availability. . . . . . . . . . . . . . . . . . 28
4.5 Unavailability. . . . . . . . . . . . . . . . . . . . . 29
4.6 Reconversion to Deutsche Mark-based Rate on
Re-availability.. . . . . . . . . . . . . . . . . . . 29
5 --Exibit 10.2 ( Revolving Credit + Term Loan )
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4.7 Repayment or Reconversion.. . . . . . . . . . . . . . . 29
4.8 Interest Payments on Conversions and
Reconversions.. . . . . . . . . . . . . . . . . . . . 29
4.9 Interest on Default.. . . . . . . . . . . . . . . . . . 30
4.10 Prepayment. . . . . . . . . . . . . . . . . . . . . . . 30
4.11 Special Limitation. . . . . . . . . . . . . . . . . . . 31
5. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS; MARGIN
ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.1 Reimbursement of Prepayment Costs.. . . . . . . . . . . 32
5.2 Agent's Eurocurrency Lending Office.. . . . . . . . . . 32
5.3 Availability. . . . . . . . . . . . . . . . . . . . . . 32
5.4 Laws Affecting Availability.. . . . . . . . . . . . . . 32
5.5 Increased Cost of Deutsche Marks. . . . . . . . . . . . 33
5.6 Indemnity.. . . . . . . . . . . . . . . . . . . . . . . 34
5.7 Judgment Currency.. . . . . . . . . . . . . . . . . . . 34
5.8 Other Increased Costs.. . . . . . . . . . . . . . . . . 35
5.9 Margin Adjustments. . . . . . . . . . . . . . . . . . . 35
5.10 HLT Determination.. . . . . . . . . . . . . . . . . . . 36
6. PAYMENTS, RECOVERIES AND COLLECTIONS . . . . . . . . . . . . . 37
6.1 Payment Procedure.. . . . . . . . . . . . . . . . . . . 37
6.2 Application of Proceeds.. . . . . . . . . . . . . . . . 39
6.3 Pro-rata Recovery.. . . . . . . . . . . . . . . . . . . 39
6.4 Deposits and Accounts.. . . . . . . . . . . . . . . . . 40
7. CONDITIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.1 Vishay Loan Agreement.. . . . . . . . . . . . . . . . . 40
7.2 Vishay's Certificate. . . . . . . . . . . . . . . . . . 40
7.3 Payment of Agent's and Other Fees.. . . . . . . . . . . 40
7.4 Other Documents and Instruments.. . . . . . . . . . . . 40
7.5 Continuing Conditions.. . . . . . . . . . . . . . . . . 40
8. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 41
9. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 41
10. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 41
11. DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.1 Events of Default.. . . . . . . . . . . . . . . . . . . 42
11.2 Exercise of Remedies. . . . . . . . . . . . . . . . . . 44
6 --Exibit 10.2 ( Revolving Credit + Term Loan )
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11.3 Rights Cumulative.. . . . . . . . . . . . . . . . . . . 44
11.4 Waiver by Company of Certain Laws.. . . . . . . . . . . 44
11.5 Waiver of Defaults. . . . . . . . . . . . . . . . . . . 44
11.6 Cross-Default.. . . . . . . . . . . . . . . . . . . . . 45
12. AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
12.1 Appointment of Agent. . . . . . . . . . . . . . . . . . 45
12.2 Deposit Account with Agent. . . . . . . . . . . . . . . 45
12.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . 46
12.4 Successor Agents. . . . . . . . . . . . . . . . . . . . 46
12.5 Loans by Agent. . . . . . . . . . . . . . . . . . . . . 46
12.6 Credit Decisions. . . . . . . . . . . . . . . . . . . . 47
12.7 Notices by Agent. . . . . . . . . . . . . . . . . . . . 47
12.8 Agent's Fees. . . . . . . . . . . . . . . . . . . . . . 47
12.9 Nature of Agency. . . . . . . . . . . . . . . . . . . . 47
12.10 Actions; Confirmation of Agent's Authority
to Act in Event of Default. . . . . . . . . . . . . . 47
12.11 Authority of Agent to Enforce Notes and This
Agreement.. . . . . . . . . . . . . . . . . . . . . . 48
12.12 Indemnification.. . . . . . . . . . . . . . . . . . . . 48
12.13 Knowledge of Default. . . . . . . . . . . . . . . . . . 48
12.14 Agent's Authorization; Action by Banks. . . . . . . . . 49
12.15 Enforcement Actions by the Agent. . . . . . . . . . . . 49
12.16 Co-Agents and Lead Managers.. . . . . . . . . . . . . . 50
13. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 50
13.1 Accounting Principles.. . . . . . . . . . . . . . . . . 50
13.2 Consent to Jurisdiction.. . . . . . . . . . . . . . . . 50
13.3 Law of Michigan.. . . . . . . . . . . . . . . . . . . . 50
13.4 Interest. . . . . . . . . . . . . . . . . . . . . . . . 51
13.5 Closing Costs; Other Costs and Expenses.. . . . . . . . 51
13.6 Notices.. . . . . . . . . . . . . . . . . . . . . . . . 51
13.7 Further Action. . . . . . . . . . . . . . . . . . . . . 52
13.8 Successors and Assigns. . . . . . . . . . . . . . . . . 52
13.9 Indulgence. . . . . . . . . . . . . . . . . . . . . . . 52
13.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . 52
13.11 Amendment and Waiver. . . . . . . . . . . . . . . . . . 52
13.12 Taxes and Fees. . . . . . . . . . . . . . . . . . . . . 53
13.13 Confidentiality.. . . . . . . . . . . . . . . . . . . . 53
13.14 Withholding Taxes.. . . . . . . . . . . . . . . . . . . 54
13.15 Effective Upon Execution. . . . . . . . . . . . . . . . 54
13.16 Severability. . . . . . . . . . . . . . . . . . . . . . 54
13.17 Table of Contents and Headings. . . . . . . . . . . . . 55
13.18 Construction of Certain Provisions. . . . . . . . . . . 55
7 --Exibit 10.2 ( Revolving Credit + Term Loan )
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13.19 Independence of Covenants.. . . . . . . . . . . . . . . 55
13.20 Reliance on and Survival of Various
Provisions. . . . . . . . . . . . . . . . . . . . . . 55
13.21 Complete Agreement. . . . . . . . . . . . . . . . . . . 55
EXHIBITS
Form of Request for Advance . . . . . . . . . . . . . . . . . . . . .A
Form of Revolving Credit Note . . . . . . . . . . . . . . . . . . . .B
Form of BID Borrowing Request . . . . . . . . . . . . . . . . . . .C-1
Form of BID Offer . . . . . . . . . . . . . . . . . . . . . . . . .C-2
Form of BID Acknowledgment. . . . . . . . . . . . . . . . . . . . .C-3
Form of BID Note. . . . . . . . . . . . . . . . . . . . . . . . . .C-4
Form of Term Note . . . . . . . . . . . . . . . . . . . . . . . . . .D
Form of Term Loan Rate Request. . . . . . . . . . . . . . . . . . . .E
Percentages . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F
8 --Exibit 10.2 ( Revolving Credit + Term Loan )
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made as of the 18th day
of July, 1994, among Comerica Bank, successor by merger to
Manufacturers Bank, N.A., formerly known as Manufacturers National
Bank of Detroit, NationsBank of North Carolina, N.A., formerly
known as NCNB National Bank of North Carolina, Berliner Handels-und
Frankfurter Bank KGaA, Signet Bank/Maryland, formerly known as
Union Trust Company of Maryland, CoreStates Bank, N.A., formerly
known as and continuing to do business under the name of The
Philadelphia National Bank, Bank Hapoalim, B.M., ABN AMRO Bank N.V.
New York Branch, Credit Lyonnais New York Branch, Meridian Bank,
Bank Leumi le-Israel, B.M. and Credit Suisse (individually, "Bank",
and collectively "Banks"), Comerica Bank, as agent for the Banks
(in such capacity, "Agent") and Vishay Beteiligungs GmbH, a German
corporation ("Company").
RECITALS:
A. In connection with the execution and delivery of the
Vishay Loan Agreement (as defined below), Company has requested
that the Banks and Agent amend and renew revolving and term credit
previously extended to Company pursuant to the Prior DM Loan
Agreement (as defined below), all on the terms set forth herein.
B. Pursuant to the Commitment Letter (as defined below),
the Banks are prepared to amend, renew and extend such credit as
aforesaid on the terms and conditions set forth herein.
NOW THEREFORE, COMPANY, AGENT AND THE BANKS AGREE:
1. DEFINITIONS
For the purposes of this Agreement the following terms will
have the following meanings:
1.1 "Absolute Rate" shall have the meaning ascribed to such
term under Section 2.5(c) hereof.
1.2 "Absolute Rate Bid Advance" shall mean any Bid Advance
bearing interest at an Absolute Rate.
1.3 "Absolute Rate Interest Period" shall mean, with
respect to any Absolute Rate Bid Advance, the period (consisting of
a whole number of days) commencing on (and including) the date such
Bid Advance is made, and ending not less than seven (7) days and
not more than thirty (30) days thereafter (but in no event later
than the Revolving Credit Maturity Date), as selected by the
Company in its Bid Borrowing Request.
1.4 "Acquisition Loan(s)" shall mean the Non-amortizing
Term Loan and the Bridge Loan.
9 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.5 "Advance(s)" shall mean, as the context may indicate,
a borrowing requested by Company and made by Banks under Section
2.1, or Section 3.1 of this Agreement, including without limitation
any refunding or conversions of such borrowing under Section 2.3 or
Section 3.5 hereof, or a borrowing requested by Company and made by
a Bank or Banks under Section 2.5 of this Agreement, and shall
include, as applicable, an Absolute Rate Bid Advance, a DM-based
Advance and a Prime-based Advance.
1.6 "Affiliate" shall mean, with respect to any Person, any
other Person or group acting in concert in respect of the Person
that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with such
Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person or group of
Persons, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies
of such Person, whether through the ownership of voting securities
or by contract or otherwise.
1.7 "Agent" shall mean Comerica Bank, a Michigan banking
corporation, successor by merger to Manufacturers Bank, N.A. or any
successor appointed in accordance with Section 12.4 hereof.
1.8 "Agent's Correspondent" shall mean, so long as the
Revolving Credit and/or Term Loan is denominated in Deutsche Marks,
Chemical Bank Frankfurt, or such other bank or banks as Agent may
from time to time designate by written notice to Company and the
Banks.
1.9 "Agent's Fees" shall mean those fees and expenses
required to be paid by Company to Agent under Section 12.8 hereof.
1.10 "Alternate Base Rate" shall mean, for any day, an
interest rate per annum equal to the Federal Funds Effective Rate
in effect on such day, plus one-half percent (1/2%).
1.11 "Alternative Currency" shall have the meaning given it
in the Vishay Loan Agreement.
1.12 "Applicable Fee Percentage" shall mean, as of any date
of determination thereof, the applicable percentage used to
calculate the fees due and payable hereunder, determined by
reference to the appropriate columns in the Pricing Matrix attached
to this Agreement as Schedule 14.
1.13 "Applicable Interest Rate" shall mean:
(a) for all periods during which the Revolving
Credit, Bid Advances and/or the Term Loan, as applicable, are
10 --Exibit 10.2 ( Revolving Credit + Term Loan )
denominated in Deutsche Marks hereunder, the Deutsche Mark-
based Rate; and
(b) if the Revolving Credit, Bid Advances and/or
Term Loan, as applicable, have been converted to Dollars
pursuant to Section 4.5, hereof, and so long as such
Indebtedness is denominated in Dollars hereunder, the Prime-
based Rate.
1.14 "Applicable Margin" shall mean, as of any date of
determination thereof, (i) with respect to the Revolving Credit and
the Term Loan, the applicable interest rate margin, determined by
reference to the appropriate columns in the Pricing Matrix attached
to this Agreement as Schedule 14, and (ii) with respect to DM Bid
Advances, the DM Bid Margin.
1.15 "Banks" shall mean Comerica Bank, successor by merger
to Manufacturers Bank, N.A., formerly known as Manufacturers
National Bank of Detroit ("Comerica"), NationsBank of North
Carolina, N.A., formerly known as NCNB National Bank of North
Carolina ("NationsBank"), Berliner Handels-und Frankfurter Bank
KGaA ("BHF"), Signet Bank/Maryland, formerly known as Union Trust
Company of Maryland ("Signet"), CoreStates Bank, N.A., formerly
known as and continuing to do business under the name of
Philadelphia National Bank, Bank Hapoalim, B.M., ABN AMRO Bank N.V.
New York Branch, Credit Lyonnais New York Branch ("Credit
Lyonnais"), Meridian Bank, Bank Leumi le-Israel, B.M. and Credit
Suisse, and any assignee which becomes a Bank pursuant to Section
13.8 hereof.
1.16 "Bid Acknowledgment" shall have the meaning ascribed to
such term in Section 2.5(e) hereof.
1.17 "Bid Advance" shall mean any Advance under Section 2.5
hereof, and shall include an Absolute Rate Bid Advance and a DM Bid
Advance.
1.18 "Bid Borrowing Request" shall have the meaning ascribed
to such term in Section 2.5(b) hereof.
1.19 "Bid Lender(s)" shall mean each of the Banks, other
than any Bank which notifies Company and Agent in writing (so long
as it has no Bid Offer outstanding) that it does not wish to fund
a Bid Advance under Section 2.5 hereof.
1.20 "Bid Notes" shall have the meaning ascribed to such
term in Section 2.5(g) hereof.
1.21 "Bid Offer" shall mean an offer by a Bid Lender to make
a Bid Advance in accordance with Section 2.5(c) hereof.
11 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.22 "Bridge Loan" shall mean the bridge loan in an
aggregate amount not to exceed One Hundred Million Dollars
($100,000,000) to be advanced by the Banks to Vishay pursuant to
the Target Company Loan Agreement.
1.23 "Business Day" shall mean any day on which commercial
banks are open for domestic and international business (including
dealings in foreign exchange) in Detroit, London, Frankfurt am Main
(except with respect to any Prime-based Advances) and New York, and
if funds are to be paid or made available in an Alternative
Currency, on such day in the place where such funds are to be paid
or made available.
1.24 "Commitment Letter" shall mean that certain commitment
letter dated June 28, 1994 and issued to Vishay by the Agent, for
itself and for and on behalf of the Banks, with respect to the
credit to be amended, renewed, increased and/or extended under the
terms and conditions of this Agreement, the Vishay Loan Agreement,
the Roederstein Loan Agreement and the Target Company Loan
Agreement.
1.25 "Company" shall mean Vishay Beteiligungs GmbH, a German
corporation, formerly known as Draloric Electronic GmbH.
1.26 "Consolidated" and "Consolidating" shall have the
meanings set forth in the Vishay Loan Agreement.
1.27 "conversion" or "converted", as used herein, shall
refer, to any and all conversions or reconversions of the
Indebtedness hereunder.
1.28 "Deutsche Mark Equivalent" shall mean the amount of
Deutsche Marks which could be purchased with the then outstanding
principal amount of Dollars at the most favorable spot exchange
rate determined by the Agent to be available to it for the sale of
Deutsche Marks for Dollars at approximately 11:00 a.m. (Detroit
time) two (2) Business Days prior to any reconversion of the
Indebtedness from Dollars to Deutsche Marks hereunder.
1.29 "Deutsche Mark-based Rate" shall mean a per annum
interest rate which is the Applicable Margin (subject in each case,
if applicable, to adjustment under Section 5.9 hereof), above (or
below) the Deutsche Mark Adjusted Rate.
1.30 "Deutsche Mark Adjusted Rate" shall mean the quotient
of:
(a) the per annum interest rate at which Agent's
Eurocurrency Lending Office (or with respect to a Bid Advance,
if applicable, the Eurocurrency Lending Office of the Bid
Lender funding such Bid Advance) offers deposits in Deutsche
Marks to United States regional prime banks in the
12 --Exibit 10.2 ( Revolving Credit + Term Loan )
eurocurrency market in amounts comparable to the Indebtedness
then outstanding and for a period equal to the relevant
Interest Period at approximately 11:00 A.M. Detroit time (or,
in the case of a Bid Advance, local time of the applicable Bid
Lender) two (2) Business Days prior to the first day of such
Interest Period; divided by
(b) a percentage equal to 100% minus the maximum
rate on such date at which Agent (or, in the case of a Bid
Advance, the applicable Bid Lender) is required to maintain
reserves on "Eurocurrency Liabilities" as defined in and
pursuant to Regulation D of the Board of Governors of the
Federal Reserve System or, if such regulation or definition is
modified, and as long as Agent (or, in the case of a Bid
Advance, the applicable Bid Lender) is required to maintain
reserves against a category of liabilities which includes
eurocurrency deposits or includes a category of assets which
includes eurocurrency loans, the rate at which such reserves
are required to be maintained on such category,
such sum to be rounded upward, if necessary, to the nearest whole
multiple of 1/16th of 1%.
1.31 "Deutsche Mark Principal Limit" shall mean:
(a) with respect to the Revolving Credit and the
aggregate outstanding principal amount of Bid Advances at any
time, the Revolving Credit Maximum Amount as of the date of
any determination thereof; and
(b) with respect to the Term Loan, Nine Million
Five Hundred Six Thousand Deutsche Marks (DM 9,506,000) minus
the sum of (i) the amount of any prepayments of principal made
on the Term Notes on or prior to the date of any determination
thereof, and (ii) the amount of any principal repayments on
the Term Notes scheduled to be paid under Section 3.2, hereof,
on or prior to the date of any determination thereof.
1.32 "DM-based Advance" shall mean any Advance (including a
DM Bid Advance) bearing interest at the Deutsche Mark-based Rate.
1.33 "DM Bid Advance" shall mean any Bid Advance bearing
interest at the Deutsche Mark-based Rate.
1.34 "DM Bid Margin" shall have the meaning ascribed to such
term in Section 2.5(c) hereof.
1.35 "DM Interest Period" shall mean an Interest Period of
one, two, three or six months (or, with respect to Advances of the
Revolving Credit, any lesser or greater number of days agreed to in
advance by Company, Agent and the Banks) as selected by Company for
a DM-based Advance pursuant to Section 4.3 hereof, or as offered by
13 --Exibit 10.2 ( Revolving Credit + Term Loan )
a Bid Lender and selected by Company pursuant to Section 2.5 hereof
or as selected by Company for a DM-based Advance pursuant to
Section 3.10 hereof.
1.36 "Dollar Amount" shall mean (i) when the Indebtedness
hereunder is being carried in Dollars, the principal amount thereof
and (ii) when the Indebtedness hereunder is being carried in
Deutsche Marks, the amount of Dollars which is equivalent to the
principal amount of such Indebtedness at the most favorable spot
exchange rate determined by the Agent to be available to it for the
sale of Dollars for Deutsche Marks at the relevant time, as such
Dollar Amount may be adjusted hereunder.
1.37 "Dollars" and the sign "$" shall mean lawful money of
the United States of America.
1.38 "Domestic Guaranty" shall have the meaning set forth in
the Vishay Loan Agreement.
1.39 "Draloric" shall mean Draloric Electronic, GmbH, a
German corporation, formerly known as Vishay Electronic, GmbH.
1.40 "Eurocurrency Lending Office" shall mean, as to Agent
and each of the Banks, its office, branch or affiliate located at
its address set forth on the signature pages hereof (or identified
thereon as its Eurocurrency Lending Office), or at such other
office, branch or affiliate of Agent or such Bank as it may
hereafter designate as its Eurocurrency Lending Office by notice to
Company and Agent.
1.41 "Event of Default" shall mean any of the Events of
Default specified in Sections 11.1 and 11.6 hereof.
1.42 "Federal Funds Effective Rate" shall mean, for any day,
a fluctuating interest rate per annum equal to the weighted average
of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of
recognized standing selected by it.
1.43 "Fixed Charge Coverage Ratio" shall have the meaning
set forth in the Vishay Loan Agreement.
1.44 "GAAP" shall mean generally accepted accounting
principles in the United States of America as in effect from time
to time.
14 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.45 "Guaranties" shall mean the Vishay Guaranty, the
Domestic Guaranty, and the Permitted Borrowers Guaranty.
1.46 "Hazardous Materials" and "Hazardous Materials Laws"
shall have the meanings set forth in the Vishay Loan Agreement.
1.47 "hereof", "hereto", "hereunder" and similar terms shall
refer to this Agreement and not to any particular paragraph or
provision of this Agreement.
1.48 "HLT Determination" shall have the meaning set forth in
the Vishay Loan Agreement.
1.49 "Indebtedness" shall mean all indebtedness and
liabilities, whether direct or indirect, absolute or contingent,
owing by Company or Vishay to the Banks or to the Agent, in any
manner and at any time, under this Agreement, the Vishay Loan
Agreement, the Roederstein Loan Agreement or the Target Company
Loan Agreement (or, in each case, any promissory notes issued
thereunder) or the other Loan Documents, whether evidenced by the
Notes or Company's revolving credit notes under the Vishay Loan
Agreement, or by Company's term notes under the Roederstein Loan
Agreement or arising under the Vishay Loan Agreement or the
Roederstein Loan Agreement or the Company's execution and delivery
of the Permitted Borrowers Guaranty, or otherwise, due or hereafter
to become due, now owing or that may hereafter be incurred by the
Company to, or acquired by, the Banks or by Agent, and any
judgments that may hereafter be rendered on such indebtedness or
any part thereof, with interest according to the rates and terms
specified, or as provided by law, and any and all consolidations,
amendments, renewals or extensions of any of the foregoing.
1.50 "Interest Period" shall mean either an Absolute Rate
Interest Period or a DM Interest Period commencing on the day an
Absolute Rate Bid Advance or a DM-based Advance, as the case may
be, is made, or the effective date of an election of the Absolute
Rate under Section 2.5 hereof or the DM-based Rate under Section
2.5 or 4.3 hereof, provided that
(a) any Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the
next succeeding Business Day, except that if the next
succeeding Business Day falls in another calendar month, the
Interest Period shall end on the next preceding Business Day,
and when an Interest Period begins on a day which has no
numerically corresponding day in the calendar month during
which such Interest Period is to end, it shall end on the last
Business Day of such calendar month, and
(b) no Interest Period shall extend beyond the then
effective maturity date of the Note(s) to which such Interest
Period is to apply.
15 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.51 "Loan Agreements" shall mean this Agreement, the Vishay
Loan Agreement, the Roederstein Loan Agreement and the Target
Company Loan Agreement.
1.52 "Loan Documents" shall mean collectively, the Notes,
the Vishay Loan Agreement (with respect to the Company's
obligations thereunder) and the Revolving Credit Notes issued by
the Company thereunder, the Permitted Borrowers Guaranty (with
respect to the Company's obligations thereunder), the Roederstein
Loan Documents (with respect to the Company's obligations
thereunder) and any other documents, instruments or agreements
executed pursuant to or in connection with any such document or
this Agreement, the Vishay Loan Agreement, or the Roederstein Loan
Agreement, as such documents may be amended from time to time.
1.53 "Majority Banks" shall mean at any time the Banks
holding 66 2/3% of the aggregate principal amount of the
Indebtedness then outstanding under this Agreement and the other
Loan Documents (excluding any Bid Notes issued under this Agreement
or the Vishay Loan Agreement except upon the occurrence and during
the continuance of an Event of Default, provided that the
Indebtedness under any such Bid Notes shall not be included for
purposes of Section 11.2(w) hereof) or, if no Indebtedness is then
outstanding, the Banks holding 66 2/3% of the Percentages.
1.54 "Moody's Rating" shall mean the rating by Moody's
Investors Services, Inc. (or any successor thereto) of Company's
long-term, senior unsecured debt.
1.55 "New Banks" shall mean Credit Lyonnais and Credit
Suisse.
1.56 "Non-Amortizing Term Loan" shall mean that certain non-
amortizing term loan in an aggregate amount not to exceed One
Hundred Million Dollars ($100,000,000) to be advanced by the Banks
to Vishay pursuant to the Target Company Loan Agreement.
1.57 "Notes" shall mean the Revolving Credit Notes, the Bid
Notes or the Term Notes or all of the Revolving Credit Notes, the
Bid Notes and the Term Notes, as the context indicates.
1.58 "Percentage" shall mean, with respect to any Bank, its
percentage share, as set forth on Exhibit "F" hereto, of the
Revolving Credit and/or the Term Loan as the context indicates, as
such Exhibit may be revised from time to time by Agent in
accordance with Section 13.8(d) of the Vishay Loan Agreement.
1.59 "Permitted Borrowers" and "Permitted Borrowers
Guaranty" shall have the meanings set forth in the Vishay Loan
Agreement.
16 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.60 "Permitted Encumbrances" shall mean, with respect to
any Person:
(a) the liens and encumbrances granted under or
established by this Agreement or the Loan Documents;
(b) liens for taxes not yet due and payable or
which are being contested in good faith by appropriate
proceedings diligently pursued, provided that such provision
for the payment of all such taxes known to such Person has
been made on the books of such Person as may be required by
generally accepted accounting principles, consistently
applied;
(c) mechanics', materialmen's, banker's, carriers',
warehousemen's and similar liens and encumbrances arising in
the ordinary course of business and securing obligations of
such Person that are not overdue for a period of more than 60
days or are being contested in good faith by appropriate
proceedings diligently pursued, provided that in the case of
any such contest (i) any proceedings commenced for the
enforcement of such liens and encumbrances shall have been
duly suspended; and (ii) such provision for the payment of
such liens and encumbrances has been made on the books of such
Person as may be required by generally accepted accounting
principles, consistently applied;
(d) liens arising in connection with worker's
compensation, unemployment insurance, old age pensions
(subject to the remaining provisions hereof) and social
security benefits which are not overdue or are being contested
in good faith by appropriate proceedings diligently pursued,
provided that in the case of any such contest (i) any
proceedings commenced for the enforcement of such liens shall
have been duly suspended; and (ii) such provision for the
payment of such liens has been made on the books of such
Person as may be required by generally accepted accounting
principles, consistently applied; and
(e)(i) liens incurred in the ordinary course of
business to secure the performance of statutory obligations
arising in connection with progress payments or advance
payments due under contracts with the United States or any
foreign government or any agency thereof entered into in the
ordinary course of business and (ii) liens incurred or
deposits made in the ordinary course of business to secure the
performance of statutory obligations, bids, leases, fee and
expense arrangements with trustees and fiscal agents and other
similar obligations (exclusive of obligations incurred in
connection with the borrowing of money, any lease-purchase
arrangements or the payment of the deferred purchase price of
property), provided that full provision for the payment of all
17 --Exibit 10.2 ( Revolving Credit + Term Loan )
such obligations set forth in clauses (i) and (ii) has been
made on the books of such Person as may be required by
generally accepted accounting principles, consistently
applied;
(f) any minor imperfections of title, including but
not limited to easements, covenants, rights-of-way or other
similar restrictions, which, either individually or in the
aggregate do not materially adversely affect the present or
future use of the property to which they relate, which would
have a material adverse effect on the sale or lease of such
property, or which would render title thereto unmarketable;
and
(g) those liens and encumbrances of Company
identified in Schedule 1.60, hereto.
1.61 "Person" shall mean an individual, corporation,
partnership, trust, incorporated or unincorporated organization,
joint venture, joint stock company, or a government or any agency
or political subdivision thereof or other entity of any kind.
1.62 "Prime Rate" shall mean the per annum interest rate
established by Agent as its prime rate for its borrowers as such
rate may vary from time to time, which rate is not necessarily the
lowest rate on loans made by Agent at any such time.
1.63 "Prime-based Advance" shall mean an Advance which bears
interest at the Prime-based Rate.
1.64 "Prime-based Rate" shall mean that rate of interest
which is the greater of (i) the Prime Rate or (ii) the Alternate
Base Rate, plus, in each case, the Applicable Margin (subject to
adjustment in each case, if applicable, under Section 5.9 hereof).
1.65 "Prior Agreements" shall have the meaning set forth in
the Vishay Loan Agreement.
1.66 "Prior Banks" shall mean the Banks other than the New
Banks.
1.67 "Prior DM Loan Agreement" shall mean that certain
Amended and Restated Draloric Electronic, GmbH DM 42,375,000
Revolving Credit and DM 57,036,000 Term Loan Agreement dated as of
January 10, 1992 among Company, the Prior Banks and Agent, as
amended, which loan agreement is amended and restated in its
entirety by this Agreement.
1.68 "Prior Vishay Loan Agreement" shall have the meaning
set forth in the Vishay Loan Agreement.
18 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.69 "Rating Level" shall mean Rating Level 1, 2, 3 or 4 as
then in effect hereunder.
1.70 "Rating Level 1" shall mean an S & P rating of BBB+ (or
higher) and a Moody's rating of Baa1 (or higher quality).
1.71 "Rating Level 2" shall mean an S & P rating of BBB (or
higher) and a Moody's rating of Baa2 (or higher quality).
1.72 "Rating Level 3" shall mean an S & P rating of BBB- (or
higher) and a Moody's rating of Baa3 (or higher quality).
1.73 "Rating Level 4" shall mean the rating level (if any)
which exists whenever the Company does not qualify for Rating Level
1, Rating Level 2 or Rating Level 3.
1.74 "Request for Advance" shall mean a Request for Advance
issued by Company under this Agreement in the form annexed hereto
as Exhibit "A".
1.75 "Revolving Credit" shall mean the revolving credit loan
to be advanced to the Company pursuant to Article 2 hereof, in an
amount not to exceed the Revolving Credit Maximum Amount.
1.76 "Revolving Credit Commitment Fee" shall mean the
commitment fee payable to Agent for distribution to the Banks
pursuant to Section 2.8 hereof.
1.77 "Revolving Credit Facility Fee" shall mean the facility
fee payable to Agent for distribution to the Banks pursuant to
Section 2.7 hereof.
1.78 "Revolving Credit Maturity Date" shall mean the earlier
to occur of (i) December 31, 1997, as such date may be extended
from time to time pursuant to Section 2.10 hereof, and (ii) the
date on which the Revolving Credit Maximum Amount shall be
terminated pursuant to Section 2.9 or 11.2 hereof.
1.79 "Revolving Credit Maximum Amount" shall mean Forty
Million Deutsche Marks (DM 40,000,000), less any reductions in the
Revolving Credit Maximum Amount under Section 2.9 of this
Agreement.
1.80 "Revolving Credit Notes" shall mean the Notes described
in Section 2.1 made by Company to each of the Banks in the form
annexed to this Agreement as Exhibit "B", as such Notes may be
amended, renewed, replaced or extended from time to time.
1.81 "Roederstein Loan Agreement" shall mean that certain
Roederstein DM 104,315,990.20 Term Loan Agreement dated as of the
date hereof among Company, the Banks and Agent, as amended from
time to time.
19 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.82 "Roederstein Loan Documents" shall mean the Roederstein
Loan Agreement and all notes, and other loan documents executed by
Company, Vishay or any of the Permitted Borrowers pursuant to or in
connection with the Roederstein Loan Agreement, as such documents
may be amended from time to time.
1.83 "S & P Rating" shall mean the rating by Standard &
Poor's Corporation (or any successor thereto) of Company's long-
term, senior unsecured debt.
1.84 "Shares", "share capital", "capital stock", "stock" and
words of similar import shall mean and refer to the equity capital
interest under applicable law of any Person in a corporation,
howsoever such interest is created or arises, whether such capital
consists of common, preferred or preference shares or other stock,
and whether such capital is evidenced by a certificate, share
register entry or otherwise.
1.85 "Subsidiary(ies)" shall mean any corporation,
association, joint stock company, or business trust of which more
than fifty percent (50%) of the outstanding voting stock is owned
either directly or indirectly by Company or one or more of its
Subsidiaries or by Company and one or more of its Subsidiaries, or
the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by Company
and/or its Subsidiaries.
1.86 "Target Company" shall mean Vitramon, Incorporated, a
Delaware corporation.
1.87 "Target Company Acquisition" shall have the meaning set
forth in the Vishay Loan Agreement.
1.88 "Target Company Loan Agreement" shall mean that certain
$200,000,000 Target Company Loan Agreement dated as of the date
hereof among Vishay, the Banks and Agent, as amended from time to
time.
1.89 "Target Company Loan Documents" shall mean the Target
Company Loan Agreement, and all notes and other loan documents
executed by Vishay or any of its Subsidiaries pursuant to or in
connection with the Target Company Loan Agreement, as such
documents may be amended from time to time.
1.90 "Term Loan" shall mean the amortizing term loan in the
amount of Nine Million Five Hundred Six Thousand Deutsche Marks (DM
9,506,000) advanced to Company by the Banks pursuant to Section 3.1
hereof.
1.91 "Term Loan Maturity Date" shall mean December 31, 1994.
20 --Exibit 10.2 ( Revolving Credit + Term Loan )
1.92 "Term Loan Rate Request" shall mean a rate selection
request issued by Company pursuant to Section 3.5 hereof in the
form attached as Exhibit "E".
1.93 "Term Notes" shall mean the term notes described in
Section 3.1 hereof, and made by Company to each of the Banks in the
form attached as Exhibit "D".
1.94 "Vishay" shall mean Vishay Intertechnology, Inc., a
Delaware corporation.
1.95 "Vishay Guaranty" shall have the meaning set forth in
the Vishay Loan Agreement.
1.96 "Vishay Loan Agreement" shall mean that certain Amended
and Restated Vishay Intertechnology, Inc. $302,500,000 Revolving
Credit and Term Loan Agreement dated as of the date hereof among
Vishay, Agent and the Banks, as amended from time to time.
Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings set forth in the Vishay Loan
Agreement.
2. REVOLVING CREDIT; BID ADVANCES
2.1 Commitment. Subject to the terms and conditions of this
Agreement, each Bank severally agrees to make Advances to Company
at any time and from time to time from the effective date hereof
until (but excluding) the Revolving Credit Maturity Date, and
Company agrees to borrow such Advances, of sums not to exceed each
such Bank's Percentage of the Revolving Credit Maximum Amount at
any time outstanding. All of the Advances hereunder shall be
evidenced by Revolving Credit Notes under which advances,
repayments and readvances may be made, subject to the terms and
conditions of this Agreement.
2.2 Accrual of Interest and Maturity. The Revolving Credit
Notes, and all principal and interest outstanding thereunder, shall
mature and become due and payable in full on the Revolving Credit
Maturity Date, and each Advance from time to time outstanding under
the Revolving Credit Notes shall, from and after the date of such
Advance, bear interest at its Applicable Interest Rate. The amount
and date of each Advance, its Applicable Interest Rate, its
Interest Period, and the amount and date of any repayment shall be
noted on Agent's records, which records will be conclusive evidence
thereof, absent manifest error.
2.3 Requests for and Refundings of Advances. Company may
request an Advance under the Revolving Credit Notes only after
delivery to Agent of a Request for Advance executed by an
authorized officer of Company and subject to the following and to
the remaining provisions of this Agreement:
21 --Exibit 10.2 ( Revolving Credit + Term Loan )
(a) each such Request for Advance shall set forth
the information required on the Request for Advance form
annexed hereto as Exhibit "A", including without limitation:
(i) the proposed date of Advance, which must
be a Business Day;
(ii) whether the Advance is a refunding or
conversion of an outstanding Advance; and
(iii) the first Interest Period applicable
thereto.
(b) each such Request for Advance shall be
delivered to Agent by 12 noon (Detroit time) not less than
four (4) Business Days prior to the proposed date of Advance;
(c) the principal amount of such requested Advance,
plus the principal amount of all other Advances of the
Revolving Credit then outstanding hereunder, plus the
aggregate principal amount of Bid Advances outstanding
hereunder, plus the aggregate principal amount of Bid Advances
requested but not yet advanced hereunder (determined as
aforesaid), shall not exceed the Revolving Credit Maximum
Amount;
(d) the principal amount of such Advance, plus the
amount of any other outstanding Indebtedness under this
Agreement to be then combined therewith having the same
Interest Period, if any, shall be at least Five Million
Deutsche Marks (DM 5,000,000) and at any one time the Company
shall not have more than one (1) Interest Period in effect;
(e) a Request for Advance, once delivered to Agent,
shall not be revocable by Company; and
(f) each Request for Advance shall constitute and
include a certification by the Company as of the date thereof
that:
(i) both before and after the Advance, the
obligations of the Company, its
Subsidiaries and the Permitted Borrowers
set forth in this Agreement and any of
the Loan Documents to which such Persons
are parties are valid, binding and
enforceable obligations of the Company,
its Subsidiaries and the Permitted
Borrowers, as the case may be;
(ii) all conditions to Advances of the
Revolving Credit have been satisfied, and
22 --Exibit 10.2 ( Revolving Credit + Term Loan )
shall remain satisfied to the date of
Advance;
(iii) there is no Event of Default, in
existence, and no event which, with the
giving of notice or the lapse of time, or
both, would constitute an Event of
Default, and none will exist upon the
making of the Advance;
(iv) the representations and warranties
contained in this Agreement and the Loan
Documents are true and correct in all
material respects and shall be true and
correct in all material respects as of
the making of the Advance; and
(v) the execution of the Request for Advance
will not violate the material terms and
conditions of any material contract,
agreement or other borrowing of Company
or any of the Permitted Borrowers.
2.4 Disbursement of Advances.
(a) Upon receiving any Request for Advance from
Company under Section 2.3 hereof, Agent shall promptly notify
each Bank by wire, telex or by telephone (confirmed by wire,
telecopy or telex) of the amount of such Advance to be made
and the date such Advance is to be made by said Bank pursuant
to its Percentage of the Advance. Unless such Bank's
commitment to make Advances hereunder shall have been
suspended or terminated in accordance with this Agreement,
each Bank shall make available the amount of its Percentage of
the Advance in immediately available funds in Deutsche Marks
to Agent, at the Agent's Correspondent for the account of the
Eurocurrency Lending Office of the Agent, not later than 12
noon (the time of the Agent's Correspondent) on the date of
such Advance.
(b) Subject to submission of an executed Request
for Advance by Company without exceptions noted in the
compliance certification therein, Agent shall make available
to Company, the aggregate of the amounts so received by it in
like funds not later than 4:00 p.m. (the time of the Agent's
Correspondent) on the date of such Advance, by credit to an
account of Company maintained with Agent's Correspondent or to
such other account or third party as Company may reasonably
direct.
(c) Agent shall deliver the documents and papers
received by it for the account of each Bank to such Bank or
23 --Exibit 10.2 ( Revolving Credit + Term Loan )
upon its order. Unless Agent shall have been notified by any
Bank prior to the date of any proposed Advance that such Bank
does not intend to make available to Agent such Bank's
Percentage of the Advance, Agent may assume that such Bank has
made such amount available to Agent on such date and in
Deutsche Marks, as aforesaid and may, in reliance upon such
assumption, make available to Company, a corresponding amount.
If such amount is not in fact made available to Agent by such
Bank, as aforesaid, Agent shall be entitled to recover such
amount on demand from such Bank. If such Bank does not pay
such amount forthwith upon Agent's demand therefor, the Agent
shall promptly notify Company and Company shall pay such
amount to Agent. Agent shall also be entitled to recover from
such Bank or Company, as the case may be, interest on such
amount in respect of each day from the date such amount was
made available by Agent to Company to the date such amount is
recovered by Agent, at a rate per annum equal to:
(i) in the case of a Bank, Agent's aggregate
marginal cost (including the cost of
maintaining any required reserves or deposit
insurance and of any fees penalties, overdraft
charges or other costs or expenses incurred by
Agent as a result of such failure to deliver
funds hereunder) of carrying such amount; and
(ii) in the case of Company, the rate of interest
then applicable to the Revolving Credit.
The obligation of any Bank to make any Advance hereunder shall
not be affected by the failure of any other Bank to make any
Advance hereunder, and no Bank shall have any liability to the
Company, the Agent, or any other Bank for another Bank's
failure to make any Advance hereunder.
2.5 Bid Advances.
(a) Bid Advances. Company may request Bid Offers from the
Bid Lenders to make Bid Advances in Deutsche Marks in accordance
with this Section 2.5 from time to time on any Business Day prior
to the Revolving Credit Maturity Date ("Bid Advance(s)"); provided,
however, that after giving effect to each Bid Advance and all other
Advances of the Revolving Credit requested to be made on such date,
the aggregate outstanding Advances of the Revolving Credit and Bid
Advances shall not exceed the Revolving Credit Maximum Amount. Each
Bid Advance shall mature, and the principal amount thereof shall be
due and payable by the Company, on the last day of the Interest
Period applicable thereto, provided, that no Bid Advance may mature
or be payable on a day later than the Revolving Credit Maturity
Date. In no event whatsoever shall any outstanding Bid Advance be
deemed to reduce, modify or affect any Bank's commitment to make
Advances of the Revolving Credit, based upon its Percentage. All
24 --Exibit 10.2 ( Revolving Credit + Term Loan )
Bid Lenders, or any lesser number thereof (including any Bid Lender
individually), may, but shall not be obligated to, make Bid Offers
so requested, and the Company may, but shall not be obligated to,
accept any Bid Lender's Bid Offer, subject to the terms hereof.
(b) Bid Requests. Company may request from all Bid Lenders
a Bid Advance by telephonic notice to the Agent (which notice shall
be immediately confirmed by a facsimile Bid Borrowing Request (each
a "Bid Borrowing Request") in the form of Exhibit C-1 attached
hereto) not later than 10:00 a.m. (Detroit time) at least five (5)
Business Days prior to the date for such proposed Bid Advance in
the case of an Absolute Rate Bid Advance, and not later than 10:00
a.m. (Detroit time) at least five (5) Business Days prior to the
date for such proposed Bid Advance borrowing in the case of a DM
Bid Advance, in each case specifying:
(i) the date (which must be a Business Day) and
aggregate amount of the proposed Bid Advance (which shall be
in a minimum aggregate principal amount of Ten Million
Deutsche Marks (DM 10,000,000) and an integral multiple of One
Million Deutsche Marks (DM 1,000,000);
(ii) whether the Bid Offers requested are to be for
Absolute Rate Bid Advances or DM Bid Advances, or both; and
(iii) the duration of the Interest Period or Interest
Periods applicable thereto, up to a maximum of three (3) such
Interest Periods.
The Agent shall promptly (but in any event no later than 5:00 p.m.
(Detroit time), on the same day of receipt of the Bid Borrowing
Request) notify each Bid Lender by telephone (confirmed by
facsimile) of each Bid Borrowing Request. The Company shall not
request any Bid Advance within ten (10) Business Days after the
date of any other Bid Borrowing Request or Bid Advance. Company may
not request the refunding or conversion of any outstanding Advance
(whether a Bid Advance or an Advance of the Revolving Credit) as a
Bid Advance.
(c) Bid Offers.
(i) If any Bid Lender, in its sole discretion,
elects to offer to make a Bid Advance to the Company as part
of a proposed Bid Advance, it shall deliver by telephone
(confirmed by facsimile promptly on the same day) to the Agent
before 10:30 a.m. (Detroit time) four (4) Business Days prior
to the date of such proposed Bid Advance, a Bid Offer, in the
form of Exhibit C-2 attached hereto ("Bid Offer"), specifying:
(A) the amount and Interest Period of each Bid
Advance which such Bid Lender would be willing to make
as part of such proposed Bid Advance, which amount
25 --Exibit 10.2 ( Revolving Credit + Term Loan )
shall be in a minimum principal amount of Three Million
Deutsche Marks (DM 3,000,000) and in an integral
multiple of One Million Deutsche Marks (DM 1,000,000),
may not exceed the aggregate amount of the proposed Bid
Advance as requested by the Company in connection with
such Bid Advance, but may exceed such Bid Lender's
Percentage of the Revolving Credit Maximum Amount, and
which Interest Period shall be the Interest Period
specified by the Company in the Bid Borrowing Request
with respect to such Bid Advance;
(B) in the event the Company requests an Absolute
Rate Bid Advance, the rate of interest per annum
offered by such Bid Lender in its sole discretion with
respect to such Bid Advance (rounded to the nearest
1/16th of 1%) (the "Absolute Rate") offered for each
such Absolute Rate Bid Advance; and
(C) in the event the Company requests a DM Bid
Advance, the margin offered by such Bid Lender in its
sole discretion with respect to such Bid Advance above
or below the DM Adjusted Rate expressed as a percentage
(rounded to the nearest 1/16th of 1%) (the "DM Bid
Margin") to be added to or subtracted from the
applicable DM Adjusted Rate for the Interest Period for
each such DM Bid Advance.
Notwithstanding the foregoing, Bid Offers submitted by Agent
in its capacity as a Bank may be submitted, and may only be
submitted, if the Agent notifies Company of the terms of such
Bid Offer (and the content thereof) not later than 30 minutes
prior to the deadline for the other Bid Lenders, in the case
of a DM Bid Advance. Agent agrees to use good faith diligent
efforts in formulating any such Bid Offers hereunder, not to
review any Bid Offers submitted by other Bid Lenders.
(ii) Bid Offers shall be irrevocable, subject to the
terms and conditions of this Agreement. If a Bid Offer is
determined by the Agent (whose determination shall be
conclusive in the absence of manifest error) to:
(A) be not substantially in the form of Exhibit
C-2 attached hereto;
(B) omit any required information;
(C) be conditional or qualified in any respect;
(D) propose terms other than or in addition to
those set forth in the related Bid Borrowing
Request;
26 --Exibit 10.2 ( Revolving Credit + Term Loan )
(E) not have been delivered to the Agent in
accordance with the time periods specified
herein; or
(F) be otherwise inconsistent with the provisions
hereof,
the Agent will reject the offer made by such Bid Offer and give
telephonic notice (confirmed by facsimile) of such rejection to the
Bid Lender which submitted such Bid Offer. Promptly thereafter,
and in any case, no later than 11:00 a.m. (Detroit time) four (4)
Business Days prior to the date of the proposed Bid Advance, the
Agent will give telephonic notice (confirmed by facsimile) to the
Company of all conforming Bid Offers and the terms thereof.
(d) Acceptance by the Company of Bid Offers. The Company
shall, four (4) Business Days prior to the date of the proposed Bid
Advance, in its sole discretion, either:
(i) irrevocably cancel the Bid Borrowing Request
that requested such Bid Advance by giving the Agent telephonic
notice confirmed promptly thereafter by facsimile) to that
effect; or
(ii) irrevocably accept one or more of the Bid
Offers by giving telephonic notice to the Agent of the amount
of the Bid Advance to be made on such date, specifying (A) the
amount of each Bid Advance to be made by each Bid Lender as
part of such Bid Advance, which amount shall not be greater
than the amount offered by such Bid Lender in its Bid Offer,
(B) the Interest Period with respect thereto, and (C) the
Absolute Rate with respect to each Absolute Rate Bid Advance
and the DM Bid Margin with respect to each DM Bid Advance;
provided, however, that:
(A) the Company shall accept Bid Lenders' conforming
Bid Offers only on the basis of ascending Absolute
Rates or DM Bid Margins and shall not accept any Bid
Lender's conforming Bid Offer to make a Bid Advance at
a particular Absolute Rate or DM Bid Margin for a
particular Interest Period if the Company has decided
to reject any other Bid Lender's conforming Bid Offer
to make a Bid Advance with the same Interest Period at
a lower Absolute Rate or DM Bid Margin, as the case may
be;
(B) the aggregate principal amount of all Bid Offers
accepted by the Company shall not, after giving effect
to all reductions made pursuant to proviso (C) of this
Section 2.5 (d)(ii) below, exceed the principal amount
specified in the Bid Borrowing Request;
27 --Exibit 10.2 ( Revolving Credit + Term Loan )
(C) if the Company shall accept any Bid Offer to
make a Bid Advance at a particular Absolute Rate or DM
Bid Margin, as the case may be, for a particular
Interest Period, then the Company shall accept all
offers to make Bid Advances at such Absolute Rate or DM
Bid Margin, as the case may be, for the same Interest
Period; provided, however, that, if Bid Offers are made
by two or more Bid Lenders at the same Absolute Rates
or DM Bid Margins (with respect to the related Interest
Period(s)) as the case may be, for a greater aggregate
principal amount than the amount in respect of which
such Bid Offers are accepted for the related Interest
Period, the principal amount of Bid Advances in respect
of which such Bid Offers are accepted shall be
allocated by the Agent among such Bid Lenders as nearly
as possible (and in such multiples, not greater than
One Million Five Hundred Thousand Deutsche Marks (DM
1,500,000), as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such
Bid Offers. Each Bid Lender acknowledges and agrees
that any Bid Offer submitted by such Bid Lender may be
modified in accordance with this clause (C), and no
such modification shall constitute a rejection of such
Bid Offer. Determinations by Agent of the amounts of
Bid Advances hereunder shall be conclusive in the
absence of manifest error.
Subject to the foregoing requirements, the Company may accept or
reject, at the Company's sole discretion, the offer to make Bid
Advances contained in any Bid Offer. Each notice given by the
Company pursuant to this Section 2.5(d) shall be irrevocable.
Failure by the Company to accept a Bid Offer in accordance with the
provisions of this Section 2.5(d) shall constitute a rejection of
such Bid Offer.
(e) Acknowledgment of Bid Borrowings. Promptly after
acceptance of a Bid Offer by the Company pursuant to Section 2.5(d)
(ii) hereof:
(i) in any case no later than 1:00 p.m. (Detroit time)
four (4) Business Days prior to the date of such Bid Advance
in the case of a DM Bid Advance, the Company shall deliver by
facsimile to the Agent a Bid Acknowledgment in substantially
the form of Exhibit C-3 hereto ("Bid Acknowledgment")
confirming, with respect to each Bid Advance to be made to the
Company, the Interest Period, the amount of the borrowing and
the Absolute Rate or DM Bid Margin, as the case may be,
therefor; and
(ii) in any case no later than 2:00 p.m. (Detroit time)
four (4) Business Days prior to the date of such Bid Advance
the Agent will give telephonic notice to each Bid Lender of
28 --Exibit 10.2 ( Revolving Credit + Term Loan )
each Interest Period, amount of the borrowing, and the
Absolute Rate or DM Bid Margin, as the case may be, so
accepted by the Company.
(f) Bid Advance Funding. At or before noon (Detroit time)
on the Business Day of such Bid Advance each Bid Lender whose Bid
Offer in respect thereof the Company accepted pursuant to Section
2.5(d)(ii) hereof shall deposit with the Agent same day funds in an
amount equal to the principal amount of such Bid Lender's Bid
Advance. Such deposit will be made to an account which the Agent
shall from time to time specify by notice to the Bid Lenders. To
the extent same day funds are received from such Bid Lenders, the
Agent shall make such same day funds available to the Company by
wire transfer to the accounts which Company shall have specified in
its Bid Acknowledgment. No Bid Lender's obligation to make any Bid
Advance shall be affected by any other Bid Lender's failure to make
any Bid Advance.
Unless Agent shall have received notice from a Bid Lender
prior to the date of funding of such Bid Lender's Bid Advance
accepted by the Company that such Bid Lender will not make
available to the Agent such Bid Lender's share of such Bid Advance,
Agent may assume that such Bid Lender has made such share available
to Agent on the date of such Bid Advance in accordance with this
subparagraph (f) and Agent may (but under no circumstances shall be
required to do so), in reliance upon such assumption, make
available to Company on such date a corresponding amount. If and
to the extent that such Bid Lender shall not have so made such
share available to Agent in accordance with the terms hereof, such
Bid Lender and Company severally agree to repay to Agent forthwith
upon demand such corresponding amount, together with interest
thereon, for each day from the date such amount is made available
to Company until the date such amount is repaid to Agent, at a rate
per annum equal to:
(i) in the case of a Bid Lender, Agent's aggregate
marginal cost (including the cost of
maintaining any required reserves or deposit
insurance and of any fees penalties, overdraft
charges or other costs or expenses incurred by
Agent as a result of such failure to deliver
funds hereunder) of carrying such amount; and
(ii) so long as the Bid Advance is denominated in
Deutsche Marks hereunder, (x) at a per annum
rate calculated by the Agent, whose
determination shall be conclusive absent
manifest error, on a daily basis, equal to
three percent (3%) above the interest rate per
annum at which one (1) day (or, if such amount
due remains unpaid for more than three (3)
Business Days, then for such other period of
29 --Exibit 10.2 ( Revolving Credit + Term Loan )
time as the Agent may elect which shall in no
event be longer than six (6) months) deposits
in Deutsche Marks, in the amount of such
overdue payment due to the Agent are offered
by the Agent's Eurocurrency Lending Office for
the applicable period determined as provided
above, or (y) if at any such time such
deposits are not offered by the Agent's
Eurocurrency Lending Office, then at a rate
per annum equal to three percent (3%) above
the rate determined by the Agent to be its
aggregate marginal cost (including the cost of
maintaining any required reserves or deposit
insurance) of carrying the amount of the
Indebtedness then outstanding; provided that,
if the applicable Bid Advance has been
converted to Dollars hereunder is then in
effect, at a per annum rate equal to the
Prime-based Rate, plus three percent (3%).
If such Bid Lender shall repay to Agent such corresponding amount,
such amount so repaid shall constitute such Bid Lender's portion of
the Bid Advance included in such Bid Advance for purposes of this
Agreement.
Promptly after each Bid Advance, and in any case no later than
the immediately succeeding Business Day, the Agent will deliver to
each of the Banks, a copy of the Bid Acknowledgment, specifying the
date and amount of such Bid Advance, the amounts of the Bid
Advances which comprise such borrowing and the Interest Period(s)
thereof and the Absolute Rate(s) or DM Bid Margin(s) as the case
may be, accepted. Furthermore, upon the request of any Bank from
time to time hereunder, the Agent will provide summaries to such
Bid Lender of all Bid Offers received in response thereto.
(g) Bid Notes. The Bid Advances of each Bid Lender shall
be evidenced by a promissory note in the form of Exhibit C-4
attached hereto ("Bid Notes"), with appropriate insertions and
shall be payable to the order of such Bid Lender, shall be dated as
of the date of this Agreement, shall set forth the maximum
principal amount of the aggregate Bid Advances which may be made by
such Bid Lender and shall mature, subject to the terms hereof, on
the Revolving Credit Maturity Date. Each Bid Lender shall record
in its records, or at its option on the schedule attached to its
Bid Note, the date and amount of each Bid Advance made by such Bid
Lender, the Applicable Interest Rate with respect to each Bid
Advance, each repayment thereof and the dates on which each
Interest Period for such Bid Advance shall begin and end. The
aggregate unpaid principal amount so recorded shall be conclusive
evidence of the principal amount owing and unpaid on such Bid Note,
absent manifest error. The failure to so record any such amount or
any error in so recording any such amount shall not, however, limit
30 --Exibit 10.2 ( Revolving Credit + Term Loan )
or otherwise affect the obligations of the Company hereunder or
under any such Bid Note.
2.6 No Dollar Advance Availability. Notwithstanding
anything to the contrary contained in this Agreement, no additional
Advances of the Revolving Credit shall be available to Company from
the date of any notification by Agent that, pursuant to Section 4.5
hereof, the outstanding Indebtedness is to be converted to Dollars,
unless and until Agent shall notify Company, pursuant to Section
4.6 hereof, that the outstanding Indebtedness is to be reconverted
to Deutsche Marks in accordance with the terms hereof.
2.7 Revolving Credit Facility Fee. From the date hereof to
the Revolving Credit Maturity Date, the Company shall pay to the
Agent, for distribution to the Banks pro rata, a Revolving Credit
Facility Fee consisting of the Applicable Fee Percentage per annum,
calculated on a daily basis, times the Revolving Credit Maximum
Amount then in effect hereunder, regardless of the aggregate amount
of Advances of the Revolving Credit outstanding from time to time.
The Revolving Credit Facility Fee shall be payable quarterly in
arrears commencing September 30, 1994, and on the last day of each
calendar quarter thereafter and at the Revolving Credit Maturity
Date, and shall be computed on the basis of a year of three hundred
sixty (360) days and assessed for the actual number of days
elapsed, giving immediate effect to any changes in the Applicable
Fee Percentage. Whenever any payment of the Revolving Credit
Facility Fee shall be due on a day which is not a Business Day, the
date for payment thereof shall be extended to the next Business
Day. Upon receipt of such payment, Agent shall make prompt payment
to each Bank of its share of the Revolving Credit Facility Fee
based upon its respective Percentage. The Revolving Credit Facility
Fee shall not be refundable under any circumstances.
2.8 Revolving Credit Commitment Fee. From the date hereof
to the Revolving Credit Maturity Date, the Company shall pay to the
Agent, for distribution to the Banks as set forth below, in the
currency in which the Indebtedness is then being carried, or, if no
Indebtedness is then outstanding hereunder, in the currency in
which the Indebtedness hereunder would be required to be carried if
it were outstanding, a Revolving Credit Commitment Fee equal to
.0625% per annum on the daily average amount by which the Revolving
Credit Maximum Amount exceeds the principal amount outstanding from
time to time under the Revolving Credit, plus the aggregate daily
amount of Bid Advances outstanding from time to time hereunder
determined in each case as of the last day of each Interest Period
so long as, and during all times when the Indebtedness is carried
in Deutsche Marks (but otherwise computed on a daily basis). The
Revolving Credit Commitment Fee shall be payable quarterly in
arrears commencing September 30, 1994 and on the last day of each
December, March, June and September thereafter, and shall be
computed on the basis of a year of three hundred sixty (360) days
31 --Exibit 10.2 ( Revolving Credit + Term Loan )
and assessed for the actual number of days elapsed. Whenever any
payment of the Revolving Credit Commitment Fee shall be due on a
day which is not a Business Day, the date for payment thereof shall
be extended to the next Business Day. Upon receipt of such payment
Agent shall make prompt payment to each Bank of its share of the
Revolving Credit Commitment Fee based upon its respective
Percentage. It is expressly understood that the commitment fees
described in this Section are not refundable under any
circumstances.
2.9 Optional Reduction or Termination of Revolving Credit
Maximum Amount. Provided that no Event of Default, or event which
with the giving of notice or the passage of time, or both, would
constitute an Event of Default, is in existence, the Company may
upon at least five (5) Business Days' prior written notice to the
Agent, permanently reduce the Revolving Credit Maximum Amount in
whole at any time, or in part from time to time, without premium or
penalty, provided that: (i) each partial reduction of the Revolving
Credit Maximum Amount shall be in made in integral multiples of Two
Million Deutsche Marks (DM 2,000,000) if the Deutsche Mark-based
Rate is then in effect, or One Million Dollars ($1,000,000) if the
Prime-based Rate is then in effect; (ii) each reduction shall be
accompanied by the payment of the Revolving Credit Commitment Fee,
if any, accrued to the date of such reduction; (iii) the Company
shall prepay in accordance with the terms hereof the amount, if
any, by which the aggregate unpaid principal amount of Revolving
Credit Notes, plus the aggregate principal amount of Bid Advances
then outstanding, exceeds the amount of the Revolving Credit
Maximum Amount as so reduced, together with interest thereon to the
date of prepayment; and (iv) if the termination or reduction of the
Revolving Credit Maximum Amount requires the prepayment of an
Absolute Rate Bid Advance or a DM-based Advance, the termination or
reduction may be made only on the last day of the then current
Interest Period applicable to such Advance. Reductions of the
Revolving Credit Maximum Amount and any accompanying prepayments of
the Revolving Credit Notes shall be distributed to each Bank in
accordance with such Bank's Percentage thereof, shall be permanent
and irrevocable and will not be available for reinstatement by or
readvance to the Company.
2.10 Extension of Revolving Credit Maturity Date. Provided
that no Default or Event of Default has occurred and is continuing,
Company may, by written notice to Agent and each Bank (which notice
shall be irrevocable and which shall not be deemed effective unless
actually received by Agent and each Bank) prior to May 18, 1994,
but not before April 18, 1994, of each year, request that the Banks
extend the then applicable Revolving Credit Maturity Date to a date
that is one year later than the Revolving Credit Maturity Date then
in effect (each such request, a "Request"). Each Bank shall, not
later than thirty (30) calendar days following the date of its
receipt of the Request, give written notice to the Agent stating
whether such Bank is willing to extend the Revolving Credit
32 --Exibit 10.2 ( Revolving Credit + Term Loan )
Maturity Date as requested. If Agent has received the aforesaid
written approvals of such Request from each of the Banks, then,
effective upon the date of Agent's receipt of all such written
approvals from the Banks, as aforesaid, the Revolving Credit
Maturity Date shall be so extended for an additional one year
period, the term Revolving Credit Maturity Date shall mean such
extended date and Agent shall promptly notify the Company that such
extension has occurred. If (i) any Bank gives the Agent written
notice that it is unwilling to extend the Revolving Credit Maturity
Date as requested or (ii) any Bank fails to provide written
approval to Agent of such a Request within thirty (30) calendar
days of the date of Agent's receipt of the Request, then (x) the
Banks shall be deemed to have declined to extend the Revolving
Credit Maturity Date, (y) the then-current Revolving Credit
Maturity Date shall remain in effect (with no further right on the
part of Company to request extensions thereof under this Section
2.10) and (z) the commitments of the Banks to make Advances of the
Revolving Credit hereunder shall terminate on the Revolving Credit
Maturity Date then in effect, and Agent shall promptly notify
Company thereof.
2.11 Revolving Credit as Renewal; Application of Advances.
The Revolving Credit Notes issued by Company shall constitute
renewal and replacement evidence of all present indebtedness of
Company for the Revolving Credit outstanding under the Prior DM
Loan Agreement as of the date hereof. Thereafter, Advances of the
Revolving Credit shall be available, subject to the terms hereof,
to fund working capital needs or other general corporate purposes
of Company. Advances of the Revolving Credit shall not be available
to fund, directly or indirectly, the Target Company Acquisition or
the payment of any transfer taxes, stamp duties, brokerage fees or
other costs and expenses resulting directly or indirectly from such
acquisition.
3. TERM LOAN
3.1 Commitment. Subject to the terms and conditions of this
Agreement, each Bank, severally and for itself alone, agrees to
loan to Company, and Company agrees to borrow from each Bank, in a
single advance of Deutsche Marks, concurrently with the execution
and delivery of this Agreement, an amount equal to each Bank's
respective Percentage of the Term Loan. Concurrently with the
execution and delivery of this Agreement, Company agrees to issue
a separate Term Note to each Bank, with appropriate insertions
(acceptable to Banks in form and substance) as evidence of the
Indebtedness under this Section 3.1.
3.2 Repayment of Term Loan. The principal indebtedness
represented by the Term Notes shall be repaid, in Deutsche Marks
(unless the Term Loan has been converted to Dollars pursuant to
Section 4.5, hereof, and the Prime-based Rate is then in effect, in
which event, said Indebtedness shall be paid in Dollars) in
33 --Exibit 10.2 ( Revolving Credit + Term Loan )
quarterly principal installments of Four Million Seven Hundred
Fifty Three Thousand Deutsche Marks (DM 4,753,000), provided that,
during any period in which the Indebtedness under the Term Notes is
carried in Dollars in accordance with Section 4.5 hereof, the
Dollar Amount of each scheduled payment of principal and interest
on the Term Notes shall be adjusted to provide for full
amortization of the outstanding principal balance over the
remaining term of the Term Loan. Such payments shall commence on
September 30, 1994, and shall continue on the last day of each
calendar quarter thereafter until the Term Loan Maturity Date, when
the entire unpaid principal balance of such Indebtedness and
accrued interest thereon shall be paid in full.
3.3 Accrual of Interest. Subject to Sections 4.6 and 4.8
hereof, the unpaid principal Indebtedness from time to time
outstanding under the Term Notes shall, from the date of the
issuance of the Term Notes (until paid), bear interest at the
Deutsche Mark-based Rate. The amount and date of the extension of
the Term Loan, Advances thereof, the amount of interest accruing
thereon and Interest Periods for Advances, and the amount and date
of any repayments, shall be noted on Agent's records, which records
shall be conclusive evidence thereof, absent manifest error.
3.4 Deutsche Mark-Based Interest Payments. Interest on
Indebtedness evidenced by the Term Notes which is funded or carried
as a Deutsche Mark-based Advance from time to time shall be payable
in immediately available funds on the last day of the Interest
Period applicable thereto, or as otherwise set forth in Section 4.1
hereof.
3.5 Term Loan Rate Requests and Refundings. So long as the
Deutsche Mark-based Rate is in effect hereunder, Company may refund
any Advance of the Indebtedness outstanding under the Term Notes as
a Deutsche Mark-based Advance with a like Interest Period, or
convert such Indebtedness to a Deutsche Mark-based Advance with
another Interest Period only after delivery to Agent of a Term Loan
Rate Request executed by an authorized officer of Company, subject
to the following and to the other provisions hereof:
(a) each such Term Loan Rate Request shall set
forth the information required on the Term Loan Rate Request
form annexed hereto as Exhibit "E", including without
limitation the proposed date of Advance, which must be the day
following the last day of the then ending Interest Period and
the Interest Period applicable to the requested Advance;
(b) each such Term Loan Rate Request shall be
delivered to Agent by 12 noon (Detroit time) four (4) Business
Days prior to the proposed date of the refunding or
conversion;
34 --Exibit 10.2 ( Revolving Credit + Term Loan )
(c) Company shall not be entitled to request any
Advance with an Interest Period ending after the Term Loan
Maturity Date;
(d) the principal amount of such Advance, plus the
amount of any other outstanding Indebtedness evidenced by the
Term Notes to be then combined therewith having the same
Interest Period, if any, shall be not less than Five Million
Deutsche Marks (DM 5,000,000), unless the balance remaining
outstanding on the Term Loan is less than such amount, then
such lesser amount shall govern and, at any one time, the
Company shall not have more than two (2) Interest Periods in
effect with respect to the Term Loan; and
(e) a Term Loan Rate Request, once delivered to
Agent, shall not be revocable by Company.
3.6 Prime-based Rate Applicability and Interest Payments.
In the event that, pursuant to Section 4.5 hereof, or any other
applicable provision of this Agreement, the Indebtedness
outstanding under the Term Notes shall be converted to an Advance
of Dollars as a Prime-based Advance, thereafter interest on the
unpaid balance of Indebtedness evidenced by the Term Notes shall
accrue from the date of such Advance to the Term Loan Maturity Date
(or until paid, or refunded or reconverted to a Deutsche Mark-based
Advance in accordance with Section 4.6 hereof), at a per annum
interest rate equal to the Prime-based Rate, and shall be payable
in immediately available funds quarterly commencing on the due date
for the next principal installment required to be paid on the Term
Loan pursuant to Section 3.2 hereof, and on the due date of each
succeeding principal payment thereon.
3.7 Term Loan as Renewal. The Term Notes issued by Company
shall constitute renewal and replacement evidence of all present
indebtedness of Company for the Term Loan outstanding under the
Prior DM Loan Agreement as of the date hereof.
4. INTEREST PAYMENTS AND PERIODS: REVOLVING CREDIT, BID
ADVANCES AND TERM CREDIT
4.1 Interest Payments. All accrued and unpaid interest on
the Indebtedness from time to time outstanding under the Revolving
Credit or the Term Loan, or as Bid Advances, shall be due and
payable in full, in immediately available funds, (a) whenever the
Deutsche Mark-based Rate shall be then in effect, (i) on the last
day of each Interest Period and, (ii) if such Interest Period is
longer than 3 months, at intervals of 3 months after the first day
of the Interest Period, and (b) whenever the Prime-based Rate shall
be then in effect, quarterly on a calendar year basis until the
Revolving Credit Maturity Date or the Term Loan Maturity Date, as
applicable, when the entire Indebtedness, including all accrued
interest, shall be due and payable in full.
35 --Exibit 10.2 ( Revolving Credit + Term Loan )
4.2 Interest Calculation. Interest accruing under the Notes
at the Deutsche Mark-based Rate shall be computed on the basis of
a 360 day year and assessed for the actual number of days elapsed
from the first day of the Interest Period applicable thereto to but
not including the last day thereof. Interest accruing at the Prime-
based Rate shall be computed on the basis of a 360 day year and
assessed for the actual number of days elapsed, and in such
computation effect shall be given to any change in the interest
rate resulting from a change in the Prime-based Rate on the date of
such change in the Prime-based Rate. Interest accruing under the
Notes shall be repaid in Deutsche Marks, unless the Applicable
Interest Rate in effect is the Prime-based Rate, in which event
said interest shall be repaid in Dollars.
4.3 Interest Period Selection. So long as the Deutsche
Mark-based Rate is in effect hereunder, Company shall have the
option of selecting, subject to the provisions hereof, among one
(1), two (2), three (3) or six (6) months as the term of each
Interest Period available hereunder for the Revolving Credit or the
Term Loan. The Revolving Credit shall, subject to the terms hereof,
be carried in a single Interest Period for the balance outstanding
from time to time hereunder. The Company may have in effect at any
one time no more than two (2) Interest Periods for the balance
outstanding under the Term Notes. Notwithstanding any provision
hereof to the contrary, Company shall be required to select
Interest Periods for a sufficient portion of the Term Loan so that
at least one (1) Interest Period shall end on the last day of each
calendar quarter while the Term Loan is outstanding (including
without limitation, the scheduled maturity date of the Term Loan),
thereby permitting the Company to make its required principal
payments under Section 3.2 hereof. In the event Company shall fail
to timely exercise its option in accordance with this Section 4.3,
the next Interest Period shall be fixed by the Agent for the same
period as the Interest Period then ending, or for the period to the
next principal installment due date, or, if applicable, the
Revolving Credit Maturity Date, whichever is the shorter period,
provided that Company will indemnify Agent and each of the Banks
against any loss or expense incurred by them (or any of them)
pursuant to Section 5, hereof. Each selection of an Interest Period
for the Revolving Credit or the Term Loan, and the amount and date
of any repayment shall be noted on Agent's records, which records
will be conclusive evidence thereof, absent manifest error.
4.4 Limited Availability. Notwithstanding the Company's
selection of an Interest Period under Section 4.3 hereof, if prior
to the last day of any Interest Period, Agent or the Banks (after
consultation with Agent) shall determine that deposits of Deutsche
Marks will not be available to Agent or the Banks in the amounts
and for the terms necessary to carry the outstanding principal
indebtedness of the Advance subject to such Interest Period for the
next applicable Interest Period, then Agent shall so notify Company
36 --Exibit 10.2 ( Revolving Credit + Term Loan )
and Company shall immediately select another Interest Period to be
applicable as the next Interest Period.
4.5 Unavailability. If prior to the last day of any
Interest Period, Agent or the Banks (after consultation with Agent)
shall determine that by reason of circumstances affecting the
foreign exchange and interbank markets, generally, or for any of
the reasons set forth in Sections 5.3 or 5.4 hereof, deposits of
Deutsche Marks will not be available to Agent and the Banks as of
the last day of an applicable Interest Period in the amounts
necessary to carry the outstanding principal of the Advances
subject to such ending Interest Period in Deutsche Marks for any
Interest Period, Agent (or, in the case of a DM Bid Advance, the
applicable Bid Lender) shall notify the Company and the Advances
shall then be automatically converted to and carried in Dollars, in
the Dollar Amount of the Indebtedness then outstanding at the
Prime-based Rate, until the first day of the next Interest Period,
if any, selected pursuant to Section 4.6 hereof.
4.6 Reconversion to Deutsche Mark-based Rate on Re-
availability. In the event that, after a conversion of Indebtedness
to Dollars pursuant to Section 4.5 hereof, Agent determines that
Deposits of Deutsche Marks are again available to Agent and/or the
Banks in the amounts necessary to carry the principal Indebtedness
under the Notes in Deutsche Marks for any Interest Period, Agent
(or, in the case of any DM Bid Advance, the applicable Bid Lender)
shall notify Company of the Interest Period(s) for which such
deposits in Deutsche Marks are available and Company shall
immediately select the next Interest Period from among such
available Interest Periods, in accordance with Section 4.3 hereof.
4.7 Repayment or Reconversion. In the event that the
currency in which the Indebtedness is being carried is required to
be changed from Dollars to Deutsche Marks under Section 4.6, as
aforesaid, and if the Deutsche Mark Equivalent of the principal
amount of the Indebtedness under the Revolving Credit and/or the
Term Loan outstanding upon such reconversion shall exceed the
Deutsche Mark Principal Limit, then concurrently with such
reconversion, Company shall pay to Agent in immediately available
funds, for the ratable benefit of the Banks, an amount in Deutsche
Marks sufficient to reduce the then outstanding principal amount of
the Revolving Credit, the aggregate Bid Advances, and/or the Term
Loan to an amount not greater than the applicable Deutsche Mark
Principal Limit for the Revolving Credit and for the Term Loan.
4.8 Interest Payments on Conversions and Reconversions.
Notwithstanding anything to the contrary in the preceding Sections,
all accrued and unpaid interest on any Indebtedness converted or
reconverted pursuant to Section 4.5 or 4.6 hereof, or otherwise,
shall be due and payable in full on the date of such conversion or
reconversion.
37 --Exibit 10.2 ( Revolving Credit + Term Loan )
4.9 Interest on Default. In the event and so long as any
Event of Default shall exist under any Note or any Event of Default
shall exist under this Agreement, interest shall be payable daily
on the principal balance of the Indebtedness then outstanding (a)
if the Deutsche Mark-based Rate is then in effect, at a per annum
rate equal to the Applicable Interest Rate plus three percent (3%)
for the remainder of the then-existing Interest Period, if any, and
at all other times (i) at a per annum rate calculated by the Agent,
or, in the case of any Bid Advance, the applicable Bid Lender,
whose determination shall be conclusive absent manifest error, on
a daily basis, equal to three percent (3%) above the interest rate
per annum at which one (1) day (or, if such amount due remains
unpaid for more than three (3) Business Days, then for such other
period of time as the Agent or such Bid Lender, as applicable, may
elect which shall in no event be longer than six (6) months)
deposits in Deutsche Marks in the amount of such overdue payment
due to the Agent are offered by the Agent's or such Bid Lender
Eurocurrency Lending Office for the applicable period determined as
provided above, or (ii) if at any such time such deposits are not
offered by the Agent's or such Bid Lender's Eurocurrency Lending
Office, then at a rate per annum equal to three percent (3%) above
the rate determined by the Agent to be its aggregate marginal cost
(including the cost of maintaining any required reserves or deposit
insurance) of carrying the amount of the Indebtedness then
outstanding, and (b) if the Prime-based Rate is then in effect, at
a per annum rate equal to the Prime-based Rate plus three percent
(3%).
4.10 Prepayment.
(a) Company may, upon four (4) Business Days prior
written notice to Agent, prepay all or any part of the
outstanding balance of the Revolving Credit or the Term Loan
and the entire outstanding balance (but no partial prepayment)
of any Bid Advance without premium or penalty, provided that
(i) if the Deutsche Mark-based Rate is then in effect, any
such prepayment shall be made only on the last day of any
Interest Period, (ii) the amount of any partial prepayment
shall be at least One Million Deutsche Marks (DM 1,000,000),
if the Deutsche Mark-based Rate is then in effect and One
Million Dollars ($1,000,000) if the Prime-based Rate is then
in effect, and (iii) if any such prepayment would otherwise
reduce the principal balance of the Revolving Credit or the
Term Loan, as applicable, to an amount less than Five Million
Deutsche Marks (DM 5,000,000), if the Deutsche Mark-based Rate
is then in effect or One Million Dollars ($1,000,000), if the
Prime-based Rate is then in effect, such prepayment shall
cover the entire remaining balance of the Revolving Credit or
the Term Loan, as applicable.
(b) Any prepayments made in accordance with this
Section on Indebtedness evidenced by the Revolving Credit
38 --Exibit 10.2 ( Revolving Credit + Term Loan )
Notes or the Bid Notes shall be without prejudice to the right
to reborrow under the Revolving Credit Notes, except that, as
set forth in Section 2.5 hereof, Company shall not be entitled
to any reborrowings of the Revolving Credit during any period
which the Revolving Credit is carried in Dollars and except to
the extent that such payment is made in connection with a
reduction of the Revolving Credit Maximum Amount pursuant to
Section 2.9 hereof.
(c) Any prepayments made in accordance with this
Section on Indebtedness evidenced by the Term Notes (i) shall
be without premium or penalty, but there shall be no
reborrowing of such prepaid amounts and (ii) shall be applied
to the principal installments under the Terms Notes in the
inverse order of their maturities, and shall not affect the
periodic payments of principal required thereunder.
4.11 Special Limitation. In the event, as a result of
increases in the value of Deutsche Marks and/or any of the
Alternative Currencies against the Dollar (taking into account the
Current Dollar Equivalent of the Indebtedness outstanding from time
to time under the Vishay Loan Agreement and the Roederstein Loan
Agreement and any Indebtedness required to be aggregated under 12
USCA 84, as amended, the regulations promulgated thereunder, or
other, similar applicable law) or for any other reason, the
obligation of any of the Banks to advance additional funds
hereunder or under any of the other Loan Agreements is determined
by such Bank to exceed its then applicable legal lending limit
under 12 USCA 84, as amended, and the regulations promulgated
thereunder, or other, similar applicable laws, the amount of
additional funds which such Bank shall be obligated to advance
hereunder shall immediately be reduced to the maximum amount which
such Bank may legally advance (as determined by such Bank) the
obligation of each of the remaining Banks hereunder shall be
proportionately reduced, based on the applicable Percentages, and,
to the extent necessary under such laws and regulations (as
determined by each of the Banks, with respect to the applicability
of such laws and regulations to itself), the Company shall reduce,
or cause to be reduced, complying to the extent practicable with
the remaining provisions hereof, the Indebtedness outstanding
hereunder or under any of the other Loan Agreements by an amount
sufficient to comply with such maximum amounts. Upon any such
reduction in the obligations of the Banks under this Section 4.11,
Company shall have the right, subject to the terms and conditions
of this Agreement (but subsequent to Company's compliance with its
obligation to reduce the Indebtedness outstanding hereunder), to
add to the Banks providing financing hereunder a bank reasonably
acceptable to the Agent for the purpose of restoring the shortfall
created by the reduction in such obligations of the Banks.
5. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS;
MARGIN ADJUSTMENTS
39 --Exibit 10.2 ( Revolving Credit + Term Loan )
5.1 Reimbursement of Prepayment Costs. If any prepayment of
the Indebtedness shall occur on any day other than the last day of
an Interest Period (whether pursuant to this Agreement or by
acceleration, or otherwise), or if an Applicable Interest Rate
shall be changed during any Interest Period pursuant to this
Agreement, or if, after requesting an Advance or the conversion of
outstanding Indebtedness hereunder, but prior to the Advance or
conversion thereof, as the case may be, the Company is no longer
entitled to the Advance or conversion requested hereunder, Company
shall reimburse Banks on demand for any costs incurred by Banks as
a result of the timing thereof, including but not limited to any
net costs incurred in liquidating or employing deposits from third
parties. Each Bank demanding reimbursement under this Section 5.1
shall deliver to Company a certificate setting forth the basis for
determining such costs, which certificate shall be conclusively
presumed correct save for manifest error.
5.2 Agent's Eurocurrency Lending Office. Agent and each of
the Banks shall have the option of maintaining and carrying the
Indebtedness on the books of its applicable Eurocurrency Lending
Office.
5.3 Availability. The Agent and the Banks shall not be
required to fund any Advance in Deutsche Marks if, at any time
prior to the Advance or funding, the Agent or the Banks (after
consultation with the Agent) shall determine, in their sole
discretion, that (i) deposits in Deutsche Marks, in the amounts and
maturities required to fund such Advances will not be available to
the Agent and the Banks; (ii) a fundamental change has occurred in
the foreign exchange or interbank markets with respect to Deutsche
Marks (including, without limitation, changes in national or
international financial, political or economic conditions or
currency exchange rates or exchange controls); or (iii) it has
become otherwise materially impractical for the Agent to make such
advance in Deutsche Marks. The Agent shall promptly notify the
Company and Banks of any such determination.
5.4 Laws Affecting Availability. If, after the date hereof,
the introduction of, or any change in, any applicable law, rule or
regulation or in the interpretation or administration thereof by
any governmental authority charged with the interpretation or
administration thereof, or compliance by any of the Banks (or any
of their respective Eurocurrency Lending Offices) with any request
or directive (whether or not having the force of law) of any such
authority, shall make it unlawful or impossible for any of the
Banks (or any of their respective Eurocurrency Lending Offices) to
maintain the Indebtedness or any portion thereof with interest at
the Deutsche Mark-based Rate or in Deutsche Marks, such Bank shall
forthwith give notice thereof to Company and to Agent. Thereafter,
if any of the Banks may not lawfully continue to maintain the
Indebtedness hereunder or any portion thereof to the end of the
then current Interest Period applicable thereto at the Deutsche
40 --Exibit 10.2 ( Revolving Credit + Term Loan )
Mark based-Rate or in Deutsche Marks, the Indebtedness outstanding
shall immediately be converted in the manner set forth under
Section 4.5 hereof. For purposes of this Section, a change in law,
rule, regulation, interpretation or administration shall include,
without limitation, any change made or which becomes effective on
the basis of a law, rule, regulation, interpretation or
administration presently in force, the effective date of which
change is delayed by the terms of such law, rule, regulation,
interpretation or administration.
5.5 Increased Cost of Deutsche Marks. If the adoption after
the date hereof, or any change after the date hereof in, any
applicable law, rule or regulation of any governmental authority,
central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by Agent or any of the
Banks (or any of their respective Eurocurrency Lending Offices)
with any request or directive (whether or not having the force of
law) made by any such authority, central bank or comparable agency
after the date hereof:
(a) shall subject any of the Banks (or any of their
respective Eurocurrency Lending Offices) to any tax, duty or other
charge with respect to the Indebtedness hereunder, or any portion
thereof, or shall change the basis of taxation of payments to any
of the Banks (or any of their respective Eurocurrency Lending
Offices) of the principal of or interest on the Indebtedness
hereunder, or any portion thereof, or any other amounts due under
this Agreement in respect thereof (except for changes in the rate
of tax on the overall net income of any of the Banks or any of
their respective Eurocurrency Lending Offices imposed by the
jurisdiction in which such Bank's principal executive office or
Eurocurrency Lending Office is located); or
(b) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the
account of, or credit extended by any of the Banks (or any of their
respective Eurocurrency Lending Offices) or shall impose on any of
the Banks (or any of their respective Eurocurrency Lending Offices)
or the foreign exchange and interbank markets any other condition
affecting the Indebtedness hereunder, or any portion thereof;
and the result of any of the foregoing is to increase the costs to
any of the Banks of maintaining any part of the Indebtedness
hereunder at the Deutsche Mark-based Rate or in Deutsche Marks or
to reduce the amount of any sum received or receivable by any of
the Banks under this Agreement, then such Bank shall promptly
notify Agent (or in the case of a Bid Advance, shall notify Company
directly, with a copy of such notice to Agent), and Agent (or such
Bank, as aforesaid) shall promptly notify Company of such fact and
demand compensation therefor and, within fifteen (15) days after
41 --Exibit 10.2 ( Revolving Credit + Term Loan )
such notice by Agent, Company agrees to pay to such Bank such
additional amount or amounts as will compensate such Bank or Banks
for such increased cost or reduction. Agent will promptly notify
Company of any event of which it has knowledge which will entitle
Banks to compensation pursuant to this Section, or which will cause
the Company to incur additional liability under Section 6.1(e)
hereof, provided that Agent shall incur no liability whatsoever to
the Banks or Company in the event it fails to do so. A certificate
of Agent (or such Bank, if applicable) setting forth the basis for
determining such additional amount or amounts necessary to
compensate such Bank or Banks shall be conclusively presumed to be
correct save for manifest error. For purposes of this Section, a
change in law, rule, regulation, interpretation, administration,
request or directive shall include, without limitation, any change
made or which becomes effective on the basis of a law, rule,
regulation, interpretation, administration, request or directive
presently in force, the effective date of which change is delayed
by the terms of such law, rule, regulation, interpretation,
administration, request or directive.
5.6 Indemnity. The Company will indemnify Agent and each of
the Banks against any loss or expense which may arise or be
attributable to the Agent's and each Bank's obtaining, liquidating
or employing deposits or other funds acquired to effect, fund or
maintain the Indebtedness hereunder, or any portion thereof, (a) as
a consequence of any failure by the Company to make any payment
when due of any amount due hereunder, (b) due to any failure of the
Company to specify an Interest Period or (c) due to any payment or
prepayment of the Indebtedness or any portion thereof (unless the
Prime-based rate is then in effect) on a date other than the last
day of the Interest Period. Such loss or expense shall be
calculated based upon the present value, as applicable, of payments
due from the Company with respect to the deposits obtained by the
Agent or any of the Banks in order to fund the Indebtedness or any
portion thereof. The Agent's and each Bank's (as applicable)
calculations of any such loss or expense shall be furnished to the
Company and shall be conclusive, absent manifest error.
5.7 Judgment Currency. The obligation of the Company to
make payments of the principal of and interest on the Notes and any
other amounts payable hereunder in the currency specified for such
payment herein or in the Notes shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment, which is
expressed in or converted into any other currency, except to the
extent that such tender or recovery shall result in the actual
receipt by each of the Banks of the full amount of such currency
expressed to be payable herein or in the Notes. The Agent (or the
applicable Bank, in the case of a Bid Advance) shall, using all
amounts obtained or received from the Company pursuant to such
tender or recovery in payment of principal of and interest on the
Notes, promptly purchase the specified currency, as aforesaid, at
the most favorable spot exchange rate determined by the Agent to be
42 --Exibit 10.2 ( Revolving Credit + Term Loan )
available to it. The obligation of the Company to make payments in
the specified currency shall be enforceable as an alternative or
additional cause of action solely for the purpose of recovering the
amount, if any, by which such actual receipt shall fall short of
the full amount of the currency expressed to be payable herein or
in the Notes.
5.8 Other Increased Costs. In the event that at any time
after the date of this Agreement any change in law such as
described in Section 5.5 hereof, shall, in the opinion of the Agent
or any of the Banks (as certified to Agent in writing by such Bank)
require that the Revolving Credit or any other Indebtedness or
commitment under this Agreement or any of the other Loan Agreements
be treated as an asset or otherwise be included for purposes of
calculating the appropriate amount of capital to be maintained by
each of the Banks or any corporation controlling such Banks, as the
case may be, the Agent shall notify the Company. The Company and
the Agent shall thereafter negotiate in good faith an agreement to
increase the Revolving Credit Commitment Fee or other fees payable
to the Agent, for the benefit of the Banks under this Agreement,
which in the opinion of the Agent, will adequately compensate the
Banks for the costs associated with such change in law. If such
increase is approved in writing by the Company within thirty (30)
days from the date of the notice to the Company from the Agent, the
Revolving Credit Commitment Fee or other fees (if applicable)
payable by the Company under this Agreement shall, effective from
the date of such agreement, include the amount of such agreed
increase. If the Company and the Agent are unable to agree on such
an increase within thirty (30) days from the date of the notice to
the Company, the Company shall have the option, exercised by
written notice to the Agent within forty-five (45) days from the
date of the aforesaid notice to the Company from the Agent, to
terminate the Revolving Credit or other commitments if applicable,
in which event, all sums then outstanding to Banks and to Agent
hereunder shall be due and payable in full. If (a) the Company and
the Agent fail to agree on an increase in the Revolving Credit
Commitment Fee or other fees (if applicable), or (b) the Company
fails to give timely notice that it has elected to exercise its
option to terminate the Revolving Credit or other commitments, if
applicable, as set forth above, then the Revolving Credit and such
other commitments hereunder shall automatically terminate as of the
last day of the aforesaid forty-five (45) day period, in which
event all sums then outstanding to Banks and to Agent hereunder
shall be due and payable in full.
5.9 Margin Adjustments. Adjustments to the Applicable
Margin, based on Schedule 5.9, shall be implemented as follows:
(i) Such margin adjustments shall be given
prospective effect only, effective (A) as to all Prime-based
Advances outstanding hereunder, immediately upon required date
of delivery of the financial statements required to be
43 --Exibit 10.2 ( Revolving Credit + Term Loan )
delivered under Section 7.3(b) and 7.3(c) of the Vishay Loan
Agreement establishing applicability of the appropriate
adjustments, if any, or on the obtaining and/or any change in
the Rating Level then in effect, as applicable and (B) as to
each DM-based Advance outstanding hereunder, effective upon
the expiration of the applicable Interest Period(s), if any,
in effect on (x) the required date of delivery of the latest
of such financial statements required to be delivered
hereunder during such Interest Period(s) or (y) the date of
the obtaining and/or any change in the Rating Level in effect
hereunder, as applicable, in each case with no retroactivity
or claw-back.
(ii) With respect to DM-based Advances outstanding
hereunder, an adjustment hereunder, after becoming effective,
shall remain in effect only through the end of the applicable
Interest Period(s) for such DM-based Advances if any;
provided, however, that upon the delivery of quarterly
financial statements demonstrating any change in the Leverage
Ratio or the obtaining and/or change in the Rating Level then
in effect, as aforesaid, or the occurrence of any other event
which under the terms hereof causes such adjustment no longer
to be applicable, then any such subsequent adjustment or no
adjustment, as the case may be, shall be effective (and said
pricing shall thereby be adjusted up or down, as applicable),
with the commencement of each Interest Period following such
change or event, all in accordance with the preceding
subparagraph.
5.10 HLT Determination. In the event at any time (whether
before or after the funding of the Acquisition Loans) of an HLT
Determination, the Agent, the Banks and the Company shall commence
negotiations in good faith to agree upon whether and, if so, the
extent to which fees, interest rates and/or margins hereunder
should be increased so as to reflect such HLT Determination and to
compensate the Banks and Agent for additional costs, expenses
and/or fees which result from or are associated with any such HLT
Determination, including without limitation any costs resulting
from any requirement that additional capital be allocated to the
Indebtedness, or any portion thereof. If Company and the Majority
Banks agree that fees, interest rates and/or margins should be
increased, and agree on the amount of such increase or increases,
this Agreement may be amended to give effect to such increase or
increases as provided in Section 13.11 hereof. If Company and
Majority Banks fail to agree on whether and, if so, the extent to
which fees, interest rates and/or margins hereunder should be
increased within 60 days after notice to Company of an HLT
Determination as herein provided, then (i) the Agent shall, if
requested by the Majority Banks, by written notice to the Company
terminate the commitments of the Banks to fund and/or maintain
Advances of the Revolving Credit hereunder and under the Vishay
Loan Agreement, and if still outstanding, any commitment to fund
44 --Exibit 10.2 ( Revolving Credit + Term Loan )
Advances of the Acquisition Loans, and such commitments shall
thereupon terminate, (ii) Company shall be obligated to repay all
outstanding Indebtedness at the end of the Interest Period
applicable thereto and (iii) the Company may, at its option, on at
least ten Business Days' written notice to the Agent (which shall
promptly notify the Banks thereof) prepay all Indebtedness
outstanding hereunder and under the other Loan Agreements by paying
the aggregate principal amount thereof, together, with all accrued
interest thereon to the date of prepayment; provided that, if the
Company prepays any fixed rate loans or Advances carried at the
Absolute Rate or the Deutsche Mark-based Rate, or any comparable
rate, pursuant to this Section 5.10, Company shall compensate the
Banks for any resulting funding losses as provided in Section 5.1
hereof. Subject to compliance by Company with this Section 5.10,
the Banks acknowledge that an HLT Determination shall not
constitute a Default or an Event of Default hereunder.
6. PAYMENTS, RECOVERIES AND COLLECTIONS
6.1 Payment Procedure.
(a) All payments by Company of principal of, or
interest on, the Revolving Credit Notes, the Term Notes, or of
any fees or other amount due hereunder, shall be made without
setoff or counterclaim on the date specified for payment under
this Agreement and shall be made in Deutsche Marks in
immediately available funds for the account of Agent's
Eurocurrency Lending Office, at the Agent's Correspondent, for
the ratable account of the Banks, not later than 11:00 a.m.
(local time of the Agent's Correspondent); provided however
that subsequent to any conversion of the Indebtedness
hereunder from Deutsche Marks to Dollars pursuant to Section
4.5 hereof, such payments shall be made not later than 11:00
a.m. (Detroit time) in Dollars in immediately available funds
to Agent, for the ratable account of the Banks, at Agent's
office located at 100 Renaissance Center, Detroit, Michigan
48243 until reconversion of the Indebtedness hereunder from
Dollar to Deutsche Marks pursuant to Section 4.6 hereof. Upon
receipt of each such payment, the Agent shall make prompt
payment to each Bank, or such Bank's Eurocurrency Lending
Office (as directed by such Bank), in like funds and
currencies, of all amounts received by it for the account of
such Bank.
(b) Unless the Agent shall have been notified by
the Company prior to the date on which any payment to be made
by the Company is due that the Company does not intend to
remit such payment, the Agent may, in its discretion, assume
that the Company has remitted such payment when so due and the
Agent may, in reliance upon such assumption, make available to
each Bank on such payment date an amount equal to such Bank's
share of such assumed payment. If the Company has not in fact
45 --Exibit 10.2 ( Revolving Credit + Term Loan )
remitted such payment to the Agent, each Bank shall forthwith
on demand repay to the Agent in the applicable currency the
amount of such assumed payment made available to such Bank,
together with the interest thereon, in respect of each day
from and including the date such amount was made available by
the Agent to such Bank to the date such amount is repaid to
the Agent at a rate per annum equal to Agent's aggregate
marginal cost (including the cost of maintaining any required
reserves or deposit insurance and of any fees penalties,
overdraft charges or other costs or expenses incurred by
Agent) of carrying such amount, unless the Indebtedness has
been converted to Dollars hereunder, in which case said rate
shall be the federal funds rate (daily average), as the same
may vary from time to time.
(c) Whenever any payment of principal of, or
interest on, the Indebtedness hereunder shall be due on a day
which is not a Business Day the date of payment thereof shall
be extended to the next succeeding Business Day, unless as a
result thereof it would fall in the next calendar month, in
which case it shall be shortened to the next preceding
Business Day and, in the case of a payment of principal,
interest thereon shall be payable for such extended or
shortened time, if any, provided that if the Indebtedness
hereunder is then being carried in Dollars, whenever any
payment to be made hereunder shall otherwise be due on a day
which is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall
be included in computing interest, if any, in connection with
such payment.
(d) Except as otherwise provided in this Agreement
or the other Loan Documents (and subject to the terms and
conditions thereof), all payment by Company of principal of or
interest on the Bid Notes shall be made to the applicable Bid
Lender in Deutsche Marks (unless the Prime-based Rate is then
in effect, in which case payments shall be made in Dollars)
without setoff or counterclaim on the dates and other terms
provided in such Notes.
(e) All payments to be made by the Company under
this Agreement or any of the Notes (including without
limitation, payments under the Bid Notes) shall be made
without set-off or counterclaim, as aforesaid, and without
deduction for or on account of any present or future
withholding or other taxes of any nature imposed by any
governmental authority or of any political subdivision thereof
or any federation or organization of which such governmental
authority may at the time of payment be a member, unless
Company is compelled by law to make payment subject to such
tax. In such event the Company shall:
46 --Exibit 10.2 ( Revolving Credit + Term Loan )
(i) pay to the Agent for Agent's own account
and/or for the account of the Banks (and in
the case of Bid Advances, pay to the
applicable Bank which funded such Advances)
such additional amounts as may be necessary to
ensure that the Agent and/or such Bank or
Banks receive a net amount in Deutsche Marks
or Dollars, as the case may be, equal to the
full amount which would have been receivable
had payment not been made subject to such tax;
and
(ii) remit such tax to the relevant taxing
authorities according to applicable law, and
send to the Agent or the applicable Bid
Lender, as the case may be, such certificates
or certified copy receipts as the Agent or
such Bid Lender shall reasonably require as
proof of the payment by the Company of any
such taxes payable by the Company.
As used herein, the terms "tax", "taxes" and "taxation"
include all existing taxes, levies, imposts, duties, charges, fees,
deductions and withholdings and any restrictions or conditions
resulting in a charge together with interest thereon and fines and
penalties with respect thereto which may be imposed by reason of
any violation or default with respect to the law regarding such
tax, assessed as a result of or in connection with the transactions
in Deutsche Marks hereunder, or the payment and or receipt of funds
in Deutsche Marks or the payment or delivery of funds into or out
of any jurisdiction other than the United States (whether assessed
against Company, Agent or any of the Banks).
6.2 Application of Proceeds. Notwithstanding anything to
the contrary in this Agreement, upon the occurrence and during the
continuance an Event of Default, any offsets or voluntary payments
by the Company, or others and any other sums received or collected
in respect of the Indebtedness, shall be applied, first, to the
Notes pro rata, based on the aggregate Indebtedness then
outstanding thereunder (or in such other order and manner as
determined by all of the Banks), next, to any other Indebtedness on
a pro rata basis (as aforesaid), and then, if there is any excess,
to the Company.
6.3 Pro-rata Recovery. If any Bank shall obtain any payment
or other recovery (whether voluntary, involuntary, by application
of offset or otherwise) on account of principal of, or interest on,
any of the Revolving Credit Notes or Term Notes in excess of its
pro rata share of payments then or thereafter obtained by all Banks
upon principal of and interest on all such Notes, such Bank shall
purchase from the other Banks such participations in the Revolving
Credit Notes and Term Notes held by them as shall be necessary to
47 --Exibit 10.2 ( Revolving Credit + Term Loan )
cause such purchasing Bank to share the excess payment or other
recovery ratably in accordance with the Percentage with each of
them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such
purchasing holder, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without
interest.
6.4 Deposits and Accounts. In addition to and not in
limitation of any rights of any Bank or other holder of any Note
under applicable law, each Bank and each other such holder shall,
upon acceleration of the Indebtedness under the Notes and without
notice or demand of any kind, have the right to appropriate and
apply to the payment of the Notes owing to it (whether or not then
due) any and all balances, credits, deposits, accounts or moneys of
Company then or thereafter with such Bank or other holder;
provided, however, that any such amount so applied by any Bank or
other holder on any of the Notes owing to it shall be subject to
the provisions of Section 6.3.
7. CONDITIONS.
The obligations of Banks to make Advances pursuant to this
Agreement are subject to the following conditions:
7.1 Vishay Loan Agreement. All of the conditions required
to be satisfied for the making of Advances under the Vishay Loan
Agreement (as defined therein) shall have been satisfied or waived
in accordance with the terms and conditions thereof.
7.2 Vishay's Certificate. The Agent shall have received,
with a signed counterpart for each Bank, a certificate of a
responsible senior officer of Vishay, dated the date hereof,
stating that the conditions referred to (with respect to the Vishay
Loan Agreement) in Section 7.1, hereof, have been fully satisfied.
7.3 Payment of Agent's and Other Fees. Vishay or Company
shall have paid to the Agent the Agent's Fees and all costs and
expenses required hereunder.
7.4 Other Documents and Instruments. The Agent shall have
received, with a photocopy for each Bank, such other instruments
and documents as the Majority Banks may reasonably request in
connection with the making of Advances hereunder, and all such
instruments and documents shall be satisfactory in form and
substance to the Majority Banks.
7.5 Continuing Conditions. The obligations of the Banks to
make Advances hereunder shall be subject to the continuing
conditions that all documents executed or submitted pursuant hereto
shall be satisfactory in form and substance (consistent with the
terms hereof) to Agent and its counsel and to each of the Banks and
48 --Exibit 10.2 ( Revolving Credit + Term Loan )
their respective counsel; Agent and its counsel and each of the
Banks and their respective counsel shall have received all
information, and such counterpart originals or such certified or
other copies of such materials, as Agent or its counsel and each of
the Banks and their respective counsel may reasonably request; and
all other legal matters relating to the transactions contemplated
by this Agreement (including, without limitation, matters arising
from time to time as a result of changes occurring with respect to
any statutory, regulatory or decisional law applicable hereto)
shall be satisfactory to counsel to Agent and counsel to each of
the Banks.
8. REPRESENTATIONS AND WARRANTIES
Company ratifies, confirms and, by reference thereto (as fully
as though such matters were expressly set forth herein), represents
and warrants with respect to itself and its Subsidiaries those
matters set forth in Sections 6.1, 6.3 through 6.8, inclusive,
6.10, 6.12, 6.14, 6.15 through 6.21, inclusive, of the Vishay Loan
Agreement, and such representations and warranties shall be deemed
to be continuing representations and warranties during the life of
this Agreement.
9. AFFIRMATIVE COVENANTS
Company covenants and agrees that so long as any of the Banks
is committed to make any Advances under this Agreement and
thereafter so long as any Indebtedness remains outstanding under
this Agreement, it will, and as applicable, it will cause its
Subsidiaries to, comply with the covenants set forth in Sections
7.1 through 7.3 and 7.9 through 7.15, inclusive, of the Vishay Loan
Agreement as fully as though the obligations set forth therein were
expressly set forth herein as the obligations of Company and its
Subsidiaries. To the full extent set forth in Sections 7, 8 and 9
hereof, and elsewhere herein, the provisions of the Vishay Loan
Agreement are incorporated herein by reference and shall remain in
full force and effect for the benefit of Agent and the Banks,
notwithstanding any amendment, supplement or termination of the
Vishay Loan Agreement after the date hereof. Any amendments to the
representations, warranties, covenants or other provisions of the
Vishay Loan Agreement incorporated by reference herein which are
contained in any future amendment or supplement thereto shall be
deemed to run in favor of Agent and the Banks as additional rights
and remedies, and not in derogation of the rights and remedies
provided hereunder.
10. NEGATIVE COVENANTS
Company covenants and agrees that so long as any Indebtedness
or any commitment to make Advances under this Agreement remains
outstanding, it will not, and it will not allow any of its
Subsidiaries, without the prior written consent of Agent, to
49 --Exibit 10.2 ( Revolving Credit + Term Loan )
violate any of the covenants set forth in Sections 8.1 through
8.12, inclusive, of the Vishay Loan Agreement as fully as though
the obligations set forth therein were expressly set forth herein
as the obligations of the Company and its Subsidiaries.
11. DEFAULTS
11.1 Events of Default. Any of the following events is an
"Event of Default":
(a) non-payment of the principal or interest, when
due, under any of the Notes issued hereunder in accordance
with the terms thereof;
(b) default in the payment of any money by Company
under this Agreement, other than as set forth in subsection
(a) above, or under any of the other Loan Documents, or by
Vishay or any of the Permitted Borrowers under the Vishay Loan
Agreement, or by Company under the Roederstein Loan Agreement,
or by Vishay under the Target Company Loan Agreement or other
documents or instruments executed in connection therewith
(other than, in each case, as set forth therein), within three
(3) days of the date the same is due and payable;
(c) default in the observance or performance or any
of the other conditions, covenants or agreements set forth in
this Agreement (subject, in the case of any covenants
incorporated by reference herein from the Vishay Loan
Agreement, to any applicable grace periods provided
thereunder) or any of the Loan Documents by any party thereto
or the occurrence of any other default or Event of Default, as
the case may be, hereunder or thereunder;
(d) any representation or warranty made by Company
herein (subject, in the case of any representations and
warranties incorporated by reference herein from the Vishay
Loan Agreement, to any applicable grace periods provided
thereunder) or in any instrument submitted pursuant hereto or
by any other party to the Loan Documents proves untrue in any
material adverse respect when made or deemed made;
(e) any provision of the Vishay Guaranty, the
Domestic Guaranty or the Permitted Borrowers Guaranty shall at
any time for any reason (other than in accordance with its
terms or the terms of this Agreement) cease to be valid and
binding and enforceable against Vishay or the Significant
Subsidiaries, as applicable, or the validity, binding effect
or enforceability thereof shall be contested by any Person, or
Vishay or any of the Significant Subsidiaries shall deny that
it has any or further liability or obligation under the Vishay
Guaranty, the Domestic Guaranty or the Permitted Borrowers
Guaranty, as applicable, or the Vishay Guaranty, the Domestic
50 --Exibit 10.2 ( Revolving Credit + Term Loan )
Guaranty or the Permitted Borrowers Guaranty shall be
terminated, invalidated or set aside or in any way cease to
give or provide to the Banks and the Agent the benefits
purported to be created thereby;
(f) default in the payment of any other obligation
of Company or its Subsidiaries for borrowed money in excess of
One Million Dollars ($1,000,000) (or the Alternative Currency
equivalent thereof), individually, or in the aggregate,
resulting in acceleration thereof prior to its expressed
maturity;
(g) the rendering of any judgment or judgments for
the payment of money in excess of the sum of One Million
Dollars ($1,000,000) (or the Alternative Currency equivalent
thereof) in the aggregate against Company or any of its
Subsidiaries and such judgments shall remain unpaid,
unvacated, unbonded or unstayed by appeal or otherwise for a
period of thirty (30) consecutive days, except as covered by
adequate insurance with a reputable carrier and an action is
pending in which an active defense is being made with respect
thereto;
(h) if a creditors' committee shall have been
appointed for the business of Company or any of its
Subsidiaries; or if Company or any of its Subsidiaries shall
have made a general assignment for the benefit of creditors or
shall have been adjudicated bankrupt, or shall have filed a
voluntary petition in bankruptcy or for reorganization or to
effect a plan or arrangement with creditors or shall fail to
pay its debts generally as such debts become due in the
ordinary course of business (except as contested in good faith
and for which adequate reserves are made in such party's
financial statements) or otherwise sought protection or
exercised any rights under other, similar laws in effect in
any foreign jurisdiction; or shall file an answer to a
creditor's petition or other petition filed against it,
admitting the material allegations thereof for an adjudication
in bankruptcy or for reorganization; or shall have applied for
or permitted the appointment of a receiver or trustee or
custodian for any of its property or assets; or such receiver,
trustee or custodian shall have been appointed for any of its
property or assets (otherwise than upon application or consent
of Company or any of its Subsidiaries) and such appointment
has not been dismissed or stayed within thirty (30) days from
the date of appointment or if an order for relief or otherwise
approving any petition for reorganization of Company or any of
its Subsidiaries shall be entered and shall not be dismissed
or stayed within thirty (30) days from the date of entry
thereof.
51 --Exibit 10.2 ( Revolving Credit + Term Loan )
11.2 Exercise of Remedies. If an Event of Default has
occurred and is continuing hereunder: (w) the Agent shall, if
directed to do so by the Majority Bank, declare the Banks'
commitments to lend hereunder immediately and automatically
terminated; (x) the Agent shall, at the direction of the Majority
Banks, declare the entire unpaid principal Indebtedness, including
the Notes, immediately due and payable, without presentment, notice
or demand, all of which are hereby expressly waived by Company; (y)
upon occurrence of any Event of Default specified in subsection
11.1(h), above, and notwithstanding the lack of any declaration by
Agent under preceding clauses (w) or (x) the entire unpaid
principal Indebtedness, including the Notes, shall become
automatically due and payable unless such acceleration is delayed
or waived by the Agent at the direction of the Banks; and (z) the
Agent shall, if directed to do so by the Majority Banks or the
Banks, as applicable (subject to the terms hereof), exercise any
remedy permitted by this Agreement, the Loan Documents or law.
11.3 Rights Cumulative. No delay or failure of Agent and/or
Banks in exercising any right, power or privilege hereunder shall
affect such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise thereof, or
the exercise of any other power, right or privilege. The rights of
Banks under this Agreement are cumulative and not exclusive of any
right or remedies which Banks would otherwise have.
11.4 Waiver by Company of Certain Laws. To the extent
permitted by applicable law, Company hereby agrees to waive, and
does hereby absolutely and irrevocably waive and relinquish the
benefit and advantage of any marshalling, valuation, stay,
appraisement, extension or redemption laws now existing or which
may hereafter exist, which, but for this provision, might be
applicable to any sale made under the judgment, order or decree of
any court, on any claim for interest on the Notes, and further
hereby irrevocably agrees to waive the right to trial by jury with
respect to any and all actions or proceedings in which Agent or the
Banks (or any of them), on one hand, and the Company or any of the
Permitted Borrowers, on the other hand, are parties, whether or not
such actions or proceedings arise out of this Agreement or the Loan
Documents, or otherwise. These waivers have been voluntarily given,
with full knowledge of the consequences thereof.
11.5 Waiver of Defaults. No Event of Default shall be waived
by the Banks except in a writing signed by an officer of the Agent
in accordance with Section 13.11 hereof. No single or partial
exercise of any right, power or privilege hereunder, nor any delay
in the exercise thereof, shall preclude other or further exercise
of the Banks' rights by Agent. No waiver of any Default or Event of
Default shall extend to any other or further Default or Event of
Default. No forbearance on the part of the Agent or any Bank in
enforcing any of the Banks' rights shall constitute a waiver of any
of their rights. Company expressly agrees that this Section may not
52 --Exibit 10.2 ( Revolving Credit + Term Loan )
be waived or modified by the Banks or Agent by course of
performance, estoppel or otherwise.
11.6 Cross-Default. In addition to the other Events of
Default specified herein, any failure to perform and discharge when
due, after allowance for any applicable cure period, any of the
obligations, covenants and agreements required to be performed
under the provisions of any instruments evidencing or securing any
other present and future borrowings of Company from the Banks (or
from Agent) in renewal or extension of, or related to this
Agreement or any of the other Loan Documents, shall be an Event of
Default under the provisions of this Agreement entitling Agent,
with the consent of the Majority Banks, (without notice or any cure
period except as expressly provided herein or therein) to exercise
any and all rights and remedies provided hereby. Any Event of
Default under this Agreement or under any of the other Loan
Documents shall also constitute a default under all other
instruments securing this or any other present or future
borrowings, or any agreements in relation thereto, entitling Agent
and the Banks to exercise any and all rights and remedies provided
therein.
12. AGENT
12.1 Appointment of Agent. Each Bank and the holder of each
Note appoints and authorizes Agent to act on behalf of such Bank or
holder under the Loan Documents and to exercise such powers
hereunder and thereunder as are specifically delegated to or
required of Agent by the terms hereof and thereof, together with
such powers as may be reasonably incidental thereto. Each Bank
agrees (which agreement shall survive any termination of this
Agreement) to reimburse Agent for all reasonable out-of-pocket
expenses (including in-house and outside attorneys' fees) incurred
by Agent hereunder or in connection herewith or with any Default or
Event of Default or in enforcing the obligations of Company under
this Agreement or the Loan Documents or any other instrument
executed pursuant hereto, and for which Agent is not reimbursed by
Company, pro rata according to such Bank's Percentage. Agent shall
not be required to take any action under the Loan Documents, or to
prosecute or defend any suit in respect of the Loan Documents,
unless indemnified to its satisfaction by the Banks against loss,
costs, liability and expense. If any indemnity furnished to Agent
shall become impaired, it may call for additional indemnity and
cease to do the acts indemnified against until such additional
indemnity is given.
12.2 Deposit Account with Agent. Company hereby authorizes
Agent to charge its general deposit account, if any, maintained
with Agent for the amount of any principal, interest, or other
amounts or costs due under this Agreement when the same becomes due
and payable under the terms of this Agreement the Revolving Credit
Notes or Term Notes, or any Bid Notes payable to Agent.
53 --Exibit 10.2 ( Revolving Credit + Term Loan )
12.3 Exculpatory Provisions. Agent agrees to exercise its
rights and powers, and to perform its duties, as Agent hereunder
and under the Loan Documents in accordance with its usual customs
and practices in bank-agency transactions, but only upon and
subject to the express terms and conditions of Section 12, hereof,
(and no implied covenants or other obligations shall be read into
this Agreement against the Agent); neither Agent nor any of its
directors, officers, employees or agents shall be liable to any
Bank for any action taken or omitted to be taken by it or them
under this Agreement or any document executed pursuant hereto, or
in connection herewith or therewith, except for its or their own
willful misconduct or gross negligence, nor be responsible to any
Bank for any recitals or warranties herein or therein made by any
other Person, nor for the effectiveness, enforceability, validity
or due execution (other than its own due execution and delivery) of
this Agreement or any document executed pursuant hereto, or any
security thereunder, nor to make any inquiry respecting the
performance by Company or any of its Subsidiaries of its
obligations hereunder or thereunder. Nor shall Agent have, or be
deemed to have, a fiduciary relationship with any Bank by reason of
this Agreement. Agent shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which it believes to be genuine
and to have been presented by a proper person.
12.4 Successor Agents. Agent may resign as such at any time
upon at least thirty (30) days prior notice to Company and all
Banks. If Agent at any time shall resign or if the office of Agent
shall become vacant for any other reason, Majority Banks shall, by
written instrument, appoint a successor Agent (satisfactory to such
Majority Banks) which shall thereupon become Agent hereunder and
shall be entitled to receive from the prior Agent such documents of
transfer and assignment as such successor Agent may reasonably
request. Such successor Agent shall succeed to all of the rights
and obligations of the retiring Agent as if originally named. The
retiring or removed Agent shall duly assign, transfer and deliver
to such successor Agent all moneys at the time held by the retiring
or removed Agent hereunder after deducting therefrom its expenses
for which it is entitled to be reimbursed. Upon such succession of
any such successor Agent, the retiring agent shall be discharged
from its duties and obligations hereunder, except for its gross
negligence or willful misconduct arising prior to its retirement
hereunder, and the provisions of this Section 12 shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
12.5 Loans by Agent. Agent shall have the same rights and
powers with respect to the credit extended by it and the Notes held
by it as any Bank and may exercise the same as if it were not
Agent, and the term "Bank" and, when appropriate, "holder" shall
include Agent in its individual capacity.
54 --Exibit 10.2 ( Revolving Credit + Term Loan )
12.6 Credit Decisions. Each Bank acknowledges that it has,
independently of Agent and each other Bank and based on financial
statements and such other documents, information and investigations
as it has deemed appropriate, made its own credit decision to
extend credit hereunder from time to time. Each Bank also
acknowledges that it will, independently of Agent and each other
Bank and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue
to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under
this Agreement or any document executed pursuant hereto.
12.7 Notices by Agent. Agent shall give prompt notice to
each Bank of its receipt of each notice or request required or
permitted to be given to Agent by Company pursuant to the terms of
this Agreement and shall promptly distribute to the Banks and
reports required from the Company or its Subsidiaries under the
terms hereof received by Agent, in its capacity as Agent.
12.8 Agent's Fees. Commencing on September 30, 1994, and on
each succeeding anniversary date thereof until the Indebtedness has
been repaid, the Company shall cause Vishay to pay to Agent, in
Dollars, an annual agency fee set forth (or to be set forth from
time to time) in a letter agreement between Vishay and Agent. The
Agent's Fees described in this Section are not refundable under any
circumstances.
12.9 Nature of Agency. The appointment of Agent as agent is
for the convenience of Banks and Company in making advances of the
Revolving Credit or the Term Loan and other Indebtedness hereunder,
and collecting fees and principal and interest on the Indebtedness
hereunder. No Bank is purchasing any Indebtedness from Agent and
this Agreement is not intended to be a purchase or participation
agreement.
12.10 Actions; Confirmation of Agent's Authority to Act in
Event of Default. Subject to the terms of this Agreement and to the
direction of the Majority Banks, Agent is hereby expressly
authorized to act in all litigation and in all other respects as
the representative of the Banks where Agent considers it to be
necessary or desirable in order to carry out the purposes of this
Agreement or the Loan Documents. Without necessarily accepting
service of process or designating Agent to do so in its stead, each
Bank hereby agrees with each other Bank and with Agent, without
intending to confer or conferring any rights on any other party,
(i) that it shall be bound by any litigation brought by or against
Agent by the Company, any Subsidiary or any other party in
connection with the Indebtedness hereunder or any other rights,
duties or obligations arising hereunder or under this Agreement or
the Loan Documents and (ii) that it now irrevocably waives the
defense of procedural impediment or failure to name or join such
Bank as an indispensable party; provided however that each Bank
55 --Exibit 10.2 ( Revolving Credit + Term Loan )
reserves the right, subject to applicable law, to intervene or
otherwise appear in such litigation, and to retain its own counsel
in connection therewith. In conducting such litigation hereunder on
behalf of the Banks, Agent shall, subject to the terms hereof,
accept the direction of the Majority Banks or all of the Banks, as
the case may be, and shall at all times be indemnified by the Banks
as provided in Sections 12.1 and 12.12 hereof. Agent shall
undertake to give each Bank prompt notice of any litigation
commenced against Agent and/or the Banks with respect to this
Agreement, the Loan Agreement or the other Loan Documents or any
matter referred to herein or therein.
12.11 Authority of Agent to Enforce Notes and This Agreement.
Each Bank, subject to the terms and conditions of this Agreement
including without limitation Sections 12.10, 12.14 and 12.15
hereof, authorizes the Agent with full power and authority as
attorney-in-fact to institute and maintain actions, suits or
proceedings for the collection and enforcement of the Notes and to
file such proofs of debt or other documents as may be necessary to
have the claims of the Banks allowed in any proceeding relative to
the Company or any of its Subsidiaries, or its creditors or
affecting its properties, and to take such other actions which
Agent considers to be necessary or desirable for the protection,
collection and enforcement of the Notes, this Agreement or the Loan
Documents.
12.12 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such, to the extent not reimbursed by the
Company, pro rata according to their respective Percentages, from
and against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating
to or arising out of this Agreement or any of the other Loan
Documents or any action taken or omitted to be taken or suffered in
good faith by the Agent hereunder, provided that no Bank shall be
liable for any portion of any of the foregoing items resulting from
the gross negligence or willful misconduct of the Agent or any of
its officers, employees, directors or agents.
12.13 Knowledge of Default. It is expressly understood and
agreed that the Agent shall be entitled to assume that no default
or Event of Default has occurred and is continuing, unless the
officers of the Agent immediately responsible for matters
concerning this Agreement shall have actual (rather than
constructive) knowledge of such occurrence or shall have been
notified in writing by a Bank that such Bank considers that a
default or an Event of Default has occurred and is continuing, and
specifying the nature thereof. Upon obtaining actual knowledge of
any default or Event of Default as described above, the Agent shall
promptly, but in any event within three (3) Business Days after
obtaining knowledge thereof, notify each Bank of such default or
56 --Exibit 10.2 ( Revolving Credit + Term Loan )
Event of Default and the action, if any, the Agent proposes be
taken with respect thereto.
12.14 Agent's Authorization; Action by Banks. Except as
otherwise expressly provided herein, whenever the Agent is
authorized and empowered hereunder on behalf of the Banks to give
any approval or consent, or to make any request, or to take any
other action on behalf of the Banks (including without limitation
the exercise of any right or remedy hereunder or under the other
Loan Documents), the Agent shall be required (but only to the
extent otherwise required hereunder) to give such approval or
consent, or to make such request or to take such other action only
when so requested in writing by the Majority Banks or the Banks, as
applicable hereunder. Action that may be taken by Majority Banks or
all of the Banks, as the case may be (as provided for hereunder)
may be taken (i) pursuant to a vote at a meeting (which may be held
by telephone conference call) as to which all of the Banks have
been given reasonable advance notice, or (ii) pursuant to the
written consent of the requisite Percentages of the Banks as
required hereunder, provided that all of the Banks are given
reasonable advance notice of the requests for such consent.
12.15 Enforcement Actions by the Agent. Except as otherwise
expressly provided under this Agreement or in any of the other Loan
Documents and subject to the terms hereof, Agent will take such
action, assert such rights and pursue such remedies under this
Agreement and the other Loan Documents as the Majority Banks or all
of the Banks, as the case may be (as provided for hereunder), shall
direct. Except as otherwise expressly provided in any of the Loan
Documents, Agent will not (and will not be obligated to) take any
action, assert any rights or pursue any remedies under this
Agreement or any of the other Loan Documents in violation or
contravention of any express direction or instruction of the
Majority Banks or all of the Banks, as the case may be (as provided
for hereunder). Agent may refuse (and will not be obligated) to
take any action, assert any rights or pursue any remedies under
this Agreement or any of the other Loan Documents in the absence of
the express written direction and instruction of the Majority Banks
or all of the Banks, as the case may be (as provided for
hereunder). In the event Agent fails, within a commercially
reasonable time, to take such action, assert such rights, or pursue
such remedies as the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall direct in conformity
with this Agreement, the Majority Banks or all of the Banks, as the
case may be (as provided for hereunder), shall have the right to
take such action, to assert such rights, or pursue such remedies on
behalf of all of the Banks unless the terms hereof otherwise
require the consent of all the Banks to the taking of such actions
(in which event all of the Banks must join in such action). Except
as expressly provided above or elsewhere in this Agreement or the
other Loan Documents, no Bank (other than the Agent, acting in its
57 --Exibit 10.2 ( Revolving Credit + Term Loan )
capacity as Agent) shall be entitled to take any enforcement action
of any kind under any of the Loan Documents.
12.16 Co-Agents and Lead Managers. NationsBank has been
designated by the Company as "Co-Agent" and BHF and Signet have
been designated by the Company as "Lead Managers" under this
Agreement. Other than its rights and remedies as a Bank hereunder,
each such Co-Agent and Lead Manager shall have no administrative,
collateral or other rights or responsibilities, provided, however,
that each such Co-Agent and Lead Manager shall be entitled to the
benefits afforded to Agent under Sections 12.5 and 12.6 hereof.
13. MISCELLANEOUS
13.1 Accounting Principles. Where the character or amount of
any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, it shall
be done in accordance with generally accepted accounting principles
consistently applied.
13.2 Consent to Jurisdiction. Company hereby irrevocably
submits to the non-exclusive jurisdiction of any United States
Federal or Michigan state court sitting in Detroit in any action or
proceeding arising out of or relating to this Agreement or any of
the Loan Documents and Company hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and
determined in any such United States Federal or Michigan state
court. Company irrevocably consents to the service of any and all
process in any such action or proceeding brought in any court in or
of the state of Michigan by the delivery of copies of such process
to Company at its address specified on the signature page hereto or
by certified mail directed to such address. Nothing in this Section
shall affect the right of the Banks and the Agent to serve process
in any other manner permitted by law or limit the right of the
Banks or the Agent (or any of them) to bring any such action or
proceeding against the Company or any of its or their property in
the courts of any other jurisdiction. The Company hereby
irrevocably waives any objection to the laying of venue of any such
suit or proceeding in the above described courts.
13.3 Law of Michigan. This Agreement, and the other Loan
Documents have been delivered at Detroit, Michigan, U.S.A., and
shall be governed by and construed and enforced in accordance with
the laws of the State of Michigan, except as and to the extent
expressed to the contrary in any of the Loan Documents. Whenever
possible each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but
if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without
58 --Exibit 10.2 ( Revolving Credit + Term Loan )
invalidating the remainder of such provision or the remaining
provisions of this Agreement.
13.4 Interest. In the event the obligation of the Company to
pay interest on the principal balance of the Notes is or becomes in
excess of the maximum interest rate which the Company is permitted
by law to contract or agree to pay, giving due consideration to the
execution date of this Agreement, then, in that event, the rate of
interest applicable with respect to such Bank's Percentage shall be
deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to
have been payments in reduction of principal and not of interest.
13.5 Closing Costs; Other Costs and Expenses. Company shall
pay or reimburse Agent for payment of, on demand (a) all closing
costs and expenses, including, by way of description and not
limitation, house and outside attorney fees and advances, appraisal
and accounting fees, title and lien search fees, and required
travel costs, incurred by Agent in connection with the commitment,
consummation and closing of the loans contemplated hereby, or in
connection with any refinancing or restructuring of the loans or
advances provided under this Agreement or the other Loan Documents,
or any amendment thereof requested by Company; and (b) all stamp
and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing or recording of
this Agreement and the Loan Documents and the consummation of the
transactions contemplated hereby, and any and all liabilities with
respect to or resulting from any delay in paying or omitting to pay
such taxes or fees. Furthermore, all reasonable costs and expenses,
including without limitation attorney fees, and costs and expenses
to Environmental Auditors retained by Agent hereunder, incurred by
Agent in revising, preserving, protecting, exercising or enforcing
any of its or any of the Banks' rights against Company, or
otherwise incurred by Agent and the Banks (using a single law firm
retained by Agent, with the approval of the Majority Banks) in
connection with any Event of Default or the enforcement of the
loans (whether incurred through negotiations, legal proceedings or
otherwise), including by way of description and not limitation,
such charges in any court or bankruptcy proceedings or arising out
of any claim or action by any person against Agent or any Bank
which would not have been asserted were it not for Agent's or such
Bank's relationship with Company hereunder or otherwise, shall also
be paid by Company. All of said amounts required to be paid by
Company hereunder and not paid forthwith upon demand, as aforesaid,
shall bear interest, from the date incurred to the date payment is
received by Agent, at the Prime-based Rate, plus three percent
(3%).
13.6 Notices. Except as otherwise provided herein, all
notices or demand hereunder to the parties hereto shall be
sufficient if made in writing and delivered by messenger or
deposited in the mail, postage prepaid, certified mail, and
59 --Exibit 10.2 ( Revolving Credit + Term Loan )
addressed to the parties as set forth on the signature pages of
this Agreement.
13.7 Further Action. Company, from time to time, upon
written request of Agent will make, execute, acknowledge and
deliver or cause to be made, executed, acknowledged and delivered,
all such further and additional instruments, and take all such
further action as may be required to carry out the intent and
purpose of this Agreement, and to provide for the Advances under
and payment of the Notes, according to the intent and purpose
herein and therein expressed.
13.8 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of Company and the Banks and
their respective successors and assigns. The foregoing shall not
authorize any assignment by Company of its rights or duties
hereunder, and no such assignment shall be made (or effective)
without the prior written approval of the Banks. Nor may any Bank
sell, assign, transfer, grant participations in, or otherwise
dispose of all or any portion of their respective Notes, or of its
right, title and interest therein or thereto or in or to this
Agreement, except in accordance with and subject to the
requirements set forth in Section 13.8 of the Vishay Loan
Agreement.
13.9 Indulgence. No delay or failure of Agent and the Banks
in exercising any right, power or privilege hereunder shall affect
such right, power or privilege nor shall any single or partial
exercise thereof preclude any further exercise thereof, nor the
exercise of any other right, power or privilege. The rights of
Agent and the Banks hereunder are cumulative and are not exclusive
of any rights or remedies which Agent and the Banks would otherwise
have.
13.10 Counterparts. This Agreement may be executed in several
counterparts, and each executed copy shall constitute an original
instrument, but such counterparts shall together constitute but one
and the same instrument.
13.11 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or any Loan Document, nor consent to
any departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Majority Banks, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by all the Banks, do
any of the following: (a) increase any commitment of the Banks
hereunder or subject the Banks to any additional obligations, (b)
reduce or forgive the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, (c) postpone any date
fixed for any payment of principal of, or interest on, the Notes or
60 --Exibit 10.2 ( Revolving Credit + Term Loan )
any fees or other amounts payable hereunder, (d) waive any Event of
Default specified in Sections 11.1(a) or (b) hereof (provided that
if, at the relevant time, only Bid Advances are outstanding
hereunder or under the Vishay Loan Agreement, the prior written
approval of all Banks shall be required to waive, whether by
consent, waiver or amendment, any Event of Default under this
Agreement), (e) release or defer the granting or perfecting of a
lien or security interest in any collateral or release any guaranty
or similar undertaking provided by any Person, except in each case
as shall be otherwise expressly provided in this Agreement or any
Loan Document, (f) take any action which requires the signing of
all Banks pursuant to the terms of this Agreement or any Loan
Document, (g) change the definition of "Majority Banks" or
"Interest Periods" (h) change the aggregate unpaid principal amount
of the Notes which shall be required for the Banks or any of them
to take any action under this Agreement or any Loan Document, (i)
except for conversions from Deutsche Marks to Dollars under Section
4.5 hereof or reconversions from Dollars to Deutsche Marks under
Section 4.6 hereof, as the case may be, change the currency in
which any Indebtedness hereunder is denominated or (j) change this
Section 13.11, and provided further, however, that no amendment,
waiver, or consent shall, unless in writing and signed by the Agent
in addition to all the Banks, affect the rights or duties of the
Agent under this Agreement or any Loan Document.
13.12 Taxes and Fees. Should any tax (other than a tax based
upon the net income of any Bank), recording or filing fee become
payable in respect of this Agreement or any of the Loan Documents'
or any amendment, modification or supplement hereof or thereof, the
Company agrees to pay the same together with any interest or
penalties thereon and agrees to hold the Agent and the Banks
harmless with respect thereto.
13.13 Confidentiality. Each Bank agrees that it will not
disclose without the prior consent of the Company, (other than to
its employees, to another Bank or to its auditors or counsel) any
confidential information with respect to the Company or any of its
Subsidiaries which is furnished pursuant to this Agreement or any
of the Loan Documents; provided that any Bank may disclose any such
information (a) as has become generally available to the public or
has been lawfully obtained by such Bank from any third party under
no duty of confidentiality to the Company, (b) as may be required
or appropriate in any report, statement or testimony submitted to,
or in respect to any inquiry, by, any municipal, state or federal
regulatory body having or claiming to have jurisdiction over such
Bank, including the Board of Governors of the Federal Reserve
System of the United States or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States
or elsewhere) or their successors, (c) as may be required or
appropriate in respect to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Bank, and (e) to any
61 --Exibit 10.2 ( Revolving Credit + Term Loan )
permitted transferror or assignee or any approved participant of,
or with respect to, the Notes, as aforesaid.
13.14 Withholding Taxes. If any Bank is not incorporated
under the laws of the United States or a state thereof, such Bank
shall promptly deliver to the Agent two executed copies of (i)
Internal Revenue Service Form 1001 specifying the applicable tax
treaty between the United States and the jurisdiction of such
Bank's domicile which provides for the exemption from withholding
on interest payments to such Bank, (ii) Internal Revenue Service
Form 4224 evidencing that the income to be received by such Bank
hereunder is effectively connected with the conduct of a trade or
business in the United States or (iii) other evidence satisfactory
to the Agent that such Bank is exempt from United States income tax
withholding with respect to such income. Such Bank shall amend or
supplement any such form or evidence as required to insure that it
is accurate, complete and non-misleading at all times. Promptly
upon notice from the Agent of any determination by the Internal
Revenue Service that any payments previously made to such Bank
hereunder were subject to United States income tax withholding when
made, such Bank shall pay to the Agent the excess of the aggregate
amount required to be withheld from such payments over the
aggregate amount actually withheld by the Agent. In addition, from
time to time upon the reasonable request and at the sole expense of
the Company, each Bank and the Agent shall (to the extent it is
able to do so based upon applicable facts and circumstances),
complete and provide the Company with such forms, certificates or
other documents as may be reasonably necessary to allow the Company
to make any payment under this Agreement or the other Loan
Documents without any withholding for or on the account of any tax
under Section 6.1(e) hereof (or with such withholding at a reduced
rate), provided that the execution and delivery of such forms,
certificates or other documents does not adversely affect or
otherwise restrict the right and benefits (including without
limitation economic benefits) available to such Bank or the Agent,
as the case may be, under this Agreement or any of the other Loan
Documents, or under or in connection with any transactions not
related to the transactions contemplated hereby.
13.15 Effective Upon Execution. This Agreement shall become
effective upon the execution hereof by Banks, Agent, and Company
and shall remain effective until the Indebtedness has been repaid
and discharged in full and no commitment to make Advances hereunder
or under the Vishay Loan Agreement, the Roederstein Loan Agreement
or the Target Company Loan Agreement remains outstanding.
13.16 Severability. In case any one or more of the
obligations of the Company under this Agreement, the Notes or any
of the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of the Company shall
not in any way be affected or impaired thereby, and such
62 --Exibit 10.2 ( Revolving Credit + Term Loan )
invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the
obligations of the Company under this Agreement, the Notes or any
of the other Loan Documents in any other jurisdiction.
13.17 Table of Contents and Headings. The table of contents
and the headings of the various subdivisions hereof are for
convenience of reference only and shall in no way modify or affect
any of the terms or provisions hereof.
13.18 Construction of Certain Provisions. If any provision of
this Agreement or any of the Loan Documents refers to any action to
be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is
taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
13.19 Independence of Covenants. Each covenant hereunder
shall be given independent effect (subject to any exceptions stated
in such covenant) so that if a particular action or condition is
not permitted by any such covenant (taking into account any such
stated exception), the fact that it would be permitted by an
exception to, or would be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default or an
Event of Default if such action is taken or such condition exists.
13.20 Reliance on and Survival of Various Provisions. All
terms, covenants, agreements, representations and warranties of the
Company or any party to any of the Loan Documents made herein or in
any of the Loan Documents or in any certificate, report, financial
statement or other document furnished by or on behalf of the
Company, any such party in connection with this Agreement or any of
the Loan Documents shall be deemed to have been relied upon by the
Banks, notwithstanding any investigation heretofore or hereafter
made by any Bank or on such Bank's behalf, and those covenants and
agreements of the Company set forth in Section 5.6 hereof (together
with any other indemnities of the Company contained elsewhere in
this Agreement or in any of the Loan Documents) and of Banks set
forth in Section 13.13 hereof shall survive the repayment in full
of the Indebtedness and the termination of any commitments to make
Advances hereunder.
13.21 Complete Agreement. This Agreement, the Notes, the
other Loan Documents and any agreements, certificates, or other
documents given to evidence or secure the Indebtedness and the
Commitment Letter, contain the entire agreement of the parties
hereto (provided that in the event of any inconsistency between
this Agreement and the other Loan Documents, on one hand, and the
Commitment Letter on the other hand, this Agreement and other Loan
Documents shall control), and none of the parties shall be bound by
anything not expressed in writing.
63 --Exibit 10.2 ( Revolving Credit + Term Loan )
WITNESS the due execution hereof as of the day and year first
above written.
COMPANY: AGENT:
VISHAY BETEILIGUNGS GmbH COMERICA BANK, As Agent
By: By:
---------------------------- -----------------------------
Its: Attorney-in-Fact Its: Vice President
63 Lincoln Highway Comerica Bank Building
Malvern, Pennsylvania 19355 One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48275
Attention: National Division
64 --Exibit 10.2 ( Revolving Credit + Term Loan )
BANKS:
COMERICA BANK
By:
-----------------------------
Its:
----------------------------
Comerica Bank Building
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48275
Attention: National Division
Telex: 235808
Fax No.: (313) 222-3330
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:
-----------------------------
Its:
----------------------------
NationsBank Corporate Center
100 North Tryon Street
NC 1007-08-04
Charlotte, NC 28255-0086
Attn: Mr. M. Gregory Seaton
Telex: 669959
Fax No.: (704) 386-3271
BERLINER HANDELS-UND FRANKFURTER
BANK KGaA
By:
-----------------------------
Its:
----------------------------
Bockenheimer Landstr. 10
60323 Frankfurt/Main 1
Germany
Attn: Mr. Hans-Jurgen Scholz
Telex: 411 026
Fax No.: 4969/718-3011
65 --Exibit 10.2 ( Revolving Credit + Term Loan )
BANK HAPOALIM, B.M.
By:
-----------------------------
Its:
----------------------------
3 Penn Center Plaza
Philadelphia, Pennsylvania 19102
Attn: Mr. Andrew Niesen
Telex: 902022
Fax No.: (215) 665-2217
SIGNET BANK/MARYLAND
By:
-----------------------------
Its:
----------------------------
7 St. Paul Street
Baltimore, Maryland 21202
Attn: Ms. Janice E. Godwin
Telex: 87638
Fax No.: (301) 625-6365
CORESTATES BANK, N.A.,
formerly known as and continuing
to do business under the name of
THE PHILADELPHIA NATIONAL BANK
By:
-----------------------------
Its:
----------------------------
1345 Chestnut Street
F.C. 1-8-3-14
Philadelphia, Pennsylvania 19107
Attn: Mr. James A. Bennett
Telex: 845400
Fax No.: (215) 973-7820
66 --Exibit 10.2 ( Revolving Credit + Term Loan )
BANK LEUMI le-ISRAEL, B.M.
By:
-----------------------------
Its:
----------------------------
1511 Walnut Street
Philadelphia, Pennsylvania 19102
Attn: Mr. Joseph A. McBride
Telex: 173090
Fax No.: (215) 563-8688
MERIDIAN BANK
By:
-----------------------------
Its:
----------------------------
1650 Market Street
Suite 3600
Philadelphia, Pennsylvania 19103
Attn: Mr. John M. Fessick
Telex: 173003
Fax No.: (215) 854-3774
ABN AMRO BANK N.V. NEW YORK BRANCH
By:
-----------------------------
Its:
----------------------------
and
By:
-----------------------------
Its:
----------------------------
500 Park Avenue
Second Floor
New York, New York 10022
Attn: Mr. James B. Sieger
Telex: 423721
Fax No.: (212) 759-4792
67 --Exibit 10.2 ( Revolving Credit + Term Loan )
CREDIT LYONNAIS NEW YORK BRANCH
By:
-----------------------------
Its:
----------------------------
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Steve Levi
Telex:
--------------------------
Fax No.: (212) 459-3179
CREDIT SUISSE
By:
-----------------------------
Its:
----------------------------
And By:
-------------------------
Its:
____________________________
12 East 49th Street
New York, New York 10017
Attn: Ms. Eileen O'Connel Fox
Telex: 420149
Fax No.: (212) 238-5389
68 --Exibit 10.2 ( Revolving Credit + Term Loan )
SCHEDULE 1.14 (DM LOAN AGREEMENT)
Pricing Matrix (Determination of Pricing Levels)
- -----------------------------------------------------------------------------------------------------
Applicable Margin Applicable Margin Applicable Fee
for Advances for the for Advances Percentage For
Revolving Credit of the Term Loan
- -----------------------------------------------------------------------------------------------------
Prime-based Deutsche Mark- Prime-based Deutsche Mark- Revolving Credit
Rate based Rate Rate based Rate Facility Fee
- -----------------------------------------------------------------------------------------------------
If Leverage Ratio
is less than or
equal to 1.5:1.0
OR
If Rating Level 1
is in effect 0.00% .375% 0.00% .625% .125%
- -----------------------------------------------------------------------------------------------------
If Leverage Ratio
is greater than
1.5:1.0, but less
than or equal to
2.0:1.0
OR
If Rating Level 2
is in effect 0.00% .4875% 0.00% .75% .1375%
- -----------------------------------------------------------------------------------------------------
If Leverage Ratio
is greater than
2.0:1.0, but less
than or equal to
3.9:1.0
OR
If Rating Level 3
is in effect 0.00% .5625% 0.00% .875% .1875%
- -----------------------------------------------------------------------------------------------------
If Leverage Ratio
is greater than
3.9:1.0
OR
If Rating Level 4
is in effect .125% .6375% .125% 1.125% .3125%
- -----------------------------------------------------------------------------------------------------
69 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "A"
REQUEST FOR ADVANCE
The undersigned authorized officer of Vishay Beteiligungs GmbH
(formerly Draloric Electronic GmbH) ("Company") in accordance with
Section 2.3 of the Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan Agreement dated as of
July , 1994, among Company, certain Banks and Comerica Bank, as
Agent for the Banks (the "Agreement"), hereby requests Comerica
Bank, in its capacity as Agent under the Agreement to make a
Deutsche Mark-based Rate Advance to the undersigned on_______________,
19-,/1 in the amount of DM _____________________________________/2 under
the Revolving Credit Notes ("Notes") dated July __, 1994 made by
the undersigned to said Banks.
The Interest Period for the requested Advance shall be __________
______________________./3
B. Application of Proceeds
1. The proceeds of this Advance shall be applied first to
convert/renew/4 the following outstanding Advances:
- ---------------
1/ Insert date at least four (4) Business Days after the date
of Request and, if Request involves the conversion or renewal of
any outstanding Deutsche Mark-based Rate Advance, date must be the
Business Day subsequent to last day of applicable Interest Period.
2/ Insert amount, in Deutsche Marks, of Requested Advance. This
amount, plus the amount of any other outstanding Indebtedness under
the Agreement to be then combined therewith having the same
Interest Period, if any, shall be at least DM 1,000,000 and at any
one time the Company shall not have more than 1 Interest Period in
effect with respect to the Notes.
3/ Insert, as applicable, "1 month", "2 months", "3 months" or
"6 months."
4/ Strike inapplicable term to indicate whether a conversion or
renewal.
70 --Exibit 10.2 ( Revolving Credit + Term Loan )
Type Last Day Current
of of Interest Principal Dollar
Advance Period outstanding Equivalent/5
2. The balance of the proceeds of the Advance, being______
_________________Deutsche Marks (DM_____________________),/6 shall
be deposited in the undersigned's account number ___________, with
_________, _________, _________./7
C. Advance Availability
The amount inserted at B.2 above shall not exceed the amount
calculated in Line C.l(iv) below, as follows:
1. (i) Maximum principal amount available under
all Revolving Credit Notes (DM
40,000,000) less any reductions in
Revolving Credit Maximum Amount pursuant
to Section 2.9............................. $
--------
(ii) Aggregate amount of principal outstanding
under all Revolving Credit Notes........... $
--------
(iii) Aggregate principal amount of Bid
Advances then outstanding.................. $
--------
(iv) Line C.1(i) minus Line C.l(ii) minus Line
C.l(iii)................................... $
--------
D. Request Irrevocable
Upon Agent's receipt of this Request For Advance, this
Request For Advance shall be irrevocable.
5/ Applicable to reconversions from Prime-based Rate. To be
determined by Agent.
6/ Amount inserted here may not exceed amount determined on
Line C.l(iv) below.
7/ Insert account number, bank name and bank address.
71 --Exibit 10.2 ( Revolving Credit + Term Loan )
E. Certification
The undersigned hereby certifies that:
(1) both before and after the Advance, the obligations of
the Company, its Subsidiaries and the Permitted
Borrowers set forth in the Agreement and any of the Loan
Documents to which such Persons are parties are and
shall be valid, binding and enforceable obligations of
the Company and its Subsidiaries, as the case may be;
(2) all conditions to Advances of the Revolving Credit have
been satisfied, and shall remain satisfied to the date
of Advance;
(3) there is no Event of Default in existence, and no event
which, with the giving of notice or the lapse of time,
or both, would constitute such an Event of Default, and
none will exist upon the making of the Advance;
(4) the representations and warranties contained in the
Agreement and the Loan Documents are true and correct in
all material respects and shall be true and correct in
all material respects as of the making of the Advance;
and
(5) the execution of this Request for Advance will not
violate the material terms and conditions of any
material contract, agreement or other borrowing of
Company or any of its Subsidiaries.
F. Defined Terms
Capitalized terms used herein, unless specifically defined
to the contrary herein, have the meanings given them in the Agreement.
Dated this ____ day of _________________, 1994.
VISHAY BETEILIGUNGS GmbH
By:
___________________________
Its:
__________________________
(This form of Request for Advance (including footnotes) is subject
in all respects to the terms and conditions of the Agreement which
shall govern in the event of any inconsistencies or omissions.)
72 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "B"
REVOLVING CREDIT NOTE
$ July ____, 1994
On or before the Revolving Credit Maturity Date, FOR VALUE
RECEIVED, Vishay Beteiligungs GmbH, a German corporation
("Company") promises to pay to the order of ( insert bank )
("Bank") at Detroit, Michigan, care of Agent, for the
account of Bank's Eurocurrency Lending Office, at the office of
Agent's Correspondent, in Deutsche Marks if the Deutsche Mark-based
Rate is then in effect, and at Agent's Detroit, Michigan office in
Dollars if the Prime-based Rate is then in effect, the Indebtedness
or so much of the sum of ________________________________________
________ Deutsche Marks (DM ______________) (or the Dollar
Amount equivalent thereof then outstanding if the Prime-based Rate
is then applicable), as may from time to time have been advanced
and then be outstanding hereunder pursuant to the Amended and
Restated Draloric/VBG, DM 40,000,000 Revolving Credit and DM
9,506,000 Term Loan Agreement ("Agreement") dated as of July __,
1994, made by and among Company, certain banks, including the
Bank, and Comerica Bank, as Agent for such banks, together with
interest thereon as hereinafter set forth.
Each of the Advances made hereunder shall bear interest at
the Deutsche Mark-based Rate as elected by Company or determined
under the Agreement, or the Prime-based Rate as determined under
the Agreement.
All accrued and unpaid interest on the Indebtedness
outstanding under this Note from time to time shall be due and
payable in full, in immediately available funds, (a) whenever the
Deutsche Mark-based Rate shall be in effect, (i) on the last day
of each Interest Period, and, (ii) if such Interest Period is
longer than 3 months, at intervals of 3 months after the first day
of the Interest Period, (b) whenever the Prime-based Rate shall be
then in effect, on the last day of each quarter on a calendar year
basis, and (c) on the date of any conversion or reconversion
pursuant to Section 4.5 or 4.6 of the Agreement, until the
Revolving Credit Maturity Date when the entire Indebtedness
outstanding under this Note including all accrued interest, shall
be due and payable in full.
In the event and so long as any default or Event of Default
shall exist under any Note or any Event of Default shall exist
under the Agreement, interest shall be payable daily on the
principal balance of the Indebtedness then outstanding hereunder
(a) if the Deutsche Mark-based Rate is then in effect, at a per
annum rate equal to the Applicable Interest Rate, plus three
percent (3%) for the remainder of the then existing Interest
Period, if any, and at all other times (i) at a per annum rate
73 --Exibit 10.2 ( Revolving Credit + Term Loan )
calculated by the Agent, whose determination shall be conclusive
absent manifest error, on a daily basis, equal to three percent
(3%) above the interest rate per annum at which one (1) day (or,
if such amount due remains unpaid for more than three (3) Business
Days, then for such other period of time as the Agent may elect
which shall in no event be longer than six (6) months) deposits in
the relevant currency in the amount of such overdue payment due to
the Agent are offered by the Agent's Eurocurrency Lending Office
for the applicable period determined as provided above, or (ii) if
at any such time such deposits are not offered by the Agent's
Eurocurrency Lending Office, then at a rate per annum equal to
three percent (3%) above the rate determined by the Agent to be
its aggregate marginal cost (including the cost of maintaining any
required reserves or deposit insurance) of carrying the amount of
the Indebtedness then outstanding, and (b) if the Prime-based Rate
is then in effect, at a per annum rate equal to the Applicable
Interest Rate plus three percent (3%).
Interest accruing under this Note at the Deutsche Mark-based
Rate shall be computed on the basis of a 360 day Year and assessed
for the actual number of days elapsed from the first day of the
Interest Period applicable thereto, to, but not including, the
last day thereof. Interest accruing at the Prime-based Rate shall
be computed on the basis of a 360 day year and assessed for the
actual number of days elapsed, and in such computation effect
shall be given to any change in the interest rate resulting from
a change in the Prime-based Rate on the date of such change in the
Prime-based Rate. Interest accruing under this Note shall be
repaid in Deutsche Marks, unless the Prime-based Rate be then in
effect, in which event said interest shall be repaid in Dollars.
This Note is a note under which advances, repayments and
readvances may be made from time to time, but only in accordance
with, the terms and conditions of the Agreement. This Note
evidences borrowings under, is subject to, is secured in
accordance with, and may be accelerated or matured under, the
terms of the Agreement, to which reference is hereby made.
Definitions and terms of the Agreement are hereby incorporated by
reference herein.
As additional security for this Note, Company grants Bank a
lien an all property and assets including deposits and other
credits of the Company, at any time in possession or control of or
owing by Bank for any purpose.
This Note shall be interpreted and the rights of the parties
hereunder shall be determined under the laws of, and enforceable
in, the State of Michigan.
Company hereby waives presentment for payment, demand,
protest and notice of dishonor and nonpayment of this Note and
agrees that no obligation hereunder shall be discharged by reason
of any extension, indulgence, release, or forbearance granted by any
74 --Exibit 10.2 ( Revolving Credit + Term Loan )
holder of this Note to any party now or hereafter liable hereon or
any present or subsequent owner of any property, real or personal,
which is now or hereafter security for this Note.
Nothing herein shall limit any right granted Bank by any
other instrument or by law.
VISHAY BETEILIGUNGS GmbH
By:
_________________________
Its:
________________________
75 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "C-1"
FORM OF BID BORROWING REQUEST
TO: Comerica Bank ("Agent")
Re: Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan Agreement
dated as of July ____, 1994 (the "Agreement"), among
Vishay Beteiligungs GmbH (formerly Draloric Electronic
GmbH) ("Company"), Agent and certain Banks
Pursuant to Section 2.5(b) of the Agreement, the Company
notifies you of a request for offers to make the Bid Advances
specified herein. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Agreement.
(1) The date of the proposed Bid Advance borrowing is
199_ (which day is at least five (5) Business Day from the
date hereof in the case of an Absolute Rate Bid Advance and
at least five (5) Business Days from the date hereof in the
case of a DM Bid Advance).
(2) The aggregate amount of the proposed Bid Advance borrowing is
DM ____________./1
(3) The Bid offer requested is for ______________./2
(4) The Interest Period(s) for the Bid Advances comprising the
proposed Bid Advance borrowing shall be ____________./3
The undersigned hereby certifies that the following contents
are true and correct on and as of the date hereof, and will be
true and correct on the date of the proposed Bid Advance
borrowing, before and after giving effect thereto:
(a) the undersigned has complied and will be on the
date of the proposed Bid Advance borrowing in compliance with all the
- --------------
1/ Insert an amount which is a minimum amount of DM 10,000,000
or any multiple of DM 1,000,000 in excess thereof.
2/ Insert "DM Bid Advances" or "Absolute Rate Bid Advances" or
both.
3/ No more than three Interest Periods may be requested in a
single Bid Borrowing Request.
76 --Exibit 10.2 ( Revolving Credit + Term Loan )
terms, covenants and conditions of the Agreement and the other
Loan Documents;
(b) no Default or Event of Default exists or shall
result from the proposed Bid Advance borrowing;
(c) each and every representation and warranty
contained in the Agreement is true and correct in all material
respects with the same effect as if made on and as of the date of
the proposdd Bid Advance borrowing; and
(d) the aggregate amount of principal outstanding under
all Advances of the Revolving Credit and Bid Advances does not
exceed the Revolving Credit Maximum Amount.
VISHAY BETEILIGUNGS GmbH
Dated:_______________________
By: _________________________
Its: ________________________
(This form of Bid Borrowing Request (including footnotes) is
subject in all respects to the terms and conditions of the
Agreement which shall govern in the event of any
inconsistencies or omissions.)
77 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "C-2"
FORM OF BID OFFER
TO: Comerica Bank ("Agent")
Re: Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan Agreement
dated as of July ____, 1994 (the "Agreement"), among
Vishay Beteiligungs GmbH (formerly Draloric Electronic
GmbH) ("Company"), Agent and certain Banks
In response to the Bid Borrowing Request of the Company dated________
199__ and in accordance with Section 2.5(c) of the Agreement, the
undersigned Bid Lender offers to make Bid Advances thereunder in
the following principal amount(s) at the following interest
rate(s) for the following Interest Period(s) (the terms defined in
the Agreement being used herein as therein defined):
INTEREST PRINCIPAL (DM Bid Margin)
PERIOD AMOUNT* (Absolute Rate)
The date of the proposed Bid Advance borrowing is,
19__ (which day is at least four (4) Business Days from
the date hereof).
Acceptance of any bid contained herein is subject to
compliance with the terms and conditions of the Agreement,
including Section 2.5(d) thereof.
- --------------
*Insert an amount which is a minimum amount of DM 3,000,000 or
any multiple of DM 1,000,000 in excess thereof.
78 --Exibit 10.2 ( Revolving Credit + Term Loan )
(NAME OF BID LENDER)
By:________________________
Dated:________________________
Its:_______________________
(This form of Bid Offer is subject in all respects to the terms
and conditions of the Agreement which shall govern in the event of
any inconsistencies or omissions.)
79 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "C-3"
FORM OF BID ACKNOWLEDGMENT
TO: Comerica Bank
Re: Amended and Restated Draloric/VBG DM 40,000,000
Revolving Credit and DM 9,506,000 Term Loan
Agreement dated as of July ____, 1994 (the
"Agreement"), among Vishay Beteiligungs GmbH
(formerly Draloric Electronic GmbH) ("Company"), Agent
and certain Banks
Pursuant to Sections 2.5(d) and 2.5(e) of the Agreement,
the undersigned hereby notifies you of its acceptance of the
following offers made by the Bid Lenders in response to the
Bid Borrowing Request submitted by the undersigned on ________, 199_
(the terms defined in the Agreement being used herein as therein
defined):
Type of DM Bid margin or Principal
Name of Interest Bid Absolute Rate, as Amount of
Lender Period Advance* applicable Advances
Date of proposed Bid Advance borrowing: _______________
The undersigned hereby certifies that its acceptance of
the offers listed above complies with and upon the funding of
such Bid Advances shall comply with the terms of the
Agreement, including, but not limited to, Section 2.5(d)
thereof. The undersigned hereby
- ---------------
*Specify whether it is a DN Bid Advance (and the DM Bid Margin) or an
Absolute Rate Bid Advance (and the Absolute Bid Rate).
80 --Exibit 10.2 ( Revolving Credit + Term Loan )
confirms and restates each of the statements certified by it in
the Bid Borrowing Request relating to this Bid Acknowledgment.
VISHAY BETEILIGUNGS GmbH
Dated:
_____________________
By:
-------------------------
Its:
------------------------
(This form of Bid Acknowledgment is subject in all respects to the
terms and conditions of the Agreement which shall govern in the
event of any inconsistencies or omissions.)
81 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "C-4"
BID NOTE
DM 40,000,000 July ___, 1994
On or before the Revolving Credit Maturity Date, subject to
the terms hereof, FOR VALUE RECEIVED, Vishay Beteiligungs GmbH, a
German corporation ("Company") promises to pay to the order of (_
____insert bank______________) ("Bank") at ____________, ______________,
care of Bank, in Deutsche Marks, the Indebtedness or so much of
the sum of Forty Million Deutsche Marks (DM 40,000,000), as may
from time to time have been advanced and then be outstanding
hereunder pursuant to the Amended and Restated Draloric/VBG, DM
40,000,000 Revolving Credit and DH 9,506,000 Term Loan Agreement
dated as of July __, 1994 (the "Agreement"), made by and among the
Company, certain banks, including the Bank, and Comerica Bank, a
Michigan banking corporation, as Agent for such banks, together
with interest thereon as hereinafter set forth.
The unpaid principal indebtedness from time outstanding under
this Note shall be due and payable on the last day of the Interest
Period applicable thereto or as otherwise set forth in the
Agreement, provided that no Bid Advance may mature or be payable
on a day later than the Revolving Credit Maturity Date.
Each of the Bid Advances made hereunder shall bear interest
at the Absolute Rate or the Deutsche Mark-based Rate as elected by
Company or as otherwise determined under the Agreement.
Interest on each Absolute Rate Advance and each 1 month, 2
month and 3 month DM-based Advance shall be payable in Deutsche
Marks on the last day of the Interest Period applicable thereto.
Interest on each 6 month DM-based Advance outstanding from time to
time shall be payable in Deutsche Marks, at intervals of 3 months
after the first day of the applicable Interest Period and on the
last day of the Interest Period applicable thereto. Interest
accruing at the Absolute Rate or Deutsche Mark-based Rate shall be
computed on the basis of a 360 day year and assessed for the
actual number of days elapsed from the first day of the Interest
Period applicable thereto, to, but not including, the last day
thereof.
In the event and so long as any default or Event of Default
shall exist hereunder or under the Agreement, interest shall be
payable daily on all Bid Advances from time to time outstanding
hereunder at a per annum rate equal to the Applicable Interest
Rate plus three percent (3%) for the remainder of the then
existing Interest Period, if any, and at all other times, with
respect to Absolute Rate Advances from time to time outstanding.
at a per annum rate equal to the Absolute Rate plus three percent
(3%), and with respect to DM-based Advances from time to time outstanding,
(i)at a per annum rate calculated by the applicable Bid Lender
82 --Exibit 10.2 ( Revolving Credit + Term Loan )
having funded such Bid Advance, whose determination shall be
conclusive absent manifest error, on a daily basis, equal to three
percent (3%) above the interest rate per annum at which one (1)
day deposits (or, if such amount due remains unpaid for more than
three (3) Business Days, then for such other period of time as
the applicable Bid Lender may elect which shall in no event be
longer than six (6) months) in Deutsche Marks in the amount of
such overdue payment due to the applicable Bid Lender are off-
ered by such Bid Lender's Eurocurrency Lending Office for the
applicable period so determined, or (ii) if at any such time such
deposits are not offered by such Bid Lender's Eurocurrency Lending
Office, then at a rate per annum equal to three percent (3%) above
the rate determined by the applicable Bid Lender to be its
aggregate marginal cost (including the cost of maintaining any
required reserves or deposit insurance) of carrying the amount of
such DM-based Advance.
This Note is a note under which advances, repayments and
readvances may be made from time to time, but only in accordance
with, the terms and conditions of the Agreement. This Note
evidences borrowings under, is subject to, is secured in
accordance with, and may be accelerated or matured under, the
terms of the Agreement, to which reference is hereby made.
Definitions and terms of the Agreement are hereby incorporated by
reference herein.
As additional security for this Note, Company grants Bank a
lien on all property and assets including deposits and other
credits of the Company, at any time in possession or control of or
owing by Bank for any purpose.
This Note shall be interpreted and the rights of the parties
hereunder shall be determined under the laws of, and enforceable
in, the State of Michigan.
Company hereby waives presentment for payment, demand,
protest and notice of dishonor and nonpayment of this Note and
agrees that no obligation hereunder shall be discharged by reason
of any extension, indulgence, release, or forbearance granted by
any holder of this Note to any party now or hereafter liable
hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Nothing herein shall limit any right granted Bank by any
other instrument or by law.
VISHAY BETEILIGUNGS GmbB
By:
-------------------------
Its:
------------------------
83 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "D"
TERM NOTE
DM July , 1994
-----------------------------
On or before December 31, 1994 (the "Term Loan Maturity
Date"), FOR VALUE RECEIVED, Vishay Beteiligungs GmbH, a German
corporation ("Company") promises to pay to the order of (insert
bank) ("Bank") at Detroit, Michigan, care of Agent, in Deutsche
Marks, the sum of _______________ ________________________ Deutsche
Marks (DM__________), in quarterly principal installments of
____________________ Deutsche Marks (DM _________) each, commencing
on September 30, 1994 and on the last day of each calendar quarter
thereafter until December 31, 1994, when the entire principal
balance hereunder and interest thereon as hereinafter set forth,
shall be due and payable in full, all in accordance with that
certain Amended and Restated Draloric/VBG DM 40,000,000 Revolving
Credit and DM 9,506,000 Term Loan Agreement ("Agreement") dated as
of July , 1994 by and among Company, certain banks, including the
Bank, and Comerica Bank, as Agent for such banks. Capitalized terms
used herein, except as defined to the contrary, have the meanings
given them in the Agreement. Notwithstanding the foregoing, in the
event the Term Loan is converted to Dollars pursuant to the
Agreement, this Note shall be payable in Dollars, as set forth
therein, and the quarterly installments of principal specified
above shall be due and payable in the Dollar Amount necessary to
provide full amortization of outstanding principal over the
remaining term of this Note.
Each of the Advances made hereunder shall bear interest at the
Deutsche Mark-based Rate, as determined under the Agreement, or, if
applicable from time to time under the Agreement, the Prime-based
Rate.
All accrued and unpaid interest on the Indebtedness
outstanding under this Note from time to time shall be due and
payable in full, in immediately available funds, (a) whenever the
Deutsche Mark-based Rate shall be in effect, (i) on the last day of
each Interest Period, and, (ii) if such Interest Period is longer
than 3 months, at intervals of 3 months after the first day of the
applicable Interest Period, and (b) whenever the Prime-based Rate
shall be then in effect, on the last day of each quarter on a
calendar year basis until December 31, 1994, when the entire
Indebtedness outstanding under this Note including all accrued
interest, shall be due and payable in full.
In the event and so long as a default or Event of Default
shall exist under this Note or under the Agreement, interest shall
be payable daily on the principal balance then outstanding
84 --Exibit 10.2 ( Revolving Credit + Term Loan )
hereunder (a) if the Deutsche Mark-based Rate is then in effect, at
a per annum rate equal to the Applicable Interest Rate plus three
percent (3%) for the remainder of the then existing Interest
Period, if any, and at all other times, (i) at a per annum rate
calculated by the Agent, whose determination shall be conclusive
absent manifest error, on a daily basis, equal to three percent
(3%) above the interest rate per annum at which one (1) day
deposits (or, if such amount due remains unpaid for more than three
(3) Business Days, then for such other period of time as the Agent
may elect which shall in no event be longer than six (6) months) in
the relevant currency in the amount of such overdue payment due to
the Agent are offered by the Agent's Eurocurrency Lending Office
for the applicable period determined as provided above, or (ii) if
at any such time such deposits are not offered by the Agent's
Eurocurrency Lending Office, then at a rate per annum equal to
three percent (3%) above the rate determined by the Agent to be its
aggregate marginal cost (including the cost of maintaining any
required reserves or deposit insurance) of carrying the amount of
the Indebtedness then outstanding, and (b) if the Prime-based Rate
is then in effect, at a per annum rate equal to the Prime-based
Rate plus three percent (3%).
Interest accruing under this Note at the Deutsche Mark-based
Rate shall be computed on the basis of a 360 day year and assessed
for the actual number of days elapsed from the first day of the
Interest Period applicable thereto, to, but not including, the last
day thereof. Interest accruing at the Prime-based Rate shall be
computed on the basis of a 360 day year and assessed for the actual
number of days elapsed, and in such computation effect shall be
given to any change in the interest rate resulting from a change in
the prime-based Rate on the date of such change in the Prime-based
Rate. Interest accruing under this Note shall be repaid in Deutsche
Marks, unless the prime-based Rate is applicable thereto, in which
event said interest shall be repaid in Dollars.
The amount and date of each Advance of the Term Loan, its
Applicable Interest Rate and Interest Period, and the amount and
date of any repayments shall be noted on Agent's records, which
records will be conclusive evidence thereof, absent manifest error.
This Note is a note under which prepayments may be made from
time to time, but only in accordance with the terms and conditions
of the Agreement.
This Note evidences borrowings under, is subject to, is
secured in accordance with, and may be accelerated or matured
under, the terms of the Agreement, to which reference is hereby
made. Definitions and terms of the Agreement are hereby
incorporated herein.
As additional security for this Note, Company grants Bank a
lien on all property and assets including deposits and other
85 --Exibit 10.2 ( Revolving Credit + Term Loan )
credits of the Company, at any time in possession or control of or
owing by Bank for any purpose.
This Note shall be interpreted and the rights of the parties
hereunder shall be determined under the laws of, and enforceable
in, the State of Michigan.
Company hereby waives presentment for payment, demand, protest
and notice of dishonor and nonpayment of this Note and agrees that
no obligation hereunder shall be discharged by reason of any
extension, indulgence, release, or forbearance granted by any
holder of this Note to any party now or hereafter liable hereon or
any present or subsequent owner of any property, real or personal,
which is now or hereafter security for this Note.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
VISHAY BETEILIGUNGS GmbH,
a German corporation
By:___________________________
Its:_____________________
86 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "E"
TERM LOAN RATE REQUEST
To: Comerica Bank ("Agent")
A. Request
The undersigned authorized officer of Vishay Beteiligungs GmbH
("Company") in accordance with Section 3.5 of the Amended and
Restated Draloric/VBG DM 40,000,000 Revolving Credit and DM
9,506,000 Term Loan Agreement dated as of July ___, 1994, among
Company, certain Banks and Comerica Bank, as Agent for the Banks
(the "Agreement"), hereby requests the Agent under the Agreement to
refund or convert DM of the Indebtedness evidenced
by the Term Notes with a __________ Advance on ,
199 .
The Interest Period for the requested Advance shall be____________
____________.
- ---------------
1/Insert amount of requested Advance. This amount, together
with the amount of any other outstanding Indebtedness evidenced by
the Term Notes to be then combined therewith having the same
Applicable Interest Rate and Interest Period, if any, shall not be
less than DM 5,000,000, unless the balance remaining outstanding on
the Term Loan is less, in which case such lesser amount shall
control, and at any time the Company shall not have more than 2
Interest Periods in effect with respect to the Term Loan.
2/Insert, as applicable, "Deutsche Mark-based" or "Prime-
based."
3/Insert date at least four (4) Business Days after the date of
Request, if Request is for DM-based Advance and, if Request
involves the conversion or renewal of any outstanding DM-based
Advance, date must be the Business Day subsequent to the last day
of the applicalbe DM-based Interest Period.
4/For DM-based Advance insert, as applicable, "1 month", "2
months", "3 months" or "6 months."
87 --Exibit 10.2 ( Revolving Credit + Term Loan )
B. Application of Proceeds
1. The proceeds of this Advance shall be applied first to
refund/convert/5 the following outstanding Advances:
Type of Last Day of Principal
Advance Interest Period Outstanding
C. Request Irrevocable
Upon Agent's receipt of this Term Loan Rate Request, this Term
Loan Rate Request shall be irrevocable.
D. Maturity Date
Company shall not be entitled to request any Advance with an
Interest Period ending after the Term Loan Maturity Date.
E. Defined Terms
Capitalized terms used herein, unless specifically defined to
the contrary herein, have the meanings given them in the Agreement.
Dated this day of , 1994.
VISHAY BETEILIGUNGS GmbH
By:
___________________________
Its:
__________________________
(This form of Term Loan Rate Request (including footnotes) is
subject in all respects to the terms and conditions of the
Agreement which shall govern in the event of any inconsistencies or
omissions.)
5/Strike inapplicable term to indicate whether a conversion or renewal.
88 --Exibit 10.2 ( Revolving Credit + Term Loan )
EXHIBIT "F"
Percentages
Comerica Bank 15.42%
NationsBank of North Carolina, N.A. 15.42%
Berliner Handels-Und Frankfurter Bank 11.67%
Signet Bank Maryland 11.66%
Bank Hapoalim, B.M. 8.33%
CoreStates Bank, N.A. 8.33%
ABN AMRO Bank N.V. 8.33%
Credit Lyonnais New York Branch 8.33%
Bank Leumi le-Israel, B.M. 4.17%
Credit Suisse 4.17%
Meridian Bank 4.17%