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EXHIBIT 10.65
WAIVER AND AMENDMENT NO. 1
TO THE CREDIT AGREEMENT
Dated as of May 22, 1998
WAIVER AND AMENDMENT NO. 1 TO THE CREDIT AGREEMENT among, Maxtor
Corporation, a Delaware corporation (the "Borrower"), the banks, financial
institutions and other institutional lenders parties to the Credit Agreement
referred to below (collectively, the "Lenders") and Citibank, N.A., as
administrative agent (the "Administrative Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, Citicorp Securities, Inc. and Hanil
Bank, as joint arrangers, ABN AMRO Bank, N.V., San Francisco International
Branch and Royal Bank of Canada, as co-agents, Fleet National Bank, as manager,
and the Administrative Agent have entered into a Credit Agreement dated as of
August 29, 1996 (the "Credit Agreement"). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified in the Credit
Agreement.
(2) Hyundai Electronics Industries, Co., Ltd. ("HEI") has released
its 1997 year end financial statements, which financial statements indicate that
HEI is in default of the financial covenant set forth in Section XII(a) of the
Guaranty (the "HEI Default").
(3) The Borrower has requested that the Lenders waive the HEI
Default, amend certain provisions of the Credit Agreement and accept Hyundai
Heavy Industries Co., Ltd. as a guarantor in the place of HEI.
(4) The Lenders are, on the terms and conditions stated below,
willing to grant the request of the Borrower and the Borrower and the Lenders
have agreed to amend the Credit Agreement as hereinafter set forth.
SECTION 1. Waivers. Effective as of the date of the origination of
the HEI Default and subject to the satisfaction of the conditions precedent set
forth in Section 4, the Lenders hereby waive (a) Section 6.01(c)(ii) of the
Credit Agreement to the extent of the HEI Default and (b) Section 6.01(d) of the
Credit Agreement to the extent that the HEI Default constitutes an event or
condition that would permit the acceleration of the maturity of any Debt
referred to in Section 6.01(d), but only so long as the maturity of such Debt
has not been accelerated.
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SECTION 2. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 4, hereby amended as follows:
(a) Section 1.01 is amended by deleting the definitions of
"Applicable Margin", "Guarantor", "Guaranty" and "Hyundai Group" set forth
therein and replacing them, respectively with the following new
definitions:
"Applicable Margin" means, as of any date prior to April 1,
1998, a percentage per annum equal to 0% for Base Rate Advances and
.305% for Eurodollar Rate Advances and, as of any date on or after
April 1, 1998, a percentage per annum equal to 0% for Base Rate
Advances and 1.75% for Eurodollar Rate Advances.
"Guarantor" means Hyundai Heavy Industries Co., Ltd., a
company incorporated with limited liability in the Republic of
Korea.
"Guaranty" means the guaranty executed by the Guarantor in the
form attached on Exhibit A to Amendment No. 1.
"Hyundai Group" means, collectively, the Guarantor, Hyundai
Merchant Marine Co., Ltd., Hyundai Corporation and Hyundai
Electronics Industries Co., Ltd.
(b) Section 1.01 is further amended by adding thereto in proper
alphabetical sequence the following definition:
"Amendment No.1" means Waiver and Amendment No. 1 to the
Credit Agreement dated as of May 22, 1998.
(c) Section 2.04(a) is amended by deleting therefrom the figure
".225%" and substituting therefor the figure "0.25%".
(d) Section 4.01(e)(ii) is amended by deleting therefrom, in both
places where such date appears, the date "December 31, 1995" and
substituting therefor the date "December 31, 1997".
(e) Section 5.02(b)(iii)(A) is amended in full to read as follows:
(A) Debt incurred in connection with the
Securitization in an amount not to exceed $225,000,000 at any
time outstanding or the
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transactions listed on Schedule 5.02(b)(iii)(A) to the extent
(x) such item of such Debt does not exceed the amount
corresponding to each such item on such Schedule and (y) the
Debt permitted by this clause (A) does not exceed $266,000,000
in the aggregate, and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, any such Debt,
provided that the terms of any such extending, refunding or
refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are otherwise
permitted by the Loan Documents, and provided further that the
principal amount of such Debt shall not be increased above the
maximum aggregate principal amount set forth above, and the
direct and contingent obligors therefor shall not be changed,
as a result of or in connection with such extension, refunding
or refinancing,
(f) Section 5.02(c) is amended by adding the following clause
(iii) immediately before the period at the end of such section: "and (iii)
a wholly-owned special purpose Subsidiary of the Borrower may convey,
transfer or otherwise dispose of receivables pursuant to any transaction
described in Section 5.02(b)(iii)(A)".
(g) Section 6.01(h)(ii) is amended by deleting the phrase "on the
date hereof" and substituting therefor the phrase "on the date of
Amendment No. 1".
SECTION 3. Release of HEI Guaranty. Effective as of the date of the
origination of the HEI Default and subject to the satisfaction of the conditions
precedent set forth in Section 4, the HEI Guaranty is hereby terminated as it
relates to the Credit Agreement.
SECTION 4. Conditions of Effectiveness. This Amendment is subject to
the provisions of Section 8.01 of the Credit Agreement. This Amendment shall
become effective as of the date of the origination of the HEI Default when the
Administrative Agent shall have received counterparts of this Amendment executed
by the Borrower and all of the Lenders or, as to any of the Lenders, advice
satisfactory to the Administrative Agent that such Lender has executed this
Amendment and Sections 1, 2 and 3 hereof shall become effective as of such date
when, and only when, on or before June 1, 1998 the Administrative Agent shall
have additionally received all of the following documents, each such document
(unless otherwise specified) dated the date of receipt thereof by the
Administrative Agent (unless otherwise specified) and in sufficient copies for
each Lender, in form and substance satisfactory to the Administrative Agent
(unless otherwise specified):
(a) Certified copies of (i) the resolutions of the Board of
Directors of (A) the Borrower approving this Amendment and the matters
contemplated hereby and
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thereby and (B) the Guarantor evidencing approval of the Guaranty and the
matters contemplated hereby and thereby and (ii) all documents evidencing
other necessary corporate action and governmental approvals, if any, with
respect to this Amendment, the Guaranty and the matters contemplated
hereby and thereby.
(b) A certificate of the Secretary or an Assistant Secretary of
the Borrower and the Representative Director or a duly authorized officer
of the Guarantor certifying the names and true signatures of the officers
of the Borrower and the Guarantor authorized to sign this Amendment and
the Guaranty, respectively, and the other documents to be delivered
hereunder and thereunder.
(c) Counterparts of the Guaranty in the form attached as Exhibit A
hereto, executed by the Guarantor.
(d) Favorable opinions of ▇▇▇, ▇▇▇ & ▇▇▇, counsel for the
Guarantor, or other Korean counsel to the Guarantor acceptable to the
Administrative Agent, and the Corporate Counsel of the Guarantor, in
substantially the form of Exhibits B and C hereto and as to such other
matters as any Lender through the Administrative Agent may reasonably
request.
(e) A certificate signed by a duly authorized officer of the
Borrower stating that:
(i) The representations and warranties contained in Section
5 below are correct on and as of the date of such certificate as
though made on and as of such date; and
(ii) After giving effect to this Amendment, no event has
occurred and is continuing that constitutes a Default.
SECTION 5. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly
existing and, where applicable, in good standing under the laws of the
jurisdiction of its incorporation.
(b) The execution, delivery and performance by each Loan Party of
this Amendment and the Loan Documents, as amended hereby, to which it is
or is to be a party, and the consummation of the transactions contemplated
hereby, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate
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action, and do not contravene (i) such Loan Party's charter or by-laws or
(ii) any law, regulation (including, without limitation, Regulations U and
X of the Board of Governors of the Federal Reserve System) or contractual
restriction binding on or affecting the Loan Parties.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and
performance by either Loan Party of this Amendment or any other Loan
Document to which it is or is to be a party, except for those
authorizations, approvals, actions, notices and filings listed on Schedule
4.01(c) hereto, all of which have been duly obtained, taken, given or
made and are in full force and effect except that the Guarantor is
required to report to its designated foreign exchange trading bank any
payment to be made under the Guaranty at the time of making such payment.
(d) This Amendment and the Guaranty have been duly executed and
delivered by each Loan Party party thereto. This Amendment and each of the
other Loan Documents, as amended hereby, to which the Borrower is a party
is, and the Guaranty is, the legal, valid and binding obligation of each
of the Borrower and the Guarantor, respectively, enforceable against each
such Loan Party in accordance with their respective terms.
(e) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 28, 1997, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Ernst &
Young, independent public accountants, copies of which have been furnished
to each Lender, fairly present the Consolidated financial condition of the
Borrower and its Subsidiaries as at such date and the Consolidated results
of the operations of the Borrower and its Subsidiaries for the period
ended on such date, all in accordance with generally accepted accounting
principles consistently applied. Since December 28, 1997, there has been
no Material Adverse Change with respect to the Borrower, other than as
provided on Schedule 4.01(e)(i) hereto.
(ii) The balance sheet of the Guarantor and its Subsidiaries
as at December 31, 1997, and the related statements of income and
cash flows of the Guarantor and its Subsidiaries for the fiscal year
then ended, accompanied by an opinion of Samil Accounting
Corporation, a member firm of Coopers & ▇▇▇▇▇▇▇, 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
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accounting standards in the Republic of Korea consistently applied.
Since December 31, 1997, there has been no Material Adverse Change with
respect to the Guarantor.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting either Loan Party or any of its Subsidiaries before any
court, governmental agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Amendment, the Guaranty or
any other Loan Document, as amended hereby, or the consummation of the
transactions contemplated hereby.
SECTION 6. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) On and after the effectiveness of this Amendment, each
reference in the Credit Agreement to "the Guaranty", thereunder",
"thereof" or words of like import referring to the Guaranty, shall mean
and be a reference to the Guaranty, as defined in the Credit Agreement as
amended by this Amendment.
(c) The Credit Agreement and the Notes, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed.
(d) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Administrative Agent under any
of the Loan Documents, nor constitute a waiver of any provision of any of
the Loan Documents.
SECTION 7. Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment, the Guaranty and the other instruments and documents to be
delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in accordance with the terms
of Section 8.04 of the Credit Agreement.
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SECTION 8. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 9. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MAXTOR CORPORATION
By: /s/ RAJA VENKATESH
----------------------------------
Title: Corporate Treasurer
CITIBANK, N.A.,
By: /s/ AUTHORIZED SIGNATURE
----------------------------------
Title: Attorney-in-fact
HANIL BANK, NEW YORK AGENCY
By: /s/ AUTHORIZED SIGNATURE
----------------------------------
Title: Agent & General Manager
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ABN AMRO BANK, N.V. SAN
FRANCISCO INTERNATIONAL
BRANCH
By: ABN AMRO NORTH AMERICA,
INC., AS AGENT
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Group Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Senior Manager
FLEET NATIONAL BANK
By:/s/ AUTHORIZED SIGNATURE
-----------------------------
Title: Vice President
BANCA COMMERCIALE INTALIANA
LOS ANGELES FOREIGN BRANCH
By:/s/ AUTHORIZED SIGNATURE
-----------------------------
Title: Vice President
By:/s/ AUTHORIZED SIGNATURE
-----------------------------
Title: Vice President and Manager
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▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By /s/ AUTHORIZED SIGNATURE
--------------------------------------
Title: Unit Head
BANCO CENTRAL HISPANO
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President and
General Manager
▇▇▇ ▇▇▇▇ BANK, NEW YORK
BRANCH
By /s/ AUTHORIZED SIGNATURE
--------------------------------------
Title: Deputy General Manager
THE COMMERCIAL BANK OF KOREA,
LTD., NY AGENCY
By /s/ AUTHORIZED SIGNATURE
--------------------------------------
Title: Manager
THE DAI-ICHI KANGYO BANK,
LIMITED, SAN FRANCISCO AGENCY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Title: ▇▇▇▇▇ ▇▇▇▇▇▇▇
General Manager
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KOREA FIRST BANK, NEW YORK
AGENCY
By /s/ AUTHORIZED SIGNATURE
--------------------------------------
Title: Deputy General Manager
NOMURA BANK INTERNATIONAL
PLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Head, Credit
By /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Deputy General Manager
SHINHAN BANK, NEW YORK
BRANCH
By /s/ AUTHORIZED SIGNATURE
--------------------------------------
Title: Assistant Manager
THE SUMITOMO BANK, LTD., SAN
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By /s/ AUTHORIZED SIGNATURE
--------------------------------------
Title: Authorized Officer
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INDUSTRIAL BANK OF KOREA
By /s/ AUTHORIZED SIGNATURE
--------------------------------------
Title: Deputy General Manager
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MAXTOR CORPORATION
SECRETARY'S CERTIFICATE
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary of Maxtor Corporation, a Delaware
corporation, do hereby certify, in connection with (i) the Waiver and Amendment
No. 1 dated May 22, 1998 (the "Waiver and Amendment") to the Credit Agreement
dated August 29, 1996 among Maxtor Corporation, the banks, financial
institutions and other institutional lenders parties, Citicorp Securities, Inc.
and Hanil Bank, as joint arrangers, ABN AMRO Bank, N.V., San Francisco
International Branch and Royal Bank of Canada, as co-agents, Fleet National
Bank, as manager, and Citibank, N.A., as administrative agent, (ii) the Waiver
and Amendment No. 1 dated May 22, 1998 (the "364-Day Credit Agreement Waiver
and Amendment") to the 364-Day Credit Agreement dated August 29, 1996 among
Maxtor Corporation, the banks, financial institutions and other institutional
lenders parties, Citicorp Securities, Inc. and Hanil Bank, as joint arrangers,
ABN AMRO Bank, N.V., San Francisco International Branch and Royal Bank of
Canada, as co-agents, Fleet National Bank, as manager, and Citibank, N.A., as
administrative agent and (iii) the Waiver and Amendment No. 1 dated May 22 1998
to the Credit Agreement dated October 30, 1997 between Maxtor Corporation and
Nomura International Bank plc (together with the Waiver and Amendment and the
364-Day Credit Agreement Waiver and Amendment, the "Waivers and Amendments"),
that:
1. Attached hereto as Exhibit A is a true and correct copy of
resolutions duly adopted by the Board of Directors of Maxtor at a
meeting thereof duly called and held on May 13, 1998, at which
meeting a quorum was present and acting throughout. Such
resolutions are the only resolutions regarding the Agreements, have
not been amended, modified or revoked and are in full force and
effect on the date hereof.
2. The Waivers and Amendments to which Maxtor is a party, as executed
and delivered on behalf of Maxtor, are substantially in the form
thereof approved by the Board of Directors referred to in paragraph
1 hereof.
3. The below named persons, who include all persons who, as officers
of Maxtor, executed and delivered the Waivers and Amendments, were
on the date of such execution, and are on the date hereof, duly
appointed, qualified and acting as such officers holding their
respective offices below set opposite their names, and the
signatures below set opposite their names are their genuine
signatures:
Name Office Signature
---- ------ ---------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President and Chief
Executive Officer ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President Finance,
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and Chief Financial
Officer /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Raja Venkatesh Corporate Treasurer /s/ RAJA VENKATESH
-----------------------
IN WITNESS WHEREOF, I have signed this certificate this 29 day of May,
1998.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
I, ▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President of Maxtor Corporation, do hereby
certify that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ has been duly appointed and has duly qualified as,
and on this day is, Secretary of Maxtor Corporation, and the signature above is
his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate this 29 day of May,
1998.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇
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RESOLUTIONS OF THE BOARD OF DIRECTORS OF MAXTOR CORPORATION
Dated: May 13, 1998
WHEREAS, the Corporation has entered into a Credit Agreement (the
"Credit Agreement") dated. August 29, 1996 with the banks, financial
institutions and other institutional lenders parties (collectively, the
"Lenders"), Citicorp Securities, Inc. and Hanil Bank, as joint arrangers, ABN
AMRO Bank, N.V., San Francisco International Branch and Royal Bank of Canada, as
co-agents.
WHEREAS, the Corporation has entered into a 364-Day Credit Agreement
(the "364-Day Credit Agreement") dated August 29, 1996 with the banks, financial
institutions and other institutional lenders parties (collectively, the "364-Day
Credit Agreement Lenders"), Citicorp Securities, Inc. and Hanil Bank, as joint
arrangers, ABN AMRO Bank, N.V., San Francisco International Branch and Royal
Bank of Canada, as co-agents, Fleet National Bank, as manager, and Citibank,
N.A., as administrative agent.
WHEREAS, the Corporation has entered into a Credit Agreement (the
"Nomura Credit Agreement") dated October 30, 1997 with Nomura International Bank
plc (together with the Lenders and the 364-Day Credit Agreement Lenders, the
"Maxtor Lenders"),
WHEREAS, under such Credit Agreements, Hyundai Electronics
Industries Co., Ltd. ("HEI") guaranteed the payments of Maxtor Corporation to
the Maxtor Lenders under a guaranty (the "Guaranty").
WHEREAS, HEI released its 1997 year end financial statements, which
financial statements indicate that HEI is in default of the financial covenants
of the Guaranty, (the "HEI Default")
NOW, THEREFORE, BE IT RESOLVED, that it is in the best interests of
the Corporation in order to ensure the availability of working capital to the
Corporation to request that the Maxtor Lenders waive the HEI Default.
RESOLVED FURTHER, that it is in the best interests of the
Corporation to enter into the (i) Waiver and Amendment No. 1 dated May 22, 1998
to the Credit Agreement, (ii) Waiver and Amendment No. 1 dated May 22, 1998 to
the 364-Day Credit Agreement and (iii) Waiver and Amendment No. 1 dated May 22,
1998 to the Nomura Credit Agreement (together the "Waivers and Amendments").
RESOLVED FURTHER, that the Waivers and Amendments and the
performance by the Corporation of its obligations under the Waivers and
Amendments, be, and the same hereby are, in all respects approved, and that the
Chairman of the Board of Directors of the Corporation, the President, any Vice
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President or the Treasurer of the Corporation (each an "Authorized officer") be,
and each of them hereby is, authorized and directed (any one of them acting
alone), in the name and on behalf of the Corporation, to execute and deliver the
Waivers and Amendments, each in the form as the Authorized Officer of the
Corporation executing the same shall approve, such approval to be conclusively
evidenced by his or her execution and delivery thereof; and
RESOLVED FURTHER, that prior to the execution of the Waivers and
Amendments, the Authorized Officers are, and each hereby is, authorized to
negotiate and agree on the terms and conditions of each of the Waivers and
Amendments as such Authorized Officers, or any one of them, in his, her or their
sole discretion, deem to be in the best interests of the Corporation; and
RESOLVED FURTHER, that the Authorized Officers be, and each of them
hereby is, authorized and empowered (any one of them acting alone) to do or
cause to be done all such acts or things and to sign and deliver, or cause to be
signed and delivered, all such documents, instruments and certificates
(including, without limitation, all notices and certificates required or
permitted to be given or made under the terms of the Waivers and Amendments) and
to pay all such expenses, in the name and on behalf of the Corporation or
otherwise as such Authorized Officer may deem necessary, advisable or
appropriate to effectuate or carry out the purposes and intent of the foregoing
resolutions and to perform the obligations of the Corporation under the Waivers
and Amendments and the other agreements and instruments as referred to above or
referred to therein; and
RESOLVED FURTHER, that the Corporation hereby authorizes, ratifies,
confirms and adopts in all respects all acts of the officers of the Corporation,
and of any person designated and authorized to act by an officer of the
Corporation, heretofore done or performed by such person in connection with the
acts and transactions approved by these resolutions.
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Filed with the minutes of the proceedings of the Board of Directors
by the undersigned on May 13, 1998.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Secretary
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Filed with the minutes of the proceedings of the Board of Directors
by the undersigned on May 13, 1998.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Secretary
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[▇▇▇, ▇▇▇ & ▇▇▇ LETTERHEAD]
June 1, 1998
To: Each of the Lenders Parties to the US$129,000,000 Credit
Agreement dated as of August 29, 1996, among
Maxtor Corporation, said Lenders and
Citibank, N.A., as Administrative Agent for said
Lenders; and Citibank, N.A., as Administrative Agent
Re: Hyundai Heavy Industries Co., Ltd.
Ladies and Gentlemen:
We have acted as the Korean legal advisers to Hyundai Heavy Industries
Co., Ltd. (the "GUARANTOR") in connection with a Corporate Guaranty (the
"GUARANTY") dated May 22, 1998 issued by the Guarantor in favor of the Lenders
and the Administrative Agent for the purpose of guaranteeing the obligations of
Maxtor Corporation as the Borrower under the above mentioned Credit Agreement
(the "CREDIT AGREEMENT") as amended by a certain amendment agreement thereto
dated August 27, 1997 and further amended by a certain waiver and amendment no.
1 to the credit agreement (the "AMENDMENT AGREEMENT") dated May 22, 1998. Terms
defined in the Credit Agreement and Amendment Agreement are used herein as
therein defined and the term "Korea" refers to the Republic of Korea.
This opinion is furnished to you pursuant to Section 4(d) of the Amendment
Agreement.
For the purpose of this opinion, we have examined:
(a) the Credit Agreement;
(b) the Amendment Agreement;
(c) the Guaranty;
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▇▇▇▇ 1, 1998
Page 2
(d) the Articles of Incorporation of the Guarantor;
(e) the Regulations of the Board of Directors of the Guarantor;
(f) Commercial Registry extracts regarding the Guarantor;
(g) the Approval of the Guarantor's Representative Director in respect
of the Guaranty;
(h) the report to, and acceptance thereof by, the designated foreign
exchange trading bank in respect of the Guaranty; and
(i) such other documents as we have considered necessary or relevant in
order for us to provide this opinion.
In giving this opinion we have assumed that:
(i) the authenticity of all signatures, seals, stamps and markings;
(ii) that all documents submitted to us as originals are authentic,
complete and up-to-date, all documents submitted to us as copies
conform to the originals, and that all factual statements made in
such documents are correct and we have relied on them without
further enquiry;
(iii) that the Credit Agreement and Amendment Agreement and any other
agreement or instrument thereunder have been validly authorized,
signed and delivered by the parties thereto (other than the
Guarantor) in accordance with applicable laws;
(iv) that the Credit Agreement and Amendment Agreement and any other
agreements or instruments thereunder constitute or will constitute
legal, valid and binding obligations of each of the parties thereto
enforceable in accordance with its terms respectively under the laws
of the State of New York by which the Credit Agreement and Amendment
Agreement and any other agreement or instrument are expressed to be
governed;
(v) that the copies of the Articles of Incorporation of, the Regulations
of the Board of Directors of and the Commercial Registry extracts
relating to, the Guarantor referred to in paragraphs (d) through (f)
above are true, complete, accurate and up-to-date; and
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▇▇▇▇ 1, 1998
Page 3
(vi) that the Approval of the Guarantor's Representative Director
referred to in paragraph (g) above was duly executed and that such
Approval has not been amended or rescinded.
As to any other matters of objective fact material to the opinions
expressed herein, we have made no independent inquiry and have relied solely
upon certificates or oral or written statements of officers or other
representatives of the Guarantor.
Based on the foregoing, we are of the opinion that so far as the laws of
Korea are concerned:
(1) The Guarantor is a limited liability company, duly organized and
validly existing under the laws of Korea, with full power and
authority to enter into and perform the Guaranty.
(2) The Guarantor has taken all necessary corporate action to authorize
the entry into and performance of the Guaranty and the transactions
contemplated thereby.
(3) The Guaranty constitutes a legal, valid and binding obligation of
the Guarantor enforceable in accordance with its terms and is in
proper form for its enforcement in the courts of Korea.
(4) The entry into the Guaranty and the performance of the obligations
thereunder by the Guarantor do not violate (i) any law or regulation
of Korea or any judicial order in Korea or (ii) the constitutional
documents of the Guarantor.
(5) All authorizations, approvals, consents, licenses, exemptions,
filings, registrations and other requirements of governmental,
judicial and public bodies and authorities of or in Korea required
of the Guarantor in connection with the entry into and performance
of the Guaranty have been obtained and are in full force and effect,
except that the Guarantor is required to report any payment to be
made under the Guaranty at the time of making each such payment to
its designated foreign exchange trading bank.
(6) The obligations of the Guarantor under the Guaranty rank at least
pari passu with all its other present or future unsecured and
unsubordinated obligations of the Guarantor except for those
preferred by operation of law applicable to companies generally.
21
▇▇▇ ▇▇▇ & ▇▇▇
▇▇▇▇ 1, 1998
Page 4
(7) All amounts payable by the Guarantor under the Guaranty may be made
free and clear of and without deduction for or on account of any
taxes imposed, assessed or levied in Korea or by any authority
thereof or therein except, however, that although the tax laws of
Korea are not entirely clear as to whether payment of any interest
by the Guarantor under the Guaranty may be made without withholding
of Korean taxes, Korean tax authorities may require the Guarantor
to withhold Korean taxes from such interest payment. In the event of
Korean taxes being imposed on interest payments, the guarantor's
obligation to bear the cost of such tax under the Guaranty would
become operative.
(8) Neither the Guarantor nor any of its property (except such property
specifically protected by law) has any immunity from jurisdiction of
any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution
or otherwise) under the laws of Korea.
(9) To ensure the enforceability or admissibility in evidence of this
Guaranty in Korea, it is not necessary that this Guaranty or any
other document or instrument be filed or recorded with any court or
other authority in Korea.
Our opinion is subject to the following general qualifications:
(i) the obligations of the Guarantor under the Guaranty may be limited
or affected by the bankruptcy law, the corporate reorganization law,
the compulsory composition law and other similar laws which
generally affect the rights of creditors; and
(ii) the remedies of specific performance or injunction might not
necessarily be available in Korea with respect to any particular
provisions of the Guaranty.
This opinion is addressed to you and may be relied upon solely by you and
your counsel.
Yours faithfully,
/s/ ▇▇▇, ▇▇▇ & ▇▇▇
▇▇▇, ▇▇▇ & ▇▇▇
22
May 29, 1998
To: Each of the Lenders parties to the U$129,000,000 Credit
Agreement dated as of August 29, 1996 among
Maxtor Corporation, said Lenders and
Citibank, N.A., as Administrative Agent for said
Lenders; and
Citibank, N.A., as Administrative Agent
Re: Hyundai Heavy Industries Co., Ltd.
Ladies and Gentlemen:
I have acted as corporate counsel to Hyundai Heavy Industries Co., Ltd.
(the "GUARANTOR") in connection with a Corporate Guaranty (the "GUARANTY") dated
May 1998 issued by the Guarantor in favor of the Lenders and the Administrative
Agent for the purpose of guaranteeing the obligations of Maxtor Corporation as
the Borrower under the above mentioned Credit Agreement (the "CREDIT AGREEMENT")
as amended by a certain amendment agreement thereto dated August 27, 1997 and
further amended by a certain waiver and amendment no. 1 to the credit
agreement(the "AMENDMENT AGREEMENT") dated May 22, 1998. Terms defined in the
Credit Agreement and Amendment Agreement are used herein as therein defined the
term "Korea" refers to the Republic of Korea.
This opinion is furnished to you pursuant to Section 4(d) of the Amendment
Agreement. For the purpose of this opinion, I have examined:
(a) the Credit Agreement;
(b) the Amendment Agreement;
(c) the Guaranty; and
(d) such other documents, agreements, and instruments as I have
considered necessary or relevant in order for me to provide this
opinion.
Based on the foregoing, I am of the opinion that, so far as the laws of Korea
are concerned, the entry into the Guaranty and the performance of the
obligations thereunder by the Guarantor do not violate any contractual or legal
restriction contained in any document or agreement applicable to the Guarantor.
Yours faithfully,
/s/ ▇. ▇. ▇▇▇
------------------------------
▇. ▇. ▇▇▇
Corporate Counsel
23
HANDLING PERIOD
---------------
APPLICATION FOR THE VALIDATION OF GUARANTY
Tradename Hyundai Heavy Industries Co., Ltd.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Name of CEO Hyung Byuk ▇▇▇
Business area Manufacturing
Obligee(Lender) Citibank and other financial institution acceptable to Agent
DETAILS OF Obligor(Guarantor) Hyundai Heavy Industries Co., Ltd.
APPLICATION Beneficiary(Borrower) Maxtor Corporation
Amount USD 129,000,000
Effective period Until August 28, 1999
Purpose Working Capital
Repayment Lump Sum Repayment at maturity
We hereby apply for the validation of Guaranty in accordance with the
Article 21 of Korea Foreign Exchange Control Regulation.
1998
To: Applicant No. of Validation Singusuri 0696-Keumyung l2-
Your application for the Validation of Validated amount USD 129,000,000
Guaranty is approved. Effective period Until August 28, 1999
Condition: N/A
1998
Confirmation by the Authorized Foreign Exchange Bank:
On the basis of Korea Foreign Exchange Control Regulation, we as the
authorized bank, hereto affix the seal of us in testimony of approval.
THE PRESIDENT OF KOREA EXCHANGE BANK (SEAL)
(▇▇▇-▇▇▇▇ BRANCH)
24
HYUNDAI HEAVY INDUSTRIES CO., LTD.
CERTIFICATE
THE UNDERSIGNED, Mr. Hyung Byuk ▇▇▇, the Representative Director of Hyundai
Heavy Industries Co., Ltd., a corporation duly organized and existing under the
laws of the Republic of Korea with its registered head office at ▇,
▇▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the "COMPANY"), does hereby certify:
(1) that attached hereto as EXHIBIT A is a true and correct copy of the
approval of the Representative Director of the Company approving,
among other things, the execution, delivery and performance by the
Company of a guaranty (the "GUARANTY") in favour of the banks,
financial institutions and other institutional lenders named as
lenders (the "LENDERS") in a certain credit agreement (the "CREDIT
AGREEMENT") dated August 29, 1996 as amended by a certain amendment
agreement thereto dated August 27, 1997 and as further amended by a
certain waiver and amendment no. 1 to the Credit Agreement in
relation to the obligations of Maxtor Corporation (the "BORROWER")
under a credit facility (the "FACILITY") extended by the Lenders to
the Borrower in an aggregate principal amount of up to
US$129,000,000, which approval has not been amended or rescinded and
are in full force and effect on the date hereof; and
(2) that attached hereto as EXHIBIT B is a true and correct copy of the
report to and acceptance thereof by its designated foreign exchange
trading bank of the Company in respect of the Guaranty, together
with an accurate English translation thereof.
Terms defined in the Credit Agreement and Guaranty shall have the same
respective meanings when used herein.
IN WITNESS WHEREOF, THE UNDERSIGNED has hereunto affixed his name and seal as of
this 29th day of May, 1998.
For and on behalf of
HYUNDAI HEAVY INDUSTRIES CO., LTD.
By /s/ HYUNG BYUK ▇▇▇
-------------------------------- [SEAL]
Name: Hyung Byuk ▇▇▇
Title: Representative Director
25
HYUNDAI HEAVY INDUSTRIES CO., LTD.
APPROVAL OF THE REPRESENTATIVE DIRECTOR
OF
HYUNDAI HEAVY INDUSTRIES CO., LTD.
THE UNDERSIGNED, Mr. Hyung Byuk ▇▇▇, the Representative Director of
Hyundai Heavy Industries Co., Ltd. (the "COMPANY"), approves the execution,
delivery and performance by the Company of a guaranty (the "GUARANTY") in favour
of the banks, financial institutions and other institutional lenders named as
lenders (the "LENDERS") in a certain credit agreement (the "CREDIT AGREEMENT")
dated August 29, 1996 as amended by a certain amendment agreement thereto dated
August 27, 1997 and as further amended by a certain waiver and amendment no. 1
to the Credit Agreement in relation to the obligations of Maxtor Corporation
(the "BORROWER") under a credit facility (the "FACILITY") extended by the
Lenders to the Borrower in an aggregate principal amount of up to
US$129,000,000.
Terms defined in the Credit Agreement and Guaranty shall have the same
respective meanings when used herein.
IN WITNESS WHEREOF, THE UNDERSIGNED has hereunto affixed his name and seal
as of this 29th day of May, 1998.
For and on behalf of
HYUNDAI HEAVY INDUSTRIES CO., LTD.
By /s/ HYUNG BYUK ▇▇▇
-------------------------------- [SEAL]
Name: Hyung Byuk ▇▇▇
Title: Representative Director
