SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
as of the 1st day of July, 1999, among KEMET CORPORATION, a Delaware
corporation (the "Borrower"); WACHOVIA BANK, N.A. as Agent (successor by
merger to Wachovia Bank of Georgia, N.A. and hereinafter referred to as the
"Agent") under the Credit Agreement (as herein defined) and the BANKS named in
the Credit Agreement.
Background:
The Borrower, the Agent and the Banks have entered into a certain
Credit Agreement dated as of October 18, 1996, as amended by a First Amendment
to Credit Agreement dated as of August 30, 1997, as further amended by a
Second Amendment to Credit Agreement dated as of March 31, 1998, as further
amended by a Third Amendment to Credit Agreement dated as of September 9, 1998
and as further amended by a Fourth Amendment to Credit Agreement dated as of
December 31, 1998 and as further amended by a Fifth Amendment to Credit
Agreement dated as of June 30, 1999 (as amended, the "Credit Agreement").
The Borrower, the Agent and the Banks wish to further amend the
Credit Agreement in certain respects, as hereinafter provided.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein which are
not otherwise defined herein shall have the respective meanings assigned to
them in the Credit Agreement.
SECTION 2. Amendment. Section 1.01 of the Credit Agreement is
hereby amended restated by deleting the definition of "Significant
Subsidiaries" in its entirety and inserting in place thereof the following:
"Significant Subsidiaries" means (a) KRC, (b) the Domestic Significant
Subsidiaries listed on Schedule 4.08B and the Foreign Significant Subsidiaries
listed on Schedule 4.08C, and (c) on any date any Subsidiary of the Borrower
which has either (i) Total Assets on the last day of the Fiscal Quarter most
recently ended equal to or greater than 10% of Consolidated Total Assets on
the last day of the Fiscal Quarter most recently ended, (ii) Operating Profits
for the period of 4 consecutive Fiscal Quarters most recently ended prior to
such date equal to or greater than 10% of Consolidated Operating Profits for
such period of 4 consecutive Fiscal Quarters, or (iii) gross revenues for the
period of 4 consecutive Fiscal Quarters most recently ended prior to such date
equal to or greater than 10% of gross revenues of the Borrower and its
Consolidated Subsidiaries for such period of 4 consecutive Fiscal Quarters;
provided that (x) any Subsidiary of the Borrower that is a "foreign sales
corporation" as defined in Section 922(a) of the code shall not be deemed to
be a Significant Subsidiary and (u) KEMET de Mexico, S.A. de C.V. shall not be
deemed to be a Significant Subsidiary unless it satisfies the criteria
contained in clause (c)(i) or (c)(iii) of this definition, whether or not it
satisfies clause (c)(ii).
SECTION 3. Conditions to Effectiveness. The effectiveness of this
Amendment and the obligations of the Banks hereunder are subject to the
following conditions, unless the Banks waive such conditions:
(a) receipt by the Agent from each of the parties hereto of either (i) a
duly executed counterpart of the Amendment signed by such party or (ii) a
facsimile transmission stating that such party has duly executed a counterpart
of this Amendment and sent such counterpart to the Agent;
(b) the fact that the representations and warranties of the Borrower
contained in Section 6 of this Amendment shall be true in all material
respects on and as of the date hereof.
SECTION 4. Waiver. The Agent and the Banks hereby waive any
Default or Event of Default under the Agreement arising from Section 6.01(c)
of the Agreement as a result of the violation of Section 5.21(b) of the
Agreement by the failure of the Borrower to pledge the capital stock of KEMET
de Mexico, S.A. de C.V. The waiver granted herein is effective only for the
fiscal quarters ending March 31, 1999 and June 30, 1999 and is limited solely
to the Default or Event of Default described in the immediately preceding
sentence. The Agent and the Banks expressly reserve all of their rights and
remedies with respect to any other present or future Default or Event of
Default arising under the Agreement (whether or not related to the Default or
Event of Default described in this Section 4).
SECTION 5. No Other Amendments. Except for the amendment set forth
above, the text of the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment shall be
construed together as a single instrument and any reference to the "Agreement"
or any other defined term for the Credit Agreement in the Credit Agreement,
the Notes or any certificate, instrument or other document delivered pursuant
thereto shall mean the Credit Agreement as amended hereby and as it may be
amended, supplemented or otherwise modified hereafter.
SECTION 6. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Agent and the Banks as follows:
(a) Following the effectiveness of the Amendment, no Default or Event of
Default under the Credit Agreement has occurred and is continuing on the date
hereof;
(b) The Borrower has the corporate power and authority to enter into this
Amendment and to do all acts and things as are required or contemplated
hereunder to be done, observed and performed by it;
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and each of this
Amendment and the Credit Agreement, as amended hereby constitutes the legal,
valid and binding obligation of the Borrower enforceable
against it in accordance with its terms; provided, that the enforceability of
each of this Amendment and the Credit Agreement as amended hereby is subject
to general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally; and
(d) The execution and delivery of this Amendment and the Borrower's
performance hereunder and under the Credit Agreement as amended hereby do not
and will not require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over the Borrower other
than those which have already been obtained or given, nor be in contravention
of or in conflict with the Articles of Incorporation or Bylaws of the
Borrower, or the provision of any statute, or any judgment, order or
indenture, instrument, agreement or undertaking, to which the Borrower is a
party or by which its assets or properties are or may become bound.
SECTION 7. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of
which, taken together, shall constitute one and the same agreement.
SECTION 8. Governing Law. This Amendment shall be deemed to be made
pursuant to the laws of the State of Georgia with respect to agreements made
and to be performed wholly in the State of Georgia and shall be construed,
interpreted, performed and enforced in accordance therewith.
SECTION 9. Effective Date. This Amendment shall become effective as of
the date first set forth above, upon receipt by the Agent from each of the
parties hereto of either a duly executed signature page from a counterpart of
this Amendment or a facsimile transmission of a duly executed signature page
from a counterpart of this Amendment, signed by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed under seal by their respective authorized officers as of the day and
year first above written.
BORROWER:
KEMET
CORPORATION
By:
/S/ D. R. Cash [SEAL]
Title:
Senior Vice President-Administration
and
Treasurer
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WACHOVIA BANK, N.A. (successor by merger
to
Wachovia Bank of Georgia, N.A. and Wachovia
Bank
of South Carolina, N.A. and formerly known
as
Wachovia Bank of North Carolina, N.A.),
as
Agent and as a Bank
By:
/S/ Xxxxxxxx Xxxxx [SEAL]
Title:
Vice President
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ABN
AMRO BANK N.V. ATLANTA AGENCY,
as
Co-Agent and Bank
By:
/S/ Xxxxx X. Xxxxxx [SEAL]
Title: Vice President
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blank]
SUNTRUST BANK, ATLANTA
By:
/S/ Xxxx Xxxxxx [SEAL]
Title:
Vice President
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FIRST
UNION NATIONAL BANK (formally
known
as First Union National Bank of South Carolina)
By:
/S/ Xxxxxxx X. Xxxxx [SEAL]
Title:
Vice President
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blank]
BANK
OF AMERICA NT & SA
By:
/S/ Xxxxx XxXxxxx [SEAL]
Title:
Managing Director
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