1
EXHIBIT 10.63
WAIVER AND AMENDMENT NO. 1
TO THE CREDIT AGREEMENT
Dated as of May 22, 1998
WAIVER AND AMENDMENT NO. 1 TO THE CREDIT AGREEMENT among, Maxtor
Corporation, a Delaware corporation (the "Borrower"), the banks, financial
institutions and other institutional lenders parties to the Credit Agreement
referred to below (collectively, the "Lenders") and Citibank, N.A., as
administrative agent (the "Administrative Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, Citicorp Securities, Inc. and
Hanil Bank, as joint arrangers, ABN AMRO Bank, N.V., San Francisco International
Branch and Royal Bank of Canada, as co-agents, Fleet National Bank, as manager,
and the Administrative Agent have entered into a 364-Day Credit Agreement dated
as of August 29, 1996 (the "Credit Agreement"). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified in the Credit
Agreement.
(2) Hyundai Electronics Industries, Co., Ltd. ("HEI") has
released its 1997 year end financial statements, which financial statements
indicate that HEI is in default of the financial covenant set forth in Section
XII(a) of the Guaranty (the "HEI Default").
(3) The Borrower has requested that the Lenders waive the HEI
Default, amend certain provisions of the Credit Agreement and accept Hyundai
Heavy Industries Co., Ltd. as a guarantor in the place of HEI.
(4) The Lenders are, on the terms and conditions stated below,
willing to grant the request of the Borrower and the Borrower and the Lenders
have agreed to amend the Credit Agreement as hereinafter set forth.
SECTION 1. Waivers. Effective as of the date of the origination of
the HEI Default and subject to the satisfaction of the conditions precedent set
forth in Section 4, the Lenders hereby waive (a) Section 6.01(c)(ii) of the
Credit Agreement to the extent of the HEI Default and (b) Section 6.01(d) of the
Credit Agreement to the extent that the HEI Default constitutes an event or
condition that would permit the acceleration of the maturity of any Debt
referred to in Section 6.01(d), but only so long as the maturity of such Debt
has not been accelerated.
2
2
SECTION 2. Amendments to Credit Agreement. The Credit Agreement
is, effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 4, hereby amended as follows:
(a) Section 1.01 is amended by deleting the definitions of
"Applicable Margin", "Guarantor", "Guaranty" and "Hyundai Group" set
forth therein and replacing them, respectively with the following new
definitions:
"Applicable Margin" means, as of any date prior to April
1, 1998, a percentage per annum equal to 0 % for Base Rate
Advances and .38% for Eurodollar Rate Advances and, as of any
date on or after April 1, 1998, a percentage per annum equal to
0% for Base Rate Advances and 1.75% for Eurodollar Rate Advances.
"Guarantor" means Hyundai Heavy Industries Co., Ltd., a
company incorporated with limited liability in the Republic of
Korea.
"Guaranty" means the guaranty executed by the Guarantor in
the form attached on Exhibit A to Amendment No. 1.
"Hyundai Group" means, collectively, the Guarantor, Hyundai
Merchant Marine Co., Ltd., Hyundai Corporation and Hyundai
Electronics Industries Co., Ltd.
(b) Section 1.01 is further amended by adding thereto in proper
alphabetical sequence the following definition:
"Amendment No. 1" means Waiver and Amendment No. 1 to the
Credit Agreement dated as of May 22, 1998.
(c) Section 2.04(a) is amended by deleting therefrom the figure
".15%" and substituting therefor the figure "0.25%".
(d) Section 4.01(e)(ii) is amended by deleting therefrom, in both
places where such date appears, the date "December 31, 1995" and
substituting therefor the date "December 31, 1997".
(e) Section 5.02(b)(iii)(A) is amended in full to read as
follows:
(A) Debt incurred in connection with the
Securitization in an amount not to exceed $225,000,000 at
any time outstanding or the
3
3
transactions listed on Schedule 5.02(b)(iii)(A) to the
extent (x) such item of such Debt does not exceed the
amount corresponding to each such item on such Schedule and
(y) the Debt permitted by this clause (A) does not exceed
$274,000,000 in the aggregate, and any Debt extending the
maturity of, or refunding or refinancing, in whole or in
part, any such 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 Debt shall not be increased above the maximum
aggregate principal amount set forth above, and the direct
and contingent obligors therefor shall not be changed, as a
result of or in connection with such extension, refunding
or refinancing,
(f) Section 5.02(c) is amended by adding the following clause (iii)
immediately before the period at the end of such sections "and (iii) a
wholly-owned special purpose Subsidiary of the Borrower may convey,
transfer or otherwise dispose of receivables pursuant to any transaction
described in Section 5.02(b)(iii)(A)".
(g) Section 6.01(h)(ii) is amended by deleting the phrase "on the
date hereof" and substituting therefor the phrase "on the date of
Amendment No. 1".
SECTION 3. Release of HEI Guaranty. Effective as of the date of
the origination of the HEI Default and subject to the satisfaction of the
conditions precedent set forth in Section 4, the HEI Guaranty is hereby
terminated as it relates to the Credit Agreement.
SECTION 4. Conditions of Effectiveness. This Amendment is subject
to the provisions of Section 8.01 of the Credit Agreement. This Amendment shall
become effective as of the date of the origination of the HEI Default when the
Administrative Agent shall have received counterparts of this Amendment executed
by the Borrower and all of the Lenders or, as to any of the Lenders, advice
satisfactory to the Administrative Agent that such Lender has executed this
Amendment and Sections 1, 2 and 3 hereof shall become effective as of such date
when, and only when, on or before June 1, 1998 the Administrative Agent shall
have additionally received all of the following documents, each such document
(unless otherwise specified) dated the date of receipt thereof by the
Administrative Agent (unless otherwise specified) and in sufficient copies for
each Lender, in form and substance satisfactory to the Administrative Agent
(unless otherwise specified):
(a) Certified copies of (i) the resolutions of the Board of
Directors of (A) the Borrower approving this Amendment and the matters
contemplated hereby and
4
4
thereby and (B) the Guarantor evidencing approval of the Guaranty and
the matters contemplated hereby and thereby and (ii) all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to this Amendment, the Guaranty and the matters
contemplated hereby and thereby.
(b) A certificate of the Secretary or an Assistant Secretary of the
Borrower and the Representative Director or a duly authorized officer of
the Guarantor certifying the names and true signatures of the officers
of the Borrower and the Guarantor authorized to sign this Amendment and
the Guaranty, respectively, and the other documents to be delivered
hereunder and thereunder.
(c) Counterparts of the Guaranty in the form attached as Exhibit A
hereto, executed by the Guarantor.
(d) Favorable opinions of Xxx, Xxx & Xxx, counsel for the
Guarantor, or other Korean counsel to the Guarantor acceptable to the
Administrative Agent, and the Corporate Counsel of the Guarantor, in
substantially the form of Exhibits B and C hereto and as to such other
matters as any Lender through the Administrative Agent may reasonably
request,
(e) A certificate signed by a duly authorized officer of the
Borrower stating that:
(i) The representations and warranties contained in Section
5 below are correct on and as of the date of such certificate as
though made on and as of such date; and
(ii) After giving effect to this Amendment, no event has
occurred and is continuing that constitutes a Default.
SECTION 5. 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, where applicable, in good standing under the laws of the
jurisdiction of its incorporation.
(b) The execution, delivery and performance by each Loan Party of
this Amendment and the Loan Documents, as amended hereby, 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
5
5
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 Amendment 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 except that
the Guarantor is required to report to its designated foreign exchange trading
bank any payment to be made under the Guaranty at the time of making such
payment.
(d) This Amendment and the Guaranty have been duly executed and
delivered by each Loan Party party thereto. This Amendment and each of the other
Loan Documents, as amended hereby, to which the Borrower is a party is, and the
Guaranty is, the legal, valid and binding obligation of each of the Borrower and
the Guarantor, respectively, 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 December 28, 1997, 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, copies of which have been furnished to each Lender, fairly
present the Consolidated financial condition of the Borrower and its
Subsidiaries as at such date and the Consolidated results of the operations of
the Borrower and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied.
Since December 28, 1997, there has been no Material Adverse Change with
respect to the Borrower, other than as provided on Schedule 4.01(e)(i) hereto.
(ii) The balance sheet of the Guarantor and its Subsidiaries as at
December 31, 1997, and the related statements of income and cash flows of the
Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by
an opinion of Samil Accounting Corporation, a member firm of Coopers &
Xxxxxxx, independent public accountants, copies of which have been furnished
to each Lender, fairly present the financial condition of the Guarantor and
its Subsidiaries as at such date and the results of the operations of the
Guarantor and its Subsidiaries for the periods ended on such date, all in
accordance with generally accepted financial
6
6
accounting standards in the Republic of Korea consistently applied.
Since December 31, 1997, there has been no Material Adverse Change with
respect to the Guarantor.
(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
Amendment, the Guaranty or any other Loan Document, as amended hereby,
or the consummation of the transactions contemplated hereby.
SECTION 6. Reference to and Effect on the Loan Documents. (a) On
and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) On and after the effectiveness of this Amendment, each
reference in the Credit Agreement to "the Guaranty", "thereunder", "thereof" or
words of like import referring to the Guaranty, shall mean and be a reference to
the Guaranty, as defined in the Credit Agreement as amended by this Amendment.
(c) The Credit Agreement and the Notes, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(d) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Administrative Agent under any of
the Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 7. Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment, the Guaranty and the other instruments and documents to be
delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in accordance with the terms
of Section 8.04 of the Credit Agreement.
7
7
SECTION 8. Execution in Counterparts. This Amendment 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 but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 9. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MAXTOR CORPORATION
By: /s/ RAJA VENKATESH
----------------------------------
Title: Corporate Treasurer
CITIBANK, N.A.,
By: /s/ Authorized Signatory
----------------------------------
Title: Attorney-in-Fact
8
8
ABN AMRO BANK, N.V. SAN
FRANCISCO INTERNATIONAL
BRANCH
By: ABN AMRO NORTH AMERICA,
INC., AS AGENT
By: /s/ XXX X. XXXXXX
-----------------------------
Title: Xxxxxx X. Xxxxxx
Group Vice President
By: /s/ XXXXX XXXXXX
----------------------------
Title: Xxxxx Xxxxxx
Vice President
FLEET NATIONAL BANK
By: AUTHORIZED SIGNATURE
-----------------------------
Title: VICE PRESIDENT
THE SUMITOMO BANK, LTD., SAN
XXXXXXXXX XXXXXX
By: AUTHORIZED SIGNATURE
-----------------------------
Title: GENERAL MANAGER
9
MAXTOR CORPORATION
SECRETARY'S CERTIFICATE
I, Xxxxx X. Xxxxxxx, Secretary of Maxtor Corporation, a Delaware
corporation, do hereby certify, in connection with (i) the Waiver and Amendment
No. 1 dated May 22, 1998 (the "Waiver and Amendment") to the Credit Agreement
dated August 29, 1996 among Maxtor Corporation, the banks, financial
institutions and other institutional lenders parties, Citicorp Securities, Inc.
and Hanil Bank, as joint arrangers, ABN AMRO Bank, N.V., San Francisco
International Branch and Royal Bank of Canada, as co-agents, Fleet National
Bank, as manager, and Citibank, N.A., as administrative agent, (ii) the Waiver
and Amendment No. 1 dated May 22, 1998 (the "364-Day Credit Agreement Waiver
and Amendment") to the 364-Day Credit Agreement dated August 29, 1996 among
Maxtor Corporation, the banks, financial institutions and other institutional
lenders parties, Citicorp Securities, Inc. and Hanil Bank, as joint arrangers,
ABN AMRO Bank, N.V., San Francisco International Branch and Royal Bank of
Canada, as co-agents, Fleet National Bank, as manager, and Citibank, N.A., as
administrative agent and (iii) the Waiver and Amendment No. 1 dated May 22, 1998
to the Credit Agreement dated October 30, 1997 between Maxtor Corporation and
Nomura International Bank plc (together with the Waiver and Amendment and the
364-Day Credit Agreement Waiver and Amendment, the "Waivers and Amendments"),
that:
1. Attached hereto as Exhibit A, is a true and correct copy of
resolutions duly adopted by the Board of Directors of Maxtor at a
meeting thereof duly called and held on May 13, 1998, at which
meeting a quorum was present and acting throughout. Such
resolutions are the only resolutions regarding the Agreements, have
not been amended, modified or revoked and are in full force and
effect on the date hereof.
2. The Waivers and Amendments to which Maxtor is a party, as executed
and delivered on behalf of Maxtor, are substantially in the form
thereof approved by the Board of Directors referred to in paragraph
1 hereof.
3. The below named persons, who include all persons who, as officers
of Maxtor, executed and delivered the Waivers and Amendments, were
on the date of such execution, and are on the date hereof, duly
appointed, qualified and acting as such officers holding their
respective offices below set opposite their names, and the
signatures below set opposite their names are their genuine
signatures:
Name Office Signature
---- ------ ---------
Xxxxxxx X. Xxxxxx President and Chief
Executive Officer ---------------------
Xxxx X. Xxxxxx Vice President Finance,
i
10
and Chief Financial
Officer /s/ XXXX X. XXXXXX
-----------------------
Raja Venkatesh Corporate Treasurer /s/ RAJA VENKATESH
-----------------------
IN WITNESS WHEREOF, I have signed this certificate this 29 day of May,
1998.
/s/ XXXXX X. XXXXXXX
--------------------------------
Xxxxx X. Xxxxxxx, Secretary
I, Xxxx X. Xxxxxx, Vice President of Maxtor Corporation, do hereby
certify that Xxxxx X. Xxxxxxx has been duly appointed and has duly qualified as,
and on this day is, Secretary of Maxtor Corporation, and the signature above is
his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate this 29 day of May,
1998.
/s/ XXXX X. XXXXXX
---------------------------------
Xxxx X. Xxxxxx
xx
11
RESOLUTIONS OF THE BOARD OF DIRECTORS OF MAXTOR CORPORATION
Dated: May 13, 1998
WHEREAS, the Corporation has entered into a Credit Agreement (the
"Credit Agreement") dated August 29, 1996 with the banks, financial institutions
and other institutional lenders parties (collectively, the "Lenders"), Citicorp
Securities, Inc. and Hanil Bank, as joint arrangers, ABN AMRO Bank, N.V., San
Francisco International Branch and Royal Bank of Canada, as co-agents.
WHEREAS, the Corporation has entered into a 364-Day Credit
Agreement (the "364-Day Credit Agreement") dated August 29, 1996 with the banks,
financial institutions and other institutional lenders parties (collectively,
the "364-Day Credit Agreement Lenders"), Citicorp Securities, Inc. and Hanil
Bank, as joint arrangers, ABN AMRO Bank, N.V., San Francisco International
Branch and Royal Bank of Canada, as co-agents, Fleet National Bank, as manager,
and Citibank, N.A., as administrative agent.
WHEREAS, the Corporation has entered into a Credit Agreement (the
"Nomura Credit Agreement") dated October 30, 1997 with Nomura International Bank
plc (together with the Lenders and the 364-Day Credit Agreement Lenders, the
"Maxtor Lenders").
WHEREAS, under such Credit Agreements, Hyundai Electronics
Industries. Co., Ltd. ("HEI") guaranteed the payments of Maxtor Corporation to
the Maxtor Lenders under a guaranty (the "Guaranty").
WHEREAS, HEI released its 1997 year end financial statements, which
financial statements indicate that HEI is in default of the financial covenants
of the Guaranty, (the "HEI Default")
Now, THEREFORE, BE IT RESOLVED, that it is in the best interests of
the Corporation in order to ensure the availability of working capital to the
Corporation to request that the Maxtor Lenders waive the HEI Default.
RESOLVED FURTHER, that it is in the best interests of the
Corporation to enter into the (i) Waiver and Amendment No. 1 dated May 22, 1998
to the Credit Agreement, (ii) Waiver and Amendment No. 1 dated May 22, 1998 to
the 364-Day Credit Agreement and (iii) Waiver and Amendment No. 1 dated May 22,
1998 to the Nomura Credit Agreement (together the "Waivers and Amendments").
RESOLVED FURTHER, that the Waivers and Amendments and the
performance by the Corporation of its obligations under the Waivers and
Amendments, be, and the same hereby are, in all respects approved, and that the
Chairman of the Board of Directors of the Corporation, the President, any Vice
12
President or the Treasurer of the Corporation (each an "Authorized Officer") be,
and each of them hereby is, authorized and directed (any one of them acting
alone), in the name and on behalf of the Corporation, to execute and deliver the
Waivers and Amendments, each in the form as the Authorized Officer of the
Corporation executing the same shall approve, such approval to be conclusively
evidenced by his or her execution and delivery thereof; and
RESOLVED FURTHER, that prior to the execution of the Waivers and
Amendments, the Authorized Officers are, and each hereby is, authorized to
negotiate and agree on the terms and conditions of each of the Waivers and
Amendments as such Authorized Officers, or any one of them, in his, her or their
sole discretion, deem to be in the best interests of the Corporation; and
RESOLVED FURTHER, that the Authorized Officers be, and each of them
hereby is, authorized and empowered (any one of them acting alone) to do or
cause to be done all such acts or things and to sign and deliver, or cause to be
signed and delivered, all such documents, instruments and certificates
(including, without limitation, all notices and certificates required or
permitted to be given or made under the terms of the Waivers and Amendments) and
to pay all such expenses, in the name and on behalf of the Corporation or
otherwise as such Authorized Officer may deem necessary, advisable or
appropriate to effectuate or carry out the purposes and intent of the foregoing
resolutions and to perform the obligations of the Corporation under the Waivers
and Amendments and the other agreements and instruments as referred to above or
referred to therein; and
RESOLVED FURTHER, that the Corporation hereby authorizes, ratifies,
confirms and adopts in all respects all acts of the officers of the Corporation,
and of any person designated and authorized to act by an officer of the
Corporation, heretofore done or performed by such person in connection with the
acts and transactions approved by these resolutions.
13
Filed with the minutes of the proceedings of the Board of Directors
by the undersigned on May 13, 1998.
/s/ XXXXX X. XXXXXXX
--------------------------
Secretary
14
CONTINUING GUARANTY
May 29, 1998
To each of the Lenders parties to either of the Credit Agreements each dated as
of August 29, 1996 among Maxtor Corporation, the Lenders parties thereto and
Citibank, N.A., as Administrative Agent for said Lenders (as amended to date,
the "Credit Agreements"), and to Citibank, N.A., as Administrative Agent
I. For and in consideration of any indebtedness to you under the
Credit Agreements and the Notes (as defined in the Credit Agreements) of Maxtor
Corporation, a Delaware corporation having an address at 000 Xxxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter called the "Borrower"), for the payment
of which the undersigned is now obligated to you, either as guarantor or
otherwise, and/or in order to induce you, in your discretion, at any time(s)
hereafter, to make any loan(s) or advance(s) or to extend credit in any other
manner to, or at the request of or for the account of, the Borrower, either with
or without security, and/or to purchase or discount any notes, bills receivable,
drafts, acceptances, checks or other instruments or evidence of indebtedness
upon which the Borrower, under the Credit Agreements, is or may become liable as
maker, endorser, acceptor, or otherwise, in each case, under the Credit
Agreements, (all liabilities and obligations of the Borrower to you under the
Credit Agreements and the Notes (as defined in the Credit Agreements) being
hereinafter referred to as "Obligations"), the undersigned does hereby
unconditionally GUARANTEE the punctual payment when due to you of each and all
of the Obligations, together with interest thereon and any and all expenses
which may be incurred by you in collecting all or any of the Obligations and/or
in enforcing any rights hereunder.
II. As implementing the foregoing, it is understood and agreed that
(i) the undersigned guarantees that the Obligations will be paid to you strictly
in accordance with the terms and provisions of the Credit Agreements. In
reference thereto, regardless of any law, regulation or decree, now or hereafter
in effect, which might in any manner affect any of the terms or provisions of
the Credit Agreements or your rights with respect thereto as against the
Borrower, or cause or permit to be invoked any alteration in the time, amount or
manner of payment by the Borrower of any of the Obligations, and (ii) in each
instance when the Borrower shall have agreed, relative to any one or more of the
Obligations, to pay or provide your Head Office or any of your Branches or
correspondents with any amount of money that is other than that which is locally
in common circulation at the time as currency in the place where such agreement
is made, and such amount is not actually paid or provided at and when agreed or
within such time as you may deem reasonable, the undersigned will, upon request
and as you may elect, either pay or provide the amount in the exact currency and
place as agreed by the
15
Borrower or pay or provide you in the City of New York with the equivalent of
the amount in U.S. dollars at your then prevailing rate for sales of the kind of
currency agreed to be paid or provided for transfer by cable to a place where it
is current on condition that the undersigned obtains necessary permission from
the Korean Government in case such permission is required under the Korean laws
and regulations concerning foreign exchange control then in force.
III. As security for any and all liabilities of the undersigned to you,
now existing or hereafter arising hereunder, or otherwise, you are hereby given
the right to retain, and you are hereby given a lien upon any and all moneys or
other property (i.e., good and merchandise, as well as any and all documents
relative thereto; also funds, securities, choses in action and any and all other
forms of property whether real, personal or mixed, and any right, title or
interest of the undersigned therein or thereto), and/or the proceeds thereof,
which have/has been or may hereafter be, deposited or left with you (or with any
third party acting on your behalf) by or for the account or credit of the
undersigned, including (without limitation of the foregoing) that in safekeeping
or in which the undersigned may have any interest. All remittances and property
shall be deemed left with you as soon as put in transit to you by mail or
carrier. In the event of the happening of any one or more of the following, to
wit: (a) the non-payment of any of the Obligations after any applicable grace
period; (b) the dissolution or termination of existence of the Borrower or the
undersigned; (c) any petition in bankruptcy being filed by or against the
Borrower or the undersigned, or any proceedings in bankruptcy, or under any laws
or regulations of any jurisdiction relating to the relief of debtors, being
commenced for the relief or readjustment or any indebtedness of the Borrower or
the undersigned, either through reorganization, composition, extension or
otherwise; (d) the making by the Borrower or the undersigned of an assignment
for the benefit of creditors or the commencement of any proceedings by either of
the same of any insolvency law; (e) the appointment of a receiver of any
property of the Borrower or the undersigned undismissed after 45 days; (f) any
seizure, vesting or intervention by or under authority of a government, by which
the management of either the Borrower or the undersigned is displaced or its
authority in the conduct of its business is curtailed; (g) the attachment or
distraint of any funds or other property of the Borrower or the undersigned
which may be in, or come into, your possession or under your control, or that of
any third party acting for you, or of the same becoming subject at any time to
any mandatory order of court or other legal process -- then, or at any time(s)
any such event exists, any or all of the Obligations shall, at your option,
become (for the purposes of this guaranty) immediately due and payable by the
undersigned, without demand or notice. Furthermore, in any such event, full
power and authority are hereby given you to sell, assign, and deliver the whole
or any of the property upon which you have hereinbefore been given a lien, at
any broker's board, or at public or private sale, at your option, either for
cash or on credit or for future delivery, without assumption of any credit risk,
and without either demand, advertisement or notice of any kind, all of which are
hereby
16
expressly waived, and no delay on your part in exercising any power of sale or
any other rights or options hereunder, and no notice or demand, which may be
given to or made upon the undersigned by you with respect to any power of sale
or other right or option hereunder, shall constitute a waiver thereof, or limit
or impair your right to take any action or to exercise any power of sale or any
other rights hereunder, without notice or demand, or prejudice your rights as
against the undersigned in any respect. At any sale hereunder, you may purchase
the whole or any part of the property sold, free from any right of redemption on
the part of the undersigned, all such rights being also hereby waived and
released. In the event of any sale or other disposition of any of the property
aforesaid, after deducting all costs or expenses of every kind for care,
safekeeping, collection, sale, delivery or otherwise, you shall, after applying
the residue of the proceeds of the sale, or other disposition thereof, to the
payment or reduction (in whole or in part) of the principal and/or interest (as
you may elect) then owing on the Obligations, and after making proper allowance
for interest on Obligations not then due, return any excess to the undersigned,
all without prejudice to your rights as against the undersigned with respect to
any and all amounts which may then be or remain unpaid on any Obligations.
IV. The undersigned hereby consents and agrees that you may at any
time, or from time to time, in your discretion; (1) extend or change the time of
payment, and/or the manner, place or terms of payment of all or any of the
Obligations; (2) exchange, release, fail to perfect, and/or surrender all or any
of the collateral security, or any part(s) thereof, by whomsoever deposited,
which is now or may hereafter be held by you in connection with all or any of
the Obligations; (3) sell and/or purchase all or any such collateral at public
or private sale, or at any broker's board and after deducting all costs and
expenses of every kind for collection, sale or delivery, the net proceeds of any
such sale(s) may be applied by you upon all or any of the Obligations: and (4)
settle or compromise with the Borrower, and/or any other person(s) liable
thereon, any and all of the Obligations, and/or subordinate the payment of same,
or any part(s) thereof, to the payment of any other debts or claims, which may
at any time(s) be due or owing to you and/or any other person(s) or
corporation(s); all in such manner and upon such terms as you may deem proper,
and without notice to or further assent from the undersigned, it being hereby
agreed that the undersigned shall be and remain bound upon this guaranty,
irrespective of the existence, value or condition of any collateral, and
notwithstanding any such change, exchange, settlement compromise, surrender,
release, sale, application, renewal or extension, and notwithstanding also that
the Obligations may at any time(s) exceed the aggregate principal sum
hereinabove prescribed. The liability of the undersigned under this guaranty
shall be unconditional irrespective of (i) any amendment or waiver or consent to
departure from the terms of any Obligation provided that any such amendment dose
not relate to an increase in the amount of the Obligation or an extension of the
maturity of such Obligation which has not been consented to by the undersigned,
(ii) any change in the corporate existence, structure or ownership of the
17
Borrower, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower or its assets or any resulting release or
discharge of any of the Obligations, (iii) the existence of any claim, set-off
or other rights which the undersigned may have at any time against the
Borrower, you, or any other corporation or person, whether in connection
herewith or any unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim, and (iv) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower or a
guarantor.
V. The undersigned hereby waives notice of acceptance of this
guaranty, and also presentment, demand, protest and notice of dishonor of any
and all of the Obligations, and promptness in commencing suit against any party
thereto or liable thereon, and/or in giving any notice to or of making any claim
or demand hereunder upon the undersigned, and any requirement that you exhaust
any right or take any action against the Borrower or any collateral security.
This guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any Obligation is rescinded or must otherwise
be returned by you upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made. No act or
omission of any kind on your part in the premises shall in any event affect or
impair this guaranty.
VI. This is a continuing guaranty and shall (i) remain in full force
and effect until written notice shall have been received by you from the
undersigned (or the successor or legal representative of the undersigned) that
it has been revoked, but any such notice shall not release the undersigned from
any liability as to any Obligations, which may be held by you, or in which you
may have any interest, at the time of the receipt of such notice; (ii) be
binding upon the undersigned, the heirs, executors, administrators, successors
and assigns of the undersigned, and shall inure to the benefit of, and be
enforceable by, you, your successors, transferees and assigns; and (iii) be
deemed to have been made under and shall be governed by the laws of Korea in all
respects, including matters of construction, validity and performance, and it is
understood and agreed that none of its terms or provisions may be waived,
altered, modified or amended except in writing duly signed for and on your
behalf.
VII. If this guaranty is executed by two or more parties, they shall be
severally liable hereunder, and the word "undersigned" wherever used herein
shall be construed to refer to each of such parties separately, all in the same
manner and with the same effect as if each of them had signed separate
instruments; and in any such case this guaranty shall not be revoked or
impaired as to any one or more of such parties by the death of any of the others
or by the revocation or release of any liabilities hereunder of any one or more
of such other parties.
18
VIII. Any and all payments by the undersigned hereunder shall be made
free and clear of and without deduction for any and all present of future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding (i) taxes imposed on your overall net income, (ii)
franchise taxes imposed on you in lieu of net income taxes by the jurisdiction
under the laws of which you are organized or any political subdivision thereof,
and (iii) if applicable, taxes imposed on your overall net income, and franchise
taxes imposed on you in lieu of net income taxes, by the jurisdiction of your
lending office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the undersigned shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder (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 paragraph) you will receive an amount equal to the sum you would have
received had no such deductions been made, (ii) the undersigned shall make such
deductions and (iii) the undersigned shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law. In addition, the undersigned agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, performing under or otherwise with respect to, this
guaranty or the Obligations (hereinafter referred to as "Other Taxes" within 30
days of any payment of Taxes, the undersigned will furnish to you the original
or a certified copy of a receipt evidencing payment thereof. The undersigned
will indemnify you for the full amount of Taxes or Other Taxes (including,
without limitation, any taxes imposed by any jurisdiction on amounts payable
under this paragraph) paid by you or any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted, within 30 days of
your request therefor. Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations of the undersigned contained in
this paragraph shall survive the payment in full of the Obligations and
principal and interest hereunder and any termination or revocation of this
guaranty. In the case of any payment hereunder by or on behalf of the Guarantor
through an account or branch outside the United States or on behalf of the
Guarantor by a payer that is not a United States person, if the Guarantor
determines that no Taxes are payable in respect thereof, the Guarantor shall
furnish, or shall cause such payer 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 purpose of the preceding
sentence, the terms "United States" and "United States person" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
IX. Notwithstanding any other provision of this guaranty, until
payment in
19
full of the Obligations after termination of any of your commitments with
respect thereto, (i) the undersigned hereby irrevocably waives any right to
assert, enforce, or otherwise exercise any right of subrogation to any of the
rights, security interests, claims, or liens which you have against the Borrower
in respect to the Obligations, (ii) the undersigned shall have no right of
recourse, reimbursement, contribution, indemnification, or similar right that
the undersigned may have (by contract or otherwise) against the Borrower in
respect of the Obligations, and (iii) the undersigned hereby irrevocably waives
any and all of the foregoing rights and also irrevocably waives the benefit of,
and any right to participate in, any collateral or other security given to you
to secure payment of the Obligations.
X. If the undersigned shall fail to pay any of its obligations
hereunder when the same shall become due and payable, you are 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 you to or for the credit or account of the undersigned against any and all of
the Obligations, whether or not you shall have made any demand under this
guaranty. You agree promptly to notify the undersigned 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. Your rights under this paragraph
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which you may have.
XI. The undersigned hereby represents and warrants as follows: (i) the
execution, delivery and performance by the undersigned of this guaranty are
within its corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (x) its articles of incorporation or
by-laws or (y) law or any contractual restriction binding on or affecting it or
any entity that controls it; (ii) all authorizations, approvals, consents,
licenses, exemptions, filings, registrations and other requirements of
governmental, judicial and public bodies and authorities of or in Korea required
of the Guarantor in connection with the entry into and performance of this
Guaranty have been obtained and are in full force and effect, except that the
undersigned is required to report to its designated foreign exchange trading
bank any payment to be made under this Guaranty at the time of making each such
payment; and (iii) this guaranty has been duly executed and delivered by the
undersigned, and is the legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms,
XII. The undersigned covenants and agrees that, so long as any part of
the Obligations shall remain unpaid or any Lender shall have any commitment to
lend under either Credit Agreement, (a) the Tangible Net Worth of the
undersigned on the last day of any fiscal quarter shall be not less than the sum
of (i) 70% of the Tangible Net Worth as of December 31, 1997 plus (ii) 50% of
positive Net Income of the undersigned
20
for each fiscal year of the undersigned beginning with the fiscal year ending
December 31, 1998 and (b) the undersigned shall maintain a ratio of current
assets to current liabilities greater than or equal to 0.8. "Tangible Net Worth"
shall mean the excess of (x) total tangible assets over (y) total liabilities,
and "Net Income" shall mean the difference, after taxes, between total revenues
and total costs and expenses.
XIII. Delivery of an executed counterpart of a signature page to this
guaranty by telecopier shall be effective as delivery of a manually executed
counterpart of this guaranty.
HYUNDAI HEAVY INDUSTRIES CO., LTD.
By /s/ HYUNG BYUK XXX
---------------------------------------
Name Hyung Byuk Xxx
Title Representative Director
21
[XXX, XXX & XXX LETTERHEAD]
June 1, 1998
To: Each of the Lenders parties to the US$31,000,000 Credit
Agreement dated as of August 29, 1996, among Maxtor
Corporation, said Lenders and Citibank, N.A., as
Administrative Agent for said Lenders; and
Citibank, N.A., as Administrative Agent
Re: Hyundai Heavy Industries Co., Ltd.
Ladies and Gentlemen:
We have acted as the Korean legal advisers to Hyundai Heavy Industries
Co., Ltd. (the "GUARANTOR") in connection with a Corporate Guaranty (the
"GUARANTY") dated May 22, 1998 issued by the Guarantor in favor of the Lenders
and the Administrative Agent for the purpose of guaranteeing the obligations of
Maxtor Corporation as the Borrower under the above-mentioned Credit Agreement
(the "CREDIT AGREEMENT") as amended by a certain amendment agreement thereto
dated August 27, 1997 and further amended by a certain waiver and amendment no.
1 to the credit agreement (the "AMENDMENT AGREEMENT") dated May 22, 1998. Terms
defined in the Credit Agreement and Amendment Agreement are used herein as
therein defined and the term "Korea" refers to the Republic of Korea.
This opinion is furnished to you pursuant to Section
4(d) of the Amendment Agreement.
For the purpose of this opinion, we have examined:
(a) the Credit Agreement;
(b) the Amendment Agreement;
(c) the Guaranty;
22
XXX, XXX & XXX
Xxxx 1, 1998
Page 2
(d) the Articles of Incorporation of the Guarantor;
(e) the Regulations of the Board of Directors of the
Guarantor;
(f) Commercial Registry extracts regarding the Guarantor;
(g) the Approval of the Guarantor's Representative Director in
respect of the Guaranty;
(h) the report to, and acceptance thereof by, the designated
foreign exchange trading bank in respect of the Guaranty;
and
(i) such other documents as we have considered necessary or
relevant in order for us to provide this opinion.
In giving this opinion we have assumed that:
(i) the authenticity of all signatures, seals, stamps and
markings;
(ii) that all documents submitted to us as originals are
authentic, complete and up-to-date, all documents
submitted to us as copies conform to the originals, and
that all factual statements made in such documents are
correct and we have relied on them without further
enquiry;
(iii) that the Credit Agreement and Amendment Agreement and any
other agreement or instrument thereunder have been validly
authorized, signed and delivered by the parties thereto
(other than the Guarantor) in accordance with applicable
laws;
(iv) that the Credit Agreement and Amendment Agreement and any
other agreements or instruments thereunder constitute or
will constitute legal, valid and binding obligations of
each of the parties thereto enforceable in accordance with
its terms respectively under the laws of the State of New
York by which the Credit Agreement and Amendment Agreement
and any other agreement or instrument are expressed to be
governed;
(v) that the copies of the Articles of Incorporation of, the
Regulations of the Board of Directors of and the
Commercial Registry extracts relating to, the Guarantor
referred to in paragraphs (d) through (f) above are true,
complete, accurate and up-to-date; and
23
XXX, XXX & XXX
Xxxx 1, 1998
Page 3
(vi) that the Approval of the Guarantor's Representative
Director referred to in paragraph (g) above was duly
executed and that such Approval has not been amended or
rescinded.
As to any other matters of objective fact material to the opinions
expressed herein, we have made no independent inquiry and have relied solely
upon certificates or oral or written statements of officers or other
representatives of the Guarantor.
Based on the foregoing, we are of the opinion that so far as the laws
of Korea are concerned:
(1) The Guarantor is a limited liability company, duly
organized and validly existing under the laws of Korea,
with full power and authority to enter into and perform
the Guaranty.
(2) The Guarantor has taken all necessary corporate action to
authorize the entry into and performance of the Guaranty
and the transactions contemplated thereby.
(3) The Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with
its terms and is in proper form for its enforcement in the
courts of Korea.
(4) The entry into the Guaranty and the performance of the
obligations thereunder by the Guarantor do not violate (i)
any law or regulation of Korea or any judicial order in
Korea or (ii) the constitutional documents of the
Guarantor.
(5) All authorizations, approvals, consents, licenses,
exemptions, filings, registrations and other requirements
of governmental, judicial and public bodies and
authorities of or in Korea required of the Guarantor in
connection with the entry into and performance of the
Guaranty have been obtained and are in full force and
effect, except that the Guarantor is required to report
any payment to be made under the Guaranty at the time of
making each such payment to its designated foreign
exchange trading bank.
(6) The obligations of the Guarantor under the Guaranty rank
at least pari passu with all its other present or future
unsecured and unsubordinated obligations of the Guarantor
except for those preferred by operation of law applicable
to companies generally.
24
XXX, XXX & XXX
Xxxx 1, 1998
Page 4
(7) All amounts payable by the Guarantor under the Guaranty
may be made free and clear of and without deduction for or
on account of any taxes imposed, assessed or levied in
Korea or by any authority thereof or therein except,
however, that although the tax laws of Korea are not
entirely clear as to whether payment of any interest by
the Guarantor under the Guaranty may be made without
withholding of Korean taxes, the Korean tax authorities
may require the Guarantor to withhold Korean taxes from
such interest payment. In the event of Korean taxes being
imposed on interest payments, the guarantor's obligation
to bear the cost of such tax under the Guaranty would
become operative.
(8) Neither the Guarantor nor any of its property (except such
property specifically protected by law) has any immunity
from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to
judgment, attachment in aid of execution or otherwise)
under the laws of Korea.
(9) To ensure the enforceability or admissibility in evidence
of this Guaranty in Korea, it is not necessary that this
Guaranty or any other document or instrument be filed or
recorded with any court or other authority in Korea.
Our opinion is subject to the following general qualifications:
(i) the obligations of the Guarantor under the Guaranty may be
limited or affected by the bankruptcy law, the corporate
reorganization law, the compulsory composition law and
other similar laws which generally affect the rights of
creditors; and
(ii) the remedies of specific performance or injunction might
not necessarily be available in Korea with respect to any
particular provisions of the Guaranty.
This opinion is addressed to you and may be relied upon solely by
you and your counsel.
Yours faithfully,
/s/ XXX, XXX & XXX
----------------------------
Xxx, Xxx & Xxx
25
--------------------------------------------------------------------------------
HANDLING PERIOD
-----------------
APPLICATION FOR THE VALIDATION OF GUARANTY
--------------------------------------------------------------------------------
Tradename Hyundai Heavy Industries Co., Ltd.
----------------------------------------------------------------
XXXXXXXXX Xxxxxxx 0, Xxxxxxx-xxxx, Xxxxx, Xxxxxxxx, Xxxxx
----------------------------------------------------------------
Name of CEO Hyung Byuk Xxx
----------------------------------------------------------------
Business area Manufacturing
--------------------------------------------------------------------------------
Obligee(Lender) Citibank and other financial institution
acceptable to Agent
----------------------------------------------------------------
DETAILS OF Obligee(Guarantor) Hyundai Heavy Industries Co., Ltd.
----------------------------------------------------------------
APPLICATION Beneficiary(Borrower) Maxtor Corporation
----------------------------------------------------------------
Amount USD31,000,000.-
----------------------------------------------------------------
Effective period Until August 28, 1998
----------------------------------------------------------------
Purpose Working Capital
----------------------------------------------------------------
Repayment Lump Sum Repayment at marturity
--------------------------------------------------------------------------------
We hereby apply for the validation of Guaranty in accordance with the
Article 21 of Korea Foreign Exchange Control Regulation.
1998
To : Applicant No. of Validation Singosuri0696-Keumyungl2-
---------------------------------------------
Your application for the
Validation of Validated amount USD31,000,000.-
---------------------------------------------
Guaranty 15 approved. Effective period Until August 28, 1998
Condition : N/A
---------------------------------------------
1998
Confirmation by the Authorized Foreign Exchange Bank
On the basis of Korea Foreign Exchange Control Regulation, we as the
authorized bank, hereto affix the seal of us in testimony of approval.
THE PRESIDENT OF KOREA EXCHANGE BANK (SEAL)
(XXX-XXXX BRANCH)
--------------------------------------------------------------------------------
26
May 27, 1998
To: Each of the Lenders parties to the
U$31,000,000 Credit Agreement dated as of
August 29, 1996 among Maxtor Corporation, said
Lenders and Citibank, N.A., as Administrative
Agent for said Lenders; and
Citibank, N.A., as Administrative Agent
Re: Hyundai Heavy Industries Co., Ltd.
Ladies and Gentlemen:
I have acted as corporate counsel to Hyundai Heavy Industries Co.,
Ltd. (the "GUARANTOR") in connection with 2 Corporate Guaranty (the "GUARANTY")
dated May 1998 issued by the Guarantor in favor of the Lenders and the
Administrative Agent for the purpose of guaranteeing the obligations of Maxtor
Corporation as the Borrower under the above mentioned Credit Agreement (the
"CREDIT AGREEMENT") as amended by a certain amendment agreement thereto dated
August 27, 1997 and further amended by a certain waiver and amendment no. 1 to
the credit agreement(the "AMENDMENT AGREEMENT") dated May 22, 1998. Terms
defined in the Credit Agreement and Amendment Agreement are used herein as
therein defined the term "Korea" refers to the Republic of Korea.
This opinion is furnished to you pursuant to Section 4(d) of the
Amendment Agreement. For the purpose of this opinion, I have examined:
(a) the Credit Agreement;
(b) the Amendment Agreement;
(c) the Guaranty; and
(d) such other documents, agreements, and instruments as I have
considered necessary or relevant in order for me to provide
this opinion.
Based on the foregoing, I am of the opinion that, so far as the laws of Korea
are concerned, the entry into the Guaranty and the performance of the
obligations thereunder by the Guarantor do not violate any contractual or legal
restriction contained in any document or agreement applicable to the Guarantor.
Yours faithfully,
/s/ X. X. XXX
------------------------------
X. X. Xxx
Corporate Counsel
27
HYUNDAI HEAVY INDUSTRIES CO., LTD.
CERTIFICATE
THE UNDERSIGNED, Mr. Hyung Byuk Xxx, the Representative Director of Hyundai
Heavy Industries Co., Ltd., a corporation duly organized and existing under the
laws of the Republic of Korea with its registered head office at 0,
Xxxxxxx-xxxx, Xxxxx, Xxxxxxxx, Xxxxx (the "COMPANY"), does hereby certify:
(1) that attached hereto as EXHIBIT A is a true and correct copy of the
approval of the Representative Director of the Company approving,
among other things, the execution, delivery and performance by the
Company of a guaranty (the "GUARANTY") in favour of the banks,
financial institutions and other institutional lenders named as
lenders (the "LENDERS") in a certain credit agreement (the "CREDIT
AGREEMENT") dated August 29, 1996 as amended by a certain amendment
agreement thereto dated August 27, 1997 and as further amended by a
certain waiver and amendment no. 1 to the Credit Agreement in
relation to the obligations of Maxtor Corporation (the "BORROWER")
under a credit facility (the "FACILITY") extended by the Lenders to
the Borrower in an aggregate principal amount of up to
US$31,000,000, which approval has not been amended or rescinded and
are in full force and effect on the date hereof; and
(2) that attached hereto as EXHIBIT B is a true and correct copy of the
report to and acceptance thereof by its designated foreign exchange
trading bank of the Company in respect of the Guaranty, together
with an accurate English translation thereof.
Terms defined in the Credit Agreement and Guaranty shall have the same
respective meanings, when used herein.
IN WITNESS WHEREOF, THE UNDERSIGNED has hereunto affixed his name and seal as of
this 29th day of May, 1998.
For and on behalf of
HYUNDAI HEAVY INDUSTRIES CO., LTD.
By /s/ HYUNG BYUK XXX
--------------------------------
Name: Hyung Byuk Xxx
Title : Representative Director
28
HYUNDAI HEAVY INDUSTRIES CO., LTD.
APPROVAL OF THE REPRESENTATIVE DIRECTOR
OF
HYUNDAI HEAVY INDUSTRIES CO., LTD.
THE UNDERSIGNED, Mr. Hyung Byuk Xxx, the Representative Director of
Hyundai Heavy Industries Co., Ltd. (the "COMPANY"), approves the execution,
delivery and performance by the Company of a guaranty (the "GUARANTY") in favour
of the banks, financial institutions and other institutional lenders named as
lenders (the "LENDERS") in a certain credit agreement (the "CREDIT AGREEMENT")
dated August 29, 1996 as amended by a certain amendment agreement thereto dated
August 27, 1997 and as further amended by a certain waiver and amendment no. 1
to the Credit Agreement in relation to the obligations of Maxtor Corporation
(the "BORROWER") under a credit facility (the "FACILITY") extended by the
Lenders to the Borrower in an aggregate principal amount of up to US$31,000,000.
Terms defined in the Credit Agreement and Guaranty shall have the
same respective meanings when used herein.
IN WITNESS WHEREOF, THE UNDERSIGNED has hereunto affixed his name and
seal as of this 29th day of May, 1998,
For and on behalf of
HYUNDAI HEAVY INDUSTRIES CO.,
LTD.
By /s/ HYUNG BYUK XXX
---------------------------------
Name: Hyung Byuk Xxx
Title : Representative Director
