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COPY AS EXECUTED
U.S. $100,000,000
CREDIT AGREEMENT
Dated as of August 31, 1995
Among
MAXTOR CORPORATION
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
AND THE ISSUING BANK
as Initial Lenders and the Issuing Bank
and
CITIBANK, N.A.
as Administrative Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms................................................................... 1
SECTION 1.02. Computation of Time Periods............................................................. 15
SECTION 1.03. Accounting Terms........................................................................ 15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Revolving Credit Advances........................................................... 15
SECTION 2.02. Making the Revolving Credit Advances.................................................... 16
SECTION 2.03. The Competitive Bid Advances............................................................ 17
SECTION 2.04. Fees.................................................................................... 22
SECTION 2.05. Termination, Reduction or Extension of the Commitments.................................. 23
SECTION 2.06. Repayment of Revolving Credit Advances.................................................. 25
SECTION 2.07. Interest on Revolving Credit Advances................................................... 25
SECTION 2.08. Interest Rate Determination............................................................. 26
SECTION 2.09. Optional Conversion of Revolving Credit Advances........................................ 27
SECTION 2.10. Prepayments............................................................................. 28
SECTION 2.11. Increased Costs......................................................................... 28
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SECTION 2.12. Illegality.............................................................................. 29
SECTION 2.13. Payments and Computations............................................................... 30
SECTION 2.14. Taxes................................................................................... 31
SECTION 2.15. Sharing of Payments, Etc................................................................ 33
SECTION 2.16. Use of Proceeds......................................................................... 34
SECTION 2.17. Issuance of and Drawings and Reimbursement Under Letters of Credit...................... 34
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01, 2.03 and 2.17................... 39
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing and Issuance.................... 41
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing.................................. 41
SECTION 3.04. Determinations Under Section 3.01....................................................... 42
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.......................................... 43
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.................................................................. 46
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SECTION 5.02. Negative Covenants..................................................................... 50
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default....................................................................... 53
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default................................ 56
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action................................................................ 57
SECTION 7.02. Administrative Agent's Reliance, Etc.................................................... 57
SECTION 7.03. Citibank and Affiliates................................................................. 58
SECTION 7.04. Lender and Issuing Bank Credit Decision................................................. 58
SECTION 7.05. Indemnification......................................................................... 58
SECTION 7.06. Successor Administrative Agent.......................................................... 60
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc......................................................................... 61
SECTION 8.02. Notices, Etc............................................................................ 61
SECTION 8.03. No Waiver; Remedies..................................................................... 62
SECTION 8.04. Costs and Expenses...................................................................... 62
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SECTION 8.05. Right of Set-off........................................................................ 64
SECTION 8.06. Binding Effect.......................................................................... 64
SECTION 8.07. Assignments and Participations.......................................................... 64
SECTION 8.08. Confidentiality......................................................................... 68
SECTION 8.09. Governing Law........................................................................... 68
SECTION 8.10. Execution in Counterparts............................................................... 68
SECTION 8.11. Jurisdiction, Etc....................................................................... 68
SECTION 8.12. Waiver of Jury Trial.................................................................... 69
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Schedules
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Schedule I - List of Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations and Approvals
Schedule 4.01(e) - Material Adverse Changes
Schedule 5.02(a) - Existing Liens
Schedule 5.02(b)(iii)(B) - Permitted Debt Transactions
Schedule 5.02(b)(iii)(D) - Surviving Debt
Exhibits
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Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Notice of Extension of Termination Date
Exhibit E - Form of Guaranty
Exhibit F-1 - Form of Opinion of New York Counsel for the Borrower
Exhibit F-2 - Form of Opinion of General Counsel to the Borower
Exhibit G-1 - Form of Opinion of Counsel for the Guarantor
Exhibit G-2 - Form of Opinion of Corporate Counsel for the
Guarantor
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CREDIT AGREEMENT
Dated as of August 31, 1995
MAXTOR CORPORATION, a Delaware corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders listed on the
signature pages hereof as the Initial Lenders (the "Initial Lenders"), the
Issuing Bank (the "Issuing Bank") and CITIBANK, N.A. ("Citibank"), as
administrative agent (the "Administrative Agent") for the Lenders and the
Issuing Bank (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank
with its office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Zone ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Advance" means a Revolving Credit Advance, a Competitive Bid
Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Applicable Lending Office" means, with respect to each Lender
and the Issuing Bank, such Lender's and the Issuing Bank's Domestic
Lending Office in the case of a
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Base Rate Advance and such Lender's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Administrative Agent as its Applicable Lending Office with respect to
such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per
annum equal to 0% for Base Rate Advances and .3% for Eurodollar Rate
Advances.
"Assigning Lender" has the meaning specified in Section
8.07(c).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender or the Issuing Bank and an Eligible Assignee,
and accepted by the Administrative Agent, in substantially the form of
Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted to
the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such three-
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week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal
time deposits in the United States, plus (iii) the average
during such three-week period of the annual assessment rates
estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance or Letter
of Credit Advance that bears interest as provided in Section
2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive
Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City, San Francisco
or Philadelphia and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"CSI" means Citicorp Securities, Inc.
"Commitment" means a Revolving Credit Commitment or a Letter of
Credit Commitment.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more
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Competitive Bid Advances as part of such borrowing has been accepted
under the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.03(c).
"Confidential Information" means information that the Borrower
furnishes to the Administrative Agent, any Lender or the Issuing Bank
in a writing designated as confidential, but does not include any such
information that is or becomes generally available to the public or
that is or becomes available to the Administrative Agent, such Lender
or the Issuing Bank from a source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services,
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such
Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale
of such property), (e) all obligations of such Person as lessee under
leases that have been or should be, in accordance with GAAP, recorded
as capital leases, (f) all obligations, contingent or otherwise, of
such Person in respect of acceptances, letters of credit or similar
extensions of credit, (g) all Debt of others referred to in clauses (a)
through (f) above or clause (h) below guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (1) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of
such Debt, (2) to purchase, sell or lease (as lessee or lessor)
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property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the
holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received
or such services are rendered) or (4) otherwise to assure a creditor
against loss, and (h) all Debt referred to in clauses (a) through (g)
above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
"Declining Lender" has the meaning specified in Section
2.05(c).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means, with respect to any Lender or
the Issuing Bank, the office of such Lender or the Issuing Bank
specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender or the Issuing Bank, or such other office of such
Lender or the Issuing Bank as such Lender or the Issuing Bank may from
time to time specify to the Borrower and the Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus
of at least $250,000,000; (iv) a commercial bank organized under the
laws of any other country that is a member of the Organization for
Economic Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having a combined capital and surplus of at least
$250,000,000, so long as such bank is acting through a branch or agency
located in the country in which it is organized or another country that
is described in this clause (iv); and (v) any other Person approved by
the Administrative Agent and the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that neither the
Loan Parties nor an Affiliate of either of the Loan Parties shall
qualify as an Eligible Assignee.
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"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of either Loan Party's controlled group, or
under common control with either Loan Party, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator
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of any Plan of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of either Loan Party or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by either Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit
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Borrowing shall be determined by the Administrative Agent on the basis
of applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions of Section
2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances or LIBO Rate Advances is determined) having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means the Financing Agreement dated
September 16, 1993 between the Borrower and The CIT Group/Business
Credit, Inc., as agent and lender.
"Extending Lender" has the meaning specified in Section
2.05(c).
"Facilities" means the Revolving Credit Facility and the Letter
of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the
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Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Guarantor" means Hyundai Electronics Industries Co., Ltd., a
company incorporated with limited liability in the Republic of Korea.
"Guaranty" has the meaning specified in Section 3.01(h)(iv).
"Guaranty and Recourse Agreement" means the Guaranty and
Recourse Agreement dated as of August 31, 1995 between the Borrower and
the Guarantor.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hyundai Group" means, collectively, the Guarantor, Hyundai
Merchant Marine, Hyundai Corporation and Hyundai Heavy Industries Co.,
Ltd.
"Information Memorandum" means the information memorandum dated
August 9, 1995, used by the Administrative Agent in connection with the
syndication of the Commitments.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the
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last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 12:00 P.M. (noon)
(New York City time) on the third Business Day, in the case of a
Revolving Credit Borrowing, or on the fourth Business Day, in the case
of a Competitive Bid Borrowing, prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period
to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business
Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there is
no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Issuing Bank" means the Issuing Bank approved pursuant to
Section 2.17 and each Eligible Assignee to which the Letter of Credit
Commitment hereunder has been assigned pursuant to Section 8.07.
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"L/C Cash Collateral Account" means the interest-bearing cash
collateral account to be established and maintained by the
Administrative Agent, over which the Administrative Agent shall have
sole dominion and control, upon terms as may be satisfactory to the
Administrative Agent.
"L/C Related Documents" has the meaning specified in Section
2.17.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereto pursuant to Section 8.07.
"Letter of Credit" has the meaning specified in Section 2.17.
"Letter of Credit Advance" means an advance made by the Issuing
Bank or any Lender pursuant to Section 2.17.
"Letter of Credit Agreement" has the meaning specified in
Section 2.17.
"Letter of Credit Commitment" means, with respect to the
Issuing Bank at any time, (a) $30,000,000 or (b) if the Issuing Bank
has entered into any Assignment and Acceptance, the amount set forth
for the Issuing Bank in the Register maintained by the Administrative
Agent pursuant to Section 8.07(e) as the Issuing Bank's "Letter of
Credit Commitment", as such amount may be reduced pursuant to Section
2.05.
"Letter of Credit Facility" means, at any time, the amount of
the Issuing Bank's Letter of Credit Commitment at such time.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Administrative Agent on the basis
of applicable rates furnished to and received by the Administrative
Agent from the
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Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means this Agreement, the Notes, the Guaranty,
and each Letter of Credit Agreement, in each case as amended or
otherwise modified from time to time.
"Loan Parties" means the Borrower and the Guarantor.
"Material Adverse Change" means any material adverse change in
the business, financial condition, operations, performance, properties
or prospects of either Loan Party or either Loan Party and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, financial condition, operations, performance,
properties or prospects of either Loan Party or either Loan Party and
its Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent, any Lender or the Issuing Bank under this
Agreement or any other Loan Document or (c) the ability of either Loan
Party to perform its obligations under this Agreement or any other Loan
Document.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which either Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of either Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which either Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
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"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified
in Section 2.03(a).
"Notice of Issuance" has the meaning specified in Section 2.17.
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes; (e) Liens consisting
of judgment or judicial attachment liens, provided that the enforcement
of such Liens is effectively stayed; (f) Liens on assets of
corporations that become Subsidiaries after the date of this Agreement,
provided, however, that such Liens existed at the time the respective
corporations became Subsidiaries and were not created in anticipation
thereof or in connection with the creation of such Subsidiaries; (g)
Liens securing Capitalized Lease obligations on assets subject to such
Capitalized Leases, provided that such Capitalized Leases are permitted
under subsection 5.02(b)(iii)(C); (h) Liens arising solely by virtue of
any statutory or common law provision relating to banker's liens,
rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository institution;
provided that (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by
the Borrower in excess of those set forth by regulations promulgated by
the Federal Reserve Board, and (ii) such deposit account is not
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intended by the Borrower or any of its Subsidiaries to provide
collateral to the depository institution.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time and the denominator of which is the Revolving
Credit Facility at such time.
"Reference Banks" means Citibank, Societe Generale and The
Industrial Bank of Japan, Limited, San Francisco Agency.
"Register" has the meaning specified in Section 8.07(e).
"Reimbursement Obligation" means the obligation of the Borrower
to reimburse the Issuing Bank pursuant to Section 2.17(d) for amounts
drawn under the Letters of Credit and other amounts reimbursable by the
Borrower thereunder.
"Required Lenders" means at any time Lenders owed or holding at
least 66 2/3% of the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time, or, if no
such principal amount and no Letters of Credit are outstanding at such
time, Lenders holding at least 66 2/3% of the Revolving Credit
Facility at such time.
"Responsible Officer" means any officer of the Borrower.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
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"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Commitment" means, with respect to any Lender
at any time, (a) the amount set forth opposite such Lender's name on
the signature pages hereof under the caption "Revolving Credit
Commitment" or (b) if such Lender has increased its Revolving Credit
Commitment pursuant to Section 2.05(c) or has entered into any
Assignment and Acceptance, the amount set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
8.07(e) as such Lender's "Revolving Credit Commitment", as such amount
may be reduced pursuant to Section 2.05 or by Competitive Bid
Reductions.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender.
"Securitization" means transaction Number 1 described on
Schedule 5.02(b)(iii)(B).
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of either Loan Party or any ERISA Affiliate and no Person other than
the Loan Parties and the ERISA Affiliates or (b) was so maintained and
in respect of which either Loan Party or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subordinated Debt" means any Debt of the Borrower that
is subordinated to the obligations of the Borrower under the Loan
Documents on, and that otherwise contains, terms and conditions
satisfactory to the Required Lenders.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a
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majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Surviving Debt" means Debt of the Borrower identified on
Schedule 5.02(b)(iii)(D) hereto.
"Termination Date" means, with respect to each Lender and the
Issuing Bank, the earlier of (a) August 29, 1996 or, if extended
pursuant to Section 2.05(c), the date to which the Commitment of such
Lender or the Issuing Bank, as the case may be, is so extended pursuant
to Section 2.05(c) and (b) the date of termination in whole of the
Commitments pursuant to Section 2.05 or 6.01.
"Unused Revolving Credit Commitment" means, with respect to any
Lender at any time, (a) such Lender's Revolving Credit Commitment
(computed with regard to all existing Competitive Bid Reductions) at
such time minus (b) the sum of (i) the aggregate principal amount of
all Revolving Credit Advances and Letter of Credit Advances made by
such Lender (in its capacity as a Lender) and outstanding at such time,
plus (ii) such Lender's Pro Rata Share of (A) the aggregate Available
Amount of all Letters of Credit outstanding at such time and (B) the
aggregate principal amount of all Letter of Credit Advances made by the
Issuing Bank pursuant to Section 2.17(d) and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
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SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with, in the case
of the Borrower, generally accepted accounting principles, and, in the case of
the Guarantor, generally accepted financial accounting standards in the Republic
of Korea consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
amount for each such Advance not to exceed such Lender's Unused Revolving Credit
Commitment at such time. Each Revolving Credit Borrowing shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or, if less, an aggregate amount equal to the amount by which the
aggregate amount of a proposed Competitive Bid Borrowing requested by the
Borrower exceeds the aggregate amount of Competitive Bid Advances offered to be
made by the Lenders and accepted by the Borrower in respect of such Competitive
Bid Borrowing, if such Competitive Bid Borrowing is made on the same date as
such Revolving Credit Borrowing) and shall consist of Revolving Credit Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Revolving Credit Commitments. Within the limits of each Lender's
Unused Revolving Credit Commitment, the Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than
12:00 P.M. (noon) (New York City time) on the third Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurodollar Rate Advances, or the Business Day
of the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, by the Borrower to the
Administrative Agent,
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which shall give to each Lender prompt notice thereof by telecopier or telex.
Each such notice of a Revolving Credit Borrowing (a "Notice of Revolving Credit
Borrowing") shall be by telephone, confirmed immediately in writing, or
telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Revolving Credit Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 3:00 P.M. (New York City time) on the date of such Revolving Credit
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's ratable portion of such Revolving Credit Borrowing. After
the Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower at the Administrative Agent's address
referred to in Section 8.02 not later than 4:00 P.M. (New York City time);
provided, however, that the Administrative Agent shall first make a portion of
such funds equal to the aggregate principal amount of any Letter of Credit
Advances made by the Issuing Bank and by any other Lender and outstanding on the
date of such Borrowing, plus interest accrued and unpaid thereon to and as of
such date, available to the Issuing Bank and such other Lenders for repayment of
such Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $5,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or
2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of
more than five separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Notice of
Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit
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Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Revolving Credit Borrowing that such
Lender will not make available to the Administrative Agent such Lender's ratable
portion of such Revolving Credit Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative Agent on
the date of such Revolving Credit Borrowing in accordance with subsection (a) of
this Section 2.02 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to Revolving Credit Advances comprising
such Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Revolving Credit Commitments of the
Lenders (computed without regard to any Competitive Bid Reduction); and provided
further that the aggregate amount of any proposed Competitive Bid Borrowing and
any Revolving Credit Borrowings to be made on the same day is within the
aggregate amount of the Unused Revolving Credit Commitments of the Lenders.
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(i) The Borrower may request a Competitive Bid Borrowing
under this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice
of Competitive Bid Borrowing "), in substantially the form of Exhibit
B-2 hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances,
maturity date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date may not be
earlier than the date occurring 14 days after the date of such
Competitive Bid Borrowing or later than the earlier of (I) 180 days
after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (y) interest payment date or dates relating thereto,
and (z) other terms (if any) to be applicable to such Competitive Bid
Borrowing, not later than 12:00 P.M. (noon) (New York City time) (A) at
least one Business Day prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall specify in the Notice of
Competitive Bid Borrowing that the rates of interest to be offered by
the Lenders shall be fixed rates per annum (the Advances comprising any
such Competitive Bid Borrowing being referred to herein as " Fixed Rate
Advances") and (B) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the rates of
interest be offered by the Lenders are to be based on the LIBO Rate
(the Advances comprising such Competitive Bid Borrowing being referred
to herein as "LIBO Rate Advances"). Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on the Borrower. The
Administrative Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received by it from the
Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which shall give
prompt notice thereof to the Borrower), before 9:30 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
and before 10:00 A.M. (New York City time) three Business Days before
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, of the
minimum amount and maximum amount of each Competitive Bid
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Advance that such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts may, subject to the
first proviso to the first sentence of this Section 2.03(a), exceed
such Lender's Revolving Credit Commitment, if any), the rate or rates
of interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if the
Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower
of such offer at least 30 minutes before the time and on the date on
which notice of such election is to be given to the Administrative
Agent by the other Lenders. If any Lender shall elect not to make such
an offer, such Lender shall so notify the Administrative Agent, before
10:00 A.M. (New York City time) on the date on which notice of such
election is to be given to the Administrative Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance
as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 12:00 P.M.(noon) (New York City time) three
Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Administrative Agent of the
amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be
made by each Lender as part of such Competitive Bid Borrowing,
and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative Agent notice
to that effect. The Borrower shall accept the offers made by
any Lender or Lenders to make Competitive Bid Advances in order
of the lowest to the highest rates of interest
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offered by such Lenders. If two or more Lenders have offered
the same interest rate, the Borrower may, in its sole
discretion, accept one or more such offers and reject the
remainder of such offers. The aggregate amount of the
Competitive Bid Advances made as part of a Competitive Bid
Borrowing shall not exceed the aggregate amount of the proposed
Competitive Bid Borrowing requested by the Borrower in the
related Notice of Competitive Bid Borrowing.
(iv) If the Borrower notifies the Administrative Agent that
such Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Administrative Agent shall give prompt notice
thereof to the Lenders and such Competitive Bid Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not
any offer or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, of the amount of each Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing, and (C) each
Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Administrative Agent
has received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 12:00 noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's address referred to in Section 8.02 not
later than 3:00 P.M. (New York City time). Promptly after each
Competitive Bid Borrowing the Administrative Agent will notify each
Lender of the amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive Bid
Reduction commenced and will terminate.
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(vi) If the Borrower notifies the Administrative Agent that it
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, such notice of acceptance shall
be irrevocable and binding on the Borrower. The Borrower shall
indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in the related Notice of Competitive Bid Borrowing for such
Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing when such Competitive Bid
Advance, as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower shall
be in compliance with the limitation set forth in the first proviso to the first
sentence of subsection (a) above.
(c) The aggregate amount of the Revolving Credit Commitments of
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the Competitive Bid Advances then outstanding and such
deemed use of the aggregate amount of the Revolving Credit Commitments shall be
allocated among the Lenders ratably according to their respective Revolving
Credit Commitments (such deemed use of the aggregate amount of the Revolving
Credit Commitments being a "Competitive Bid Reduction").
(d) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (e) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(e) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by the Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such
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Competitive Bid Advance. The Borrower shall have no right to prepay any
principal amount of any Competitive Bid Advance unless, and then only on the
terms, specified by the Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the Competitive Bid Note evidencing such Competitive Bid
Advance.
(f) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on the amount of
unpaid principal of and interest on each Competitive Bid Advance owing to a
Lender, payable in arrears on the date or dates interest is payable thereon, at
a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Competitive Bid Advance under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance unless otherwise
agreed in such Competitive Bid Note.
(g) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a facility fee on
the aggregate amount of such Lender's Revolving Credit Commitment from the date
hereof in the case of each Initial Lender and from the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date at a rate per annum equal
to .125%, payable in arrears quarterly on the last Business Day of each March,
June, September and December, commencing September 30, 1995, and on the
Termination Date.
(b) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
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(c) Letter of Credit Fees. (i) On the date each Letter of
Credit is issued, the Borrower shall pay to the Issuing Bank a Letter of Credit
issuance fee of .10% per annum of the face amount of such Letter of Credit,
calculated for the period between the date of issuance and the date of
cancellation of such Letter of Credit.
(ii) On the date each Letter of Credit is issued, the Borrower
shall pay to the Adminsitrative Agent for the account of the Lenders a Letter of
Credit issuance fee equalling in the aggregate .30% per annum of the face amount
of such Letter of Credit, calculated for the period between the date of issuance
and the date of cancellation of such Letter of Credit, payable to the Lenders
ratably in accordance with their respective Revolving Credit Commitments.
SECTION 2.05. Termination, Reduction or Extension of the
Commitments. (a) Termination and Reduction. The Borrower shall have the right,
upon at least three Business Days' notice to the Administrative Agent, to
permanently terminate in whole or reduce in part the unused portions of the
Revolving Credit Commitments and the Letter of Credit Facility, provided that
(i) each partial reduction of a Facility shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) each
partial reduction of the Revolving Credit Facility shall be made ratably among
the Lenders in accordance with their Revolving Credit Commitments with respect
to such Facility and (iii) the aggregate amount of the Revolving Credit
Commitments of the Lenders shall not be reduced to an amount that is less than
the aggregate principal amount of the Competitive Bid Advances then outstanding.
(b) Letter of Credit Automatic Reduction. The Letter of Credit
Facility shall be permanently reduced from time to time on the date of each
reduction in the Revolving Credit Facility by the amount, if any, by which the
amount of the Letter of Credit Facility exceeds the Revolving Credit Facility
after giving effect to such reduction of the Revolving Credit Facility.
(c) Extensions. (i) At any time no earlier than 45 days and no
later than 30 days prior to the Termination Date in effect at any time, the
Borrower may, by written notice to the Administrative Agent, request that the
Termination Date then in effect be extended for all or a portion of the
Revolving Credit Commitments for a period of 364 days. Such request shall be
irrevocable and binding upon the Borrower. The Administrative Agent shall
promptly notify each Lender of such request. The Lenders shall have no
obligation whatsoever to agree to any request made by the Borrower for the
extension of the Termination Date for the Revolving Credit Commitments. If a
Lender agrees, in its individual and sole discretion, to so
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extend all or a portion of its Revolving Credit Commitment (an "Extending
Lender"), it shall deliver to the Administrative Agent a notice of its agreement
to do so, in substantially the form of Exhibit D hereto, no earlier than 30 days
and no later than 20 days prior to such Termination Date and the Administrative
Agent shall notify the Borrower of such Extending Lender's agreement to extend
its Revolving Credit Commitment no later than 15 days prior to such Termination
Date. The Revolving Credit Commitment of any Lender that fails to accept or
respond to the Borrower's request for extension of the Termination Date (a
"Declining Lender") shall be terminated on the Termination Date then in effect
(without regard to any extension by other Lenders) and on such Termination Date
the Borrower shall pay in full the principal amount of all Advances owing to
such Declining Lender, together with accrued interest thereon to the date of
payment of such principal amount, all facility fees and other fees payable to
such Declining Lender and all other amounts payable to such Declining Lender
under this Agreement (including, but not limited to, any increased costs or
other additional amounts (computed in accordance with Section 2.11) and any
Taxes incurred by such Declining Lender prior to such Termination Date and
amounts payable under Section 8.04(a)). The Extending Lenders, or any of them,
in their sole discretion may offer to increase their respective Revolving Credit
Commitments by an aggregate amount that shall not exceed the sum of the
aggregate amount of the Declining Lenders' Revolving Credit Commitments plus the
aggregate amount of the Extending Lenders' Revolving Credit Commitments for
which such Extending Lenders have not extended the Termination Date. Each such
Extending Lender shall deliver to the Administrative Agent a notice, in
substantially the form of Exhibit D hereto, of its offer to so increase its
Revolving Credit Commitment no later than 15 days prior to such Termination
Date. The Borrower shall, no later than one day before the Termination Date,
deliver to the Administrative Agent a notice setting forth the Revolving Credit
Commitments of the Extending Lenders, if any, that are to become or be effective
as of the Termination Date. If the Extending Lenders provide Revolving Credit
Commitments in an aggregate amount equal to at least 66 2/3% of the aggregate
amount of the Revolving Credit Commitments requested by the Borrower to be
extended, then, effective on the Termination Date in effect at the time of the
Borrower's request, (A) the Termination Date shall be extended by 364 days for
such Extending Lenders' Revolving Credit Commitments and (B) the Revolving
Credit Commitment of each Extending Lender shall be the amount specified in the
notice provided by the Borrower to the Administrative Agent (which amount shall
not exceed the amount specified by such Extending Lender in its most recent
notice to the Administrative Agent). A maximum of two extensions of the
Termination Date are permitted under this Section 2.05(c)(i).
(ii) At any time no earlier than 45 days and no later than 30
days prior to the Termination Date in effect at any time, the Borrower may, by
written notice to the
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Administrative Agent, request that the Termination Date then in effect be
extended for all of the Letter of Credit Commitment for a period of 364 days.
Such request shall be irrevocable and binding upon the Borrower, unless the
Termination Date for the Revolving Credit Commitments shall fail to be extended
by operation of Section 2.05(c)(i). The Administrative Agent shall promptly
notify the Issuing Bank of such request. The Issuing Bank shall have no
obligation whatsoever to agree to any request made by the Borrower for the
extension of the Termination Date for the Letter of Credit Commitment. If the
Issuing Bank agrees, in its individual and sole discretion, to so extend all of
its Letter of Credit Commitment, it shall deliver to the Administrative Agent a
written notice of its agreement to do so no earlier than 30 days and no later
than 20 days prior to such Termination Date and the Administrative Agent shall
notify the Borrower of the Issuing Bank's agreement to extend its Letter of
Credit Commitment no later than 15 days prior to such Termination Date. Then,
effective on the Termination Date in effect at the time of the Borrower's
request, the Termination Date shall be extended by 364 days for the Issuing
Bank's Letter of Credit Commitment. If the Issuing Bank fails to accept or
respond to the Borrower's request for extension of the Termination Date, the
Issuing Bank's Letter of Credit Commitment shall be terminated on the
Termination Date then in effect (without regard to any extension by the Lenders
of their Revolving Credit Commitments) and on such Termination Date the Borrower
shall pay in full the principal amount of all Advances owing to the Issuing
Bank, together with accrued interest thereon to the date of payment of such
principal amount, all issuance fees and other fees payable to the Issuing Bank
and all other amounts payable to the Issuing Bank under this Agreement
(including, but not limited to, any increased costs or other additional amounts
(computed in accordance with Section 2.11) and any Taxes incurred by the Issuing
Bank prior to such Termination Date and amounts payable under Section 8.04(a)).
A maximum of two extensions of the Termination Date are permitted under this
Section 2.05(c)(ii).
SECTION 2.06. Repayment of Revolving Credit Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Revolving
Credit Advances then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x)
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the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Revolving Credit Advance owing to each Lender, payable
in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate and each LIBO Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Administrative Agent
shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
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(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and (ii) the
obligation of the Lenders to make, or to Convert Revolving Credit Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks in good faith are unable
to furnish timely information to the Administrative Agent for determining the
Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or LIBO Rate
Advances, as the case may be,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances or LIBO Rate Advances, as the case
may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into
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a Base Rate Advance (or if such Advance is then a Base Rate Advance,
will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances.
The Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than 12:00 P.M. (noon) (New York City time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.08 and 2.12, Convert all Revolving Credit Advances of
one Type comprising the same Borrowing into Revolving Credit Advances of the
other Type; provided, however, that any Conversion of Eurodollar Rate Advances
into Base Rate Advances shall be made only on the last day of an Interest Period
for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Revolving Credit Advances
shall result in more separate Revolving Credit Borrowings than permitted under
Section 2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Advance. Each notice of Conversion shall be irrevocable and binding on the
Borrower.
SECTION 2.10. Prepayments. (a) Optional. The Borrower may, with
notice given to the Administrative Agent not later than 12:00 P.M. (noon) (New
York City time) on the same Business Day for Base Rate Advances, or with at
least two Business Days' notice to the Administrative Agent for Eurodollar Rate
Advances, stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amount of the Revolving Credit Advances comprising part of
the same Revolving Credit Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
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(b) Mandatory. The Borrower shall, on each Business Day, prepay
an aggregate principal amount of the Revolving Credit Advances comprising part
of the same Revolving Credit Borrowings and the Letter of Credit Advances equal
to the amount by which (A) the sum of the aggregate principal amount of (x) the
Revolving Credit Advances and (y) the Letter of Credit Advances then outstanding
plus the aggregate Available Amount of all Letters of Credit then outstanding
exceeds (B) the Revolving Credit Facility on such Business Day. If, after giving
effect to the foregoing prepayments, the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility, then
the Borrower shall pay to the Administrative Agent on behalf of the Lenders and
the Issuing Bank in same day funds, for deposit in the L/C Cash Collateral
Account, an aggregate amount equal to such excess in accordance with
arrangements reasonably satisfactory to the Administrative Agent.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender or the Issuing Bank of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances or
LIBO Rate Advances, of agreeing to issue or of issuing or maintaining Letters of
Credit or of agreeing to make or of making Letter of Credit Advances (excluding
for purposes of this Section 2.11 any such increased costs resulting from (i)
Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in
the basis of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the laws of which
such Lender or the Issuing Bank is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender or the Issuing Bank (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender or the Issuing Bank additional amounts sufficient to
compensate such Lender or the Issuing Bank for such increased cost. A
certificate as to the amount of such increased cost, setting forth the
calculation of the increased cost in reasonable detail, submitted to the
Borrower and the Administrative Agent by such Lender or the Issuing Bank, shall
be conclusive and binding for all purposes, absent manifest error; provided that
the Borrower shall have no obligation to any Lender or the Issuing Bank under
this Section 2.11(a) if such Lender or the Issuing Bank shall not have delivered
such certificate to the Borrower within sixty days following the later of (1)
the date of the occurrence of the event that forms the basis for such demand and
(2) the date such Lender or the Issuing Bank, as the case may be, shall have or
should reasonably have become aware of such event.
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(b) If any Lender or the Issuing Bank determines that
compliance with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be
maintained by such Lender or the Issuing Bank or any corporation controlling
such Lender or the Issuing Bank and that the amount of such capital is increased
by or based upon the existence of such Lender's or the Issuing Bank's commitment
to lend hereunder and other commitments of this type or the issuance or
maintenance of Letters of Credit (or similar contingent obligations), then, upon
demand by such Lender or the Issuing Bank (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender or the Issuing Bank, from time to time as specified
by such Lender or the Issuing Bank, additional amounts sufficient to compensate
such Lender or the Issuing Bank or such corporation in the light of such
circumstances, to the extent that such Lender or the Issuing Bank reasonably
determines such increase in capital to be allocable to the existence of such
Lender's or the Issuing Bank's commitment to lend hereunder or to the issuance
or maintenance of any Letters of Credit. A certificate as to such amounts
setting forth the calculation of the increased cost in reasonable detail,
submitted to the Borrower and the Administrative Agent by such Lender or the
Issuing Bank, shall be conclusive and binding for all purposes, absent manifest
error; provided that the Borrower shall have no obligation to any Lender or the
Issuing Bank under this Section 2.11(b) if such Lender or the Issuing Bank shall
not have delivered such certificate to the Borrower within sixty days following
the later of (1) the date of the occurrence of the event that forms the basis
for such demand and (2) the date such Lender or the Issuing Bank, as the case
may be, shall have or should reasonably have become aware of such event.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate
Advances hereunder, (i) each Eurodollar Rate Advance or LIBO Rate Advance, as
the case may be, will automatically, upon one Business Day's notice to the
Borrower, Convert into a Base Rate Advance or an Advance that bears interest at
the rate set forth in Section 2.07(a)(i), as the case may be, and (ii) the
obligation of the Lenders to make Eurodollar Rate Advances or LIBO Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
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SECTION 2.13. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes not later than 1:00 P.M. (New
York City time) on the day when due in U.S. dollars to the Administrative Agent
at the Administrative Agent's Account in same day funds. The Administrative
Agent will promptly thereafter cause like funds to be distributed (i) if such
payment by the Borrower is in respect of principal, interest, facility fees or
any other obligation then payable hereunder and under the Notes to more than one
Lender and the Issuing Bank, to such party for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts of such
respective obligations then payable to such party and (ii) if such payment by
the Borrower is in respect of any obligation then payable hereunder to one
Lender or the Issuing Bank, to such party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Administrative Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender or the Issuing Bank
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender and the Issuing
Bank, if and to the extent payment owed to such Lender or the Issuing Bank is
not made when due hereunder or under the Note held by such Lender, to charge
from time to time against any or all of the Borrower's accounts with such Lender
or the Issuing Bank any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate, the LIBO Rate or the Federal Funds Rate and of facility fees and Letter of
Credit issuance fees shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, facility fees or Letter of Credit issuance fees are payable. Each
determination by the Administrative Agent of an interest rate, facility fee or
Letter of Credit issuance fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such
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extension would cause payment of interest on or principal of Eurodollar Rate
Advances or LIBO Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
or the Issuing Bank hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender and/or the Issuing Bank on such due date an amount equal to the amount
then due such Lender and/or the Issuing Bank. If and to the extent the Borrower
shall not have so made such payment in full to the Administrative Agent, each
Lender and/or the Issuing Bank shall repay to the Administrative Agent forthwith
on demand such amount distributed to such Lender and/or the Issuing Bank
together with interest thereon, for each day from the date such amount is
distributed to such Lender and/or the Issuing Bank until the date such Lender
and/or the Issuing Bank repays such amount to the Administrative Agent, at the
Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender, the Issuing Bank and the
Administrative Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction under the
laws of which such Lender, the Issuing Bank or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Lender or the Issuing Bank, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's or the Issuing Bank's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender, the Issuing Bank or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender, the Issuing Bank
or the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions
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and (iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower shall indemnify each Lender, the Issuing Bank
and the Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any taxes imposed by any jurisdiction on amounts
payable under this Section 2.14) imposed on or paid by such Lender, the Issuing
Bank or the Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender, the Issuing Bank or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing
payment thereof. In the case of any payment hereunder or under the Notes by or
on behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender and Issuing Bank organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its execution
and delivery of this Agreement in the case of each Initial Lender, on the date
it is approved as the Issuing Bank pursuant to Section 2.17 and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender or the
Issuing Bank in the case of each other Lender or Issuing Bank, and from time to
time thereafter as requested in writing by the Borrower (but only so long as
such Lender or the Issuing Bank remains lawfully able to do so), shall provide
each of the Administrative Agent and the Borrower with two original Internal
Revenue Service forms 1001
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or 4224, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled
to a reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender or the Issuing Bank at
the time such Lender or the Issuing Bank first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender or the Issuing Bank provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender or Issuing Bank assignee becomes a party to this
Agreement, the Lender or Issuing Bank assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender or Issuing Bank assignee on such date. If
any form or document referred to in this subsection (e) requires the disclosure
of information, other than information necessary to compute the tax payable and
information required by Internal Revenue Service form 1001 or 4224 or any
successor form thereof, that the Lender or the Issuing Bank reasonably considers
to be confidential, the Lender or the Issuing Bank shall give notice thereof to
the Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender or the
Issuing Bank has failed to provide the Borrower with the appropriate form
described in Section 2.14(e) (other than if such failure is due to a change in
law occurring subsequent to the date on which a form originally was required to
be provided, or if such form otherwise is not required under the first sentence
of subsection (e) above), such Lender or the Issuing Bank shall not be entitled
to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender or the Issuing Bank become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as the
Lender or the Issuing Bank shall reasonably request to assist the Lender or the
Issuing Bank to recover such Taxes.
(g) Any Lender or the Issuing Bank claiming any additional
amounts payable pursuant to this Section 2.14 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Eurodollar Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment
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of such Lender or the Issuing Bank, be otherwise disadvantageous to such Lender
or the Issuing Bank.
SECTION 2.15. Sharing of Payments, Etc. If any Lender or the
Issuing Bank shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) (a) on account of
obligations due and payable to such Lender or the Issuing Bank hereunder and
under the Notes at such time in excess of its ratable share (according to the
proportion of (i) the amount of such obligations due and payable to such Lender
or the Issuing Bank at such time to (ii) the aggregate amount of the obligations
due and payable to all Lenders and the Issuing Bank hereunder and under the
Notes at such time) of payments on account of the obligations due and payable to
all Lenders and the Issuing Bank hereunder and under the Notes at such time
obtained by all the Lenders and the Issuing Bank at such time or (b) on account
of obligations owing (but not due and payable) to such Lender or the Issuing
Bank hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such obligations owing to such
Lender or the Issuing Bank at such time to (ii) the aggregate amount of the
obligations owing (but not due and payable) to all Lenders and the Issuing Bank
hereunder and under the Notes at such time) of payments on account of the
obligations owing (but not due and payable) to all Lenders and the Issuing Bank
hereunder and under the Notes at such time obtained by all of the Lenders and
the Issuing Bank at such time, such Lender or the Issuing Bank shall forthwith
purchase from the other Lenders or the Issuing Bank, as the case may be, such
participations in the obligations due and payable or owing to them, as the case
may be, as shall be necessary to cause such purchasing Lender or the Issuing
Bank to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender or the Issuing Bank, such purchase from each Lender or
the Issuing Bank shall be rescinded and such Lender or the Issuing Bank shall
repay to the purchasing Lender or the Issuing Bank, as the case may be, the
purchase price to the extent of such recovery together with an amount equal to
such Lender's or the Issuing Bank's ratable share (according to the proportion
of (i) the amount of such Lender's or the Issuing Bank's required repayment to
(ii) the total amount so recovered from the purchasing Lender or the Issuing
Bank) of any interest or other amount paid or payable by the purchasing Lender
or the Issuing Bank in respect of the total amount so recovered. The Borrower
agrees that any Lender or the Issuing Bank so purchasing a participation from
another Lender or the Issuing Bank, as the case may be, pursuant to this Section
2.15 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Lender or the Issuing Bank were the direct creditor of the
Borrower in the amount of such participation.
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SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for working capital purposes and refinancing Surviving Debt of the
Borrower and its Subsidiaries. All Letters of Credit shall be issued and
proceeds of Letters of Credit shall be used to support obligations of the
Borrower, contingent or otherwise, for working capital purposes.
SECTION 2.17. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Letters of Credit. The Issuing Bank severally agrees, on
the terms and conditions hereinafter set forth, to issue letters of credit (the
"Letters of Credit") for the account of the Borrower from time to time on any
Business Day during the period from the date it is approved by the
Administrative Agent to act as the Issuing Bank hereunder until 30 days before
the Termination Date (i) in an aggregate Available Amount for all Letters of
Credit issued by the Issuing Bank not to exceed at any time the Issuing Bank's
Letter of Credit Commitment at such time and (ii) in an Available Amount for
each such Letter of Credit not to exceed the Unused Revolving Credit Commitments
of the Lenders at such time. No Letter of Credit shall have an expiration date
(including all rights of the Borrower or the beneficiary to require renewal)
later than the Termination Date. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.17(a), the Borrower may
repay any Letter of Credit Advances resulting from drawings thereunder pursuant
to Section 2.17(d) and the Borrower may request the issuance of additional
Letters of Credit under this Section 2.17(a).
(b) Request for Issuance. Each Letter of Credit shall be issued
upon notice, given not later than 12:00 P.M. (noon) (New York City time) on the
third Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the Administrative Agent, which shall give to the
Issuing Bank and each Lender prompt notice thereof by telex or telecopier. Each
such notice of issuance of a Letter of Credit (a "Notice of Issuance") shall be
by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (A) date of such issuance (which shall be a
Business Day), (B) Available Amount of such Letter of Credit, (C) expiration
date of such Letter of Credit, (D) name and address of the beneficiary of such
Letter of Credit and (E) form of such Letter of Credit, and shall be accompanied
by such application and agreement for letter of credit as the Administrative
Agent may specify to the Borrower for use in connection with such requested
Letter of Credit (a "Letter of Credit Agreement"). If (x) the requested form of
such Letter of Credit is acceptable to the Issuing Bank in its sole discretion
and (y) it has not received notice of objection to such issuance from the
Administrative Agent on its behalf or on behalf of the Required Lenders, the
Issuing Bank will, upon fulfillment of the applicable conditions set forth in
Article III, make such Letter of Credit available to the Borrower at its
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office referred to in Section 8.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(c) Letter of Credit Reports. The Issuing Bank shall furnish to
the Administrative Agent (A) on the first Business Day of each month a written
report summarizing the then outstanding Letters of Credit and any drawings
thereunder, which report the Administrative Agent shall forward to the Lenders,
and (B) on the same Business Day as a cancellation of a Letter of Credit prior
to its stated expiration date, notice of such cancellation.
(d) Drawing and Reimbursement. (i) In the event of any request
for a drawing under a Letter of Credit by the beneficiary or transferee thereof,
the Issuing Bank shall promptly notify the Borrower, but in any event no later
than the day prior to the day payment is made thereunder. Subject to the
following clause (ii), the Borrower agrees to reimburse the Issuing Bank on the
date the Issuing Bank makes a payment under a Letter of Credit, for the amount
of (x) such draft so paid and (b) any taxes, fees, charges or other costs or
expenses incurred by the Issuing Bank. Each such payment shall be made to the
Administrative Agent for the account of the Issuing Bank in immediately
available funds.
(ii) If the Issuing Bank pays a draft under any Letter of
Credit for which it is not reimbursed in full by the Borrower in accordance with
the terms of this Agreement, the payment by the Issuing Bank of such draft shall
constitute for all purposes of this Agreement the making by the Issuing Bank of
a Letter of Credit Advance, which shall be a Base Rate Advance, in the amount of
such draft. Upon written demand by the Issuing Bank with an outstanding Letter
of Credit Advance, with a copy of such demand to the Administrative Agent, each
Lender shall purchase from the Issuing Bank, and the Issuing Bank shall sell and
assign to each such Lender, such Lender's Pro Rata Share of such outstanding
Letter of Credit Advance as of the date of such purchase, by making available
for the account of its Applicable Lending Office to the Administrative Agent for
the account of the Issuing Bank, by deposit to the Administrative Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Letter of Credit Advance to be purchased by such
Lender. Promptly after receipt thereof, the Administrative Agent shall transfer
such funds to the Issuing Bank. The Borrower hereby agrees to each such sale and
assignment. Each Lender agrees to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance on (i) the Business Day on which demand therefor is
made by the Issuing Bank, provided notice of such demand is given not later than
11:00 A.M. (New York City time) on such Business Day or (ii) the first Business
Day next succeeding such demand if notice of such demand is given after such
time. Upon any such assignment by the Issuing Bank to any other Lender of a
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portion of a Letter of Credit Advance, the Issuing Bank represents and warrants
to such other Lender that the Issuing Bank is the legal and beneficial owner of
such interest being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility with respect to
such Letter of Credit Advance, the Loan Documents or either Loan Party. If and
to the extent that any Lender shall not have so made the amount of such Letter
of Credit Advance available to the Administrative Agent, such Lender agrees to
pay to the Administrative Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by the Issuing Bank until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of the Issuing Bank, as applicable. If such
Lender shall pay to the Administrative Agent such amount for the account of the
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.
(e) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.17(d) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
(f) Repayment of Letter of Credit Advances. (i) The Borrower
shall repay to the Administrative Agent for the account of the Issuing Bank and
each other Lender that has made a Letter of Credit Advance on the earlier of
demand and the Termination Date the outstanding principal amount of each Letter
of Credit Advance made by each of them.
(ii) The obligations of the Borrower under this Agreement with
respect to any Letter of Credit, any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument (as amended, supplemented or modified from time to time in accordance
with their respective terms) under all circumstances, including, without
limitation, the following circumstances and regardless of the use of proceeds of
any drawing under any Letter of Credit or any defense related thereto:
(A) any lack of validity or enforceability of this Agreement,
any Note, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument
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relating thereto (all of the foregoing being, collectively, the "L/C
Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
any guaranty, for all or any of the obligations of the Borrower in
respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower, the Guarantor or any other
guarantor.
(g) No Liability of the Issuing Bank. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter
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of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall
be liable to, and hereby indemnify, the Borrower, to the extent of any direct,
but not consequential, damages suffered by the Borrower that the Borrower proves
were caused by (i) the Issuing Bank's willful misconduct or negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) the Issuing Bank's willful or
negligent failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, the Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01, 2.03 and 2.17. Sections 2.01, 2.03 and 2.17 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change with
respect to the Borrower since March 25, 1995, other than as provided on
Schedule 4.01(e) hereto, and there shall have occurred no Material
Adverse Change with respect to the Guarantor since December 31, 1994.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting either Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any other Loan Document
or the consummation of the transactions contemplated hereby.
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(c) Nothing shall have come to the attention of the Lenders or
the Issuing Bank during the course of their due diligence investigation
to lead them to believe that the Information Memorandum was or has
become misleading, incorrect or incomplete in any material respect;
without limiting the generality of the foregoing, the Lenders and the
Issuing Bank shall have been given such access to the management,
records, books of account, contracts and properties of each Loan Party
and its Subsidiaries as they shall have reasonably requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders or the Issuing Bank) and shall remain in
effect, and no law or regulation shall be applicable in the reasonable
judgment of the Lenders and the Issuing Bank that restrains, prevents
or imposes materially adverse conditions upon the transactions
contemplated hereby.
(e) The Borrower shall have notified each Lender, the Issuing
Bank and the Administrative Agent in writing as to the proposed
Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses
of the Administrative Agent, the Issuing Bank and the Lenders
(including the accrued fees and expenses of counsel to the
Administrative Agent).
(g) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender and the Issuing Bank a certificate signed by a duly
authorized officer of the Borrower, dated the Effective Date, stating
that:
(i) The representations and warranties contained in
each Loan Document are correct on and as of the Effective Date,
and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
Revolving Credit Notes) in sufficient copies for each Lender and the
Issuing Bank:
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(i) The Revolving Credit Notes to the order of the
Lenders, respectively.
(ii) Certified copies of the resolutions of the Board
of Directors of each Loan Party approving this Agreement, the
Notes, each other Loan Document to which it is or is to be a
party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement, the Notes and each other Loan
Document.
(iii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to
sign this Agreement, the Notes, each other Loan Document to
which it is or is to be a party and the other documents to be
delivered hereunder and thereunder.
(iv) A guaranty in substantially the form of Exhibit
E (as amended, supplemented or modified from time to time in
accordance with its terms, the "Guaranty"), duly executed by
the Guarantor.
(v) Favorable opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, New
York counsel for the Borrower, and the General Counsel of the
Borrower, substantially in the form of Exhibits F-1 and F-2
hereto, respectively, and as to such other matters as any
Lender or the Issuing Bank through the Administrative Agent may
reasonably request.
(vi) Favorable opinions of Shin & ▇▇▇, counsel for
the Guarantor, and the Corporate Counsel of the Guarantor,
substantially in the form of Exhibits G-1 and G-2 hereto,
respectively, and as to such other matters as any Lender or the
Issuing Bank through the Administrative Agent may reasonably
request.
(vii) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing and Issuance. The obligation of each Lender to make a Revolving
Credit Advance on the occasion of each Revolving Credit Borrowing (including the
initial Borrowing), and the right
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of the Borrower to request the issuance of Letters of Credit (including the
initial issuance of Letters of Credit), shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Revolving Credit Borrowing or issuance (a) the following statements shall be
true (and each of the giving of the applicable Notice of Revolving Credit
Borrowing or Notice of Issuance and the acceptance by the Borrower of the
proceeds of such Revolving Credit Borrowing or by the Borrower of such Letter of
Credit shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing or issuance such statements are true):
(i) the representations and warranties contained in
each Loan Document are correct in all material respects on and
as of the date of such Revolving Credit Borrowing or issuance,
before and after giving effect to such Revolving Credit
Borrowing or issuance and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or issuance or from
the application of the proceeds therefrom, that constitutes a
Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender or the Issuing Bank through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Administrative Agent shall have received the
written confirmatory Notice of Competitive Bid Borrowing with respect thereto,
(ii) on or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Administrative Agent shall have received a
Competitive Bid Note payable to the order of such Lender for each of the one or
more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal amount
of the Competitive Bid Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such Competitive Bid Advance in accordance with
Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the
proceeds of
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such Competitive Bid Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Competitive Bid Borrowing such
statements are true):
(a) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
such Competitive Bid Borrowing, before and after giving effect to such
Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default,
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Administrative Agent and each Lender by the Borrower in
connection herewith would include an untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading, and
(d) the aggregate amount of such Competitive Bid Borrowing and
all Revolving Credit Borrowings to be made on the same day is within
the aggregate amount of the Unused Revolving Commitments of the
Lenders, computed prior to such Borrowings.
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in Section
3.01, each Lender and the Issuing Bank shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lenders and the Issuing Bank unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender and the Issuing Bank prior
to the date that the Borrower, by notice to the Lenders and the Issuing Bank,
designates as the proposed Effective Date, specifying its objection thereto. The
Administrative Agent shall promptly notify the Lenders and the Issuing Bank of
the occurrence of the Effective Date.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes, and each other Loan Document to which it
is or is to be a party, and the consummation of the transactions
contemplated hereby, are within such Loan Party's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) such Loan Party's charter or by-laws or (ii) any law,
regulation (including, without limitation, Regulations U and X of the
Board of Governors of the Federal Reserve System) or contractual
restriction binding on or affecting the Loan Parties.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by either Loan Party of this Agreement, the Notes or
any other Loan Document to which it is or is to be a party, except for
those authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(c) hereto, all of which have been duly obtained, taken,
given or made and are in full force and effect.
(d) This Agreement has been, and each of the Notes and each
other Loan Document when delivered hereunder will have been, duly
executed and delivered by each Loan Party thereto. This Agreement is,
and each of the Notes and each other Loan Document when delivered
hereunder will be, the legal, valid and binding obligation of each Loan
Party thereto enforceable against each such Loan Party in accordance
with their respective terms.
(e) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 25, 1995, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Ernst & Young, independent public accountants, and the Consolidated
balance sheet of the Borrower and its Subsidiaries as at July 1, 1995,
and the related Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries
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for the three months then ended, duly certified by the chief financial
officer of the Borrower, copies of which have been furnished to each
Lender and the Issuing Bank, fairly present, subject, in the case of
said balance sheet as at July 1, 1995, and said statements of income
and cash flows for the three months then ended, to year-end audit
adjustments, the Consolidated financial condition of the Borrower and
its Subsidiaries as at such dates and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the periods ended
on such dates, all in accordance with generally accepted accounting
principles consistently applied. Since March 25, 1995, there has been
no Material Adverse Change, other than as provided on Schedule 4.01(e)
hereto.
(ii) The Consolidated balance sheet of the Guarantor and its
Subsidiaries as at December 31, 1994, and the related Consolidated
statements of income and cash flows of the Guarantor and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Saedong Accounting Corporation, a member firm of Price Waterhouse,
independent public accountants, copies of which have been furnished to
each Lender and the Issuing Bank, fairly present the Consolidated
financial condition of the Guarantor and its Subsidiaries as at such
date and the Consolidated results of the operations of the Guarantor
and its Subsidiaries for the periods ended on such date, all in
accordance with generally accepted financial accounting standards in
the Republic of Korea consistently applied. Since December 31, 1994,
there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting either Loan Party or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of
this Agreement, any Note or any other Loan Document or the consummation
of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(h) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
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(i) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and there has been no Material Adverse Change
in the funding status of any such Plan since such date.
(j) Neither Loan Party nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan that has had or is reasonably likely to have a
Material Adverse Effect.
(k) Neither Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA.
(l) Except as set forth in the financial statements referred to
in this Section 4.01 and in Section 5.01(i), the Loan Parties and their
respective Subsidiaries have no material liability with respect to
"expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(m) The operations and properties of the Borrower and each of
its Subsidiaries comply with all applicable Environmental Laws and
Environmental Permits, except such non-compliance that would not have a
Material Adverse Effect, all past non-compliance with such
Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could be
reasonably likely to (i) form the basis of an Environmental Action
against the Borrower or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law that
could have a Material Adverse Effect.
(n) None of the properties currently or, to the best of its
knowledge, formerly owned or operated by the Borrower or any of its
Subsidiaries is listed or proposed for listing on the National
Priorities List under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("NPL") or on the Comprehensive
Environmental Response, Compensation and Liability Information System
maintained by the U.S. Environmental Protection Agency ("CERCLIS") or
any
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analogous foreign, state or local list or, to the best knowledge of the
Borrower, is adjacent to any such property; there are no and never have
been any underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed of by the
Borrower or any of its Subsidiaries or, to the best of its knowledge,
by any other Person, on any property currently or, to the best of its
knowledge, formerly owned or operated by the Borrower or any of its
Subsidiaries; there is no friable asbestos or, other than as is being
maintained in accordance with applicable Environmental Laws, other
asbestos or asbestos-containing material on any property currently
owned or operated by the Borrower or any of its Subsidiaries; and
Hazardous Materials have not been released, discharged or disposed of
by the Borrower or any of its Subsidiaries or, to the best of its
knowledge, by any other Person, on any property currently or, to the
best of its knowledge, formerly owned or operated by the Borrower or
any of its Subsidiaries or any adjoining property.
(o) Neither the Borrower nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the requirements
of any Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at or transported to or from any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries have been disposed of in a manner not reasonably expected
to result in material liability to the Borrower or any of its
Subsidiaries.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be outstanding or any
Lender or the Issuing Bank shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and
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orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws as provided in Section
5.01(j).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates; provided, however, that the
Borrower and its Subsidiaries may self-insure to the same extent as
other companies engaged in similar businesses and owing similar
properties in the same general areas in which the Borrower or such
Subsidiary operates and to the extent consistent with prudent business
practice.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(c)
and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary, the Lenders or the
Issuing Bank.
(e) Visitation Rights. Upon advance request, at any reasonable
time and from time to time, but no more than four times in any calendar
year, permit the Administrative Agent, any of the Lenders or the
Issuing Bank or any agents or representatives thereof, to examine and
make copies of and abstracts from the records
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and books of account of, and visit the properties of, the Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and
accounts of the Borrower and any of its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair
and reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Borrower, Consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as of the
end of such quarter and Consolidated and consolidating
statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the
chief financial officer of the Borrower as having been prepared
in accordance with generally accepted accounting principles,
provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower shall
also provide a statement of reconciliation conforming such
financial statements to GAAP;
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(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing Consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as of the
end of such fiscal year and Consolidated and consolidating
statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by
an opinion acceptable to the Required Lenders by Ernst & Young
or other independent public accountants acceptable to the
Required Lenders, provided that in the event of any change in
GAAP used in the preparation of such financial statements, the
Borrower shall also provide a statement of reconciliation
conforming such financial statements to GAAP;
(iii) as soon as available and in any event within 90
days after the end of each fiscal year of the Guarantor, a copy
of the annual audit report for such year for the Guarantor and
its Subsidiaries, containing Consolidated balance sheets of the
Guarantor and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of
the Guarantor and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion acceptable to the Required
Lenders by Saedong Accounting Corporation, a member firm of
Price Waterhouse, or other independent public accountants
acceptable to the Required Lenders, provided that in the event
of any change in GAAP used in the preparation of such financial
statements, the Guarantor shall also provide a statement of
reconciliation conforming such financial statements to GAAP;
(iv) as soon as possible and in any event within
five days after a Responsible Officer of the Borrower has
knowledge of the occurrence of a Default continuing on the date
of such statement, a statement of the chief financial officer
of the Borrower setting forth details of such Default and the
action that the Borrower has taken and proposes to take with
respect thereto;
(v) promptly after the sending or filing thereof,
copies of all reports and registration statements that the
Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(vi) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting
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either Loan Party or any of its Subsidiaries of the type
described in Section 4.01(f);
(vii) (A) promptly and in any event within 10 days
after either Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a statement
of the chief financial officer of the Borrower describing such
ERISA Event and the action, if any, that such Loan Party or
such ERISA Affiliate has taken and proposes to take with
respect thereto and (B) on the date any records, documents or
other information must be furnished to the PBGC with respect to
any Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information;
(viii) promptly and in any event within two Business
Days after receipt thereof by either Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(ix) promptly and in any event within 30 days after
the receipt thereof by either Loan Party or any ERISA
Affiliate, a copy of the annual actuarial report for each Plan
the funded current liability percentage (as defined in Section
302(d)(8) of ERISA) of which is less than 90% or the unfunded
current liability of which exceeds $1,000,000;
(x) promptly and in any event within five Business
Days after receipt thereof by either Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV
of ERISA, of any such Multiemployer Plan or (C) the amount of
liability incurred, or that may be incurred, by such Loan Party
or any ERISA Affiliate in connection with any event described
in clause (A) or (B);
(xi) promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any
noncompliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could
reasonably be expected to have a Material Adverse Effect; and
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(xii) such other information respecting either Loan
Party or any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
(j) Compliance with Environmental Laws. Comply, and
cause each of its Subsidiaries and all lessees and other Persons
operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew and cause each of its Subsidiaries to obtain
and renew all Environmental Permits necessary for its operations and
properties; and conduct, and cause each of its Subsidiaries to conduct,
any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws;
provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that such action is not
required by Environmental Laws or to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be outstanding or any
Lender or the Issuing Bank shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit
any of its Subsidiaries to create or suffer to exist, any Lien on or
with respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition of
such property or equipment, or Liens existing on such property
or equipment at the time of its acquisition (other than any
such Liens created in contemplation of such acquisition that
were not incurred to finance the acquisition of such property)
or extensions, renewals or replacements of any of the foregoing
for
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the same or a lesser amount, or Liens of a lessor under an
operating lease, provided, however, that no such Lien shall
extend to or cover any properties of any character other than
the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended,
renewed or replaced, provided further that the aggregate
principal amount of the indebtedness secured by the Liens
referred to in this clause (ii) and the Debt incurred in
connection with Section 5.02(b)(iii)(F) shall not exceed
$35,000,000 in the aggregate at any time outstanding,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens in favor of the Guarantor to secure the
Borrower's obligation to the Guarantor under the Guaranty and
Recourse Agreement, to the extent such Liens become operative
only after the Commitments shall have been terminated and the
Administrative Agent, the Lenders and the Issuing Bank shall
have been paid in full for all obligations of the Borrower
hereunder and under the Notes, and
(v) Liens to secure Debt permitted under Section
5.02(b)(iii)(B).
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) in the case of the Borrower, Subordinated Debt;
(ii) in the case of any of its Subsidiaries, Debt
owed to the Borrower or to a wholly-owned Subsidiary of the
Borrower; and
(iii) in the case of the Borrower and any of its
Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt incurred in connection with the
Securitization or the transactions listed on Schedule
5.02(b)(iii)(B) to the extent such Debt does not
exceed $130,000,000 in the aggregate,
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(C) Capitalized Leases not to exceed in the
aggregate $10,000,000 at any time outstanding,
(D) the Surviving Debt and any Debt extending
the maturity of, or refunding or refinancing, in
whole or in part, any Surviving Debt, provided that
the terms of any such extending, refunding or
refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith,
are otherwise permitted by the Loan Documents, and
provided further that the principal amount of such
Surviving Debt shall not be increased above the
principal amount thereof outstanding immediately pror
to such extension, refunding or refinancing, and the
direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such
extension, refunding or refinancing, and provided
further that the Existing Credit Agreement shall be
terminated in whole upon the completion of the
Securitization,
(E) indorsement of negotiable instruments for
deposit or collection or similar transactions in the
ordinary course of business, and
(F) other Debt the aggregate principal amount
of which, together with the aggregate indebtedness
secured by the Liens referred to in 5.02(a)(ii),
shall not exceed $35,000,000 in the aggregate at any
time outstanding.
(c) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to, any Person, or permit any
of its Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge or consolidate with or into, or dispose of assets
to, any other Subsidiary of the Borrower, and except that any
Subsidiary of the Borrower may merge into or dispose of assets to the
Borrower, provided, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would
result therefrom and (ii) the Borrower may sell one or more
manufacturing Subsidiaries, provided that each such sale is for fair
value.
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(d) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable, or the Borrower shall fail to
pay any interest on any Advance, any Reimbursement Obligation or any
other amount payable hereunder, or either Loan Party shall fail to make
any other payment of fees or other amounts payable under any Loan
Document within three Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by either Loan Party
under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (i) or
5.02 or (ii) either Loan Party shall fail to perform or observe any
other term, covenant or agreement contained in any Loan Document on its
part to be performed or observed if such failure shall remain
unremedied for 10 days after written notice thereof shall have been
given to such Loan Party by the Administrative Agent, any Lender or the
Issuing Bank; or
(d) Either Loan Party or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt that is
outstanding in a principal or notional amount of at least $5,000,000 in
the aggregate in the case of the Borrower and $25,000,000 in the
aggregate in the case of the Guarantor (but excluding Debt outstanding
hereunder) of such Loan Party or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to
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such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(e) Either Loan Party or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against either Loan Party or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of 45 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property)
shall occur; or either Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in
this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$5,000,000 in the case of the Borrower and $15,000,000 in the case of
the Guarantor shall be rendered against such Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 10 consecutive days during which such judgment
remains unsatisfied and a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(g) Any non-monetary judgment or order shall be rendered
against either Loan Party or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during
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which such judgment remains unsatisfied and a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) (A) The Hyundai Group and its Affiliates shall cease to
retain beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Borrower (or
other securities convertible into such Voting Stock) representing 25%
or more of the combined voting power of all Voting Stock of the
Borrower; or (B) any Person or two or more Persons acting in concert
other than the Hyundai Group and its Affiliates shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Borrower (or
other securities convertible into such Voting Stock) representing 25%
or more of the combined voting power of all Voting Stock of the
Borrower; or (C) any Person or two or more Persons acting in concert
other than the Hyundai Group and its Affiliates shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower;
or
(ii) Any Person or two or more Persons other than the owners of
the Guarantor on the date hereof or their Affiliates acting in concert
shall have acquired by contract or otherwise, or shall have entered
into a contract or arrangement that, upon consummation, will result in
its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of
the Guarantor; or
(i) Any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $5,000,000; or
(j) Either Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by such Loan Party and the ERISA
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Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $5,000,000 or requires payments exceeding
$1,250,000 per annum; or
(k) Either Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of such Loan Party and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$1,250,000; or
(l) Any provision of the Guaranty shall for any reason cease to
be valid and binding on or enforceable against the Guarantor, or the
Guarantor shall revoke the Guaranty;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for
relief with respect to either Loan Party under the Federal Bankruptcy Code, (A)
the obligation of each Lender to make Advances shall automatically be terminated
and (B) the Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit
upon Default. (a) If any Event of Default shall have occurred and be
continuing, the Administrative Agent may, or shall at the request of the
Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or otherwise, make demand upon the Borrower to, and
forthwith upon such demand the Borrower will, pay to the Administrative Agent on
behalf of the Lenders and the Issuing Bank in same day funds at the
Administrative Agent's office
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designated in such demand, for deposit in the L/C Cash Collateral Account, an
amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Administrative Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any right or claim of any
Person other than the Administrative Agent, the Lenders and the Issuing Bank or
that the total amount of such funds is less than the aggregate Available Amount
of all Letters of Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (i) such aggregate Available Amount over (ii) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim.
(b) The Borrower hereby agrees that any amounts from time to
time on deposit in the L/C Cash Collateral Account shall be and constitute
collateral security for the prompt and complete payment when due of the
obligations and liabilities of the Borrower under and in respect of the Letters
of Credit.
(c) The Borrower, the Administrative Agent, the Issuing Bank
and the Lenders agree that any action taken or omitted to be taken by the
Administrative Agent in connection with the L/C Cash Collateral Account, if
taken or omitted to be taken in good faith and with reasonable care, shall be
binding upon the Borrower, the Issuing Bank and the Lenders and shall not create
any liability on the part of the Administrative Agent to the Borrower, the
Issuing Bank or the Lenders.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender (in its
capacity as a Lender and, if applicable, the Issuing Bank) hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders, the Issuing Bank and all holders
of Notes; provided, however, that the Administrative Agent shall not be required
to take any action that exposes the Administrative Agent to personal liability
or that is contrary to this Agreement or applicable law. The Administrative
Agent agrees to give to each Lender and the Issuing Bank prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for either Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender or the Issuing Bank and shall not be
responsible to any Lender or the Issuing Bank for any statements, warranties or
representations (whether written or oral) made in or in connection with any Loan
Document; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of either Loan Party or to inspect the property
(including the books and records) of either Loan Party;
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(v) shall not be responsible to any Lender or the Issuing Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under the Loan Documents as any other Lender and
may exercise the same as though it were not the Administrative Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, either Loan Party, any of its Subsidiaries and any Person who may do
business with or own securities of either Loan Party or any such Subsidiary, all
as if Citibank were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 7.04. Lender and Issuing Bank Credit Decision. Each
Lender and the Issuing Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or the Issuing Bank,
as the case may be, and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
and the Issuing Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or the Issuing Bank,
as the case may be, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) The Lenders and the Issuing
Bank agree to indemnify the Administrative Agent (to the extent not reimbursed
by the Borrower) from and against such Lender's or the Issuing Bank's ratable
share of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of any Loan Document
or any action taken or omitted by the Administrative Agent under any Loan
Document, provided that neither any Lender nor the Issuing Bank shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits,
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costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender and the Issuing Bank agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, the Loan
Documents, to the extent that the Administrative Agent is not reimbursed for
such expenses by the Borrower. For purposes of this Section 7.05, the Lenders'
and the Issuing Bank's respective ratable shares of any amount shall be
determined, at any time, according to the sum of (i) the aggregate principal
amount of the Revolving Credit Advances or Letter of Credit Advances outstanding
at such time and owing to the respective Lenders or the Issuing Bank, (ii) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time and (iii) their respective Unused Revolving
Credit Commitments at such time; provided, that the aggregate principal amount
of Letter of Credit Advances owing to the Issuing Bank shall be considered to be
owed to the Lenders ratably in accordance with their respective Revolving Credit
Commitments. The failure of any Lender or the Issuing Bank to reimburse the
Administrative Agent promptly upon demand for its ratable share of any amount
required to be paid by such Lender or the Issuing Bank, as the case may be, to
the Administrative Agent as provided herein shall not relieve any other Lender
or the Issuing Bank, as the case may be, of its obligation hereunder to
reimburse the Administrative Agent for its ratable share of such amount, but no
Lender or the Issuing Bank, as the case may be, shall be responsible for the
failure of any other Lender or the Issuing Bank, as the case may be, to
reimburse the Administrative Agent for such other Lender's or the Issuing Bank's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Lender or the Issuing Bank hereunder, the agreement and
obligations of each Lender and the Issuing Bank contained in this Section
7.05(a) shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the other Loan Documents.
(b) Each Lender severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Issuing Bank's gross negligence or
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willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Issuing Bank promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 8.04, to the extent that the Issuing Bank
is not promptly reimbursed for such costs and expenses by the Borrower. For
purposes of this Section 7.05(b), the Lenders' respective ratable shares of any
amount shall be determined, at any time, according to the sum of (i) the
aggregate principal amount of the Revolving Credit Advances and Letter of Credit
Advances outstanding at such time and owing to the respective Lenders and (ii)
their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time plus (iii) their respective Unused
Revolving Credit Commitments at such time; provided that the aggregate principal
amount of Letter of Credit Advances owing to the Issuing Bank shall be
considered to be owed to the Lenders ratably in accordance with their respective
Revolving Credit Commitments. The failure of any Lender to reimburse the Issuing
Bank promptly upon demand for its ratable share of any amount required to be
paid by the Lender to the Issuing Bank as provided herein shall not relieve any
other Lender of its obligation hereunder to reimburse the Issuing Bank for its
ratable share of such amount, but no Lender shall be responsible for the failure
of any other Lender to reimburse the Issuing Bank for such other Lender's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Lender hereunder, the agreement and obligations of each Lender
contained in this Section 7.05(b) shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders, the Issuing Bank and the Borrower and may be removed at any time
with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor
Administrative Agent, subject to the Borrower's approval, which shall not be
unreasonably withheld. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders and
the Issuing Bank and after consulting with the Borrower, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
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discharged from its duties and obligations under the Loan Documents. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations
(other than as permitted by Section 2.05(c) to the extent any of such Lenders
consents thereunder), (c) reduce the principal of, or interest on, the Revolving
Credit Notes or any fees or other amounts payable hereunder, (d) postpone any
date fixed for any payment of principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder, (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Revolving
Credit Notes or of the aggregate Available Amount of outstanding Letters of
Credit, or the number of Lenders, that in each case shall be required for the
Lenders or any of them to take any action hereunder, (f) reduce or limit the
obligations of the Guarantor under Section I of the Guaranty or otherwise limit
the Guarantor's liability with respect to the obligations owing to the
Administrative Agent, the Lenders and the Issuing Bank or (g) amend this Section
8.01; and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the Lenders required above
to take such action, affect the rights or obligations of the Issuing Bank under
this Agreement; provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President - Finance & Treasurer; if to any
Initial Lender or the Issuing Bank approved pursuant to Section 2.17, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender or Issuing Bank, at its Domestic Lending Office specified in
the Assignment and Acceptance pursuant to which it became a Lender or the
Issuing Bank; and if to the Administrative Agent, at its address at ▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Zone 1, Long Island City, New York 11120, Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇; or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender, the Issuing Bank or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower
agrees to pay on demand all costs and expenses of the Administrative Agent and
CSI in connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents and the other documents to be
delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Administrative Agent
with respect thereto and with respect to advising the Administrative Agent as to
its rights and responsibilities under the Loan Documents. After an Event of
Default, the Borrower further agrees to pay on demand all costs and expenses of
the Administrative Agent, CSI, the Issuing Bank and the Lenders, if any
(including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of the Loan
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Documents and the other documents to be delivered hereunder, including, without
limitation, reasonable fees and expenses of counsel for the Administrative
Agent, CSI, the Issuing Bank and each Lender in connection with the enforcement
of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Issuing Bank and each Lender and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Facilities, the Loan Documents, any of the transactions
contemplated herein or therein or the actual or proposed use of the proceeds of
the Advances or the Letters of Credit or (ii) the actual or alleged presence of
Hazardous Materials on any property of either Loan Party or any of its
Subsidiaries or any Environmental Action relating in any way to either Loan
Party or any of its Subsidiaries, in each case whether or not such
investigation, litigation or proceeding is brought by either Loan Party, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. The Borrower also
agrees not to assert any claim against the Administrative Agent, any Lender, the
Issuing Bank, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Facilities, this Agreement, the other Loan Documents, any of the
transactions contemplated herein or therein or the actual or proposed use of the
proceeds of the Advances or the Letters of Credit.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section
2.05(c), 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Notes
pursuant to Section 6.01 or for any other reason, or by an Eligible Assignee to
a Lender other than on the last day of the Interest Period for such Advance upon
an assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the
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Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
either Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.11, 2.14 and 8.04 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender, the Issuing Bank and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender, the Issuing Bank or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender or the
Issuing Bank shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender and the Issuing Bank
agrees promptly to notify within one Business Day the Borrower after any such
set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender, the Issuing Bank and its Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender, the Issuing Bank and its Affiliates may
have.
SECTION 8.06. Binding Effect. This Agreement shall
become effective (other than Sections 2.01 and 2.03, which shall only become
effective upon satisfaction of the conditions precedent set forth in Section
3.01) when it shall have been executed by the Borrower and the Administrative
Agent and when the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent, the
Issuing Bank and each Lender and their permitted respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders and the Issuing Bank.
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SECTION 8.07. Assignments and Participations. (a) Each
Lender may, with the consent (except as provided below), not to be unreasonably
withheld, of the Administrative Agent and, prior to the occurrence and
continuance of a Default, the Borrower, and, each Lender if demanded by the
Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14)
upon at least 5 Business Days' notice to such Lender and the Administrative
Agent, will, with the consent of the Administrative Agent, not to be
unreasonably withheld, and only if no Default has occurred and is continuing,
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Revolving Credit Commitment, the Revolving Credit Advances owing to it and the
Revolving Credit Note or Notes held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under and in respect of all the
Facilities (other than any right to make Competitive Bid Advances, Competitive
Bid Advances owing to it and Competitive Bid Notes), (ii) except in the case of
an assignment to a Person that, immediately prior to such assignment, was a
Lender or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Revolving Credit Commitment of the assigning Lender
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no event
be less than $3,000,000 or an integral multiple of $500,000 in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, and (iv) each such
assignment made as a result of a demand by the Borrower pursuant to this Section
8.07(a) shall be arranged by the Administrative Agent after consultation with
the Borrower and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (vi) no Lender shall
be obligated to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 8.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts payable to such Lender under this Agreement and (vii) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Revolving Credit Note subject to such assignment and a
processing and recordation fee of $3,000, except that such fee is not payable if
the assignee is an existing Lender and is replacing the assigning Lender at the
demand of the Borrower. Each Lender may, without the consent of, but upon notice
to, the Administrative Agent and the
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Borrower, assign all or a portion of its rights and obligations under this
Agreement to any of its Affiliates.
(b) The Issuing Bank may assign to one Lender or Affiliate of a
Lender all of its rights and obligations under the undrawn portion of its Letter
of Credit Commitment at any time; provided, however, that (i) each such
assignment shall be to an Eligible Assignee and (ii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,000.
(c) By executing and delivering an Assignment and Acceptance,
the Lender or the Issuing Bank assignor thereunder (the "Assigning Lender") and
the assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment and
Acceptance, such Assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto; (ii) such Assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of either Loan Party or the performance or observance
by either Loan Party of any of its respective obligations under any Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Administrative
Agent, such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Loan Documents as
are delegated to the Administrative Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender or Issuing Bank, as the case may be.
(d) Upon its receipt of an Assignment and Acceptance executed
by an Assigning Lender and an assignee representing that it is an Eligible
Assignee, together with
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any Revolving Credit Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Revolving Credit Note a new Revolving Credit Note to the order of such Eligible
Assignee in an amount equal to the Revolving Credit Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the Assigning Lender has
retained a Revolving Credit Commitment hereunder, a new Revolving Credit Note to
the order of the Assigning Lender in an amount equal to the Revolving Credit
Commitment retained by it hereunder. Such new Revolving Credit Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Revolving Credit Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(e) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Issuing Bank and the Commitment of, and
principal amount of the Advances owing to, each Lender and the Issuing Bank from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent, the Lenders and the Issuing Bank, may treat each Person
whose name is recorded in the Register as a Lender or the Issuing Bank, as the
case may be, hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower, any Lender or the Issuing Bank at any
reasonable time and from time to time upon reasonable prior notice.
(f) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or the
Issuing Bank, as the case may be, hereunder and (y) the Assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering the Issuing Bank's or all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender or the Issuing Bank shall cease to be a party hereto).
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(g) Each Lender may sell participations to one or more banks or
other entities (other than either Loan Party or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Revolving Credit Commitment, the
Revolving Credit Advances owing to it and the Revolving Credit Note or Notes
held by it); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Revolving Credit Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent, the other Lenders
and the Issuing Bank shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan Documents
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by either Loan Party therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation.
(h) Any Lender or the Issuing Bank may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Borrower furnished to such
Lender or the Issuing Bank by or on behalf of the Borrower; provided that, prior
to any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any Confidential
Information relating to the Borrower received by it from such Lender or the
Issuing Bank.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender or the Issuing Bank may at any time create a security
interest in all or any portion of its rights under this Agreement (including,
without limitation, the Advances owing to it and the Note or Notes held by it)
in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
SECTION 8.08. Confidentiality. None of the Administrative
Agent, any Lender or the Issuing Bank shall use or disclose any Confidential
Information to any other Person without the consent of the Borrower, other than
(a) to the Administrative Agent's, such Lender's or the Issuing Bank's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(h), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) to any rating agency when required
by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality
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of any Confidential Information relating to the Borrower received by it from
such Lender and (d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by
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law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
any of the other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the
Borrower, the Administrative Agent, the Lenders and the Issuing Bank hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement, any of the other Loan Documents or the Letters of
Credit or the actions of the Administrative Agent, any Lender or the Issuing
Bank in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
MAXTOR CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: V.P. Finance, Treasurer
CITIBANK, N.A.,
as Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Vice President
Citibank, N.A.
Attorney-In-Fact
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[Intentionally left blank]
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COMMITMENT INITIAL LENDERS
---------- ---------------
$14,500,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Vice President
Citibank, N.A.
Attorney-in-Fact
$ 9,500,000 ▇▇▇ ▇▇▇▇ BANK
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇
--------------------------------
Title: General Manager
$ 9,500,000 CREDIT LYONNAIS
LOS ANGELES BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By /s/ ▇▇▇▇▇▇ ISOSEVICH
---------------------------------
Title: Senior Vice President
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$9,500,000 THE DAI-ICHI KANGYO BANK,
LIMITED, SAN FRANCISCO AGENCY
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: General Manager & Agent
$9,500,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED SAN FRANCISCO AGENCY
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Joint General Manager
$9,500,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Deputy General Manager
$9,500,000 SHINHAN BANK
NEW YORK BRANCH
By /s/ WON KEY ▇▇▇
--------------------------------
Title: Assistant General Manager
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$9,500,000 SOCIETE GENERALE
By /s/ ▇▇▇▇▇▇ Y.L. CHEN
----------------------------------------
Title: Vice President
$9,500,000 THE SUMITOMO BANK, LIMITED,
SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Title: General Manager
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
-----------------------------------------
Title: Vice President
$9,500,000 STANDARD CHARTERED BANK
By /s/ WOO YOUNG SONG
-----------------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ESQ.
-----------------------------------------
Title: Administrative Officer
$100,000,000 TOTAL OF COMMITMENTS
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