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364-DAY CREDIT AGREEMENT
Dated as of October 31, 1997
MAXTOR CORPORATION, a Delaware corporation (the "Borrower"), and Nomura BANK
INTERNATIONAL plc (the "Lender"), 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):
"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 Xxxxxx Xxxxx, 0 Xx. Xxxxxx'x-Xx-Xxxxx, Xxxxxx
XX0X 0XX, Xxxxxxx.
"Assigning Lender" has the meaning specified in Section 7.07(b).
"Assignment and Acceptance" means an assignment and acceptance entered into by
a Lender and an Eligible Assignee in substantially the form of Exhibit C
hereto.
"Assuming Lender" means an Eligible Assignee not previously a Lender that
becomes a Lender hereunder.
"Assumption" means an agreement in substantially the form of Exhibit I hereto
by which an Eligible Assignee agrees to become a Lender, in each case agreeing
to be bound by all obligations of a Lender hereunder.
"Borrowing" means the loan of ten million dollars from the Lender to the
Borrower hereunder.
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City or San Francisco, USA or London,
England.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"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 "Commitment" or (b) if such Lender has entered into any Assignment and
Acceptance, the amount set forth for such Lender as such Lender's "Commitment."
"Commitment Termination Date" means the first to occur of (i) the funding of
the Loan or (ii) the day which is 30 days after the signing of this Agreement.
"Confidential Information" means information that the Borrower furnishes to the
Lender 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 Lender from a source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance with GAAP.
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"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) 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.
"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, the office of such
Lender specified as its "Domestic Lending Office" opposite its name on Schedule
I hereto or in the Assumption Agreement or the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such Lender as
such Lender may from time to time specify to the Borrower.
"Drawing" means the single drawing of the facility made pursuant to this
Agreement (as from time to time reduced by repayment).
"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 Lender and the
Borrower, such approval not to be unreasonably withheld or delayed; provided,
however, that neither the Loan Parties nor an Affiliate or 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 (i) 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 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 Rate" means, for any Interest Period, 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
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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 Eurodollar Rate for any
Interest Period shall be determined by the Lender on the basis of applicable
rates furnished to and received by the Lender from the Reference Banks two
Business Days before the first day of such Interest Period.
"Eurodollar Rate Reserve Percentage" means, for any Interest Period, 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 having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Facility" means, at any time, the aggregate amount of the Lenders' Commitments
at such time.
"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)(iii).
"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
Co., Ltd., Hyundai Corporation and Hyundai Heavy Industries Co., Ltd.
"Indemnified Party" has the meaning specified in Section 7.04(b).
"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 the date on which the Loan is made and ending six
months thereafter and then each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending six months thereafter;
provided, however, that:
(a) 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;
(b) 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;
and
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(c) whenever, if at or about 11:00 a.m. on the Quotation Date for any
Interest Period relating to the Drawing, the Lender is not offering to leading
banks in the London Interbank Market deposits in Dollars for the proposed
duration of such Interest Period:
(i) the duration of that Interest Period shall be one
month or, if less, such that it will end on the Repayment Date; and
(ii) Margin plus the rate determined by the Lender to be
that which represents the cost to the Bank, expressed as a percentage rate per
annum of funding the Loan from whatever sources it may select.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means the Lender and each Person that shall become a Lender hereto
pursuant to Section 7.07.
"Lender's Account" means the account of the Lender maintained by the Lender at
Bank of America NTSA, New York, New York (account number 65506- 61166).
"LIBO Rate" means, in relation to an Interest Period or any unpaid sum under
the Facility the rate determined by the Lender to be the rate at which it
offers deposits in Dollars to leading banks in the London Interbank Market, for
the specified period at or about 11:00 a.m. on the Quotation Date for such
period in an amount approximately equal to the amount of the Drawing or unpaid
sum concerned and, for the purposes of this definition, "SPECIFIED PERIOD"
means the Interest Period or, as the case may be, the period in respect of
which LIBO Rate falls to be determined in relation to such unpaid sum.
"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 or a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan" means the $10,000,000 loan made by the Lender to the Borrower as
evidenced by this Agreement.
"Loan Documents" means this Agreement, the Note and the Guaranty, in each case
as amended or otherwise modified from time to time.
"Loan Parties" means the Borrower, the Guarantor and each of their
Subsidiaries.
"Margin" means, as of any date, a percentage per annum equal to 0.73% for the
Loan.
"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 a Loan
Party or any Loan Party and its Subsidiaries taken as a whole, (b) the rights
and remedies of the Lender under this Agreement or any other Loan Document or
(c) the ability of a Loan Party to perform its obligations under this Agreement
or any other Loan Document.
"Multiemployer Plan" means a single employer plan, as defined in Section
4001(a)(15) 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
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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.
"Note" means a promissory note of the Borrower payable to the Lender, in the
form of Exhibit A hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate indebtedness of
the Borrower to the Lender resulting from outstanding Loans, and also means all
other promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"Obligations" means all obligations (monetary or otherwise) of the Borrower and
each other Obligor arising under or in connection with this Agreement, or the
Note.
"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)(B); (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 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 of other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Quotation Date" means, in relation to any period for which an interest rate is
to be determined under this Agreement, the day on which quotations would
normally be given by leading banks in London Interbank Market for deposits in
Dollars for delivery on the first day of such period; provided that, if, for
any such period, quotations would ordinarily be given on more than one date,
the Quotation Date for that period shall be the last of those dates.
"Reference Banks" means Citibank Royal Bank of Canada and the Sumitomo Bank,
Ltd.
"Register" has the meaning specified in Section 7.07(d).
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"Responsible Officer" means any officer of the Borrower.
"Securitization" means the non-recourse trade receivable programme with
Citibank Securities, Inc., to be increased by US $50,000,000 as extended in
accordance with its terms.
"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 or 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.
"Stated Maturity Date" means the day falling 364 days after the date on which
the Loan is initially advanced by the Lender to the Borrower.
"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 reasonably satisfactory to the 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 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
5.2(b)(iii)(C) hereto.
"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.
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").
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ARTICLE II
COMMITMENT, BORROWING PROCEDURES AND NOTE
SECTION 2.01 Commitment. On the terms and subject to the conditions
of this Agreement (including Article III), the Lenders agree to make the Loan
pursuant to the Commitment described in Section 2.02.
SECTION 2.02 Commitment To Make Loans. From time to time on any Business Day
occurring prior to the Commitment Termination Date, the Lenders will make a
loan (the "Loan") to the Borrower equal to the aggregate amount of the
Borrowing requested by the Borrower to be made on such day. No amounts paid or
prepaid with respect to any Loan may be reborrowed.
SECTION 2.03 Borrowing Procedure. By delivering a Borrowing Request in
substantially the form of Exhibit B hereto to the Lender on or before 10:00
a.m. (London time), on a Business Day, the Borrower may irrevocably request, on
not less than three nor more than five Business Days' notice, that the
Borrowing be made in an amount of $10,000,000. On the terms and subject to the
conditions of this Agreement, on or before 11:00 a.m. (London time) on such
Business Day, the Lender shall make funds in an amount equal to the requested
Borrowing available to the Borrower by wire transfer to the accounts the
Borrower shall have specified in its Borrowing Request.
SECTION 2.04 Note. The Loan shall be evidenced by the Note payable to the
order of the Lender in a maximum principal amount equal to the original
Commitment. The Borrower hereby irrevocably authorizes the Lender to make (or
cause to be made) appropriate notations on the grid attached to the Lender's
Note (or on any continuation of such grid), which notations, if made, shall
evidence, inter alia, the date of, the outstanding principal of, and the
interest rate and Interest Period applicable to the Loans evidenced thereby.
Such notations shall be conclusive and binding on the Borrower absent manifest
error; provided, however, that the failure of the Lender to make any such
notation shall not limit or otherwise affect any Obligations of the Borrower.
SECTION 2.05 Repayments and Prepayments. The Borrower shall repay in full the
unpaid principal amount of each Loan upon the Stated Maturity Date therefor.
Prior thereto, the Borrower:
(a) may, on any Business Day, make a voluntary prepayment, in whole or in
part, of the outstanding principal amount of the Loan; provided, however, that
(i) no such prepayment of the Loan may be made on any day
other than the last day of the Interest Period for the Loan;
(ii) all such voluntary prepayments shall require at least
three but no more than five Business Days' prior written notice to the Lender;
and
(iii) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $5,000,000; and
(b) shall, immediately upon any acceleration of the Stated Maturity Date
of the Loan pursuant to Article VI, repay the Loan.
Each prepayment of the Loan made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 7.04.
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SECTION 2.06 Interest Provisions. Interest on the outstanding principal
amount of the Loan shall accrue and be payable as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate (Reserve
Adjusted) for such Interest Period plus the Margin.
SECTION 2.07 Market Disruption Rates. Notwithstanding anything to the
contrary herein contained, if at or about 11:00 A.M. on the Quotation Date for
any Interest Period relating to the Drawing, the Lender is not offering to
leading banks in the London Interbank Market Deposits in Dollars for the
proposed duration of such Interest Period:
(a) the duration of that Interest Period shall be one month or, if less,
such that it will end on the Repayment Date; and
(b) during that Interest Period the rate of interest shall be the Margin
plus the rate determined by the Lender to be that which represents the costs to
the Lender, expressed as a percentage rate per annum of funding the Loan from
whatever sources it may select.
SECTION 2.08 Post-Maturity Rates. If default is made in the payment of any
sum due under this Agreement or, if any sum due and payable by any Obligor
under any judgment of any court is not paid on the due date, interest shall
accrue on the amount in respect of which such default has been made from the
date of default until payment, calculated (both before and after judgment) at
the rate per annum which is the sum from time to time of the LIBO Rate plus the
Margin plus two percent plus the cost to the Lender of obtaining such funds
from such sources and for such periods as the Lender may in its absolute
discretion and from time to time select, and will be due and payable at the end
of each such period. Interest on overdue amounts shall be compounded at such
intervals and the Lender may select. Interest payable pursuant to this Section
2.08 shall be without prejudice to any additional claim by the Lender for costs
and damages.
SECTION 2.09 Payment Dates. Interest accrued on the Loan shall be payable,
without duplication:
(a) on the last day of an Interest Period;
(b) on the Stated Maturity Date therefor;
(c) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on the Loan; and
(d) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Article VI, immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 2.10 Fees. The Borrower agrees to pay to the Lender for the Lender's
Account a facility fee in an amount equal to the total of all legal fees, any
value added tax, and other out of pocket expenses incurred in connection with
the preparation, negotiation and documentation of this Facility whether or not
the Facility is signed payable.
SECTION 2.11 Increased Costs. If, due to either (i) the introduction of or
any change in or in theinterpretation 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 the Lender of agreeing to make or making, or
funding the Loan (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
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jurisdiction or state under the laws of which the Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by the Lender pay to the Lender
additional amounts sufficient to compensate the Lender 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, shall be conclusive and binding for all purposes, absent manifest
error; provided that the Borrower shall have no obligation to the Lender under
this Section 2.11(a) if the Lender shall not have delivered such certificate to
the Borrower within sixty days following the later of (1) the date of the
occurrence of event that forms the basis for such demand and (2) the date the
Lender shall have or should reasonably have become aware of such event.
(b) If the Lender 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 the Lender or any corporation
controlling the Lender and that the amount of such capital is increased by or
based upon the existence of the Lender's commitment to lend hereunder (and
other commitments of this type), then, upon demand by the Lender, the Borrower
shall pay to the Lender, from time to time as specified by the Lender,
additional amounts sufficient to compensate the Lender or such corporation in
the light of such circumstances, to the extent that the Lender reasonably
determines such increase in capital to be allocable to the existence of the
Lender's commitment to lend hereunder. A certificate as to such amounts
setting forth the calculation of the increased cost in reasonable detail,
submitted to the Borrower, shall be conclusive and binding for all purposes,
absent manifest error; provided that the Borrower shall have no obligation to
the Lender under this Section 2.11(b) if the Lender 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 the Lender shall have or should reasonably have become aware
of such event.
SECTION 2.12 Illegality. If, at any time, it is unlawful for the Lender to
make, fund or allow to remain outstanding the Drawing made or to be made by it
hereunder, then the Lender shall, promptly after becoming aware of the same,
deliver to the Borrower a certificate to that effect and:
(a) the available amount of the Facility shall be immediately reduced to
zero; and
(b) if the Lender so requires, the Borrower shall on such date as the
Lender shall have specified, repay the outstanding Drawing together with
accrued interest thereon, discharge its obligations under Section 2.14 (whether
or not such obligations would otherwise be then due for performance) and pay
all other amounts owing to the Lender hereunder.
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 Lender at the Lender's Account
in same day funds. Upon its acceptance of an Assignment and Acceptance, from
and after the effective date specified in such Assignment and Acceptance, the
Lender shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, and shall make all
appropriate adjustments in such payments for periods prior to such effective
date.
(b) The Borrower hereby authorizes the Lender, if and to the extent
payment owed to the Lender is not made when due hereunder or under the Note
held by the Lender, to charge from time to time against any or all of the
Borrower's accounts with the Lender any amount so due.
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(c) All computations of interest based on the LIBO Rate and of facility
fees shall be made by the Lender 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 or facility fees are
payable. Each determination by the Lender of an interest rate or facility fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Note 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 extensions 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 extension would cause payment of
interest on or principal of the Loan to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
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 the Lender, 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 the Lender is organized or any political
subdivision thereof and taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of the
Lender'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 the Lender, (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) the Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions 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 stamped
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 the Lender 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
the Lender 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 the Lender makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Lender, as its address referred to in Section 7.02, 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 Lender, at such
address, an opinion of counsel acceptable to the Lender stating
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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 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 the Lender and on the date of the Assignment and
Acceptance or Assumption Agreement pursuant to which it becomes a Lender in the
case of each Assuming Lender, and from time to time thereafter as requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide the Borrower with two original Internal Revenue
Service forms 1001 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 at the time such Lender 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 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 or Assumption Agreement
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender 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 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 reasonably considers to be confidential, the Lender 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 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
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 become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) Any Lender 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 of such Lender, be otherwise
disadvantageous to such Lender.
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SECTION 2.15 Use of Proceeds. The proceeds of the Loan shall be available
(and the Borrower agrees that it shall use such proceeds) solely for working
capital purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01 Conditions Precedent to Effectiveness of Sections 2.01 and 2.03.
Sections 2.01 and 2.03 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 December 28, 1996, except for those listed on Schedule
4.01(e) hereto, and there shall have occurred no Material Adverse Change with
respect to the Guarantor since December 31, 1996.
(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.
(c) Nothing shall have come to the attention of the Lenders during the
course of their due diligence investigation to lead them to believe that the
information provided by the Borrower and the Guarantor regarding their
financial results for the year ended December 31, 1996, and the financial
condition on December 31, 1996, was or has become misleading, incorrect or in
complete in any material respect; without limiting the generality of the
foregoing, the Lenders 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) and shall remain in effect, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains, prevents
or imposes materially adverse conditions upon the transactions contemplated
hereby.
(e) The Borrower shall have notified the Lender in writing as to the
proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses of the
Lender (including the accrued fees and expenses of counsel to the Lender).
(g) On the Effective Date, the following statements shall be true and the
Lender shall have received 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 Lender shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the
Lender:
(i) the Note.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving this Agreement, the Note, 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 Note and each other Loan Document.
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(iii) A certificate of the Secretary or an Assistant Secretary or other
authorized officer of each Loan Party certifying the names and true signatures
of the officers of such Loan Party authorized to sign this Agreement, the Note,
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 D (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 Xxxxxxxx & Xxxxxxxx, New York counsel for the
Borrower, and the General Counsel of the Borrower, substantially in the form of
Exhibits E and F hereto, respectively, and as to such other matters as the
Lender may reasonably request.
(vi) Favorable opinions of Xxx, Xxx & Xxx, counsel for the Guarantor, or other
Korean counsel to the Guarantor acceptable to the Lender, and the Corporate
Counsel of the Guarantor, substantially in the form of Exhibits G and H hereto,
respectively, and as to such other matters as the Lender may reasonably
request.
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,
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
Agreement, the Note, 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 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 any Guaranty at the time of making each such
payment.
(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) The Consolidated balance sheet of the Borrower and its Subsidiaries as
at December 28, 1996, and the related Consolidation statements of income and
cash flows of the Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Coopers and Xxxxxxx, independent public
accountants, and the Consolidated balance sheet of the Borrower and its
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Subsidiaries as at December 28, 1996, and the related Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries 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, fairly present,
subject, in the case of said balance sheet as at December 28, 1996, 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 December 28, 1996, there has been no Material
Adverse Change, except for those listed on Schedule 4.01(e) hereto.
(f) The balance sheet of the Guarantor and its Subsidiaries as at December
31, 1996, 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 Price Waterhouse, 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 accounting standards in the Republic of Korea
consistently applied. Since December 31, 1996, there has been no Material
Adverse Change.
(g) 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.
(h) 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 the Loan 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.
(i) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan.
(j) 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.
(k) 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.
(l) 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.
(m) 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
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respect to "expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(n) 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.
(o) 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 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 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.
(p) 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 the Loan shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower will:
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(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 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 are
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 of 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 or the Lenders.
(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
Lender or any agents or preservatives thereof, to examine and make copies of
and abstracts from the records 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
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that are fair and reasonable and o less favorable to the Borrower or such
Subsidiary that 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;
(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 balance
sheets of the Borrower and its Subsidiaries as of the end of such fiscal year
and 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
Lender by Coopers and Xxxxxxx or other independent public accountants
acceptable to the Lender, 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 45 days
after the end of each of the first three quarters of each fiscal year of the
Guarantor, letters from the chief financial officer, treasurer or controller of
the Guarantor that the Guarantor is, to the best knowledge of such chief
financial officer, treasurer or controller, in compliance with the terms of
Paragraph XII of the Guaranty; provided, however, that should the Guarantor be
required to prepare and submit balance sheets of the Guarantor and its
Subsidiaries as of the end of such quarter and statements of income and cash
flows of the Guarantor and its Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter as a
member of the stock exchange of the Republic of Korea, will provide such
balance sheets 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 Guarantor,
duly certified subject to year-end audit adjustments) by the chief financial
officer of the Guarantor 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 Guarantor shall
also provide a statement of reconciliation conforming such financial statements
to GAAP;
(iv) as soon as available and in any event within 90 days
after the end of the first half of each fiscal year of the Guarantor, balance
sheets of the Guarantor and its Subsidiaries as of the end of such half and
statements of income and cash flows of the Guarantor and its Subsidiaries for
the period commencing at the end of the previous fiscal year and ending with
the end of such half, duly certified (subject to year-end audit adjustment) by
the chief financial officer of the Guarantor as having been prepared in
accordance with generally accepted accounting principles, and certificates of
the chief financial officer, treasurer or controller of the Guarantor as to
compliance with the terms of Paragraph XII of the Guaranty and setting forth in
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reasonable detail the calculations necessary to demonstrate compliance with
such Paragraph, 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;
(v) as soon as available and in any event within 120 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 balance
sheets of the Guarantor and its Subsidiaries as of the end of such fiscal year
and 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
Lender by Samil Accounting Corporation, a member firm of Price Waterhouse, or
other independent public accountants acceptable to the Lender; provided,
however, that the Guarantor, should it become a member of the stock exchange of
the Republic of Korea, will provide the balance sheets and the statements of
income and cash flows required by this Section 5.01(i)(v) in Consolidated form;
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;
(vi) 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;
(vii) 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;
(viii) promptly after the commencement thereof, notice of
all actions and proceedings before any court, governmental agency or arbitrator
affecting either Loan Party or any of its Subsidiaries of the type described in
Section 4.01(g);
(ix) (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;
(x) 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;
(xi) 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 currently liability percentage
(as defined in Section 302(d)(8) of ERISA) of which is less than 90% of the
unfunded current liability of which exceeds $1,000,000;
(xii) 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
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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);
(xiii) 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
(xiv) promptly such other information respecting a Loan
Party as any Lender 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 the Loan shall remain unpaid or
any Lender 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 purposes 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 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)(E) 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 a guaranty and recourse agreement
to be entered into by the Borrower and the
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Guarantor, to the extent such Liens become operative only after the Commitments
shall have been terminated and the Lenders shall have been paid in full for all
obligations of the Borrower hereunder and under the Note; and
(v) Liens to secure Debt permitted under Section
5.02(b)(iii)(A).
(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:
(A) Subordinated Debt, and
(B) Debt under the Loan Documents.
(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 incurred in connection with the
Securitization, or the replacement thereof, to the extent each item of such
Debt does not exceed U.S. $150,000,000 in the aggregate,
(B) Capitalized Leases not to exceed in the
aggregate $10,000,000 at any time outstanding,
(C) 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 prior 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.
(D) endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business,
(E) other Debt the aggregate principal amount of
which, together with the aggregate indebtedness secured by the Liens referred
to in 5.02(a), shall not exceed $35,000,000 in the aggregate at any time
outstanding, and
(F) additional Debt, unsecured and pari passu
with the Debt under the Loan Documents, including a guarantee of the Debt under
the Loan Documents by a Subsidiary obligor of such Debt, not otherwise
permitted by this Section 5.2(b)(iii) aggregating not more than $140,000,000 in
principal amount at any one 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 the Loan when the same
becomes due and payable, or the Borrower shall fail to pay any interest on the
Loan 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 5.1(d), (e), (h) or (i) or 5.2 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 15 days after written
notice thereof shall have been given to such Loan Party by the Lender; 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 of 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 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
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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 15 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 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 51% 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 51% 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, 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 an 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 Affiliates as Withdrawal Liability (determined as of the date
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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; or
(m) A Material Adverse Change has occurred;
then, and in any such event, the Lender, by notice by the Borrower, may 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 Lender, 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 Note, 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 the
Lender to make the loan 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.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 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 Lender.
SECTION 7.02 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 000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, telecopy no. (000) 000-0000, Attention: Xxxxx Xxxxx, Vice President -
Finance & Treasurer, with a copy to Xxxxx X. Xxxxxxx, Esq., General Counsel,
at 0000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, telecopy no. (000) 000-0000;
if to the Lender, at its address at Xxxxxx Xxxxx, 0, Xx. Xxxxxx'x-Xx-Xxxxx,
Xxxxxx XX0X, 0XX, England, telecopy no. 171-626-0851, Attention: Xxxxxx Xxxx;
and if to any other Lender, at its Domestic Lending Office specified in the
Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender, or at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed, telecopied, telegraphed or telexed, be effective when
deposited in the mails, telecopied, delivered to the
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telegraph company or confirmed by telex answerback, respectively, except that
notices and communications to the Lender pursuant to Article II or III shall
not be effective until received by the Lender. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Note or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 7.03 No Waiver; Remedies. No failure on the part of the Lender 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 7.04 Costs and Expenses. (a) The Borrower agrees to pay on demand
all costs and expenses of the Lender 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, transportation, computer, duplication,
appraisal, consultant, and audit expenses and (B) the reasonable fees and
expenses of counsel for the Lender with respect thereto and with respect to
advising the Lender 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 Lender, 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 Documents and the other documents to be delivered hereunder,
including, without limitation, reasonable fees expenses of counsel for the
Lender in connection with the enforcement of rights under this Section 7.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Lender and each
of its Affiliates and its officers, directors, employees, agents and advisors
(each, "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 or defense of,
any investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Facility, Loan Documents, any of the transactions
contemplated herein or therein or the actual or proposed use of the proceeds of
the Loan 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 Lender, any of its Affiliates, or any of its 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 Facility, 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 Loan.
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(c) If any payment of principal of LIBO Rate Loan is made by the Borrower
to or for the account of the Lender other than on the last day of the Interest
Period for such Loan, acceleration of the maturity of the Note pursuant to
Section 6.01 or for any other reason, or by an Eligible Assignee to the Lender
other than on the last day of the Interest Period for such Loan upon assignment
of rights and obligations under this Agreement pursuant to Section 7.07 as a
result of demand by the Borrower pursuant to Section 7.07(a), the Borrower
shall, upon demand by the Lender, pay to the Lender any amounts required to
compensate the Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment, 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 the Lender to fund or maintain such Loan.
(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 Section 2.11, 2.14 and 7.04 shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under any of the other Loan Documents.
SECTION 7.05 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 Lender to
declare the Note due and payable pursuant to the provisions of Section 6.01,
the Lender 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 the Lender to 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 the Lender, whether or not the Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. The Lender agrees promptly to notify within one Business Day
the Borrower after any such set-off and application. The rights of the Lender
and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that the
Lender and its Affiliates may have.
SECTION 7.06 Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and the Lender and thereafter shall be
binding upon and inure to the benefit of the Borrower, the 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 Lender.
SECTION 7.07 Assignments and Participations. (a) The Lender may, with the
consent (except as provided below), not to be unreasonably withheld of the
Borrower, and the Lender if demanded by the Borrower (following a demand by the
Lender pursuant to Section 2.11 or 2.14) upon at least 5 Business Days' notice
to the Lender will, 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
Commitment, 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 the Facility, (ii) the amount of the
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,
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(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 7.07(a) shall be arranged by the Lender 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) the Lender shall not be
obligated to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 7.07(a) unless and until the 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 Loans owing to the Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts payable to the Lender under this Agreement and (vii) the parties to
each such assignment shall execute and deliver to the Lender, for its
acceptance and recording in the Register, an Assignment and Acceptance, and a
processing and recordation fee of $3,000. The Lender may, without consent of,
but upon notice to the Borrower, assign all or a portion of its rights and
obligations under this Agreement to any of its Affiliates.
(b) By executing and delivering this Assignment and Acceptance, the Lender
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 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 Lender 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 Lender 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.
(c) 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 any Notes subject to such assignment, the Lender 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
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the Borrower. Within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Lender in
exchange for the surrendered Note a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the Assigning Lender has retained a
Commitment hereunder, Assigning Lender in an amount equal to the Commitment
retained by it hereunder.
(d) The Lender shall maintain at its address referred to in Section 7.2 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
Commitment of, and principal amount of the Loans owing to, each Lender 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 and
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower and Lender at any reasonable time and
from time to time upon reasonable prior notice.
(e) 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 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 remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such lender shall cease to be a party hereto).
(f) Each Lender may sell participants 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 Commitment and the Note held by
it); provided; however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its 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 and the Lenders 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.
(g) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 7.7, disclose to
the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender 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.
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(h) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Loans 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 7.08 Confidentiality. No Lender shall use or disclose any
Confidential Information to any other Person without the consent of the
Borrower, other than (a) to the Lender's, such Lender's Affiliates and their
officers, directors, employees, agents and advisors and, as contemplated by
Section 7.7(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 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 7.09 Governing Law. This Agreement and the Note shall be governed by,
and construed in accordance with, the laws o the State of New York.
SECTION 7.10 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 7.11 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 to 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 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 7.12 Waiver of Jury Trial. Each of the Borrower and the Lenders
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 actions
of any Lender in the negotiation, administration, performance or
enforcement thereof.
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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/ Raja Venkatesh
----------------------------------
Title: Corporate Treasurer
NOMURA BANK INTERNATIONAL plc
as Lender
By:/s/ Authorized Signature
----------------------------------
Title: Senior Manager/Director
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EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S. $10,000,000 Dated: ____________ ______, 199___
FOR VALUE RECEIVED, the undersigned, MAXTOR CORPORATION, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
NOMURA BANK INTERNATIONAL plc (the "Lender") for the account of its Applicable
Lending Office on the Stated Maturity Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S. $10,000,000 pursuant to
the Credit Agreement dated as of October 31, 1997 among the Borrower and the
Lender (as amended or modified from time to time, the "Credit Agreement"; the
terms defined therein being used herein as therein defined) outstanding on the
Stated Maturity Date.
The Borrower promises to pay interest on the unpaid principal
amount of the Loan from the date of such Loan until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to the Lender at Bank of America NTSA, New York, New
York (account number 65506-61166), in same day funds.
This Promissory Note is the Note referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of a Loan by the Lender to the
Borrower in an amount not to exceed the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from such Loan being
evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
MAXTOR CORPORATION
By
-----------------------------------
Title:
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EXHIBIT B - FORM OF NOTICE
OF DRAWING
Nomura Bank International plc
Xxxxxx Xxxxx
0, Xx. Xxxxxx'x-Xx Grand
Xxxxxx XX0X 0XX
Xxxxxxx
11-5-97
Attention:
Ladies and Gentlemen:
The undersigned, Maxtor Corporation, refers to the Credit Agreement
dated as of October 31, 1997 (as amended or modified from time to time, the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned and Nomura Bank International plc (the
"Lender"), and hereby gives you notice, irrevocably, pursuant to Section 2.03 of
the Credit Agreement that the undersigned hereby requests a Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.03 of the Credit Agreement.
(i) The Business Day of the Proposed Borrowing is Nov. 7, 1997.
(ii) The funds equal to the amount of the Proposed Borrowing
should be made available by wire transfer to the following account(s):
121000358 B of A, 1484004218 Maxtor Corp.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in each Loan
Document are correct in all material respects, before and after giving effect to
the Proposed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and
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(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
Very truly yours,
MAXTOR CORPORATION
By /s/ AUTHORIZED SIGNATURE
-----------------------------------
Title: Assistant Treasurer
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EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of October
31, 1997 (as amended or modified from time to time, the "Credit Agreement")
among Maxtor Corporation, a Delaware corporation (the "Borrower"), and Nomura
Bank International plc (the "Lender"). Terms defined in the Credit Agreement
are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Loan owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other Loan Document or any other instrument or document
furnished pursuant thereto; and (iii) 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 thereto.
3. The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Agreement and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Assignor or any 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 the Credit Agreement;
(iii) confirms that it is an Eligible Assignee; (iv) appoints and authorized
the Lender 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 Lender y
the terms thereof, together with such powers and discretion as are reasonably
incidental thereto; and (v) agrees that it will perform in accordance with
their terms all of the obligations that by the terms of the Credit Agreement
are required to be performed by it as a Lender.
4. Following the execution of this Agreement and
Acceptance, it will be delivered to the Lender for acceptance and recording by
the Lender. The effective date for this
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Agreement and Acceptance (the "Effective Date") shall be the date of acceptance
hereof by the Lender, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Lender, as
of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Agreement and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Lender,
from and after the Effective Date, the Lender shall make all payments under the
Credit Agreement and the Promissory Note in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Promissory Note for periods prior to the Effective Date directly
between themselves.
7. This Agreement and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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 Schedule 1 to this Assignment and
Acceptance by telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
duly authorized as of the date specified thereon.
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EXHIBIT D - FORM OF
GUARANTY
October 31, 1997
Nomura Bank International plc
Xxxxxx Xxxxx
0 Xx. Xxxxxx'x-Xx-Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Dear Sirs:
Credit agreement between Maxtor Corporation (the "Borrower") and Nomura Bank
International plc (the "Lender") dated October 31, 1997 (the "Credit
Agreement").
I. For and in consideration of any indebtedness to you under the
Credit Agreement and the Note (as defined in the Credit Agreement), 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, under the Credit Agreement (all liabilities and
obligations of the Borrower to you under the Credit Agreement and the Note
being hereinafter referred to as "Obligations"), the undersigned does hereby
unconditionally GUARANTEE and INDEMNIFY 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 under the Credit Agreement and/or
hereunder.
II. 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 Agreement. In reference thereto, regardless of any
law, regulation or decree, now or hereafter in effect, which might in any
manner alter any of the terms or provisions of the Credit Agreement 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
you or any of your correspondents with any amount of money that is other than
that which is
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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 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., goods 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
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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 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
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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
does 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 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.
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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. 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
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(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 Lender, at such address, an opinion of counsel acceptable to the Lender
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.
VIII. Notwithstanding any other provision of this guaranty, until payment
in 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.
IX. 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
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42
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.
X. 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.
XI. 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, 1995 plus (ii) 50% of positive Net
Income of the undersigned for each fiscal year of the undersigned beginning
with the fiscal year ending December 31, 1996 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.
XII. 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 ELECTRONICS INDUSTRIES CO., LTD.
By /s/ YOUNG XXXX XXX
-------------------------------------
Name: Young Xxxx Xxx
Title: Representative Director
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44
EXHIBIT F
[Form of General Counsel Opinion]
October ___, 1997
To Nomura Bank International plc, as Lender
Xxxxxx Xxxxx
0, Xx. Xxxxxx'x-Xx-Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Re: MAXTOR CORPORATION
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(v) of the
U.S. $10,000,000 364-Day Credit Agreement (the "Credit Agreement"), dated as of
October 31, 1997, between Maxtor Corporation (the "Borrower") and Nomura Bank
International plc, as Lender. Terms defined in the Credit Agreement are used
herein as therein defined.
In connection herewith, I have examined:
(1) The Credit Agreement;
(2) The Note;
(3) The documents furnished by the Borrower pursuant to Article
III of the Credit Agreement;
(4) The Certificate of Incorporation of the Borrower and all
amendments thereto;
(5) The bylaws of the Borrower and all amendments thereto; and
(6) Such other documents, agreements, and instruments as I have
considered necessary or relevant in order for me to provide
this opinion.
My opinions expressed below are limited to the General Corporation Law
of the State of Delaware, the law of the State of California and the federal
law of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, possessing perpetual
existence and the capacity to xxx or
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be sued in its own name. The Borrower has the power to own its property and
assets and carry on its business as it is now being conducted.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement, the Note, and the consummation of the transactions
contemplated thereby are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene or
constitute a default under (i) the Borrower's charter or bylaws, or (ii) any
law, rule or regulation applicable to the Borrower (including, without
limitation, Regulations U and X of the Board of Governors of the Federal
Reserve System), (iii) any contractual or legal restriction applicable to the
Borrower, or (iv) any agreement or instrument to which the Borrower is a part
or which is binding upon it or any of its assets, nor result in the creation or
imposition of any Lien on any of the Borrower's assets pursuant to the
provisions of the Credit Agreement or any other Loan Document. The Credit
Agreement and the Notes have been duly executed and delivered on behalf of the
Borrower.
3. No authorization, 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 the
Borrower of the Credit Agreement and the Note, or for the validity,
enforceability an admissibility in evidence of the Credit Agreement and the
Note, except for the authorizations, approvals, actions, notices and filings
listed on Schedule 4.01(c) to the Credit Agreement, all of which have been duly
obtained, taken, given or made and are in fully force and effect.
4. The indebtedness of the Borrower under the Credit Agreement and
the Note is its direct, unconditional and general indebtedness and ranks at
least pari passu with all its other unsecured and unsubordinated indebtedness.
5. The Borrower is not subject to regulation under the Investment
Company Act of 1940, as amended. The Borrower is not a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
6. To my knowledge, there is no action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower 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 the Credit Agreement or any other
Loan Document or the consummation of the transactions contemplated thereby.
Sincerely,
Xxxxx X. Xxxxxxx
Vice President, General Counsel
and Secretary
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Exhibit G
October ___, 1997
To: Nomura Bank International plc
Xxxxxx Xxxxx
0, Xx. Xxxxxx'x-Xx-Xxxxx
Xxxxxx XX0X 0XX
(the "Lender")
Re:Guaranty dated as of October , 1977
Ladies and Gentlemen:
We have acted as the Korean legal advisers to Hyundai Electronics
Industries Co., Ltd. (the "Guarantor") in connection with a guaranty (the
"Guaranty") dated October ___, 1997 issued and delivered by the Guarantor in
favor of the Lender for the purpose of guaranteeing the obligations of Maxtor
Corporation (the "Borrower") under a US$10,000,000 364-day credit agreement
(the "Credit Agreement") dated October ___, 1997 and made between the Lender
and the Borrower. Terms defined in the Credit 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 3.01(h)(vi) of
the Credit Agreement. For the purpose of this opinion, we have examined:
(a) the Credit Agreement;
(b) the Guaranty;
(c) the Articles of Incorporation of the Guarantor;
(d) Commercial Registry extracts regarding the Guarantor;
(e) Minutes of a meeting of the Guarantor's Board of Directors
held regarding the Guaranty;
(f) a Seal Certificate for the Guarantor's Representative Director
who participated in the Guarantor's Board Meeting mentioned in
(e) above;
(g) a certificate issued by the Guarantor's same Representative
Director certifying the genuineness of the seal impression of
each member of the Guarantor's Board of Directors who
participated in the Guarantor's Board Meeting mentioned in (e)
above;
(h) the report to, and acceptance thereof by, Korea Exchange Bank,
Xxx-xxxx Branch in respect of the Guaranty; and
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(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:
(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 inquiry;
(iii) that the Credit 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 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 any other agreement or instrument are expressed
to be governed;
(v) that the copies of the Articles of Incorporation of, and the
Commercial Registry extracts relating to, the Guarantor
referred to in paragraphs (c) and (d) above are true,
complete, accurate and up-to-date; and
(vi) the resolutions of the Board of Directors of the Guarantor
passed at the meeting referred to in paragraph (e) above were
duly passed at properly constituted meeting and that such
resolutions have 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 law
of Korea are concerned:
(1) The Guarantor is a limited liability company, duly organized
and validly existing under the law 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.
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(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.
(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.
(10) The Lender will not be deemed to be resident, domiciled,
carrying on business or subject to taxation in Korea by reason
only of the execution, delivery or enforcement of the
Guaranty.
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 or other
similar laws with generally affect the rights of creditors;
and
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(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,
Xxx, Xxx & Xxx
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Exhibit H
October __, 1997
To: Nomura Bank International plc (lender)
Re: Hyundai Electronics Industries Co., Ltd.
Ladies and Gentlemen:
I have acted as corporate counsel to Hyundai Electronics Industries
Co., Ltd. (the "Guarantor") in connection with the Guaranty (the "Guaranty")
dated as of October __, 1997 issued by the Guarantor in favor of the Lender for
the purpose of guaranteeing the obligations of Maxtor Corporation as the
Borrower under a Credit Agreement (the "Credit Agreement") dated October __,
1997 and entered into by and among Maxtor Corporation as borrower and Nomura
Bank International plc as lender. Terms defined in the Credit 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 3.01(h)(vi) of
the Credit Agreement. For the purpose of this opinion, I have examined:
(a) The Credit Agreement
(b) The Guaranty; and
(c) 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,
-------------------------------------------------
X.X. Xxxx
Corporate Counsel
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EXHIBIT I - FORM OF
ASSUMPTION AGREEMENT
Dated: _______________
Maxtor Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Vice President - Finance & Treasurer
Normura Bank International plc
Xxxxxx Xxxxx
0, Xx. Xxxxxx'x-Xx-Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of October 31, 1997
(as amended or modified from time to time, the "Credit Agreement"; terms
defined therein being used herein as therein defined) among Maxtor Corporation,
(the "Borrower") and Nomura Bank International plc (the "Lender").
The undersigned (the "Assuming Lender") proposes to become an Assuming
Lender pursuant to Section 7.07 of the Credit Agreement and, in that
connection, hereby agrees that it shall become a Lender for purposes of the
Credit Agreement on [_______________] and that its Commitment shall as of such
date be $________________.
The undersigned (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01(e) thereof, the most recent financial statements referred to in
Section 5.01(i) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assumption Agreement; (ii) agrees that it will, independently and without
reliance upon the 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 the Credit Agreement; (iii) appoints and
authorizes the Lender to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the Lender
by the terms thereof, together with such powers as are reasonably incidental
thereto; (iv) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; (v) confirms that it is an Eligible Assignee; (vi)
specifies as its Applicable Lending Office (and address for notices) the
offices set forth beneath its name on the signature pages hereof; and (vii)
attaches the forms prescribed by
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the Internal Revenue Service of the United States required under Section 2.14
of the Credit Agreement.
The Assuming Lender requests that the Borrower deliver to the Lender
(to be promptly delivered to the Assuming Lender) a Promissory Note payable to
the order of the Assuming Lender, dated as of [_______________] substantially
in the form of Exhibit A to the Credit Agreement.
The effective date for this Assumption Agreement shall be
[_______________]. Upon delivery of this Assumption Agreement to the Borrower
and the Administrative Agent, and satisfaction of all conditions imposed under
Section 7.07 as of [date specified above], the undersigned shall be a party to
the Credit Agreement and have the rights and obligations of a Lender
thereunder. As of [date specified above], the Lender shall make all payments
under the Credit Agreement in respect of the interest assumed hereby
(including, without limitation, all payments of principal, interest and
commitment fees) to the Assuming Lender.
The Assumption Agreement may be executed in 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 by telecopier shall be effective as delivery of a manually executed
counterpart of this Assumption Agreement.
This Assumption Agreement shall be governed by, and construed in
accordance with the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING LENDER]
By:
---------------------------------
Name:
Title
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Domestic Lending Office
and address for notices):
[Address]
Eurodollar Lending Office
Address]
NAME OF ASSIGNOR]
By:
---------------------------------
Name:
Title
[Address]
ABOVE ACKNOWLEDGED AND AGREED TO:
MAXTOR CORPORATION
By:
---------------------------------
Name:
Title
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54
PROMISSORY NOTE
U.S. $10,000,000 Dated: October 31, 1997
FOR VALUE RECEIVED, the undersigned, MAXTOR CORPORATION, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
NOMURA BANK INTERNATIONAL plc (the "Lender") for the account of its Applicable
Lending Office on the Stated Maturity Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S. $10,000,000 pursuant to
the Credit Agreement dated as of October 30, 1997 among the Borrower and the
Lender (as amended or modified from time to time, the "Credit Agreement;" the
terms defined therein being used herein as therein defined) outstanding on the
Stated Maturity Date.
The Borrower promises to pay interest on the unpaid principal
amount of the Loan from the date of such Loan until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement,
Both principal and interest are payable in lawful money of the
United States of America to the Lender at Bank of America NTSA, New York, New
York (account number 65506-61166), in same day funds.
This Promissory Note is the Note referred to in, and is entitled
to the benefits of, the Credit Agreement. The Credit Agreement, among other
things, (i) provides for the making of a loan by the Lender to the Borrower in
an amount not to exceed the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from such Loan being evidenced Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
MAXTOR CORPORATION
By:/s/ RAJA VENKATESH
--------------------------------------
Title:
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MAXTOR CORPORATION
Certificate of Borrower
Pursuant to Article III, Section 3.01(g) of the U.S. $10,000,000 364-Day
Credit Agreement Dated as of October 31, 1997, among Maxtor Corporation, as
Borrower, and Nomura Bank International plc, as Lender, Borrower hereby
certifies to Lender that:
(i) The representations and warranties contained in each Loan Document
are correct, and
(ii) No event has occurred and is continuing that constitutes a Default.
All capitalized terms not otherwise defined herein shall have the
meaning set forth in the Agreement
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
31st day of October, 1997.
MAXTOR CORPORATION
By:
------------------------------------
Xxxx X. Xxxxxx
Vice President Finance and
Chief Financial Officer
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CERTIFIED RESOLUTIONS
OF THE
BOARD OF DIRECTORS
OF
MAXTOR CORPORATION
I, Xxxxxxxx Xxxx-Xxxxx, hereby certify that I am the duly elected and
acting Assistant Secretary of Maxtor Corporation, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"). I further
certify that the following is a full, true and correct copy of resolutions of
the Board of Directors of the Corporation, duly and regularly adopted by the
Board of Directors of the Corporation in all respects as required by law and the
Bylaws of the Corporation on January 11, 1996, and that said resolutions are in
full force and effect and have not been amended or revoked.
Approval of Borrowing Authorization Levels
WHEREAS, it is also deemed to be in the best interests of the
Corporation to establish borrowing relationships from time to time with
various financial institutions, subject to the following limitations of
authority with respect to such borrowings:
Title Authority
----- ---------
Chief Financial Officer to $10,000,000
Chief Executive Officer to $20,000,000
Board of Directors over $20,000,000
IT IS THEREFORE RESOLVED, that the officers of the Corporation
are hereby authorized in the name and on behalf of this Corporation to
enter into borrowing agreements with such financial institutions and on
such terms as its officers may deem in the Corporation's best interests,
provided, however, that the aggregate principal amount of each such
borrowing is approved by the appropriate officer, and within the
borrowing limits, as set forth above;
RESOLVED FURTHER, that the signatures of the President or Chief
Financial Officer, together with either the Secretary or Treasurer,
appearing on any form of agreement not inconsistent with the foregoing
shall be presumptive evidence of the officers' authority to execute such
agreement on behalf of Maxtor Corporation; and
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RESOLVED FURTHER, that the proper officers of the Corporation be,
and each of them hereby is, authorized, directed and empowered, for and
on behalf of the Corporation, to make all such arrangements, to do and
perform all such acts and things, to execute and deliver all such other
instruments and documents, and to certify any further resolutions in
connection therewith, which resolutions shall be deemed to be approved
by the Board as if adopted at this meeting.
Dated: October 31, 1997
- SEAL -
----------------------------------------
Xxxxxxxx Xxxx-Xxxxx
Assistant Secretary
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Certificate of Assistant Secretary
I, Xxxxxxxx Xxxx-Xxxxx, hereby certify that I am the duly elected and
acting Assistant Secretary of Maxtor Corporation, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"). I further
certify hereby that the following signatures are the true signatures of the
persons duly authorized to sing the Agreement, the Note, each other Loan
Document to which the Corporation is a party and such other documents as may be
required to be delivered thereunder.
Officer Name Signature
------- ---- ---------
Vice President and
Chief Financial Officer Xxxx X. Xxxxxx /s/ XXXX X. XXXXXX
-----------------------------------
Vice President, General
Counsel and Secretary Xxxxx X. Xxxxxxx /s/ XXXXX X. XXXXXXX
-----------------------------------
Corporate Treasurer Raja Venkatesh /s/ RAJA VENKATESH
-----------------------------------
Assistant Treasurer Xxxx Xxxxx /s/ XXXX XXXXX
-----------------------------------
Dated: October 31, 1997
/s/ XXXXXXXX XXXX-XXXXX
-----------------------------------
Xxxxxxxx Xxxx-Xxxxx
Assistant Secretary
- SEAL -
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59
HYUNDAI ELECTRONICS INDUSTRIES, Co., LTD.
Certificate
I, Young Xxxx Xxx, Representative Director of Hyundai Electronics
Industries, Co., Ltd., a company incorporated with limited liability in the
Republic of Korea (the "Corporation"), DO HEREBY CERTIFY, in connection with a
Borrowing on this date under the Credit Agreements each dated as of October 31,
1997 between Maxtor Corporation, a Delaware corporation, as borrower and Nomura
Bank International plc as lender (the "Credit Agreement," the terms defined
therein being used herein as therein defined), that:
1. Attached hereto as Exhibit A is a true, complete and up-to-date copy
of the Articles of Incorporation of the Corporation, together with an accurate
English translation thereof.
2. Attached hereto as Exhibit B is a true, complete and up-to-date copy
of the Commercial Registry extracts regarding the Corporation, together with an
accurate English translation thereof.
3. Attached hereto as Exhibit C is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Corporation at a
meeting thereof duly called and held on October 15, 1997, at which meeting a
quorum was present and acting throughout. Such resolutions have not been
amended, modified or revoked and are in full force and effect on the date
hereof.
4. The Guaranty (the "Guaranty") dated October 31, 1997, made by the
Corporation to the Lender, as executed and delivered on behalf of the
Corporation, is substantially in the form thereof approved at the meeting of the
Board of Directors referred to in paragraph 3 hereof.
5. Attached hereto as Exhibit D is a genuine Seal Certificate for the
Corporation's Representative Director who participated in the Corporation's
Board Meeting mentioned in paragraph 3 above, together with an accurate English
translation thereof.
6. The seal impression of each member of the Corporation's Board of
Directors who participated in the Corporation's Board Meeting mentioned in
paragraph 3 above is genuine and authentic.
7. Attached hereto as Exhibit E is a true and correct copy of the report
filed by the corporation with its designated foreign exchange trading bank in
respect of the Guaranty, together with an accurate English translation thereof.
8. The below named persons, who include all persons who, as officers of
the Corporation, executed and delivered the Guaranty and each other document,
certificate and instrument being delivered on the date hereof pursuant to or as
contemplated by the Credit
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Agreement, were duly elected (or 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
Young Xxxx Xxx Representative Director /s/ YOUNG XXXX XXX
-------------------------
Il Sun Xxx Xxxxxxxx /s/ IL SUN XXX
-------------------------
Kang Xx Xxx General Manager /s/ KANG XX XXX
-------------------------
IN WITNESS WHEREOF, I have signed this certificate this 31st day of
October, 1997.
/s/ YOUNG XXXX XXX
-----------------------------------
Name: Young Xxxx Xxx
Title: Representative Director
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ARTICLES OF INCORPORATION
OF
HYUNDAI ELECTRONICS INDUSTRIES COMPANY LIMITED
CHAPTER I. GENERAL PROVISIONS
ARTICLE 1. COMPANY NAME
The name of the Company is, in Korean, Hyundai Jeon-Ja San-up Choo-Sik Hoe-Sa
and in English, Hyundai Electronics Industries Co., Ltd. (in abbreviated form,
HEI).
ARTICLE 2. OBJECT
The object of the Company is to engage in the following business activities:
(1) Manufacture or sale of semiconductor devices
(2) Manufacture, fabrication or sale of machinery, tools, parts, materials
to be used therefor by applying the features of electronic movements and
by utilizing semiconductor devices and other similar parts
(3) Development or lease of application software for computers
(4) Manufacture, sale or lease of electronic, electrical or communicative
machinery, tools and their parts, and services related thereto
(5) Manufacture of mechanical components and tooling
(6) Technical research or consulting services
(7) Lease of electronic or electrical machinery or tools
(8) Manufacture, sale or lease of communicative equipment for specific
purposes (satellite communication, etc.) or broadcasting, or services
related thereto
(9) Manufacture or sale of photographic supplies or optical supplies
(10) Information services
(11) Publication
(12) Foreign trading
(13) Xxxxxxxxxxx
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(00) Sale or lease of real estate
(15) Importation, sale or distribution of the foreign movies
(16) Production, sale or distribution of the movies
(17) Any other businesses or investment related to or incidental to any of
the aforementioned activities
(18) Manufacture of storage battery
(19) Power generation
(20) Construction
(21) Manufacture or sale of disk or video products
(22) Any other businesses and investment related to or incidental to any of
the aforementioned activities
(23) Manufacture of electronic tubes
(24) Amusement business
(25) Manufacture or sale of spacecrafts and their components
ARTICLE 3. LOCATION OF THE HEAD OFFICE AND ESTABLISHMENT OF BRANCH AND OTHER
OFFICES
(1) The head office of the Company shall be located at Ichon-Si,
Kyoungki-Do, the Republic of Korea.
(2) The Company may establish branches, branch offices, offices and
subsidiaries in Korea, as well as abroad as required by resolution of
the Board of Directors.
ARTICLE 4. METHOD OF GIVEN PUBLIC NOTICE
Public notices by the Company shall be given by publication in The Korea
Economic Daily, a daily newspaper of general circulation published in Seoul, the
Republic of Korea.
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CHAPTER II. SHARES
ARTICLE 5. TOTAL NUMBER OF SHARES TO BE ISSUED
The total number of shares to be issued by the Company is one hundred
twenty-eight million (128,000,000) shares.
ARTICLE 6. PAR VALUE PER SHARE
The par value of shares issued by the Company shall be five thousand Won
(Won 5,000) per share.
ARTICLE 7. TOTAL NUMBER OF SHARES TO BE ISSUED AT THE TIME OF INCORPORATION
The total number of the shares to be issued by the Company at the time of
incorporation shall be fifty thousand (50,000) shares.
ARTICLE 8. CLASSES OF SHARES
The classes of shares to be issued by the Company shall be common shares in
non-bearer form and preferred shares in non-bearer form.
ARTICLE 8-2. NUMBER AND CHARACTERISTICS OF PREFERRED SHARES
(1) The number of non-voting preferred shares to be issued by the Company
shall be twenty million (20,000,000) shares.
(2) The dividend of a non-voting preferred share shall be one percent (1%)
of the par value of the share per annum above the amount of the dividend
on a common share. Such additional one percent (1%) shall be paid in
cash.
(3) Dividends on preferred shares, as set forth in Paragraph (2), may be not
declared if no dividend is declared on the common shares.
(4) If any dividend on non-voting preferred shares cannot be paid from the
profits of the fiscal year concerned, the non-voting preferred shares
shall be deemed to have voting
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rights, from the time of the general meeting of shareholders following
the general meeting at which the resolution not to pay dividends on
preferred shares is adopted, to the time of the end of the general
meeting of shareholders at which a resolution to pay dividends for such
preferred shares is adopted.
ARTICLE 9. TYPES OF SHARE CERTIFICATES
Share certificates to be issued by the Company shall be in eight denominations,
of one (1), five (5), ten (10), fifty (50), one hundred (100), five hundred
(100), one thousand (1,000) and ten thousand (10,000) shares.
ARTICLE 10. PREEMPTIVE RIGHTS
(1) The Company's shareholders shall have the preemptive right to subscribe
to new shares in proportion to their respective shareholding ratios.
However, if any unsubscribed shares result from a shareholder waiving or
losing his preemptive right, or if fractional shares result from the
allocation of the new shares, such shares shall be disposed of in
accordance with a resolution of the Board of Directors.
(2) Notwithstanding the provision of Paragraph (1), the Company may allocate
new shares to persons other than shareholders by resolution of the Board
of Directors in the following cases:
(i) If the Company issues new shares by a public offering or cause
underwriters to underwrite new shares in accordance with the
relevant provisions of the Securities and Exchange Act.
(ii) If the Company issues new shares to the Employee Stock Ownership
Association in accordance with the relevant provisions of the
Law on Fostering the Capital Market.
(iii) If the Company issues new shares for the issuance of depository
receipts (DR) in accordance with the Regulation on the Issuance
of Overseas Securities.
ARTICLE 10-2. RECORD DATE OF THE DIVIDEND PAY-OUT OF NEW SHARES
In case the Company issues new shares by increase of capital stock with
consideration, increase
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of capital stock without consideration and share dividend, for the purpose of
the dividend for new shares, such new shares shall be deemed to have been issued
at the end of the fiscal year immediately preceding the fiscal year in which
such new shares have been issued.
ARTICLE 11. ISSUANCE OF NEW SHARES AT MARKET PRICE
(1) The Company may, in issuing new shares, issue any or all of new shares
at a market price and such market price shall be determined by the
resolution of the Board of Directors.
(2) In the case of Paragraph 1 above, the Company may, notwithstanding the
provisions described in Article 10, issue new shares by a public
offering or cause underwriters to underwrite new shares issued at a
market price in accordance with the relevant provisions of Securities
and Exchange Act.
ARTICLE 12. TRANSFER AGENT
(1) The Company shall retain a transfer agent to make entries in the
Register of Shareholders.
(2) The nomination of transfer agent, the location where its services are to
be rendered and the scope of its duties shall be determined by the Board
of Directors of the Company and shall be publicly announced.
(3) The Company shall keep the Register of Shareholders, or a duplicate
thereof, at the location where the transfer agent performs its duties.
The transfer agent shall handle the activities of making entries in the
Register of Shareholders, registering the creation and cancellation of
pledges over shares, indication of trust assets and cancellation thereof
with respect to shares, issuing share certificates, receiving reports,
and other related businesses.
(4) Those activities by the transfer agent described in Paragraph (3) shall
be performed in accordance with the Regulations for Securities Agency
Business of the Transfer Agent.
ARTICLE 13. REPORT OF NAME, ADDRESS AND SEAL OF SIGNATURE OF SHAREHOLDERS AND
OTHERS
(1) Shareholders and registered pledgees shall report their names, addresses
and seals of signature to the transfer agent referred to in Article 12.
(2) Shareholders and registered pledgees who reside in a foreign country
shall report their appointed agent and the addresses in Korea to which
notices are to be sent.
(3) The above provisions shall also apply to changes in any item mentioned
in Paragraphs (1) and (2).
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ARTICLE 14. CLOSING OF REGISTER OF SHAREHOLDERS AND RECORD DATE
(1) The Company shall suspend the making of entries in the Register of
Shareholders, registration or cancellation of pledges and indication of
trust assets and cancellation thereof during the period from the date
following the last day of each fiscal year to the last date of the month
for the year.
(2) The Company shall allow the shareholders who are registered in the
Register of Shareholders as of the closing date of each fiscal year to
exercise their rights.
(3) The Company may, by resolution of the Board of Directors, and with
advance public notice of two (2) weeks, when calling an extraordinary
general meeting of shareholders or when necessary, close the Register of
Shareholders for a period not exceeding three (3) months, or set a
record date; provided, that if the Board of Directors deems it
necessary, the Company may close the Register of Shareholders and set
the record date at the same time.
CHAPTER III. BONDS
ARTICLE 15. ISSUANCE OF CONVERTIBLE BONDS
(1) The Company may issue convertible bonds to persons other than
shareholders, provided that the aggregate face value of the convertible
bonds so issued shall not exceed five hundred billion Won
(Won 500,000,000,000).
(2) The convertible bonds mentioned in Paragraph (1) may be issued with a
partial conversion right in accordance with the resolution of the Board
of Directors.
(3) The type of shares to be issued upon conversion of convertible bonds
shall be common shares or preferred shares. The conversion price shall
be not less than the par value of the shares, as determined by the Board
of Directors at the time of issuance of the relevant convertible bonds.
(4) The period during which conversion may be requested shall commence one
(1) month after the date of issuance of the relevant convertible bonds
and end on the date one day prior to the redemption date of the bonds;
provided, that the Board of Directors may, by its resolution, adjust the
conversion period within the above period.
(5) With respect to the distribution of dividends or interest for shares
issued upon conversion of the convertible bonds described in Paragraph
(1), the conversion into new shares shall be deemed to have taken place
at the end of the fiscal year immediately preceding the fiscal year in
which such conversion is requested.
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ARTICLE 16. ISSUANCE OF BONDS WITH WARRANTS
(1) The Company may issue bonds with warrants to persons other than
Shareholders, provided that the aggregate face value of the bonds with
warrants so issued shall not exceed five hundred billion Won
(Won 500,000,000,000).
(2) The aggregate value of new shares which may be subscribed to by warrant
holders shall be determined by the Board of Directors, but shall not
exceed the aggregate face value of the bonds with warrants.
(3) The Article 15, Paragraph (3) shall apply mutatis mutandis to bonds with
warrants.
(4) The Article 15, Paragraph (4) shall apply mutatis mutandis to bonds with
warrants.
(5) With respect to the distribution of dividends or interest for shares
issued upon exercise of warrants in the case of the bonds with warrants
described in Paragraph (a), the Article 10-2 shall mutatis mutandis
apply.
ARTICLE 17. APPLICABLE PROVISIONS REGARDING ISSUANCE OF BONDS
The provisions of Articles 12 and 13 shall apply mutatis mutandis to the
issuance of bonds.
CHAPTER IV. GENERAL MEETING OF SHAREHOLDERS
ARTICLE 18. TIME FOR CONVENING OF GENERAL MEETING
(1) General meetings of the shareholders of the Company shall be of two
types: ordinary and extraordinary.
(2) The ordinary general meeting of shareholders shall be convened within
three (3) months after the end of each fiscal year and the extraordinary
general meeting of shareholders may be convened at any time if
necessary.
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ARTICLE 19. PERSON AUTHORIZED TO CONVENE GENERAL MEETING
(1) Except as otherwise provided by law, general meetings of shareholders
shall be convened by the Representative Director-President in accordance
with a resolution of the Board of Directors.
(2) In the absence of the Representative Director-President, the provision
of Article 35, Paragraph (2) shall apply mutatis mutandis.
ARTICLE 20. NOTICE AND PUBLIC NOTICE OF CONVENING OF GENERAL MEETING
(1) In convening a general meeting of shareholders, a written notice
thereof, which sets forth the time, date, place and agenda of the
meeting, shall be sent to each shareholder at least two (2) weeks prior
to the date of the meeting.
(2) The written notice to shareholders holding not more than one percent
(1%) of the total number of shares outstanding may be replaced by public
notices made at least twice in a daily newspaper set forth in Article 4
and Maeil Business Newspaper two (2) weeks prior to the meeting. The
public notice of a meeting shall include the statement that the general
meeting will be held and the agenda of the meeting.
ARTICLE 21. PLACE OF GENERAL MEETING
General meetings of shareholders shall be held at the place where the head
office of the Company is located by may be held at a nearby place if necessary
or in Seoul.
ARTICLE 22. CHAIRMAN OF MEETING
(1) The Representative Director-President shall be the chairman of the
general meeting of shareholders.
(2) In the absence of the Representative Director-President, the provision
of Article 35, Paragraph (2) shall apply mutatis mutandis.
ARTICLE 23. MAINTENANCE OF ORDER BY CHAIRMAN
(1) The chairman of a general meeting of shareholders may order persons who
intentionally speak or behave obstructively or who disturb the
proceedings of the meeting to stop or retract a speech or to leave the
place of meeting and such persons shall comply with his order.
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(2) The chairman of the general meeting of shareholders may restrict the
time and frequency of shareholder's speech when deemed necessary to
proceed with the meeting.
ARTICLE 24. VOTING RIGHTS OF SHAREHOLDERS
Every shareholder shall have one (1) vote for each share he owns.
ARTICLE 25. LIMITATION TO VOTING RIGHTS OF CROSS-HELD SHARES
If the Company or any of its subsidiaries holds, individually or jointly, shares
exceeding ten percent (10%) of the total number of shares issued and outstanding
of another company, the shares in the Company held by such other company shall
not have voting rights.
ARTICLE 26. SPLIT EXERCISE OF VOTING RIGHTS
(1) If a shareholder who holds two (2) or more votes wishes to split his
votes, he shall give at least three (3) days' prior written notice to
the Company of such intention and reason therefor.
(2) The Company may refuse to permit a shareholder to vote each shares
separately rather than as a block, except in the case where such
shareholder holds shares belonging to others in trust or on behalf of
others.
ARTICLE 27. EXERCISE OF VOTING RIGHTS BY PROXY
(1) A shareholder may exercise his or her voting right by proxy.
(2) The proxyholder in Paragraph (1) shall submit documents evidencing his
power of representation, prior to the opening of the general meeting of
shareholders.
ARTICLE 28. METHOD OF RESOLUTION OF GENERAL MEETING OF SHAREHOLDERS
At all general meetings of shareholders, except as otherwise prescribed by law,
the quorum of all general meetings of shareholders shall be more than fifty
percent (50%) of the votes of the shareholders present and all resolutions of
the general meeting of shareholders shall be passed by not less than twenty-five
percent (25%) of the total shares issued and outstanding.
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ARTICLE 29. MINUTES OF GENERAL MEETING OF SHAREHOLDERS
The substance of the course and proceedings of a general meeting of shareholders
and the results thereof shall be recorded in minutes which shall bear the names
and seals or signatures of the chairman and the directors present at the
meeting, and shall be kept at the head office and branches of the Company.
CHAPTER V. DIRECTORS, BOARD OF DIRECTORS AND AUDITORS
ARTICLE 30. NUMBER OF DIRECTORS AND AUDITORS
The Company shall have at least three (3) directors and at least one (1)
Auditor.
ARTICLE 31. ELECTION OF DIRECTORS AND AUDITORS
(1) The directors and auditors shall be elected at a general meeting of
shareholders.
(2) The directors and auditor(s) shall be elected by majority of votes of
the shareholders present at the general meeting of shareholders and not
less than twenty-five percent (25%) of the total shares issued and
outstanding. A shareholder holding shares exceeding three-hundredths
(3/100) of the total number of voting shares issued and outstanding, may
not exercise his vote in electing the auditor in respect of shares in
excess of three percent (3%).
ARTICLE 32. TERM OF OFFICE OF DIRECTORS AND AUDITORS
(1) The term of office of directors shall be two (2) years; provided,
however, that if the term of office expires before the ordinary general
meeting of shareholders convened in respect of the last fiscal year of
such term of office, the term of office shall be extended until the
close of such ordinary general meeting of shareholders.
(2) The term of office of the auditor(s) shall expire at the close of the
ordinary general meeting of shareholders convened with respect to the
last fiscal year which ends on or before three (3) years from the date
of acceptance of office.
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ARTICLE 33. FILLING OF VACANCY IN THE OFFICE OF DIRECTOR AND AUDITOR
(1) Any vacancy in the office of a director or auditor shall be filled by
resolution of a general meeting of shareholders; provided, however, that
if the number of directors required by Article 30 of these Articles of
Incorporation is met and there is no difficulty in the administration of
business, the vacancy may be left unfilled.
(2) The term of office of a director or auditor elected to fill a vacancy
shall be the remaining term of his predecessor.
ARTICLE 34. ELECTION OF REPRESENTATIVE DIRECTOR AND OTHERS
The Company may elect the Representative Director-President, and a number of
Executive Vice Presidents, Senior Vice Presidents and Vice Presidents in
accordance with a resolution of the Board of Directors.
ARTICLE 35. DUTIES OF DIRECTORS
(1) The Representative Director-President shall represent the Company, and
manage all the affairs of the Company.
(2) Executive Vice Presidents, Senior Vice Presidents, Vice Presidents and
directors shall assist the Representative Director and shall carry out
their respective responsibilities as determined by the Board of
Directors. In the absence of the Representative Director, they shall
perform his duty in the above order.
ARTICLE 35-2. REPORT DUTY OF DIRECTORS
In case any director comes to know the fact that seems to damage seriously to
the Company, such director shall inform the auditor thereof immediately.
ARTICLE 36. DUTIES OF AUDITOR(S)
(1) The auditor shall examine the accounts and business of the Company.
(2) The auditor may attend meetings of the Board of Directors and express
his opinions thereat.
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(3) The auditor may request to convene the extraordinary general meeting of
shareholders by filing with the Board of Directors a statement
specifying the agenda and the reason of convention thereof.
(4) The auditor may request any subsidiary of the Company to report its
business affairs, when deemed necessary to exercise his duties. In this
event, the auditor may investigate the business affairs and financial
status of such subsidiary when such subsidiary does not report
immediately or it is necessary to ascertain the content of such report.
ARTICLE 37. AUDITORS' RECORDS
The auditor shall record the substance and results of an audit in auditors'
records, on which shall be affixed the names and seals or signatures of the
auditors who have performed such audit.
ARTICLE 38. CONSTITUTION OF THE BOARD OF DIRECTORS AND CONVENING OF THE BOARD OF
DIRECTOR'S MEETING
(1) The Board of Directors of the Company shall consist of directors. The
Board of Directors shall resolve all important matters relating to the
execution of businesses.
(2) Meetings of the Board of Directors shall be convened by the
Representative Director-President or another director designated by the
Board of Directors. In convening a meeting of the Board of Directors, a
written notice thereof shall be given to each director and auditor seven
(7) days prior to the date of the meeting; provided, however, that such
notice may be dispensed with upon the consent of all directors and
auditors.
ARTICLE 39. RESOLUTIONS OF THE BOARD OF DIRECTORS
(1) Resolution of the Board of Directors shall be adopted in the presence of
a majority of the directors in office and by the affirmative vote of a
majority of the directors present.
(2) The chairman of the Board of Directors shall be the person with the
right to convene a meeting of the Board of Directors in accordance with
Article 38, Paragraph (2).
(3) No director who has an interest in a manner for resolution can exercise
his vote upon such matter.
ARTICLE 40. MINUTES OF MEETING OF THE BOARD OF DIRECTORS
The substance of the proceedings of the Board of Directors shall be recorded in
the minutes,
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which, after having been given names and seals or signatures by the chairman and
all the directors and auditors present, shall be kept at the head office.
ARTICLE 41. COMPENSATION AND SEVERANCE PAY OF DIRECTORS AND AUDITORS
(1) The amount of compensation for the directors and auditors shall be
determined by a resolution of the general meeting of shareholders.
(2) Severance payments for directors and auditors shall be paid in
accordance with the Regulation on Severance Payment for Officers as
adopted by a resolution of the general meeting of shareholders.
ARTICLE 42. CONSULTANTS AND ADVISORS
The Company may have a number of consultants or advisors in accordance with the
resolution of the Board of Directors.
CHAPTER VI. ACCOUNTING
ARTICLE 43. FISCAL YEAR
The fiscal year of the Company shall commence on the first day of January and
end of the 31st day of December of each year.
ARTICLE 44. PREPARATION AND PRESERVATION OF FINANCIAL STATEMENTS AND BUSINESS
REPORT
(1) The Representative Director-President of the Company shall prepare the
following documents, supplementary documents thereto and the business
report, six weeks before the day set for the ordinary general meeting of
shareholders, for audit by the auditors, and the Representative
Director-President shall submit the following documents and the business
report to the ordinary general meeting of shareholders.
(i) Balance sheet;
(ii) Profit and loss statement; and
(iii) Statement of appropriation of retained earnings or statement of
disposition of deficit.
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(2) The auditors shall submit the auditors' report on the documents
described in Paragraph (1) above to the Representative
Director-President, within four (4) weeks of receipt thereof.
(3) The Representative Director-President shall keep on file copies of the
documents described in Paragraph (1) above, supplementary documents
thereto, the business report, and the auditors' report at the head
office of the Company for five (5) years and certified copies of all
such documents at the branches of the Company for three (3) years
beginning from one (1) week before the day set for the ordinary general
meeting of shareholders.
(4) The Representative Director-President shall give public notice of the
balance sheet and the independent auditors' opinion immediately after
the documents referred to in each item of Paragraph (1) above have been
approved by the general meeting of shareholders.
ARTICLE 45. DISPOSITION OF PROFIT
This Company shall dispose of the unappropriated retained earnings as of the end
of each fiscal year as follows:
(i) making up the deficit carried forward from previous fiscal
years;
(ii) legal reserve (required by Commercial Law);
(iii) other statutory reserves;
(iv) dividends;
(v) discretionary reserve;
(vi) other appropriation of retained earnings; and
(vii) carrying forward to subsequent fiscal years.
ARTICLE 46. DIVIDENDS
(1) Dividends may be paid in cash or in shares.
(2) Dividends under Paragraph (1) shall be paid to the shareholders or
pledgees who are registered in the Register of Shareholders as of the
end of each fiscal year.
(3) In the event of paying the dividend in shares, when the Company has
issued several kinds of shares, the Company may pay different kinds of
shares in accordance with the resolution of the general meeting of
shareholders.
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ARTICLE 47. PRESCRIPTION PERIOD FOR CLAIM FOR PAYMENT OF DIVIDENDS
(1) The right to dividends shall be extinguished by prescription if the
right is not exercised for five (5) years.
(2) After the expiration of the prescription period set out in Paragraph
(1), unclaimed dividends shall revert to the Company.
ADDENDUM
These Articles of Incorporation shall take effect as of February 28, 1997;
provided that the Article 13, Article 28, Article 29, Article 31, Article 32,
Article 35-2, Article 36, Article 37, Article 40, and Paragraph 3 of Article 46
shall take effect as of October 1, 1996, and the Article 10-2 shall take effect
as of the first fiscal year starting after the date of amendment of this
Articles of Incorporation.
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CERTIFIED COPY
OF
CORPORATE REGISTRATION
Registration No. : 182
Corporation Record No. : 134411 - 0001387
SECTION I. COMPANY NAME AND CAPITAL
- NAME OF COMPANY:
Hyundai Jeon-Ja San-up Choo-Sik Hoe-Sa
(Hyundai Electronics Industries Co., LTD. in English)
- PRINCIPAL OFFICE:
San 000-0, Xxx-xx, Xxxxx-xxx, Xxxxx-xxx, Kyongki-do, the Republic of
Korea (ROK)
- METHOD OF PUBLIC NOTICE:
Public notice of the Company shall be given by publication in Hankook
Kyungje Shinmun (The Korea Economic Daily) of general circulation in
Seoul. [Amended March 31, 1993 and Registered April 13, 1993.]
- PAR VALUE OF SHARE:
Five thousand (5,000) Won
- TOTAL NUMBER OF SHARES TO BE ISSUED:
One hundred and twenty eight million (128,000,000) shares
- TOTAL NUMBER AND CLASSES OF SHARES ISSUED:
Fifty six million (56,000,000) shares, common stock
- TOTAL AMOUNTS OF PAID-IN CAPITAL:
Two hundred and thirty billion (230,000,000,000) Won
- DATE OF FOUNDATION:
October 15, 1949
[Reasons for and date of new registration: Transcribed from the old
registration book pursuant to Article 895-2 of Registration Rule (Reg.
No 1333, June 24, 1991) ] [Registered January 21, 1992]
SECTION II. OBJECTIVES
- OBJECTIVES OF CORPORATION:
1. Manufacture and sale of semiconductor devices
2. Manufacture, fabrication and sale of mechanical devices and
parts/materials to be used therefor by applying the features of
electronic movements and by utilizing semiconductor devices and
other parts
3. Development, sale and lease of software for computers
4. Manufacture, sale and lease of electronics and electrical
communication machinery, devices and their parts and services
related thereto
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5. Manufacture of mechanical parts and tooling
6. Technical research and consulting services
7. Lease of electronic and electrical machinery and devices
8. Manufacture, sale and lease of equipment related to special kinds
of communication (satellite communication etc.) and broadcasting,
and services related thereto
10. Manufacture and sale of photograph supplies and optical supplies
11. Information services
12. Publication
13. Foreign Trading
14. Forestation
15. Sale and lease of real estates
16. Importation, sale and distribution of foreign movie
17. Production, sale and distribution of movie
18. Any other businesses and investment related to or incidental to
any of the aforementioned objectives
19. Manufacture of a storage battery
20. Power generation
21. Construction [Amended March 31, 1994, Registered April 8, 1994]
22. Manufacture and sale of disk and video products
23. Any other businesses related to or incidental to any of the
aforementioned objectives [Amended March 30, 1995, Registered
April 7, 1995]
24. Manufacture of TFT liquid crystal display
25. Amusement business [Amended October 14, 1995, Registered October
20, 1995]
26. Manufacture and Sale of spaceship and its parts [Amended March
27, 1996, Registered April 9, 1996]
SECTION III. OFFICERS
Registration No.: 182 Corporate Record No.: 134411-001387
Company Name: Hyundai Electronics Industries Co., Ltd
Principal Office: San 000-0, Xxx-xx, Xxxxx-xxx, Xxxxx-xxx, Xxxxxxx-xx, XXX
REGISTRATION OF OFFICERS
Director Xxxxx, Xxxx Hun Inaugurated February 28, 1997
ID No. 000000-0000000 Registered March 14, 1997
Director Xxxxx, Xx Xxxxx ditto
ID No. 000000-0000000
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Director Xxx, Young Xxxx xxxxx
ID No. 000000-0000000
Director Xxxxx, Xxxx Kook ditto
ID No. 000000-0000000
Director Kim, Dong Xxx xxxxx
ID No. 000000-0000000
Director Oh, Kye Xxxx xxxxx
ID No. 700232188
Director Rha, Young Yull ditto
ID No. 000000-0000000
Director Yoon, Jang Xxx xxxxx
ID No. 000000-0000000
Director Xxxx, Xxx Xxxx xxxxx
ID No. 000000-0000000
Director Xxx, Xxxxx Hoon ditto
ID No. 000000-0000000
Director Song, Xxx Xxxxx ditto
ID No. 000000-0000000
Statutory Auditor Xxx, Xxxx Xxx ditto
ID No. 000000-0000000
Representative Director Xxxxx, Xxxx Hun ditto
000-000, Xxxxxxx-xxxx, Xxxxxxx-xx, Xxxxx
Representative Director Xxx, Xxxxx Xxxx xxxxx
A-203, Kangbyun Hyundi Xxxxx, Xxxxxxx-xxxx,
-00-
00
Xxxxxxx-Xx, Xxxxx
SECTION IV. OTHER REGISTRATIONS
ER INFORMATION Branch office: 00, Xxxxxxxx-xxxx, Xxxxxx-xx, Xxxxx
0. Branch Office 00-00, Xxxxxxxxx-xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxxxxx-xx,
XXX Established August 26, 1994, Registered August 26, 1994
2. Name, Address and (Resident) ID No. of Manager
Xxx, Xxxx Xxxx (000000-0000000) 00-000, Xxxxxxxx-xxxx, Xxxxxxxx-xx,
Xxxxx
Place where the Manager is posted : San 000-0, Xxx-xx, Xxxxx-xxx,
Xxxxx-xxx,
Xxxxxxx-xx, XXX Registered August 26, 1994
3. Name, Address and (Resident) ID No. of Manager
Xxx, Young Woo (000000-0000000) : 000-00, Xxxxxxxx-xxxx,
Xxxxxxxx-xx, Xxxxx
Place where the Manager is posted : San 000-0, Xxx-xx, Xxxxx-xxx,
Xxxxx-xxx,
Xxxxxxx-xx, XXX Registered August 26, 1994
4. Branch Office: 000-0, Xxxxxx-xx, Xxxxx-xxxx, Xxxxx-xxx, Xxxxxxx-xx,
XXX
Established May 31, 1995 and Registered June 2, 1995.
THIS IS A CERTIFIED COPY OF CORPORATE REGISTRATION,
/ STAMP / ISSUED ON THIS 10 DAY OF SEPTEMBER, 1997
REGISTRAR Park, Boo Xxxxx / SEAL /
ICHON REGISTER OFFICE OF SOOWON DISTRICT COURT
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MINUTES OF THE BOARD OF DIRECTORS' MEETING
Date and Time: October 15, 1997 10:00 a.m.
Place: Main Conference Room located in the Head Office Building
Number of Directors Present: 6 out of the total of 11 Directors in office
Xx. Xxxxx Xxxx Xxx, the Representative Director of Hyundai Electronics
Industries Co., Ltd. (the "Company"), declared that the meeting was duly
convened and then asked for the deliberation of the following agendum.
Agendum: Guarantee Issuance
The Representative Director explained the details of the borrowing of
USD10,000,000.00 by Maxtor Corporation, and the necessity of a guarantee for
such borrowing, and asked for opinions of the Directors present. After an
exchange of opinions and deliberation, all Directors present unanimously voted
in favor of following resolutions:
RESOLUTIONS
1. Creditor: Nomura Bank International plc
2. Borrower: Maxtor Corporation
3. Guarantor: Hyundai Electronics Industries Co., Ltd.
4. Limit of the Credit: USD10,000,000.00 in total
5. Interest: Libor + 73 Basis Points p.a.
6. Maturity: 364 days from the date of the Guaranty
7. Details of Guarantee:op
1) Principal of the Credit within the amount of USD10,000,000.00
2) Any and all fees in connection with the borrowing
3) Incidental costs and expenses
4) Default interest accrued on the principal or interest of the credit,
fees or incidental costs and expenses.
8. The Representative of Director or persons designated by him may negotiate,
execute and deliver the Guaranty or any other documents required thereby.
After the adoption of above resolutions, the Representative Director declared
that the meeting was adjourned at 11:00 a.m.
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IN WITNESS WHEREOF, these minutes have been prepared and all Directors present
have affixed their names and seals hereinbelow.
Representative Director: Xxxxx Xxxx Xxx
Xxxxxxxx: Kye Hwan Oh
Director: Dong Xxxx Xxxxx
Director: Jang Xxx Xxxx
Director: Xxxxx Xxx Xxx
Director: Xxx Xxxxx Song
Auditor: Dong Xxx Xxx
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SEAL CERTIFICATE
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(Seal) Company: Hyundai Electronics Industries Co., Ltd.
Head Office: San 000-0, Xxx-xx, Xxxxx-xxx, Xxxxx-Xx
Kyongki-do, Korea
Representative Director
Young Xxxx Xxx
(Korean ID No.: 000000-0000000)
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Please certify that the seal above shown which is being used by Young Xxxx Xxx,
the representative director of the company, is identical with the seal
registered with your court.
Date:
Applier: Hyundai Electronics Industries Co., Ltd.
Representative Director Young Xxxx Xxx
To: Suwon District Court, Ichon Registration Office
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Purpose to sell real estate Buyer Address
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Name (of the Company)
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Korean ID (Company
Registration) No.
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I Certify that the seal above shown is identical with the seal in the Seal
Registration Book in our custody.
Dated as of September 8, 0000
Xxxxx Xxxxxxxx Xxxxx, Xxxxx Registration Office, officer Park, Xxx Xxx
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Requested No. of the copies Charges
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HANDLING PERIOD
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APPLICATION FOR THE VALIDATION OF GUARANTY
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Tradename Hyundai Electronics Industries Co., Ltd.
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APPLICANT Address 000-0, Xxx-xxxx, Xxxxxxx-xx, Xxxxx, Xxxxx
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Name of CEO Young Xxxx Xxx
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Business area Manufacturing
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Obligee (Lender) Nomura Bank International plc
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DETAILS OF Obligor (Guarantor) Hyundai Electronics Industries Co., Ltd.
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APPLICATION Beneficiary (Borrower) Maxtor Corporation
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Amount USD10,000,000.-
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Effective period 364 days from the signing of the Facility Agreement
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Purpose General corporate purposes
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Repayment Lump Sum Repayment at maturity
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We hereby apply for the validation of Guaranty in accordance with the Article 21 of Korea
Foreign Exchange Control Regulation.
1997
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To: Applicant No. of Validation Singosuri0696-Keumyung12-254
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Your application for the Validation of Validated amount USD10,000,000.-
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Guaranty is approved. Effective period 364 days from the signing of
Condition: N/A The Facility Agreement
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October 31, 1997
To Nomura Bank International plc, as Lender
Xxxxxx Xxxxx
0, Xx. Xxxxxx'x-Xx-Xxxxx
Xxxxxx XXXX0XX
Xxxxxxx
Re: Maxtor Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(v) of the
U.S. $10,000,000 364-Day Credit Agreement (the "Credit Agreement"), dated as of
October 30, 1997, between Maxtor Corporation (the "Borrower") and Nomura Bank
International plc, as Lender. Terms defined in the Credit Agreement are used
herein as therein defined.
In connection herewith, I have examined:
(1) The Credit Agreement;
(2) The Note;
(3) The documents furnished by the Borrower pursuant to Article III
of the Credit Agreement;
(4) The Certificate of Incorporation of the Borrower and all
amendments thereto;
(5) The bylaws of the Borrower and all amendments thereto; and
(6) Such other documents, agreements, and instruments as I have
considered necessary or relevant in order for me to provide
this opinion.
My opinions expressed below are limited to the General Corporation Law
of the State of Delaware, the law of the State of California and the federal
law of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, possessing
perpetual existence and the capacity to xxx or be sued in its own name. The
Borrower has the power to own its property and assets and carry on its business
as it is now being conducted.
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2. The execution, delivery and performance by the Borrower of the
Credit Agreement, the Note, and the consummation of the transactions
contemplated thereby are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene or
constitute a default under (i) the Borrower's charter or bylaws, or (ii) any
law, rule or regulation applicable to the Borrower (including, without
limitation, Regulations U and X of the Board of Governors of the Federal
Reserve System), (iii) any contractual or legal restriction applicable to the
Borrower, or (iv) any agreement or instrument to which the Borrower is a party
or which is binding upon it or any of its assets, nor result in the creation or
imposition of any Lien on any of the Borrower's assets pursuant to the
provisions of the Credit Agreement or any other Loan Document. The Credit
Agreement and the Notes have been duly executed and delivered on behalf of the
Borrower.
3. No authorization, 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 the
Borrower of the Credit Agreement and the Note, or for the validity,
enforceability and admissibility in evidence of the Credit Agreement and the
Note, except for the authorizations, approvals, actions, notices and filings
listed on Schedule 4.01(c) to the Credit Agreement, all of which have been duly
obtained, taken, given or made and are in full force and effect.
4. The indebtedness of the Borrower under the Credit Agreement
and the Note is its direct, unconditional and general indebtedness and ranks at
least pari passu with all its other unsecured and unsubordinated indebtedness.
5. The Borrower is not subject to regulation under the Investment
Company Act of 1940, as amended. The Borrower is not a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
6. To my knowledge, there is no action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower 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 the Credit Agreement or any other
Loan Document or the consummation of the transactions contemplated thereby.
Sincerely,
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Vice President, General Counsel and Secretary
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November 5, 1997
To: Nomura Bank International plc
Xxxxxx Xxxxx
0, Xx Xxxxxx'x-Xx-Xxxxx
Xxxxxx XX0X 0XX
(the "LENDER")
Re: Guaranty dated as of October 31, 1977
Ladies and Gentlemen:
We have acted as the Korean legal advisers to Hyundai Electronics
Industries Co., Ltd. (the "GUARANTOR") in connection with a guaranty (the
"GUARANTY") dated October 31, 1997 issued and delivered by the Guarantor in
favor of the Lender for the purpose of guaranteeing the obligations of Maxtor
Corporation (the "BORROWER") under a US$10,000,000 364-day credit agreement
(the "CREDIT AGREEMENT") dated October 31, 1997 and made between the Lender and
the Borrower. Terms defined in the Credit 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 3.01(h)(vi) of
the Credit Agreement. For the purpose of this opinion, we have examined:
(a) the Credit Agreement;
(b) the Guaranty;
(c) the Articles of Incorporation of the Guarantor;
(d) Commercial Registry extracts regarding the Guarantor;
(e) Minutes of a meeting of the Guarantor's Board of Directors
held regarding the Guaranty;
(f) a Seal Certificate for the Guarantor's Representative Director
who participated in the Guarantor's Board Meeting mentioned in
(e) above;
(g) a certificate issued by the Guarantor's same Representative
Director certifying the genuineness of the seal impression of
each member of the Guarantor's Board of Directors who
participated in the Guarantor's Board Meeting mentioned in (e)
above;
(h) the report to, and acceptance thereof by, Korea Exchange Bank,
Xxx-xxxx Branch in respect of the Guaranty; and
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(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:
(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 inquiry;
(iii) that the Credit 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 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 any other agreement or instrument are expressed
to be governed;
(v) that the copies of the Articles of Incorporation of, and the
Commercial Registry extracts relating to, the Guarantor
referred to in paragraphs (c) and (d) above are true,
complete, accurate and up-to-date; and
(vi) that the resolutions of the Board of Directors of the
Guarantor passed at the meeting referred to in paragraph (e)
above were duly passed at properly constituted meeting and
that such resolutions have 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.
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(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.
(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.
(10) The Lender will not be deemed to be resident, domiciled,
carrying on business or subject to taxation in Korea by reason
only of the execution, delivery or enforcement of the
Guaranty.
Our opinion is subject to the following general qualifications:
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(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,
Xxx, Xxx & Xxx
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October 31 , 1997
To: Nomura Bank International plc (Lender)
Re: Hyundai Electronics Industries Co., Ltd.
Ladies and Gentlemen:
I have acted as corporate counsel to Hyundai Electronics Industries
Co., Ltd. (the "GUARANTOR") in connection with the Guaranty (the "GUARANTY")
dated as of October ___, 1997 issued by the Guarantor in favor of the Lender
for the purpose of guaranteeing the obligations of Maxtor Corporation as the
Borrower under a Credit Agreement (the "CREDIT AGREEMENT") dated October 31,
1997 and entered into by and among Maxtor Corporation as borrower and Nomura
Bank International plc as lender. Terms defined in the Credit 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 3.01(h)(vi) of the Credit
Agreement. For the purpose of this opinion, I have examined:
(a) the Credit Agreement;
(b) the Guaranty; and
(c) 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,
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X. X. Xxxx
Corporate Counsel
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