FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
as of the 30th day of June, 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 (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 5.07 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 5.07. Investments. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except (a) as permitted by
Section 5.06, (b) for Permitted Investments and Hedging Transactions, (c) that
the Borrower and any Subsidiary shall be permitted to acquire (whether through
the organization of a Subsidiary or otherwise) all or any portion of the
capital stock or securities of any Person engaged in the business or
businesses substantially similar to any business currently conducted by the
Borrower or any Subsidiary or make capital contributions to any Wholly-Owned
Subsidiary which is not a Guarantor, but only to the extent that (i) the cost
of any such acquisition or the amount of any such capital contribution, when
aggregated with the total cost of all such acquisitions occurring after the
Closing Date and the total amount of all such capital contributions made after
the Closing Date, does not exceed the Test Amount on the day such acquisition
occurs or such capital contribution is made, and (ii) after giving effect to
such acquisition or capital contribution no Default shall exist, (d)
Investments in Guarantors, (e) Guarantees of loans or advances to employees
made in the ordinary course of business and consistent with practices existing
on the Closing Date, provided, that the aggregate outstanding principal amount
of loans or advances so Guaranteed plus the aggregate principal amount of
loans or advances outstanding under Section 5.06(i) does not exceed One
Million Dollars ($1,000,000) at any time, (f) Investments by Subsidiaries in
the Borrower, and (g) an Investment by Borrower in an insurance company
providing
insurance to the Borrower, provided the amount of such Investment shall not
exceed $50,000 in the aggregate and the percentage ownership of the Borrower
in such insurance company shall not exceed 10%.
SECTION 3. No Other Amendment. 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 4. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Agent and the Banks as follows:
(a) 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 5. 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 6. 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 7. 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
Date
executed: June 30, 1999
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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/ R. Xxxxxxx Xxxxxx [SEAL]
Title:
Director
By:
/S/ Xxxxx X. Xxxxxx [SEAL]
Title:
Director
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FIRST
UNION NATIONAL BANK (formally
known
as First Union National Bank of South Carolina)
By:
/S/ Xxxxx Xxxxx III [SEAL]
Title:
Senior Vice President
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blank]
BANK
OF AMERICA NT & SA
By:
/S/ Xxxxxxx X. Xxxxxx [SEAL]
Title:
Managing Director
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left blank]
