Exhibit 10.1
SECOND AMENDMENT TO VISHAY INTERTECHNOLOGY, INC.
FOURTH
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT (“Second
Amendment”) is made as of this July 31, 2009 by and among the
financial institutions signatory hereto (individually a
“Lender,” and any and all such financial institutions
collectively, the “Lenders”), Comerica Bank, as
Administrative Agent for the Lenders (in such capacity, the
“Agent”), Vishay Intertechnology, Inc.
(“Vishay”) and the other Permitted Borrowers as defined
therein (together with Vishay, the
“Borrowers”).
RECITALS
A.
The Borrowers have entered into that certain Fourth Amended and
Restated Credit Agreement dated as of June 24, 2008 (as amended,
supplemented, amended and restated or otherwise modified from time
to time, the “Credit Agreement”) with each of the
Lenders and the Agent pursuant to which the Lenders agreed, subject
to the satisfaction of certain terms and conditions, to extend or
to continue to extend financial accommodations to the Borrowers, as
provided therein, which has been previously amended by that certain
First Amendment dated as of December 12, 2008.
B.
At the request of the Borrowers, Agent and the Lenders have agreed
to make certain amendments and modifications to the Credit
Agreement as set forth below, but only on the terms and conditions
set forth in this Second Amendment.
NOW THEREFORE , in consideration of the foregoing and for
other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, Borrowers, Agent and the Lenders
agree:
1.
Section 1.1 of the Credit Agreement is hereby amended
by:
inserting the following definitions into Section
1.1 of the Credit Agreement in their appropriate alphabetical
order:
““Defaulting
Lender” shall mean a Lender (a) that has failed to fund its
Percentage of any Advance or to purchase participations in a Swing
Line Advance or any Reimbursement Obligations as required under
this Agreement, unless such Lender is disputing its funding
obligation in good faith, (b) that has otherwise failed to pay to
the Agent or any other Lender any other amount required to be paid
by it under the terms of this Agreement or any other Loan Document,
unless such Lender is disputing such obligation to pay any such
amount in good faith, (c) that has been, or whose holding company
has been, determined to be insolvent or that has become subject to
a bankruptcy or other similar proceeding, or (d) which has had a
substantial portion of its assets or management (or any material
assets or management of its holding company) taken over by any
governmental authority (provided that the exercise of customary
rights of a shareholder by a governmental authority which owns
shares in such Lender (or its holding company) shall not be covered
by this clause (d)).”
““Impaired
Lender” means a Defaulting Lender and any other Lender (a)
which the Agent, the Issuing Lender or Swing Line Lender believes,
in good faith, has defaulted (and continues to be in default) in
fulfilling its obligations under any other syndicated credit
facilities or as a participant in any other credit facility and
such Lender is not in good faith disputing that such default has
occurred, or (b) which, if carrying an investment grade rating of
at least BBB- from S&P or Baa3 from Moody’s at the time
it became a party to this Agreement, no longer carries an
equivalent or better investment grade rating.”
deleting the definition of “Permitted
Securitization;” and deleting the definitions of
“Collateral Documents” and “Permitted Borrower
Sublimit” as set forth in the Credit Agreement and inserting
the following in their respective places:
““Collateral
Documents” shall mean the Pledge Agreements and each other
security agreement, pledge agreement or other document whereby the
Borrowers or any of their Subsidiaries pledge any of their assets
to secure the Indebtedness, and any other documents related
thereto, in each case as the same may be amended, restated or
otherwise modified from time to time.”
““Permitted Borrower
Sublimit” shall mean the maximum aggregate amount of Advances
and Letters of Credit (including Letter of Credit Obligations)
available at any time to the Domestic Permitted Borrowers or the
Foreign Permitted Borrowers, as set forth on Schedule 1.6
hereof.”
2. Section
2.3(d) of the Credit Agreement is hereby deleted and the following
is inserted in its place:
“(d) on the proposed date
of such Revolving Credit Advance, the principal amount of the
Revolving Credit Advance being requested by any Domestic Permitted
Borrower or Foreign Permitted Borrower (determined and tested as
aforesaid), plus the principal amount of any other Revolving Credit
Advances and Swing Line Advances being requested by any Domestic
Permitted Borrower or Foreign Permitted Borrower (as applicable) on
such date, plus the principal amount of any other Revolving Credit
Advances and all Swing Line Advances then outstanding to the
Domestic Permitted Borrowers or the Foreign Permitted Borrowers (as
applicable) (determined as aforesaid), plus the Letter of Credit
Obligations relating to Letters of Credit issued for the account of
any of the Domestic Permitted Borrowers or any of the Foreign
Permitted Borrowers (as applicable), shall not exceed the
applicable Permitted Borrower Sublimit;”
3. Section
2.5(b)(iv) of the Credit Agreement is hereby deleted and the
following is inserted in its place:
“(iv) as of the proposed
date of such Swing Line Advance, the principal amount of the
requested Swing Line Advance to any Domestic Permitted Borrower or
Foreign Permitted Borrower (determined as aforesaid), plus the
aggregate principal amount of any other Swing Line Advances and all
other Advances then outstanding to the Domestic Permitted Borrowers
or the Foreign Permitted Borrowers, as applicable (including,
without duplication, Revolving Credit Advances or Swing Line
Advances requested to be made on such date) determined as
aforesaid, plus the aggregate amount of all outstanding Letter of
Credit Obligations relating to Letters of Credit issued for the
account of any Domestic Permitted Borrower or any Foreign Permitted
Borrower, as applicable (using the Current Dollar Equivalent
thereof for any Letters of Credit denominated in any Alternative
Currency) shall not exceed the applicable Permitted Borrower
Sublimit;”
4. Section
2.14(b) of the Credit Agreement is hereby deleted and the following
is inserted in its place:
“(b) Permitted Borrower
Sublimit . If at any time and for any reason with respect to
the Domestic Permitted Borrowers (with respect to the Permitted
Borrower Sublimit applicable to the Domestic Permitted Borrowers)
or the Foreign Permitted Borrowers (with respect to the Permitted
Borrower Sublimit applicable to the Foreign Permitted Borrowers),
the aggregate principal amount (tested in the manner set forth in
clause (a) above) of all Advances of the Revolving Credit and of
the Swing Line outstanding hereunder to the Domestic Permitted
Borrowers or the Foreign Permitted Borrowers, as applicable, plus
the Letter of Credit Obligations under any Letters of Credit to or
for the account of the Domestic Permitted Borrowers or the Foreign
Permitted Borrowers (tested in the manner set forth in clause (a)
above), as applicable, which Advances and Letters of Credit are
made or issued, or to be made or issued, in Dollars and ninety
percent (90%) of the aggregate Current Dollar Equivalent of all
such Advances and Letter of Credit Obligations for the account of
Domestic Permitted Borrowers or Foreign Permitted Borrowers, as
applicable, in any Alternative Currency as of such time, exceeds
the applicable Permitted Borrower Sublimit (as used in this clause
(b), the “Excess”), then in each case, the Domestic
Permitted Borrowers or the Foreign Permitted Borrowers, as
applicable, shall:
(i) immediately repay that
portion of the Indebtedness outstanding to then carried as a
Prime-based Advance, if any, by the Dollar Amount of such Excess,
and/or reduce on such day any pending request for an Advance in
Dollars submitted by any Domestic Permitted Borrower or Foreign
Permitted Borrower (as applicable) by the Dollar Amount of such
Excess, to the extent thereof; and
(ii) on the last day of each
Interest Period of any Eurocurrency-based Advance outstanding to
any Domestic Permitted Borrower or Foreign Permitted Borrower (as
applicable) as of such time, until the necessary reductions of
Indebtedness under this Section 2.14(b) have been fully made, repay
such Indebtedness carried in such Advances and/or reduce any
requests for refunding or conversion of such Advances submitted (or
to be submitted) by any Domestic Permitted Borrower or Foreign
Permitted Borrower (as applicable) in respect of such Advances, by
the amount in Dollars or the applicable Alternative Currency, as
the case may be, of such Excess, to the extent thereof.
Provided that no Default or Event of Default has
occurred and is continuing, each Permitted Borrower’s
compliance with this Section 2.14(b) shall be tested as of the last
day of each calendar quarter or, upon the written request of
Company from time to time, as of the last day of each calendar
month, provided Company furnishes Agent with current monthly
financial statements complying with the requirements set forth in
Section 7.3(c) hereof. Upon the occurrence and during the
continuance of any Default or Event of Default, compliance with
this Section 2.14(b) shall be tested on a daily or other basis
satisfactory to Agent in its sole discretion.”
5. Section
3.2(b) of the Credit Agreement is hereby deleted in its entirety
and the following is inserted in its place:
“(b) after giving effect to
the Letter of Credit requested (but taking into account any
outstanding Letter of Credit to be replaced thereby), (i) the
aggregate amount of all Letter of Credit Obligations, plus the
aggregate amount of all Advances including, all Advances deemed
disbursed in respect of any Account Party’s Reimbursement
Obligations, (calculated on the basis of the Dollar Amount of any
Advances or Letter of Credit Obligations relating to Letters of
Credit in each case denominated in Dollars and the Current Dollar
Equivalent of any Advances or Letter of Credit Obligations relating
to Letters of Credit denominated in an Alternative Currency)
hereunder requested or outstanding on such date do not exceed the
then applicable Revolving Credit Aggregate Commitment and (ii) if
requested by a Domestic Permitted Borrower or a Foreign Permitted
Borrower, as applicable, the aggregate amount of all Letter of
Credit Obligations issued for the account of the Domestic Permitted
Borrowers or the Foreign Permitted Borrowers, as applicable, plus
the aggregate amount of all Advances to the Domestic Permitted
Borrowers or the Foreign Permitted Borrowers, as applicable, in
each case calculated on the basis of the Dollar Amount of any
Advances or Letter of Credit Obligations relating to Letters of
Credit in each case denominated in Dollars and the Current Dollar
Equivalent of any Advances or Letter of Credit Obligations relating
to Letters of Credit denominated in an Alternative Currency)
hereunder requested or outstanding on such date do not exceed the
then applicable Permitted Borrower Sublimit as to the Domestic
Permitted Borrowers or the Foreign Permitted Borrowers, as
applicable.”
6. Section
3.2 of the Credit Agreement is amended by (i) deleting
“and” at the end of subsection (i); (ii) replacing the
period at the end of sub-section (j) with “; and” and
(iii) adding a new subsection (k) as follows:
“(k) if any Revolving
Credit Lender is an Impaired Lender, the Issuing Lender has entered
into arrangements satisfactory to it to eliminate the Issuing
Lender’s risk with respect to the participation in Letters of
Credit by all such Impaired Lenders, including, without limitation,
the creation of a cash collateral account or delivery of other
security by the Borrowers to assure payment of such Impaired
Lender's Percentage of all outstanding Letter of Credit
Obligations.”
7. The
following new Section 3.6(e) is inserted after Section 3.6(d) of
the Credit Agreement:
“(e) In the event that any
Revolving Credit Lender becomes an Impaired Lender, the Issuing
Lender may, at its option, require that the Borrowers enter into
arrangements satisfactory to it to eliminate the Issuing
Lender’s risk with respect to the participation in Letters of
Credit by such Impaired Lender, including, without limitation, the
creation of a cash collateral account or delivery of other security
by the Borrowers to assure payment of such Impaired Lender's
Percentage of all outstanding Letter of Credit
Obligations.”
8. Section
7.6 of the Credit Agreement is hereby deleted and the following is
inserted in its place:
“7.6 Fixed Charge
Coverage Ratio . Maintain, as of the last day of each fiscal
quarter, a Fixed Charge Coverage Ratio of not less than 2.50 to
1.00 for each fiscal quarter (other than the fiscal quarter ending
September 26, 2009 for which a Fixed Charge Coverage Ratio of not
less than 1.75 to 1.00 is to be maintained).”
9. Section
8.2(e) is amended to delete the words “and any Permitted
Securitization;” and the text of clause (g) of Section 8.5 is
deleted and replaced by the word “Reserved.”
10. Section 11.11 of the Credit Agreement is hereby
deleted and the following is inserted in its place:
“11.11 Substitution of
Lenders . If (a) any Lender shall become an Impaired Lender,
(b) the obligation of any Lender to make Eurocurrency-based
Advances has been suspended pursuant to Section 11.5 or 11.6, (c)
any Lender has demanded compensation under Section 3.4(c), 11.5 or
11.7 or (d) any Lender has not approved an amendment, waiver or
other modification of this Agreement, if such amendment or waiver
has been approved by the Required Lenders and the consent of such
Lender is required (in each case, an “Affected
Lender”), then the Agent or the Borrowers shall have the
right to make written demand on the Affected Lender (with a copy to
the Borrowers in the case of a demand by the Agent or with a copy
to the Agent in the case of a demand by the Borrowers) to assign
and the Affected Lender shall assign, to one or more financial
institutions that comply with the provisions of Section 13.8 hereof
with respect to such assignment (the “Purchasing
Lender” or “Purchasing Lenders”) all of the
Affected Lender’s r
