1 -- Exhibit 10.5 (Vishay Guaranty)
AMENDED AND RESTATED
VISHAY GUARANTY
Vishay Intertechnology, Inc., a Delaware corporation
("Guarantor") desires to see the success of its Subsidiaries (as
defined below), as follows:
(a) the Permitted Borrowers, as defined in that
certain Amended and Restated Vishay Intertechnology, Inc.
$302,500,000 Revolving Credit and Term Loan Agreement dated
as of July 18, 1994 among Guarantor, Comerica Bank, a
Michigan banking corporation, successor by merger to
Manufacturers Bank, N.A., formerly known as Manufacturers
National Bank of Detroit, as Agent ("Agent") and the Banks
(as hereinafter defined), (as amended from time to time, the
"Vishay Loan Agreement") and furthermore, Guarantor shall
receive direct and/or indirect benefits from extensions of
credit made or to be made pursuant to the Vishay Loan
Agreement to the Permitted Borrowers; and
(b) Vishay Beteiligungs GmbH, formerly known as
Draloric Electronic GmbH ("Debtor"), a German corporation
(and one of the Permitted Borrowers), and furthermore,
Guarantor shall receive direct and/or indirect benefits from
extensions of credit made or to be made to Debtor pursuant
to that certain Amended and Restated Draloric/VBG DM
40,000,000 Revolving Credit and DM 9,506,000 Term Loan
Agreement dated as of July 18, 1994, (as amended from time
to time, the "DM Loan Agreement") among Debtor, Agent and
the Banks and that certain Amended and Restated Roederstein
DM 104,315,990.20 Term Loan Agreement of even date herewith
among Debtor, Agent and the Banks (as amended from time to
time, the "Roederstein Loan Agreement").
NOW, THEREFORE, to induce each of the Banks (as defined in
the Vishay Loan Agreement) to enter into and perform its
obligations under the Vishay Loan Agreement, the DM Loan
Agreement, the Roederstein Loan Agreement and that certain Vishay
Intertechnology, Inc. $200,000,000 Acquisition Loan Agreement of
even date herewith among Debtor, Agent and the Banks, the
Guarantor has executed and delivered this Amended and Restated
Guaranty ("Guaranty") as an amendment and restatement of prior
guaranties executed by the Guarantor.
1. Definitions. Unless otherwise provided herein, all
capitalized terms in this Guaranty shall have the meanings
specified in the Vishay Loan Agreement, and if not defined
therein, then in the DM Loan Agreement or the Roederstein Loan
Agreement, as the context requires.
2. Guaranty. The Guarantor hereby guarantees to the Banks
the due and punctual payment to the Banks when due, whether by
2 -- Exhibit 10.5 (Vishay Guaranty)
acceleration or otherwise, of all amounts, including interest,
due and owing under:
(a) (i) any and all Revolving Credit Notes,
("Revolving Credit Notes") made or to be made to the order
of the Banks by the Permitted Borrowers and any of them,
from time to time pursuant to the terms and conditions of
the Vishay Loan Agreement; (ii) all other Indebtedness of
the Permitted Borrowers, and any of them, under or in
connection with the Vishay Loan Agreement; and (iii) all
extensions, renewals and amendments of or to such notes or
such other Indebtedness (as defined in the Vishay Loan
Agreement), or any replacements or substitutions therefor;
all of the foregoing being payable in accordance with such
Revolving Credit Notes and the Vishay Loan Agreement; and
(b) those certain Revolving Credit Notes made by
Debtor to the order of the Banks pursuant to the DM Loan
Agreement ("DM Revolving Notes"), those certain Bid Notes
made by Debtor to the order of the Banks pursuant to the DM
Loan Agreement ("Bid Notes"), and those certain Term Notes
("DM Term Notes") made by Debtor to the order of the Banks
pursuant to the DM Loan Agreement (the DM Revolving Notes,
the Bid Notes and the DM Term Notes being referred to
collectively herein as the "DM Notes"), and all extensions,
renewals and amendments of or to such notes or such other
Indebtedness (as defined in the DM Loan Agreement) or any
replacements or substitutions therefor, all payable in
accordance with the terms and conditions of such DM Notes
and the DM Loan Agreement; and
(c) those certain Term Notes made or to be made by
Debtor to the order of the Banks pursuant to the Roederstein
Loan Agreement ("Roederstein Term Notes") and all
extensions, renewals and amendments of or to such notes or
such other Indebtedness (as defined in the Roederstein Loan
Agreement) or any replacements or substitutions therefor,
all payable in accordance with the terms and conditions of
such Roederstein Term Notes and the Roederstein Loan
Agreement;
and hereby agrees that if any Permitted Borrower (including
Debtor) shall fail to pay any of such amounts when and as the
same shall be due and payable, or shall fail to perform and
discharge any covenant, representation or warranty in accordance
with the terms of the DM Notes, the DM Loan Agreement, the
Revolving Credit Notes, Vishay Loan Agreement, the Roederstein
Term Notes, or the Roederstein Loan Agreement, or any other loan
or collateral documents executed in connection therewith (the
"Loan Documents") the Guarantor will forthwith pay to the Agent,
on behalf of the Banks, an amount equal to any such amount or
cause each of the Permitted Borrowers, and/or Debtor, as the case
3 -- Exhibit 10.5 (Vishay Guaranty)
may be, to perform and discharge any such covenant,
representation or warranty, as the case may be, and will pay any
and all damages that may be incurred or suffered in consequence
thereof by Agent or any of the Banks and all reasonable expenses,
including reasonable attorneys' fees, that may be incurred by
Agent in enforcing such covenant, representation or warranty of
any Permitted Borrower (including Debtor), as the case may be,
and in enforcing the covenants and agreements of this Guaranty.
3. Unconditional Character of Guaranty. The obligations of
Guarantor under this Guaranty shall be absolute and
unconditional, and shall be a guaranty of payment and not of
collection, irrespective of the validity, regularity or
enforceability of the Revolving Credit Notes, the Vishay Loan
Agreement, the DM Notes, the DM Loan Agreement, the Roederstein
Term Notes, the Roederstein Loan Agreement, or any of the other
Loan Documents (including, without limitation, the Domestic
Guaranty, the Permitted Borrowers Guaranty, and the Roederstein
Loan Documents), or any provision thereof, the absence of any
action to enforce the same, any waiver or consent with respect to
any provision thereof, the recovery of any judgment against any
Person or action to enforce the same, any failure or delay in the
enforcement of the obligations of the Permitted Borrowers under
the Revolving Credit Notes and the Vishay Loan Agreement, of the
Debtor under the DM Notes and the DM Loan Agreement, or of Debtor
under the Roederstein Term Notes and the Roederstein Loan
Agreement, or any of the other Loan Documents, any failure by
Guarantor to have countersigned any request for advance by any of
the Permitted Borrowers under the Vishay Loan Agreement, or any
setoff, counterclaim, recoupment, limitation, defense or
termination. Guarantor hereby waives diligence, demand for
payment, filing of claims with any court, any proceeding to
enforce any provision of the Revolving Credit Notes executed by
the Permitted Borrowers, the Vishay Loan Agreement, the DM Notes
and the DM Loan Agreement, or the Roederstein Term Notes, the
Roederstein Loan Agreement or any of the other Loan Documents,
any right to require a proceeding first against any of the
Permitted Borrowers (including Debtor), or against any other
guarantor or other party providing collateral, or to exhaust any
security for the performance of the obligations of any of the
Permitted Borrowers (including Debtor), any protest, presentment,
notice or demand whatsoever, and Guarantor hereby covenants that
this Guaranty shall not be terminated, discharged or released
except, subject to Section 6.8 hereof, upon payment in full of
all amounts due and to become due from the Permitted Borrowers
(including Debtor) as and to the extent described above, and only
to the extent of any such payment, performance and discharge.
Guarantor further covenants that no security now or subsequently
held by the Agent or the Banks for the payment of the
Indebtedness evidenced by the Revolving Credit Notes made by the
Permitted Borrowers under the Vishay Loan Agreement, for the
payment of the Indebtedness evidenced by the DM Notes made by
4 -- Exhibit 10.5 (Vishay Guaranty)
Debtor under the DM Loan Agreement or for the payment of the
Indebtedness evidenced by the Roederstein Term Notes made by
Debtor under the Roederstein Loan Agreement, or otherwise
evidenced or incurred (including, without limitation, the
Domestic Guaranty and the Permitted Borrowers Guaranty and any
security for any of the foregoing), whether in the nature of a
security interest, pledge, lien, assignment, setoff, suretyship,
guaranty, indemnity, insurance or otherwise, and no act, omission
or other conduct of Agent or the Banks in respect of such
security, shall affect in any manner whatsoever the unconditional
obligation of this Guaranty, and that the Agent and each of the
Banks, in their respective sole discretion and without notice to
Guarantor, may release, exchange, enforce, apply the proceeds of
and otherwise deal with any such security without affecting in
any manner the unconditional obligation of this Guaranty.
Without limiting the generality of the foregoing, such
obligations, and the rights of the Agent to enforce the same, on
behalf of the Banks, by proceedings, whether by action at law,
suit in equity or otherwise, shall not be in any way affected by
(i) any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding up or other
proceeding involving or affecting any or all of the Permitted
Borrowers, Debtor or others or (ii) any change in the ownership
of any of the capital stock of any or all of the Permitted
Borrowers, or the Debtor, or any other party providing collateral
for any indebtedness covered by Guaranty, or any of their
respective Affiliates.
Guarantor hereby waives to the full extent possible under
applicable law:
(a) any defense based upon the doctrine of marshalling
of assets or upon an election of remedies by Agent or the Banks,
including, without limitation, an election to proceed by non-
judicial rather than judicial foreclosure, which destroys or
otherwise impairs the subrogation rights of the Guarantor or the
right of the Guarantor to proceed against the Permitted
Borrowers, or any of them, or the Debtor, for reimbursement, or
both;
(b) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that
of the principal;
(c) any duty on the part of Agent or the Banks to
disclose to the Guarantor any facts Agent or the Banks may now or
hereafter know about any of the Permitted Borrowers or the
Debtor, regardless of whether Agent or any Bank has reason to
believe that any such facts materially increase the risk beyond
that which the Guarantor intends to assume or has reason to
5 -- Exhibit 10.5 (Vishay Guaranty)
believe that such facts are unknown to the Guarantor or has a
reasonable opportunity to communicate such facts to the
Guarantor, since the Guarantor acknowledges that it is fully
responsible for being and keeping informed of the financial
condition of each of the Permitted Borrowers and the Debtor and
of all circumstances bearing on the risk of non-payment of any
Indebtedness (defined as applicable) hereby guaranteed;
(d) any defense arising because of Agent's or the
Banks' election, in any proceeding instituted under the Federal
Bankruptcy Code, of the application of Section 1111(b)(2) of the
Federal Bankruptcy Code;
(e) any claim for reimbursement, contribution,
indemnity or subrogation which such Guarantor may have or obtain
against the Permitted Borrowers, Debtor, or any of them by reason
of the payment by Guarantor of any Indebtedness; and
(f) any other event or action (excluding Guarantor's
compliance with the provisions hereof) that would result in the
discharge by operation of law or otherwise of the Guarantor from
the performance or observance of any obligation, covenant or
agreement contained in this Guaranty.
The Agent and each of the Banks may deal with the Permitted
Borrowers, or any of them, and the Debtor and any security held
by them for the obligations of the Permitted Borrowers, or any of
them, and the Debtor (as aforesaid) in the same manner and as
freely as if this Guaranty did not exist and the Agent shall be
entitled, on behalf of Banks, without notice to Guarantor, among
other things, to grant to the Permitted Borrowers, or any of
them, and/or the Debtor, such extension or extensions of time to
perform any act or acts as may seem advisable to the Agent (on
behalf of the Banks) at any time and from time to time, and to
permit the Permitted Borrowers, or any of them, and/or the
Debtor, to incur additional indebtedness to Agent, the Banks, or
any of them, without terminating, affecting or impairing the
validity or enforceability of this Guaranty or the obligations of
Guarantor hereunder.
The Agent may proceed, either in its own name (on behalf of
the Banks) or in the name of the Guarantor, or otherwise, to
protect and enforce any or all of its rights under this Guaranty
by suit in equity, action at law or by other appropriate
proceedings, or to take any action authorized or permitted under
applicable law, and shall be entitled to require and enforce the
performance of all acts and things required to be performed
hereunder by the Guarantor. Each and every remedy of the Agent
and of the Banks shall, to the extent permitted by law, be
cumulative and shall be in addition to any other remedy given
hereunder or now or hereafter existing at law or in equity.
6 -- Exhibit 10.5 (Vishay Guaranty)
No waiver or release shall be deemed to have been made by
the Agent or any of the Banks of any of its rights hereunder
unless the same shall be in writing and signed by or on behalf of
the Banks, and any such waiver shall be a waiver or release only
with respect to the specific matter involved and shall in no way
impair the rights of the Agent or any of the Banks or the
obligations of Guarantor under this Guaranty in any other respect
at any other time.
At the option of the Agent, Guarantor may be joined in any
action or proceeding commenced by the Agent against the Permitted
Borrowers, or any of them, and/or the Debtor or any of the other
parties providing collateral for any indebtedness covered by this
Guaranty in connection with or based upon the Revolving Credit
Notes made by the Permitted Borrowers, the Vishay Loan Agreement,
the DM Notes, the DM Loan Agreement, the Roederstein Term Notes,
the Roederstein Loan Agreement or any of the other Loan Documents
or other Indebtedness (defined as applicable, as aforesaid), or
any provision thereof, and recovery may be had against Guarantor
in such action or proceeding or in any independent action or
proceeding against Guarantor, without any requirement that the
Agent or the Banks first assert, prosecute or exhaust any remedy
or claim against the Permitted Borrowers, or any of them, the
Debtor and/or any of the other parties providing collateral for
any Indebtedness covered by this Guaranty.
4. Continuing Obligation for DM Term Notes. Guarantor
acknowledges that, by virtue of this Guaranty (and prior
guaranties amended and restated hereby), Guarantor has continued
as an obligor on the Indebtedness evidenced by the DM Term Notes
without any interruption whatsoever in such status as obligor,
Guarantor having previously been obligated on such Indebtedness
as primary obligor.
5. Release of Collateral for Guaranty. Concurrently
herewith, Comerica Bank, as agent under the Prior Loan
Agreements, and the Prior Banks, have undertaken to release the
Collateral delivered to secure the Prior Guaranty (as hereafter
defined).
6. Miscellaneous.
6.1 Governing Law. This Guaranty has been delivered in
Michigan and shall be interpreted and the rights of the parties
hereunder shall be determined under the laws of, and be
enforceable in, the State of Michigan, Guarantor hereby
consenting to the jurisdiction of state and all federal courts
sitting in such state.
6.2 Severability. If any term or provision of this Guaranty
or the application thereof to any circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
7 -- Exhibit 10.5 (Vishay Guaranty)
Guaranty, or the application of such term or provision to
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the
fullest extent permitted by law.
6.3 Notice. All notices and other communications to be made
or given pursuant to this Guaranty shall be sufficient if made or
given in writing and delivered by messenger or deposited in the
U.S. mails, registered or certified first class mail, and
addressed as provided under the Vishay Loan Agreement, or at such
other addresses as directed by any of such parties to the others,
as applicable, in compliance with this paragraph.
6.4 Right of Offset. Guarantor acknowledges the rights of
the Agent and of each of the Banks to offset against the
Indebtedness of Guarantor to the Banks under this Guaranty, any
amount owing by the Agent or the Banks, or either or any of them
to the Guarantor, whether represented by any deposit of Guarantor
with the Agent or any of the Banks or otherwise.
6.5 Right to Cure. Guarantor shall have the right to cure
any Event of Default under the Vishay Loan Agreement (with
respect to obligations of the Permitted Borrowers), the DM Loan
Agreements (with respect to Debtor), the Roederstein Loan
Agreement (with respect to Debtor) or the Loan Documents;
provided that such cure is effected within the applicable grace
period or period for cure, if any; and provided further that such
cure can be effected in compliance with the Vishay Loan Agreement
(with respect to the obligations of any of the Permitted
Borrowers), DM Loan Agreement (with respect to the obligations of
Debtor), or Roederstein Loan Agreement (with respect to the
obligations of Debtor) and other Loan Documents (including
without limitation the Vishay Loan Agreement). Except to the
extent of payments of principal and/or interest on the Revolving
Credit Notes made by the Permitted Borrowers, the DM Notes or the
Roederstein Term Notes actually received by the Agent (or the
Banks) pursuant to such cure, the exercise of such right to cure
by Guarantor shall not reduce or otherwise affect the liability
of Guarantor under this Guaranty.
6.6 Financial Statements. The Guarantor shall provide Agent
(with a copy for each of the Banks), commencing as of the date of
this Guaranty, with quarterly and annual financial statements
substantially in accordance with the requirements set forth in
the Vishay Loan Agreement.
6.7 Amendments. The terms of this Guaranty may not be
waived, altered, modified, amended, supplemented or terminated in
any manner whatsoever except as provided herein and in accordance
with the Vishay Loan Agreement, the DM Loan Agreement and the
Roederstein Loan Agreement.
8 -- Exhibit 10.5 (Vishay Guaranty)
6.8 Release. Upon the satisfaction by Guarantor of its
obligations hereunder and its direct obligations under the Vishay
Loan Agreement and Roederstein Loan Agreement and its Notes
executed pursuant thereto, and when Guarantor is no longer
subject to any obligation hereunder or thereunder, the Agent
shall deliver to Guarantor, upon written request therefor, (i) a
written release of this Guaranty and (ii) appropriate discharges
of any Collateral provided by Guarantor for this Guaranty;
provided however that, the effectiveness of this Guaranty shall
continue or be reinstated, as the case may be, in the event: (x)
that any payment received or credit given by the Agent or the
Banks, or any of them, is returned, disgorged, rescinded or
required to be recontributed to any party as an avoidable
preference, impermissible setoff, fraudulent conveyance,
restoration of capital or otherwise under any applicable state,
federal or national law of any jurisdiction, including laws
pertaining to bankruptcy or insolvency, and this Guaranty shall
thereafter be enforceable against Guarantor as if such returned,
disgorged, recontributed or rescinded payment or credit has not
been received or given by the Agent or the Banks, and whether or
not the Agent or any Bank relied upon such payment or credit or
changed its position as a consequence thereof or (y) that any
liability is imposed, or sought to be imposed against the Agent
or the Banks, or any of them, relating to the environmental
condition of any property mortgaged or pledged to Agent on behalf
of the Banks by Guarantor, any Permitted Borrower or Debtor or
any other party as collateral (in whole or part) for any
indebtedness or obligation evidenced or secured by this Guaranty,
whether such condition is known or unknown, now exists or
subsequently arises (excluding only conditions which arise after
acquisition by Agent or any Bank of any such property, in lieu of
foreclosure or otherwise, due to the wrongful act or omission of
Agent or such Bank) in which event this Guaranty shall thereafter
be enforceable against Guarantor to the extent of all
liabilities, costs and expenses (including reasonable attorneys
fees) incurred by Agent or Banks as the direct or indirect result
of any such environmental condition. For purposes of this
Guaranty "environmental condition" includes, without limitation,
conditions existing with respect to the surface or ground water,
drinking water supply, land surface or subsurface strata and the
ambient air.
6.9 Consent to Jurisdiction; Waiver of Jury Trial.
Guarantor hereby irrevocably submits to the non-exclusive
jurisdiction of any United States Federal or Michigan state court
sitting in Detroit in any action or proceeding arising out of or
relating to this Guaranty or any of the Loan Documents and
Guarantor hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in any such
United States Federal or Michigan state court. Guarantor
irrevocably consents to the service of any and all process in any
such action or proceeding brought in any court in or of the State
9 -- Exhibit 10.5 (Vishay Guaranty)
of Michigan by the delivery of copies of such process to
Guarantor at its address specified in Section 6.3 hereof or by
certified mail direct to such address. This Guaranty is subject
to the waiver of jury trial contained in Section 9.4 of the
Vishay Loan Agreement.
6.10 Amendment and Restatement. This Guaranty is given in
substitution for and amends and restates and replaces in its
entirety the Amended and Restated Vishay Guaranty dated as of
January 29, 1993 (the "Prior Guaranty") executed and delivered by
Guarantor in connection with the Vishay Loan Agreement, the DM
Loan Agreement and the Roederstein Loan Agreement. Nothing herein
contained shall impair or otherwise affect the security interests
or liens established or continued thereunder or in connection
therewith, which security interests and liens shall continue in
full force and effect.
IN WITNESS WHEREOF, the undersigned Guarantor has executed
this Guaranty as of July 18, 1994.
VISHAY INTERTECHNOLOGY, INC.
By:_____________________________
Its:_______________________
ACCEPTED BY:
COMERICA BANK, as Agent, on
behalf of the Banks
By:_____________________________
Its:_______________________