1 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
Execution Copy
AMENDED AND RESTATED
PERMITTED BORROWERS GUARANTY
The undersigned, Vilna Equities Holding B.V., a Netherlands
corporation, Vishay Beteiligungs GmbH, a German corporation,
formerly known as Draloric Electronic GmbH ("VBG"), Draloric
Electronic GmbH, a German corporation, formerly known as Vishay
Electronic GmbH ("Draloric"), E-Sil Components Ltd., an English
corporation, Sfernice, S.A. ("Sfernice"), a French corporation,
Roederstein Spezialfabriken fur Bauelemente der Elektronik und
Kondersatoren der Starkstromtechnik GmbH, a German corporation
("Roederstein"), (together, the "Guarantors") each desires to see
the success of one another and of the foreign Subsidiaries of
Vishay Intertechnology, Inc., a Delaware corporation ("Vishay"),
and each shall receive direct and/or indirect benefits from
extensions of credit granted to VBG and Draloric (the "Permitted
Borrowers") under and in connection with the Amended and Restated
Vishay Intertechnology, Inc. $302,500,000 Revolving Credit and Term
Loan Agreement dated as of July 18, 1994, among Vishay, 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"), from extensions of credit to VBG under and in
connection with the 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 among VBG, Agent and the Banks (as amended from time
to time, the "DM Loan Agreement"), and from extensions of credit to
VBG under and in connection with that certain Amended and Restated
Roederstein DM 104,315,990.20 Term Loan Agreement of even date
herewith among VBG, 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 extend credit from time to time under the
Vishay Loan Agreement, the DM Loan Agreement, the Roederstein Loan
Agreement and the Acquisition Loan Agreement (as defined in the
Vishay Loan Agreement), each of the Guarantors has executed and
delivered this Amended and Restated Guaranty ("Guaranty").
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 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
2. Guaranty.
(a) Each of the Guarantors hereby guarantees to the
Banks the due and punctual payment to the Banks when due,
whether by acceleration or otherwise, of: (i) all amounts
which may from time to time be due and owing by each and any
of the Permitted Borrowers (collectively, the "Permitted
Borrowers") under those certain Revolving Credit Notes made or
to be made by the Permitted Borrowers to the order of the
Banks pursuant to the terms and conditions of the Vishay Loan
Agreement; (ii) all other Indebtedness of the Permitted
Borrowers, or any of them, under or in connection with the
Vishay Loan Agreement; and (iii) all extensions, renewals and
amendments of or to such Revolving Credit Notes or other
Indebtedness incurred for the accounts or the benefit of the
Permitted Borrowers, or any of them, or any replacements or
substitutions therefor, all payable with interest thereon and
otherwise in accordance with the terms of such Revolving
Credit Notes and Vishay Loan Agreement;
(b) Each of the Guarantors, excepting only Sfernice and
VBG (which is directly obligated under the DM Notes referred
to below), hereby guarantees to the Banks the due and punctual
payment to the Banks when due, whether by acceleration or
otherwise, of all amounts due and owing by VBG under those
certain Revolving Credit Notes ("DM Revolving Notes"), those
certain Bid Notes ("Bid Notes") and those certain Term Notes
("DM Term Notes") made by VBG to the order of the Banks
pursuant to the terms and conditions of 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 with interest thereon and otherwise in accordance with
the terms of the DM Notes and the DM Loan Agreement;
(c) Sfernice hereby guarantees to the Banks the due and
punctual payment to the Banks when due, whether by
acceleration or otherwise, of (i) all amounts due and owing by
VBG under the DM Revolving Notes and the Bid Notes (but not
the DM Term Notes) and (ii) all extensions, renewals and
amendments of or to such DM Revolving Notes, the Bid Notes or
other Indebtedness (excluding only the DM Term Notes) incurred
for the account of or the benefit of VBG, or any replacements
or substitutions therefor, all payable with interest thereon
and otherwise in accordance with the terms of such DM
Revolving Notes, the Bid Notes and the DM Loan Agreement;
(d) Each of the Guarantors, excepting only VBG (which is
directly obligated under the Roederstein Term Notes referred
to below), hereby guarantees to the Banks the due and punctual
3 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
payment to the Banks when due, whether by acceleration or
otherwise, of all amounts due and owing by VBG under those
certain Roederstein Term Notes ("Roederstein Term Notes") made
or to be made by VBG to the order of the Banks pursuant to the
terms and conditions of the Roederstein Loan Agreement, 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 with interest thereon and otherwise in accordance with
the terms of the Roederstein Term Notes and the Roederstein
Loan Agreement;
and each of the Guarantors hereby jointly and severally agrees that
if any Permitted Borrower or any other Person who is or becomes
primarily liable therefor shall fail to pay any of such amounts
when and as the same shall be due and payable, or shall fail to
perform and discharge any covenant, representation or warranty in
accordance with the terms of the Revolving Credit Notes, Vishay
Loan Agreement, DM Notes, DM Loan Agreement, Roederstein Term
Notes, Roederstein Loan Agreement or any of the other Loan
Documents, the Guarantors, to the extent of their respective
obligations as set forth herein, shall each be obligated forthwith
to pay to Agent on behalf of the Banks an amount equal to any such
amount or cause any other Person then primarily liable therefor to
perform and discharge any such covenant, representation or
warranty, as the case may be, and will pay any and all damages that
may be incurred or suffered in consequence thereof by Agent and all
reasonable expenses, including reasonable attorneys' fees, that may
be incurred by Agent in enforcing such covenant, representation or
warranty of any of the Guarantors, as applicable, and in enforcing
the covenants and agreements of this Guaranty.
3. Unconditional Character of Guaranty. The obligations of
each of the Guarantors under this Guaranty, to the full extent of
their respective guarantees of Indebtedness hereunder, 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 Vishay Guaranty,
the Domestic Guaranty, or 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 direct
obligations of any of the Permitted Borrowers under the Revolving
Credit Notes, of any of the Permitted Borrowers under the Vishay
Loan Agreement, of VBG under the DM Notes or the DM Loan Agreement,
or of VBG under the Roederstein Term Notes or the Roederstein Loan
Agreement, or of any of them under any of the other Loan Documents,
or failure by Vishay to have countersigned any request for an
4 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
advance by any Permitted Borrower under the Vishay Loan Agreement,
or any setoff, counterclaim, recoupment, limitation, defense or
termination. Each of the Guarantors hereby waives diligence, demand
for payment, filing of claims with any court, any proceeding to
enforce any provision 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, any right to require a proceeding first
against any other Person who is or becomes principally obligated
under such Revolving Credit Notes, such DM Notes or Vishay under
the Revolving Credit Notes or Draloric under the DM Notes or the
Roederstein Term Notes, or any other guarantor or surety, or to
exhaust any security for the performance of the obligations of the
Person who is principally obligated under such Revolving Credit
Notes, DM Notes or Roederstein Term Notes, any protest,
presentment, notice or demand whatsoever, and the Guarantors each
hereby covenant that this Guaranty shall not be terminated,
discharged or released except, subject to Section 6.8 hereof, upon
payment in full of all amounts due and to become due from each of
them, as and to the extent described above, and only to the extent
of any such payment, performance and discharge. Each Guarantor
further covenants that no security now or subsequently held by the
Agent or the Banks for the payment of the Indebtedness evidenced by
the Revolving Credit Notes, the DM Notes or the Roederstein Term
Notes or incurred under the Vishay Loan Agreement, the DM Loan
Agreement or the Roederstein Loan Agreement, or otherwise evidenced
or incurred, whether in the nature of a security interest, pledge,
lien, assignment, setoff, suretyship, guaranty, indemnity,
insurance or otherwise, and no act, omission or other conduct of
Agent or the 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 any of the Guarantors, may
release, exchange, enforce, apply the proceeds of and otherwise
deal with any such security without affecting in any manner the
unconditional obligation of this Guaranty.
Without limiting the generality of the foregoing, such
obligations, and the rights of the Agent on behalf of the Banks to
enforce the same by proceedings, whether by action at law, suit in
equity or otherwise, shall not be in any way affected, to the
extent permitted by applicable law, by (i) any insolvency,
bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding up or other proceeding involving or affecting
Vishay, VBG, Draloric, any other Subsidiary, or any or all of the
Guarantors or any other Person or (ii) any change in the ownership
of any of the capital stock of Vishay, VBG, Draloric, any other
Subsidiary, any or all of the Guarantors or any other party
providing collateral for indebtedness covered by this Guaranty, or
any of their respective Affiliates.
5 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
Each of the Guarantors 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 the 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 any of the Guarantors
or the right of the Guarantors, or any of them, to proceed against
Vishay, VBG, Draloric or any or all of the other Guarantors for
reimbursement, or both;
(b) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of
the principal;
(c) any duty on the part of Agent or the Banks to
disclose to any of the Guarantors any facts Agent or the Banks may
now or hereafter know about Vishay, VBG, Draloric or any of the
other Guarantors, regardless of whether the Agent or any Bank has
reason to believe that any such facts materially increase the risk
beyond that which such undersigned intends to assume, or has reason
to believe that such facts are unknown to any or all of the
undersigned, or has a reasonable opportunity to communicate such
facts to the undersigned since each of the undersigned acknowledges
that it is fully responsible for being and keeping informed of the
financial condition of Vishay, VBG, Draloric and each of the other
Guarantors and of all circumstances bearing on the risk of non-
payment of any Indebtedness hereby guaranteed;
(d) any defense arising because of the 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 or any similar laws, rules or decisions of
any jurisdiction which affect creditor's rights generally and which
may be or become applicable to the obligations of any of the
Guarantors under this Guaranty;
(e) any claim for reimbursement, contribution, indemnity
or subrogation which such Guarantor may have or obtain against VBG,
Draloric, or any Guarantor or any of them by reason of the payment
by such Guarantor of any Indebtedness; and
(f) any other event or action (excluding compliance by
the Guarantors with the provisions hereof) that would result in the
discharge by operation of law or otherwise of the Guarantors, or
any of them, from the performance or observance of any obligation,
covenant or agreement contained in this Guaranty.
The Agent and each of the Banks may deal with each of the
Guarantors and any security held by Agent or the Banks, or any of
6 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
them, for the obligations of the Guarantors (as aforesaid) in the
same manner and as freely as if this Guaranty did not exist and the
Agent on behalf of the Banks shall be entitled without notice to
any of the Guarantors, among other things, to grant to Vishay, VBG,
Draloric and any or all of the Subsidiaries or Guarantors such
extension or extensions of time to perform any act or acts as may
seem advisable to the Agent on behalf of the Banks at any time and
from time to time, and to permit Vishay, VBG, Draloric and any or
all of the Subsidiaries or Guarantors to incur additional
indebtedness to Agent, the Banks, or either or any of them, without
terminating, affecting or impairing the validity or enforceability
of this Guaranty or the obligations of the Guarantors hereunder.
The Agent may proceed, either in its own name (on behalf of
the Banks) or in the name of each or any of the Guarantors, or
otherwise, to protect and enforce any or all of its rights under
this Guaranty by suit in equity, action at law or by other
appropriate proceedings, or to take any action authorized or
permitted under applicable law, and shall be entitled to require
and enforce the performance of all acts and things required to be
performed hereunder by the Guarantors. Each and every remedy of the
Agent on behalf of the 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.
No waiver or release shall be deemed to have been made by the
Agent or 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 the Banks or the obligations of the Guarantors
under this Guaranty in any other respect at any other time.
At the option of the Agent, any number of, or all of the
undersigned may be joined in any action or proceeding commenced by
the Agent against Vishay, VBG, Draloric, any Subsidiary or any of
the other Guarantors, or any of the other parties providing
collateral for any indebtedness covered by this Guaranty in
connection with or based upon 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 or other Indebtedness, or any provision
thereof, and recovery may be had against each Guarantor in such
action or proceeding or in any independent action or proceeding
against any or all Guarantors, without any requirement that the
Agent or the Banks first assert, prosecute or exhaust any remedy or
claim against the Person principally obligated for such
Indebtedness, or any of the other party providing collateral for
any Indebtedness covered by this Guaranty.
4. Representations and Warranties. Each of the Guarantors
(i) ratifies, confirms and, by reference thereto (as fully as
7 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
though such matters were expressly set forth herein), represents
and warrants with respect to itself those matters set forth in
Sections 6.1, 6.3 through 6.8, inclusive, 6.10, 6.12 and 6.14
through 6.21, inclusive, of the Vishay Loan Agreement, and such
representations and warranties shall be deemed to be continuing
representations and warranties true and correct in all material
respects so long as this Guaranty shall be in effect; and (ii)
agrees not to engage in any action or inaction, the result of which
would cause a violation of any term or condition of the Vishay Loan
Agreement.
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 shall be deemed
delivered in Michigan and shall be interpreted and the rights of
the parties hereunder shall be determined under the laws of, and be
enforceable in, the State of Michigan.
6.2 Severability. If any term or provision of this
Guaranty or the application thereof to any circumstances shall, to
any extent, be invalid or unenforceable, the remainder of this
Guaranty, or the application of such term or provision to
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the
fullest extent permitted by law.
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, with notice to any
Guarantor to be sent care of Vishay (and addressed as aforesaid),
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. The Guarantors each acknowledge the
rights of the Agent and of each of the Banks to offset against
their respective obligations to the Banks under this Guaranty, any
amount owing by the Agent or the Banks, or any of them to such
Guarantors, whether represented by any deposit of such Guarantors
with the Agent or any of the Banks or otherwise.
6.5 Financial Statements. The Guarantors shall provide
Agent, or cause to be provided to 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
8 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
accordance with the requirements set forth in the Vishay Loan
Agreement and the DM Loan Agreement.
6.6 Amendments. The terms of this Guaranty may not be
waived, altered, modified, amended, supplemented or terminated in
any manner whatsoever except as provided herein and in accordance
with the Vishay Loan Agreement, the DM Loan Agreement and the
Roederstein Loan Agreement.
6.7 Joint and Several Obligation, etc. The obligation of
each of the Guarantors under this Guaranty shall be several and
also joint, each with all and also each with any one or more of the
others, and may be enforced against each severally, any two or more
jointly, or some severally and some jointly. Any one or more of the
Guarantors may be released from its obligations hereunder with or
without consideration for such release and the obligations of the
other Guarantors hereunder shall be in no way affected thereby.
Agent, on behalf of Banks, may fail or elect not to prove a claim
against any bankrupt or insolvent Guarantor and thereafter, Agent
and the Bank may, without notice to any Guarantors, extend or renew
any part or the all of any indebtedness of any of the Permitted
Borrowers, Vishay, VBG, Draloric or any of the Guarantors, and may
permit any such Person to incur additional indebtedness, without
affecting in any manner the unconditional obligation of the
Guarantors. Such action shall not affect any right of contribution
among the Guarantors.
6.8 Release. (a) Upon the satisfaction of the
obligations of the Guarantors hereunder, and when none of the
Guarantors is subject to any obligation hereunder or under the
Vishay Loan Agreement, the DM Loan Agreement or the Roederstein
Loan Agreements, the Agent shall deliver to the Guarantors, upon
written request therefor, (i) a written release of this Guaranty
and (ii) appropriate discharges of any Collateral provided by the
Guarantors for this Guaranty; provided that, the effectiveness of
this Guaranty shall be continued or be reinstated, as the case may
be, in the event: (x) that any payment received or credit given by
the Agent on the Banks is returned, disgorged, rescinded or
required to be recontributed to any party as an avoidable
preference, impermissible setoff, fraudulent conveyance,
restoration of capital or otherwise under any applicable state,
federal or national law of any jurisdiction, including, without
limitation, laws pertaining to bankruptcy or insolvency, in which
event this Guaranty shall thereafter be enforceable against the
Guarantors as if such returned, disgorged, recontributed or
rescinded payment or credit had not been received or given by the
Agent or the Banks, and whether or not the Agent or the Banks
relied upon such payment or credit or changed its position as a
consequence thereof; or (y) that any liability is imposed, or
sought to be imposed, against the Agent or any of the Banks
relating to the environmental condition of any property mortgaged
or pledged to the Agent or the Banks by any Guarantor, or any other
9 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
party providing collateral for the indebtedness covered by this
Guaranty, whether such condition is known or unknown, now exists or
subsequently arises (excluding only conditions which arise after
any acquisition by Agent or any Bank of any such property, in lieu
of foreclosure or otherwise, due to the wrongful act or omission of
Agent of any Bank), in which event this Guaranty shall thereafter
be enforceable against the Guarantors to the extent of all
liability, costs and expenses (including reasonable attorneys fees)
incurred by Agent or any Bank 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.
(b) This Guaranty shall also be subject to release under
Section 13.21 of the Vishay Loan Agreement.
6.9 Limitation With Respect to Sfernice S.A.
Obligations. (a) Notwithstanding any provision to the contrary
contained in this Guaranty, Sfernice shall not be required to pay,
pursuant to this Guaranty, more than the sum of (i) Six Million
Dollars ($6,000,000), plus (ii) the amount of all loans, advances
on open account or other funds furnished or to be furnished for the
benefit of or on behalf of Sfernice or any of its Subsidiaries by
Vishay, VBG or Draloric or any of their respective Subsidiaries
from and after July 21, 1989, the date of the initial guaranty
issued by Sfernice in connection with the Indebtedness, and (iii)
the amount of all sums guaranteed or subject to any other credit
accommodation extended by Vishay, VBG, Draloric or any of their
respective Subsidiaries, or any of the Permitted Borrowers to any
Person, for the benefit of Sfernice or any of its Subsidiaries,
from and after July 21, 1989; provided, however, that the amounts
covered by subparagraphs (ii) and (iii), above shall not include
funds used for the purchase of, or invested in, shares of the
capital stock of Sfernice. Sfernice hereby represents, warrants and
acknowledges to Agent and the Banks that the limitation set forth
in this Section 6.9 has been determined by it (and its board of
directors) on the basis of, and does not exceed, the current
borrowing capacity of Sfernice under French law. The limitation
contained in this Section 6.9 shall not apply to, or otherwise
restrict or reduce in any manner whatsoever the liability of any of
the other Guarantors hereunder, or of any other Person directly or
indirectly liable for Indebtedness under the Vishay Loan Agreement,
the DM Loan Agreement, the Roederstein Loan Agreement, or any of
the other Loan Documents.
(b) This Guaranty shall not become effective as to
Sfernice (only) until approved by the Board of Directors of
Sfernice in accordance with Section 7.21 of the Vishay Loan
Agreement, but shall be immediately effective as to all of the
other Guarantors. Until such approval is obtained by Sfernice, the
10 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
Prior Guaranty (as defined below) shall remain in full force and
effect according to its terms as to Sfernice and Sfernice hereby
acknowledges that the Prior Guaranty shall guarantee all of the
Indebtedness described in Sections 2(a) and 2(c) hereof (the
promissory notes referred to therein constituting renewals and
extensions of the Indebtedness secured by the Prior Guaranty). The
commencement of the effectiveness of this Guaranty as to Sfernice
shall be evidenced by the delivery to Agent of appropriate Board
resolutions or other documents and instruments satisfactory in form
and substance to the Agent in its sole discretion.
6.10 Limitation with Respect to VBG, Draloric and
Roederstein. Notwithstanding anything to the contrary herein, in
accordance with Sections 30 and 31 of the German GmbH-Gesetz
(German GmbH-Act), the liabilities of VBG hereunder for
indebtedness incurred by Draloric, the liabilities of Draloric
hereunder for indebtedness incurred by VBG and the liabilities of
Roederstein hereunder for indebtedness incurred by the Permitted
Borrowers shall be limited so that in no case shall enforcement of
such liabilities result in diminishing the assets of VBG, Draloric
or Roederstein below the level required to be maintained by it for
the preservation of its nominal share capital. Nothing contained in
this Section 6.10 shall be construed to restrict enforcement of
direct obligations of VBG, Draloric or Roederstein or the
liquidation of assets of VBG, Draloric or Roederstein for the
purpose of paying such direct obligations, whether or not such
enforcement or liquidation would result in impairment of the
nominal share capital of VBG, Draloric or Roederstein, as the case
may be.
6.11 Consent to Jurisdiction. Guarantors hereby
irrevocably submit 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 Guarantors hereby irrevocably agree
that all claims in respect of such action or proceeding may be
heard and determined in any such United States Federal or Michigan
state court. Guarantors irrevocably consent to the service of any
and all process in any such action or proceeding brought in any
court in or of the State of Michigan (and to the receipt of any and
all notices hereunder) by the delivery of copies of such process to
Guarantors at Vishay's addresses referred to in Section 6.3 hereof
or by certified mail directed to such address.
6.12 Jury Trial Waiver. Guarantors hereby irrevocably
agree to waive the right to trial by jury with respect to any and
all actions or proceedings in which Agent or the Banks (or any of
them), on one hand, and the Company or any of the Guarantors, on
the other hand, are parties, whether or not such actions or
proceedings arise out of this Agreement or the Loan Documents or
otherwise.
11 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
6.13 Limitation under Applicable Insolvency Laws.
Notwithstanding anything to the contrary contained herein, it is
the intention of the Guarantors, Agent and the Banks that the
amount of the respective Guarantors' obligations hereunder shall be
in, but not in excess of, the maximum amount thereof not subject to
avoidance or recovery by operation of applicable law governing
bankruptcy, reorganization, arrangement, adjustment of debts,
relief of debtors, dissolution, insolvency, fraudulent transfers or
conveyances or other similar laws (collectively, "Applicable
Insolvency Laws"). To that end, but only in the event and to the
extent that the Guarantors' respective obligations hereunder or any
payment made pursuant thereto would, but for the operation of the
foregoing proviso, be subject to avoidance or recovery under
Applicable Insolvency Laws, the amount of the Guarantors'
respective obligations hereunder shall be limited to the largest
amount which, after giving effect thereto, would not, under
Applicable Insolvency Laws, render the Guarantor's respective
obligations hereunder unenforceable or avoidable or subject to
recovery under Applicable Insolvency Laws. To the extent any
payment actually made hereunder exceeds the limitation contained in
this Section 6.13, then the amount of such excess shall, from and
after the time of payment by the Guarantors (or any of them), be
reimbursed by the Banks upon demand by such Guarantors. The
foregoing proviso is intended solely to preserve the rights of the
Agent and the Banks hereunder against the Guarantors to the maximum
extent permitted by Applicable Insolvency Laws and neither Vishay
nor any Guarantor nor any other Person shall have any right or
claim under this Section 6.13 that would not otherwise be available
under Applicable Insolvency Laws.
6.14 Amendment. This Guaranty shall be deemed to amend
and restate in its entirety that certain Amended and Restated
Permitted Borrowers Guaranty dated as of January 29, 1993 (the
"Prior Guaranty"), and others in connection with the Vishay Loan
Agreement, DM Loan Agreement, and the Roederstein Loan Agreement,
and nothing herein contained shall impair or otherwise affect the
security interests or liens established thereunder or in connection
therewith, which security interests and liens shall continue in
full force and effect.
IN WITNESS WHEREOF, each of the undersigned Guarantors have
executed this Guaranty as of July 18, 1994.
VILNA EQUITIES HOLDING B.V.
By:________________________________
Its:__________________________
12 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
VISHAY BETEILIGUNGS GmbH
By:________________________________
Its:__________________________
DRALORIC ELECTRONIC GmbH
By:________________________________
Its:__________________________
E-SIL COMPONENTS LTD.
By:________________________________
Its:__________________________
SFERNICE, S.A.
By:________________________________
Its:__________________________
ROEDERSTEIN SPEZIALFABRIKEN FUR
BAUELEMENTE DER ELEKTRONIK UND
KONDERSATOREN DER STARKSTROMTECHNIK
GmbH
By:________________________________
Its:__________________________
13 -- Exhibit 10.7 (Permitted Borrowers Guaranty)
ACCEPTED BY:
COMERICA BANK
as Agent, on behalf of
the Banks
By:________________________________
Its:__________________________