SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of Report (Date of earliest event reported): Filing:
September 13, 1996 (Event: August 29, 1996)
Maxtor Corporation
(Exact name of registrant as specified in its charter)
Delaware 0-14016 77-0123732
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
510 Cottonwood Drive, Milpitas, CA 95035
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(408) 432-1700
(Former name or former address, if changed since last report)
ITEM 5. Other Events
On August 29, 1996, the Company established two unsecured,
revolving lines of credit totaling $215 million through Citibank,
N. A. and syndicated among fifteen banks (the Facilities). The
Facilities are guaranteed by Hyundai Electronics Industries Co.,
Ltd. (HEI), the majority shareholder of Hyundai Electronics
America (HEA). $86 million of the Facilities is a 364-day
committed facility, renewable annually at the option of the
syndicate banks. It will be used primarily for general operating
purposes and bears interest at a rate based on the London
Interbank Offered Rates (LIBOR) plus 0.38 percent. As of August
31, 1996, $31 million of borrowings under this line of credit were
outstanding. $129 million of the Facilities is a three year
committed facility that will also be used primarily for general
operating purposes and bears interest at a rate based on the
London Interbank Offered Rates (LIBOR) plus 0.305 percent. As of
August 31, 1996, $129 million of borrowings under this line of
credit were outstanding.
The new Facilities replace the $100 million unsecured, revolving
line of credit through Citibank, N.A.
Additional proceeds were used to pay down the $35 million credit
line obtained from HEA on July 31, 1996. Any outstanding amounts
of principle and accrued interest are due and payable on December
31, 1996. As of August 31, 1996, no borrowings under this credit
facility was outstanding.
Maxtor Corporation is a wholly-owned subsidiary of HEA.
ITEM 7. Financial Statements and Exhibits
EXHIBITS
Number Description of Exhibit
10.158 364-Day Credit Agreement, dated
August 29, 1996, among Maxtor
Corporation, Citibank, N.A., and
Syndicate Banks
10.159 Credit Agreement, dated August 29,
1996, among Maxtor Corporation,
Citibank, N.A., and Syndicate Banks
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Maxtor Corporation
By: /s/ Paul J. Tufano
Paul J. Tufano
Vice President, Finance and
Chief Financial Officer
Dated: September 13, 1996
364-DAY CREDIT AGREEMENT
Dated as of August 29, 1996
MAXTOR CORPORATION, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the
Initial Lenders (the "Initial Lenders"), CITICORP SECURITIES,
INC., and HANIL BANK, as Joint Arrangers, CITIBANK, N.A.
("Citibank"), as administrative agent (the "Administrative
Agent") for the Lenders (as hereinafter defined), ABN AMRO BANK,
N.V.SAN FRANCISCO INTERNATIONAL BRANCH and ROYAL BANK OF CANADA,
as co-agents, and FLEET NATIONAL BANK, as manager, agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Administrative Agent's Account" means the account of
the Administrative Agent maintained by the Administrative
Agent at Citibank with its office at 1 Court Square, 7th
Floor, Zone 1, Long Island City, New York 11120, Account
No. 36852248, Attention: John Makrinos.
"Advance" means a Revolving Credit Advance or a
Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person. For purposes of this definition,
the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to
direct or cause the direction of the management and policies
of such Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the
case of a Competitive Bid Advance, the office of such Lender
notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive
Bid Advance.
"Applicable Margin" means, as of any date, a percentage
per annum equal to 0% for Base Rate Advances and .38% for
Eurodollar Rate Advances.
"Assigning Lender" has the meaning specified in Section
8.07(b).
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit C hereto.
"Assuming Lender" means as Eligible Assignee not
previously a Lender that becomes a Lender hereunder pursuant
to Section 2.05(b).
"Assumption" means an agreement in substantially the
form of Exhibit H hereto by which an Eligible Assignee
agrees to become a Lender hereunder pursuant to Section
2.05(b), in each case agreeing to be bound by all
obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly
by Citibank in New York, New York, from time to time,
as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of
1% or, if there is no nearest 1/16 of 1%, to the next
higher 1/16 of 1%) of (i) 1/2 of 1% per annum, plus
(ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined
weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for
the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank
from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by
the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve
requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities)
three-month U.S. dollar non-personal time deposits in
the United States, plus (iii) the average during such
three-week period of the annual assessment rates
estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized by law to close in New York
City, San Francisco or Philadelphia and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market
and, if the applicable Business Day relates to any
communciation or transaction with any Lender for which the
lending office specified on Schedule I is located in Hong
Kong, on which banks are not requried or authorized by law
to close in Hong Kong.
"Capitalized Leases" means all leases that have been or
should be, in accordance with GAAP, recorded as capitalized
leases.
"CSI" means Citicorp Securities, Inc.
"Commitment" means, 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 increased its Commitment pursuant
to Section 2.05(b) or has entered into any Assignment and
Acceptance, the amount set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Commitment", as such
amount may be reduced pursuant to Section 2.05 or by
Competitive Bid Reductions.
"Commitment Date" has the meaning specified in Section
2.05(b).
"Commitment Increase" has the meaning specified in
Section 2.05(b).
"Competitive Bid Advance" means an advance by a Lender
to the Borrower as part of a Competitive Bid Borrowing
resulting from the competitive bidding procedure described
in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing
consisting of simultaneous Competitive Bid Advances from
each of the Lenders whose offer to make one or more
Competitive Bid Advances as part of such borrowing has been
accepted under the competitive bidding procedure described
in Section 2.03.
"Competitive Bid Note" means a promissory note of the
Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified
in Section 2.03(c).
"Confidential Information" means information that the
Borrower furnishes to the Administrative Agent or any 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 Administrative Agent or such Lender from a source other
than the Borrower.
"Consolidated" refers to the consolidation of accounts
in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Revolving Credit Advances of one Type into
Revolving Credit Advances of the other Type pursuant to
Section 2.08 or 2.09.
"Debt" of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase
price of property or services, (c) all obligations of such
Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all obligations of such Person
created or arising under any conditional sale or other title
retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of
default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee
under leases that have been or should be, in accordance with
GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of
credit, (g) all Debt of others referred to in clauses (a)
through (f) above or clause (h) below guaranteed directly or
indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt,
(2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt
or to assure the holder of such Debt against loss, (3) to
supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services
irrespective of whether such property is received or such
services are rendered) or (4) otherwise to assure a creditor
against loss, and (h) all Debt referred to in clauses (a)
through (g) above secured by (or for which the holder of
such Debt has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become
liable for the payment of such Debt.
"Declining Lender" has the meaning specified in Section
2.05(c).
"Default" means any Event of Default or any event that
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
"Domestic Lending Office" means, with respect to any
Lender, 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 and the Administrative Agent.
"Effective Date" has the meaning specified in
Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized
under the laws of the United States, or any State thereof,
and having a combined capital and surplus of at least
$250,000,000; (iv) a commercial bank organized under the
laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the
International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any
such country, and having a combined capital and surplus of
at least $250,000,000, so long as such bank is acting
through a branch or agency located in the country in which
it is organized or another country that is described in this
clause (iv); and (v) any other Person approved by the
Administrative Agent and the Borrower, such approval not to
be unreasonably withheld or delayed; provided, however, that
neither the Loan Parties nor an Affiliate of either of the
Loan Parties shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in
any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for
damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural
resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization
required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of either Loan Party's
controlled group, or under common control with either Loan
Party, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by
the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2)
of such Section) are met with a contributing sponsor, as
defined in Section 4001(a)(13) of ERISA, of a Plan, and an
event described in paragraph (9), (10), (11), (12) or (13)
of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of
any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations
at a facility of either Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by either Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for any Interest Period for
each Eurodollar Rate Advance comprising part of the same
Revolving Credit Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Revolving Credit Borrowing
to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing shall be
determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit
Advance that bears interest as provided in
Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest
Period for all Eurodollar Rate Advances or LIBO Rate
Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes
deposits by reference to which the interest rate on
Eurodollar Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Extending Lender" has the meaning specified in Section
2.05(c).
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by
the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Guarantor" means Hyundai Electronics Industries Co.,
Ltd., a company incorporated with limited liability in the
Republic of Korea.
"Guaranty" has the meaning specified in Section
3.01(h)(iv).
"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.
"Increase Date" has the meaning specified in Section
2.05(b)(i).
"Increasing Lender" has the meaning specified in
Section 2.05(b)(i).
"Information Memorandum" means the information
memorandum dated July 16, 1996, used by the Administrative
Agent in connection with the syndication of the Commitments.
"Insufficiency" means, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Revolving Credit
Borrowing and each LIBO Rate Advance comprising part of the
same Competitive Bid Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or LIBO Rate Advance or
the date of the Conversion of any Base Rate Advance into
such Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar
Rate Advances, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending
on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as
the Borrower may, upon notice received by the Administrative
Agent not later than 12:00 P.M. (noon) (New York City time)
on the third Business Day, in the case of a Revolving Credit
Borrowing, or on the fourth Business Day, in the case of a
Competitive Bid Borrowing, prior to the first day of such
Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest
Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same
date for Eurodollar Rate Advances comprising part of
the same Revolving Credit Borrowing or for LIBO Rate
Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any
Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest
Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if
such extension would cause the last day of such
Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur
on the next preceding Business Day; and
(iv) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person
that shall become a Lender hereto pursuant to Section
2.05(b) or Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO
Rate Advances comprising part of the same Competitive Bid
Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum
at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first
day of such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. The LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from
the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions
of Section 2.08.
"LIBO Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Lien" means any lien, security interest or other
charge or encumbrance of any kind, or any other type of
preferential arrangement, including, without limitation, the
lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to
real property.
"Loan Documents" means this Agreement, the Notes and
the Guaranty, in each case as amended or otherwise modified
from time to time.
"Loan Parties" means the Borrower and the Guarantor.
"Material Adverse Change" means any material adverse
change in the business, financial condition, operations,
performance, properties or prospects of either Loan Party or
either Loan Party and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse
effect on (a) the business, financial condition, operations,
performance, properties or prospects of either Loan Party or
either Loan Party and its Subsidiaries taken as a whole,
(b) the rights and remedies of the Administrative Agent or
any Lender under this Agreement or any other Loan Document
or (c) the ability of either Loan Party to perform its
obligations under this Agreement or any other Loan Document.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which either Loan
Party or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of either Loan Party or any ERISA
Affiliate and at least one Person other than the Loan
Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which either Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be
terminated.
"Note" means a Revolving Credit Note or a Competitive
Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor).
"Permitted Liens" means such of the following as to
which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to
the extent not required to be paid under Section 5.01(b)
hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a
period of more than 30 days; (c) pledges or deposits to
secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory
obligations; (d) easements, rights of way and other
encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its
present purposes; (e) Liens consisting of judgment or
judicial attachment liens, provided that the enforcement of
such Liens is effectively stayed; (f) Liens on assets of
corporations that become Subsidiaries after the date of this
Agreement, provided, however, that such Liens existed at the
time the respective corporations became Subsidiaries and
were not created in anticipation thereof or in connection
with the creation of such Subsidiaries; (g) Liens securing
Capitalized Lease obligations on assets subject to such
Capitalized Leases, provided that such Capitalized Leases
are permitted under subsection 5.02(b)(iii)(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 or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Pro Rata Share" of any amount means, with respect to
any Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such
Lender's Commitment at such time and the denominator of
which is the Revolving Credit Facility at such time.
"Reference Banks" means Citibank, Royal Bank of Canada
and the Sumitomo Bank, Ltd.
"Register" has the meaning specified in
Section 8.07(d).
"Required Lenders" means at any time Lenders owed or
holding at least 66_% of the aggregate principal amount of
the Advances outstanding at such time, or, if no such
principal amount is outstanding at such time, Lenders
holding at least 66_% of the Revolving Credit Facility at
such time.
"Responsible Officer" means any officer of the
Borrower.
"Revolving Credit Advance" means an advance by a Lender
to the Borrower as part of a Revolving Credit Borrowing and
refers to a Base Rate Advance or a Eurodollar Rate Advance
(each of which shall be a "Type" of Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Revolving Credit Advances of the
same Type made by each of the Lenders pursuant to
Section 2.01.
"Revolving Credit Facility" means, at any time, the
aggregate amount of the Lenders' Commitments at such time.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances made by such
Lender.
"Securitization" means transaction Number 1 described
on Schedule 5.02(b)(iii)(A).
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of either Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of
which either Loan Party or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Subordinated Debt" means any Debt of the Borrower that
is subordinated to the obligations of the Borrower under the
Loan Documents on, and that otherwise contains, terms and
conditions reasonably satisfactory to the Required Lenders.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust
or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture
or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Surviving Debt" means Debt of the Borrower identified
on Schedule 5.02(b)(iii)(C) hereto.
"Termination Date" means, with respect to each Lender,
the earlier of (a) August 28, 1997 or, if extended pursuant
to Section 2.05(c), the date to which the Commitment of such
Lender is so extended pursuant to Section 2.05(c) and (b)
the date of termination in whole of the Commitments pursuant
to Section 2.05 or 6.01.
"Unused Commitment" means, with respect to any Lender
at any time, (a) such Lender's Commitment (computed with
regard to all existing Competitive Bid Reductions) at such
time minus (b) the aggregate principal amount of all
Revolving Credit Advances made by such Lender and
outstanding at such time.
"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other Person,
the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by
the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms
not specifically defined herein shall be construed in accordance
with, in the case of the Borrower, generally accepted accounting
principles, and, in the case of the Guarantor, generally accepted
financial accounting standards in the Republic of Korea
consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each
Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Revolving Credit Advances to the Borrower from
time to time on any Business Day during the period from the
Effective Date until the Termination Date in an amount for each
such Advance not to exceed such Lender's Unused Commitment at
such time. Each Revolving Credit Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof (or, if less, an aggregate amount
equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by the Borrower exceeds the
aggregate amount of Competitive Bid Advances offered to be made
by the Lenders and accepted by the Borrower in respect of such
Competitive Bid Borrowing, if such Competitive Bid Borrowing is
made on the same date as such Revolving Credit Borrowing) and
shall consist of Revolving Credit Advances of the same Type made
on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's
Unused Commitment, the Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.10 and reborrow under this
Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances.
(a) Each Revolving Credit Borrowing shall be made on notice,
given not later than 3:00 P.M. (New York City time) on the fourth
Business Day prior to the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting
of Eurodollar Rate Advances, or the Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by
the Borrower to the Administrative Agent, which shall give to
each Lender prompt notice thereof by telecopier or telex. Each
such notice of a Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier or telex in substantially
the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of
Revolving Credit Advances comprising such Revolving Credit
Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period
for each such Revolving Credit Advance. Each Lender shall,
before 3:00 P.M. (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's
ratable portion of such Revolving Credit Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's address referred to in
Section 8.02 not later than 4:00 P.M. (New York City time).
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances for any Revolving Credit Borrowing if the aggregate
amount of such Revolving Credit Borrowing is less than
$10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may
not be outstanding as part of more than five separate Revolving
Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any
Revolving Credit Borrowing that the related Notice of Revolving
Credit Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice
of Revolving Credit Borrowing for such Revolving Credit Borrowing
the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such
Lender as part of such Revolving Credit Borrowing when such
Revolving Credit Advance, as a result of such failure, is not
made on such date.
(d) Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Revolving
Credit Borrowing that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such
Revolving Credit Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the
Administrative Agent on the date of such Revolving Credit
Borrowing in accordance with subsection (a) of this Section 2.02
and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to Revolving Credit Advances
comprising such Revolving Credit Borrowing and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Revolving Credit
Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving
Credit Advance to be made by it as part of any Revolving Credit
Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Revolving Credit Advance on the
date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the
date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each
Lender severally agrees that the Borrower may make Competitive
Bid Borrowings under this Section 2.03 from time to time on any
Business Day during the period from the date hereof until the
date occurring 30 days prior to the Termination Date in the
manner set forth below; provided that, following the making of
each Competitive Bid Borrowing, the aggregate amount of the
Advances then outstanding shall not exceed the aggregate amount
of the Commitments of the Lenders (computed without regard to any
Competitive Bid Reduction); and provided further that the
aggregate amount of any proposed Competitive Bid Borrowing and
any Revolving Credit Borrowings to be made on the same day is
within the aggregate amount of the Unused Commitments of the
Lenders.
(i) The Borrower may request a Competitive Bid
Borrowing under this Section 2.03 by delivering to the
Administrative Agent, by telecopier or telex, a notice of a
Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such
proposed Competitive Bid Borrowing, (w) aggregate amount of
such proposed Competitive Bid Borrowing, (x) in the case of
a Competitive Bid Borrowing consisting of LIBO Rate
Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity
date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date
may not be earlier than the date occurring 14 days after the
date of such Competitive Bid Borrowing or later than the
earlier of (I) 180 days after the date of such Competitive
Bid Borrowing and (II) the Termination Date), (y) interest
payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing,
not later than 3:00 P.M. (New York City time) (A) at least
two Business Days prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall specify in
the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates
per annum (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "Fixed Rate Advances")
and (B) at least five Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall
instead specify in the Notice of Competitive Bid Borrowing
that the rates of interest be offered by the Lenders are to
be based on the LIBO Rate (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO
Rate Advances"). Each Notice of Competitive Bid Borrowing
shall be irrevocable and binding on the Borrower. The
Administrative Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing
received by it from the Borrower by sending such Lender a
copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Competitive Bid Advances to the Borrower as part of such
proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by
notifying the Administrative Agent (which shall give prompt
notice thereof to the Borrower), before 12:00 P.M. (noon)
(New York City time) on the Business Day prior to the date
of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances
and before 1:00 P.M. (New York City time) four Business Days
before the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, of the minimum amount and maximum amount
of each Competitive Bid Advance that such Lender would be
willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the first proviso
to the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if
the Administrative Agent in its capacity as a Lender shall,
in its sole discretion, elect to make any such offer, it
shall notify the Borrower of such offer at least 30 minutes
before the time and on the date on which notice of such
election is to be given to the Administrative Agent by the
other Lenders. If any Lender shall elect not to make such
an offer, such Lender shall so notify the Administrative
Agent, before 10:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender
shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give
such notice shall not cause such Lender to be obligated to
make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 2:00 P.M.
(New York City time) on the Business Day prior to the date
of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances
and before 3:00 P.M. (New York City time) four Business Days
before the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by
giving the Administrative Agent notice to that effect,
or
(y) accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii) above,
in its sole discretion, by giving notice to the
Administrative Agent of the amount of each Competitive
Bid Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above
by giving the Administrative Agent notice to that
effect. The Borrower shall accept the offers made by
any Lender or Lenders to make Competitive Bid Advances
in order of the lowest to the highest rates of interest
offered by such Lenders. If two or more Lenders have
offered the same interest rate, the Borrower may, in
its sole discretion, accept one or more such offers and
reject the remainder of such offers. The aggregate
amount of the Competitive Bid Advances made as part of
a Competitive Bid Borrowing shall not exceed the
aggregate amount of the proposed Competitive Bid
Borrowing requested by the Borrower in the related
Notice of Competitive Bid Borrowing.
(iv) If the Borrower notifies the Administrative Agent
that such Competitive Bid Borrowing is cancelled pursuant to
paragraph (iii)(x) above, the Administrative Agent shall
give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y)
above, the Administrative Agent shall in turn promptly
notify (A) each Lender that has made an offer as described
in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer
or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender
that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive
Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to
make a Competitive Bid Advance as part of such Competitive
Bid Borrowing, upon receipt, that the Administrative Agent
has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 12:00 noon (New York
City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Administrative
Agent pursuant to clause (A) of the preceding sentence or
any later time when such Lender shall have received notice
from the Administrative Agent pursuant to clause (C) of the
preceding sentence, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in
Article III and after receipt by the Administrative Agent of
such funds, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's
address referred to in Section 8.02 not later than 3:00 P.M.
(New York City time). Promptly after each Competitive Bid
Borrowing the Administrative Agent will notify each Lender
of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will
terminate.
(vi) If the Borrower notifies the Administrative Agent
that it accepts one or more of the offers made by any Lender
or Lenders pursuant to paragraph (iii)(y) above, such notice
of acceptance shall be irrevocable and binding on the
Borrower. The Borrower shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date
specified in the related Notice of Competitive Bid Borrowing
for such Competitive Bid Borrowing the applicable conditions
set forth in Article III, including, without limitation, any
loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure,
is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and, following the making of each
Competitive Bid Borrowing, the Borrower shall be in compliance
with the limitation set forth in the first proviso to the first
sentence of subsection (a) above.
(c) The aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to the extent of
the aggregate amount of the Competitive Bid Advances then
outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably
according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "Competitive Bid
Reduction").
(d) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time borrow
under this Section 2.03, repay or prepay pursuant to
subsection (e) below, and reborrow under this Section 2.03,
provided that a Competitive Bid Borrowing shall not be made
within three Business Days of the date of any other Competitive
Bid Borrowing.
(e) The Borrower shall repay to the Administrative
Agent for the account of each Lender that has made a Competitive
Bid Advance, on the maturity date of each Competitive Bid Advance
(such maturity date being that specified by the Borrower for
repayment of such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance), the then unpaid
principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any
Competitive Bid Advance unless, and then only on the terms,
specified by the Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and set forth in the Competitive Bid Note
evidencing such Competitive Bid Advance.
(f) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the date of
such Competitive Bid Advance to the date the principal amount of
such Competitive Bid Advance is repaid in full, at the rate of
interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect
thereto delivered pursuant to subsection (a)(ii) above, payable
on the interest payment date or dates specified by the Borrower
for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such
Competitive Bid Advance. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive
Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be
paid on such Competitive Bid Advance under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance
unless otherwise agreed in such Competitive Bid Note.
(g) The indebtedness of the Borrower resulting from
each Competitive Bid Advance made to the Borrower as part of a
Competitive Bid Borrowing shall be evidenced by a separate
Competitive Bid Note of the Borrower payable to the order of the
Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower
agrees to pay to the Administrative Agent for the account of each
Lender a facility fee on the aggregate amount of such Lender's
Commitment, without regard to any reduction of such Commitment by
Competitive Bid Reductions, from the date hereof in the case of
each Initial Lender and from the effective date specified in the
Assumption Agreement or the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until
the Termination Date at a rate per annum equal to .15%, payable
in arrears quarterly on the last Business Day of each March,
June, September and December, commencing September 30, 1996, and
on the Termination Date.
(b) Administrative Agent's Fees. The Borrower shall
pay to the Administrative Agent for its own account such fees as
may from time to time be agreed between the Borrower and the
Administrative Agent.
SECTION 2.05. Termination, Reduction, Increase or
Extension of the Commitments. (a) Termination and Reduction.
The Borrower shall have the right, upon at least three Business
Days' notice to the Administrative Agent, permanently to
terminate in whole or reduce in part the unused portions of the
Commitments, provided that (i) each partial reduction of the
Revolving Credit Facility shall be in the minimum aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, (ii) each partial reduction of the Revolving
Credit Facility shall be made ratably among the Lenders in
accordance with their Commitments and (iii) the aggregate amount
of the Commitments of the Lenders shall not be reduced to an
amount that is less than the aggregate principal amount of the
Competitive Bid Advances then outstanding. Once terminated, such
portion of the Revolving Credit Facility may not be reinstated.
(b) Increase in Aggregate of the Commitments. (i)
The Borrower may at any time, by notice to the Administrative
Agent, propose that the aggregate amount of the Commitments be
increased (such aggregate amount being, a "Commitment Increase"),
effective as at a date prior to the Termination Date (an
"Increase Date") as to which agreement is to be reached by an
earlier date specified in such notice (a "Commitment Date");
provided, however, that (A) the Borrower may not propose more
than one Commitment Increase in any twelve month period, (B) the
minimum proposed Commitment Increase per notice shall be
$10,000,000, (C) in no event shall the aggregate amount of the
Commitments at any time exceed $121,000,000, (D) no Default shall
have occurred and be continuing on such Increase Date and (E) a
certificate as to corporate authorization and other appropriate
documentation is received by the Administrative Agent. The
Administrative Agent shall notify the Lenders thereof promptly
upon its receipt of any such notice. The Administrative Agent
agrees that it will cooperate with the Borrower in discussions
with the Lenders and other Eligible Assignees with a view to
arranging the proposed Commitment Increase through the increase
of the Commitments of one or more of the Lenders (each such
Lender that is willing to increase its Commitment hereunder being
an "Increasing Lender") and the addition of one or more other
Eligible Assignees as Assuming Lenders and as parties to this
Agreement; provided, however, that it shall be in each Lender's
sole discretion whether to increase its Commitment hereunder in
connection with the proposed Commitment Increase; and provided
further that the minimum Commitment of each such Assuming Lender
that becomes a party to this Agreement pursuant to this Section
2.05(b), shall be at least equal to $10,000,000. If any of the
Lenders agree to increase their respective Commitments by an
aggregate amount in excess of the proposed Commitment Increase,
the proposed Commitment Increase shall be allocated among such
Lenders as determined at such time by the Borrower. If agreement
is reached on or prior to the applicable Commitment Date with any
Increasing Lenders and Assuming Lenders as to a Commitment
Increase (which may be less than but not greater than specified
in the applicable notice from the Borrower), such agreement to be
evidenced by a notice in reasonable detail from the Borrower to
the Administrative Agent on or prior to the applicable Commitment
Date, such Assuming Lenders, if any, shall become Lenders
hereunder as of the applicable Increase Date and the Commitments
of such Increasing Lenders and such Assuming Lenders shall become
or be, as the case may be, as of the Increase Date, the amounts
specified in such notice; provided that:
(x) the Administrative Agent shall have received (with
copies for each Lender, including each such Assuming Lender)
by no later than 10:00 A.M. (New York City time) on the
applicable Increase Date a copy certified by the Secretary,
an Assistant Secretary or a comparable officer of the
Borrower, of the resolutions adopted by the Board of
Directors of the Borrower authorizing such Commitment
Increase;
(y) each such Assuming Lender shall have delivered to
the Administrative Agent by no later than 10:00 A.M. (New
York City time) on such Increase Date, an appropriate
Assumption Agreement in substantially the form of Exhibit D
hereto, duly executed by such Assuming Lender and the
Borrower; and
(z) each such Increasing Lender shall have delivered
to the Administrative Agent by no later than 10:00 A.M. (New
York City time) on such Increase Date (A) its existing
Revolving Credit Note and (B) confirmation in writing
satisfactory to the Administrative Agent as to its increased
Commitment.
(ii) In the event that the Administrative Agent shall
have received notice from the Borrower as to its agreement to a
Commitment Increase on or prior to the applicable Commitment Date
and each of the actions provided for in clauses (x) through (z)
above shall have occurred prior to 10:00 A.M. (New York City
time) on the applicable Increase Date to the satisfaction of the
Administrative Agent, the Administrative Agent shall notify the
Lenders (including any Assuming Lenders) and the Borrower of the
occurrence of such Commitment Increase by telephone, confirmed
immediately in writing, telecopier, telex or cable and in any
event no later than 1:00 P.M. (New York City time) on such
Increase Date and shall record in the Register the relevant
information with respect to each Increasing Lender and Assuming
Lender. Each Increasing Lender and each Assuming Lender shall,
before 2:00 P.M. (New York City time) on the applicable Increase
Date, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, in the case of such Assuming Lender,
an amount equal to such Assuming Lender's ratable portion of the
Revolving Credit Borrowings then outstanding (calculated based on
its Commitment as a percentage of the aggregate Commitments
outstanding after giving effect to the relevant Commitment
Increase) and, in the case of such Increasing Lender, an amount
equal to the excess of (i) such Increasing Lender's ratable
portion of the Revolving Credit Borrowings then outstanding
(calculated based on its Commitment as a percentage of the
aggregate Commitments outstanding after giving effect to the
relevant Commitment Increase) over (ii) such Increasing Lender's
ratable portion of the Revolving Credit Borrowings then
outstanding (calculated based on its Commitment (without giving
effect to the relevant Commitment Increase) as a percentage of
the aggregate Commitments (without giving effect to the relevant
Commitment Increase). After the Administrative Agent's receipt
of such funds from each such Increasing Lender and each such
Assuming Lender, the Administrative Agent will promptly
thereafter cause to be distributed like funds to the other
Lenders for the account of their respective Applicable Lending
Offices in an amount to each other Lender such that the aggregate
amount of the outstanding Revolving Credit Advances owing to each
Lender after giving effect to such distribution equals such
Lender's ratable portion of the Revolving Credit Borrowings then
outstanding (calculated based on its Commitment as a percentage
of the aggregate Commitments outstanding after giving effect to
the relevant Commitment Increase). Within five Business Days
after the Borrower receives notice from the Administrative Agent,
the Borrower, at its own expense, shall execute and deliver to
the Administrative Agent, Revolving Credit Notes payable to the
order of each Assuming Lender, if any, and, each Increasing
Lender, dated as of the applicable Increase Date, in a principal
amount equal to such Lender's Commitment after giving effect to
the relevant Commitment Increase, and substantially in the form
of Exhibit A-1 hereto. The Administrative Agent, upon receipt of
such Revolving Credit Notes, shall promptly deliver such
Revolving Credit Notes to the respective Assuming Lenders and
Increasing Lenders.
(iii) In the event that the Administrative Agent
shall not have received notice from the Borrower as to such
agreement on or prior to the applicable Commitment Date or the
Borrower shall, by notice to the Administrative Agent prior to
the applicable Increase Date, withdraw its proposal for a
Commitment Increase or any of the actions provided for above in
clauses (i)(x) through (i)(z) shall not have occurred by
10:00 A.M. (New York City time) on such Increase Date, such
proposal by the Borrower shall be deemed not to have been made.
In such event, any actions theretofore taken under clauses (i)(x)
through (i)(z) above shall be deemed to be of no effect and all
the rights and obligations of the parties shall continue as if no
such proposal had been made.
(c) Extensions. At any time no earlier than 60 days
and no later than 45 days prior to the Termination Date in effect
at any time, the Borrower may, by written notice to the
Administrative Agent, request that the Termination Date then in
effect be extended for all or a portion of the Commitments for a
period of 364 days. Such request shall be irrevocable and
binding upon the Borrower. The Administrative Agent shall
promptly notify each Lender of such request. The Lenders shall
have no obligation whatsoever to agree to any request made by the
Borrower for the extension of the Termination Date for the
Commitments. If a Lender agrees, in its individual and sole
discretion, to so extend all or a portion of its Commitment (an
"Extending Lender"), it shall deliver to the Administrative Agent
a notice of its agreement to do so, in substantially the form of
Exhibit D hereto, no later than 35 days prior to such Termination
Date and the Administrative Agent shall notify the Borrower of
such Extending Lender's agreement to extend its Commitment no
later than 30 days prior to such Termination Date. The
Commitment of any Lender that fails to accept or respond to the
Borrower's request for extension of the Termination Date (a
"Declining Lender") shall be terminated on the Termination Date
then in effect (without regard to any extension by other Lenders)
and on such Termination Date the Borrower shall pay in full the
principal amount of all Advances owing to such Declining Lender,
together with accrued interest thereon to the date of payment of
such principal amount, all facility fees and other fees payable
to such Declining Lender and all other amounts payable to such
Declining Lender under this Agreement (including, but not limited
to, any increased costs or other additional amounts (computed in
accordance with Section 2.11) and any Taxes incurred by such
Declining Lender prior to such Termination Date and amounts
payable under Section 8.04(a)). The Extending Lenders, or any of
them, in their sole discretion may offer to increase their
respective Commitments by an aggregate amount that shall not
exceed the sum of the aggregate amount of the Declining Lenders'
Commitments plus the aggregate amount of the Extending Lenders'
Commitments for which such Extending Lenders have not extended
the Termination Date. Each such Extending Lender shall deliver
to the Administrative Agent a notice, in substantially the form
of Exhibit D hereto, of its offer to so increase its Commitment
no later than 15 days prior to such Termination Date. The
Borrower shall, no later than one day before the Termination
Date, deliver to the Administrative Agent a notice setting forth
the Commitments of the Extending Lenders, if any, that are to
become or be effective as of the Termination Date. If the
Extending Lenders provide Commitments in an aggregate amount
equal to at least 51% of the aggregate amount of the Commitments
requested by the Borrower to be extended, then, effective on the
Termination Date in effect at the time of the Borrower's request,
(A) the Termination Date shall be extended by 364 days for such
Extending Lenders' Commitments and (B) the Commitment of each
Extending Lender shall be the amount specified in the notice
provided by the Borrower to the Administrative Agent (which
amount shall not exceed the amount specified by such Extending
Lender in its most recent notice to the Administrative Agent).
Unlimited extensions of the Termination Date are permitted under
this Section 2.05(c).
SECTION 2.06. Repayment of Revolving Credit Advances.
The Borrower shall repay to the Administrative Agent for the
ratable account of the Lenders on the Termination Date the
aggregate principal amount of the Revolving Credit Advances then
outstanding.
SECTION 2.07. Interest on Revolving Credit Advances.
(a) Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to
each Lender from the date of such Revolving Credit Advance until
such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per
annum equal at all times to the sum of (x) the Base Rate in
effect from time to time plus (y) the Applicable Margin in
effect from time to time, payable in arrears quarterly on
the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Revolving Credit Advance is a Eurodollar Rate Advance,
a rate per annum equal at all times during each Interest
Period for such Revolving Credit Advance to the sum of
(x) the Eurodollar Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in
effect from time to time, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs
during such Interest Period every three months from the
first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during
the continuance of a Default, the Borrower shall pay interest on
(i) the unpaid principal amount of each Revolving Credit Advance
owing to each Lender, payable in arrears on the dates referred to
in clause (a)(i) or (a)(ii) above, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be
paid on such Revolving Credit Advance pursuant to clause (a)(i)
or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder
that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a
rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurodollar
Rate and each LIBO Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such
interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Administrative Agent shall give
prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes
of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by
each Reference Bank for the purpose of determining the interest
rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances,
the Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration
of any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Administrative Agent will
forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any
Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of
any Default, (i) each Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
(f) If fewer than two Reference Banks in good faith
are able to furnish timely information to the Administrative
Agent for determining the Eurodollar Rate or LIBO Rate for any
Eurodollar Rate Advances or LIBO Rate Advances, as the case may
be,
(i) the Administrative Agent shall forthwith notify
the Borrower and the Lenders that the interest rate cannot
be determined for such Eurodollar Rate Advances or LIBO Rate
Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each
such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance,
will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 12:00 P.M.
(noon) (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions
of Sections 2.08 and 2.12, Convert all Revolving Credit Advances
of one Type comprising the same Borrowing into Revolving Credit
Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances
into Eurodollar Rate Advances shall be in an amount not less than
the minimum amount specified in Section 2.02(b) and no Conversion
of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion,
(ii) the Revolving Credit Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of
the initial Interest Period for each such Advance. Each notice
of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments. (a) Optional. The
Borrower may, with notice given to the Administrative Agent not
later than 3:00 P.M. (New York City time) on the Business Day
prior to the date of the prepayment for Base Rate Advances, or
with at least three Business Days' notice to the Administrative
Agent for Eurodollar Rate Advances, stating the proposed date and
aggregate principal amount of the prepayment, and if such notice
is given the Borrower shall, prepay the outstanding principal
amount of the Revolving Credit Advances comprising part of the
same Revolving Credit Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on
the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
(b) Mandatory. The Borrower shall, on each Business
Day, prepay an aggregate principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowings
equal to the amount by which the sum of the aggregate principal
amount of the Revolving Credit Advances then outstanding exceeds
the Revolving Credit Facility on such Business Day.
SECTION 2.11. Increased Costs. (a) If, due to either
(i) the introduction of or any change in or in the interpretation
of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law), there shall
be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO
Rate Advances (excluding for purposes of this Section 2.11 any
such increased costs resulting from (i) Taxes or Other Taxes (as
to which Section 2.14 shall govern) and (ii) changes in the basis
of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the
laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender
additional amounts sufficient to compensate such 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 and the
Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error; provided that
the Borrower shall have no obligation to any Lender under this
Section 2.11(a) if such 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 such Lender shall have or
should reasonably have become aware of such event.
(b) If any 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 such Lender or any
corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder (and other commitments of
this type), then, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), the Borrower shall pay to
the Administrative Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the
light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to
the existence of such 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 and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error;
provided that the Borrower shall have no obligation to any Lender
under this Section 2.11(b) if such 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 such
Lender shall have or should reasonably have become aware of such
event.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the
Administrative Agent that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that
it is unlawful, for any Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar Rate
Advances or LIBO Rate Advances or to fund or maintain Eurodollar
Rate Advances or LIBO Rate Advances hereunder, (i) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be,
will automatically, upon one Business Day's notice to the
Borrower, Convert into a Base Rate Advance or an Advance that
bears interest at the rate set forth in Section 2.07(a)(i), as
the case may be, and (ii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The
Borrower shall make each payment hereunder and under the Notes
not later than 1:00 P.M. (New York City time) on the day when due
in U.S. dollars to the Administrative Agent at the Administrative
Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if
such payment by the Borrower is in respect of principal,
interest, facility fees or any other obligation then payable
hereunder and under the Notes to more than one Lender, to such
party for the account of their respective Applicable Lending
Offices ratably in accordance with the amounts of such respective
obligations then payable to such party and (ii) if such payment
by the Borrower is in respect of any obligation then payable
hereunder to one Lender, to such party for the account of its
Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective
date directly between themselves. Upon any Assuming Lender
becoming a Lender hereunder as a result of a Commitment Increase
pursuant to Section 2.05(b) and upon the Administrative Agent's
receipt of such Lender's Assumption Agreement and recording the
information contained therein in the Register, from and after the
applicable Increase Date, the Administrative Agent shall make
payments hereunder and under the Notes in respect of the interest
assumed thereby to such Assuming Lender.
(b) The Borrower hereby authorizes each Lender, if and
to the extent payment owed to such Lender is not made when due
hereunder or under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with
such Lender any amount so due.
(c) All computations of interest based on the Base
Rate shall be made by the Administrative Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations
of interest based on the Eurodollar Rate, the LIBO Rate or the
Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the
Administrative Agent 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 Notes
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the
computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances
or LIBO Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business
Day.
(e) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to the Lenders hereunder that the Borrower will
not make such payment in full, the Administrative Agent may
assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrower shall not
have so made such payment in full to the Administrative Agent,
each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in
accordance with Section 2.13, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or
the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction of
such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this Section 2.14) such Lender or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies that arise from any
payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any taxes imposed by any
jurisdiction on amounts payable under this Section 2.14) imposed
on or paid
by such Lender or the Administrative Agent (as the case may be)
and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the
Administrative Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at
its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not
a United States person, if the Borrower determines that no Taxes
are payable in respect thereof, the Borrower shall furnish, or
shall cause such payor to furnish, to the Administrative Agent,
at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e),
the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue
Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Initial Lender and on the date of the Assignment and
Acceptance or Assumption Agreement pursuant to which it becomes a
Lender in the case of each other 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 each of the Administrative Agent and 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.
SECTION 2.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) (a) on
account of obligations due and payable to such Lender hereunder
and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such
obligations due and payable to such Lender at such time to
(ii) the aggregate amount of the obligations due and payable to
all Lenders hereunder and under the Notes at such time) of
payments on account of the obligations due and payable to all
Lenders hereunder and under the Notes at such time obtained by
all the Lenders at such time or (b) on account of obligations
owing (but not due and payable) to such Lender hereunder and
under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such
obligations owing to such Lender at such time to (ii) the
aggregate amount of the obligations owing (but not due and
payable) to all Lenders hereunder and under the Notes at such
time) of payments on account of the obligations owing (but not
due and payable) to all Lenders hereunder and under the Notes at
such time obtained by all of the Lenders at such time, such
Lender shall forthwith purchase from the other Lenders such
participations in the obligations due and payable or owing to
them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender such purchase
from each Lender shall be rescinded and such Lender shall repay
to the purchasing Lender, the purchase price to the extent of
such recovery together with an amount equal to such Lender's
ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to
this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of
such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the
Advances shall be available (and the Borrower agrees that it
shall use such proceeds) solely for working capital purposes and
refinancing of Surviving Debt 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 March 30, 1996,
and there shall have occurred no Material Adverse Change
with respect to the Guarantor since December 31, 1995, other
than as provided on Schedules 4.01(e)(i) and (ii) hereto.
(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
Memorandum was or has become misleading, incorrect or
incomplete 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 each Lender and
the Administrative Agent in writing as to the proposed
Effective Date.
(f) The Borrower shall have paid all accrued fees and
expenses of the Administrative Agent and the Lenders
(including the accrued fees and expenses of counsel to the
Administrative Agent).
(g) On the Effective Date, the following statements
shall be true and the Administrative Agent shall have
received for the account of each Lender a certificate signed
by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
(i) The representations and warranties
contained in each Loan Document are correct on and as
of the Effective Date, and
(ii) No event has occurred and is continuing
that constitutes a Default.
(h) The Administrative Agent shall have received on or
before the Effective Date the following, each dated such
day, in form and substance satisfactory to the
Administrative Agent and (except for the Revolving Credit
Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order
of the Lenders, respectively.
(ii) Certified copies of the resolutions of
the Board of Directors of each Loan Party approving
this Agreement, the Notes, each other Loan Document to
which it is or is to be a party, and of all documents
evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement, the Notes and each other Loan Document.
(iii) A certificate of the Secretary or
an Assistant Secretary 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 Notes, each
other Loan Document to which it is or is to be a party
and the other documents to be delivered hereunder and
thereunder.
(iv) A guaranty in substantially the form of
Exhibit E (as amended, supplemented or modified from
time to time in accordance with its terms, the
"Guaranty"), duly executed by the Guarantor.
(v) Favorable opinions of Morrison &
Foerster, New York counsel for the Borrower, and the
General Counsel of the Borrower, substantially in the
form of Exhibits F-1 and F-2 hereto, respectively, and
as to such other matters as any Lender through the
Administrative Agent may reasonably request.
(vi) Favorable opinions of Lee & Ko, counsel
for the Guarantor, or other Korean counsel to the
Guarantor acceptable to the Administrative Agent, and
the Corporate Counsel of the Guarantor, substantially
in the form of Exhibits G-1 and G-2 hereto,
respectively, and as to such other matters as any
Lender through the Administrative Agent may reasonably
request.
(vii) A favorable opinion of Shearman &
Sterling, counsel for the Administrative Agent, in form
and substance satisfactory to the Administrative Agent.
(viii) Evidence of the cancellation of the
$100,000,000 Credit Agreement dated as of August 31,
1995, by and among the Borrower, the Initial Lenders
and the Issuing Bank thereunder and the Administrative
Agent and the Guaranty dated August 31, 1995, issued by
the Guarantor in relation thereto.
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing. The obligation of each Lender to make a
Revolving Credit Advance on the occasion of each Revolving Credit
Borrowing (including the initial Borrowing) shall be subject to
the conditions precedent that the Effective Date shall have
occurred and on the date of such Revolving Credit Borrowing
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower of the proceeds of such Revolving
Credit Borrowing shall constitute a representation and warranty
by the Borrower that on the date of such Borrowing or issuance
such statements are true):
(i) the representations and warranties contained in
each Loan Document are correct in all material respects on
and as of the date of such Revolving Credit Borrowing or
issuance, before and after giving effect to such Revolving
Credit Borrowing or issuance and to the application of the
proceeds therefrom, as though made on and as of such date,
and
(ii) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or issuance or
from the application of the proceeds therefrom, that
constitutes a Default;
and (b) the Administrative Agent shall have received such other
approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing. The obligation of each Lender that is to make a
Competitive Bid Advance on the occasion of a Competitive Bid
Borrowing to make such Competitive Bid Advance as part of such
Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Administrative Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect
thereto, (ii) on or before the date of such Competitive Bid
Borrowing, but prior to such Competitive Bid Borrowing, the
Administrative Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more
Competitive Bid Advances to be made by such Lender as part of
such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be
evidenced thereby and otherwise on such terms as were agreed to
for such Competitive Bid Advance in accordance with Section 2.03,
and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance
by the Borrower of the proceeds of such Competitive Bid Borrowing
shall constitute a representation and warranty by the Borrower
that on the date of such Competitive Bid Borrowing such
statements are true):
(a) the representations and warranties contained in
each Loan Document are correct in all material respects on
and as of the date of such Competitive Bid Borrowing, before
and after giving effect to such Competitive Bid Borrowing
and to the application of the proceeds therefrom, as though
made on and as of such date,
(b) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default,
(c) no event has occurred and no circumstance exists
as a result of which the information concerning the Borrower
that has been provided to the Administrative Agent and each
Lender by the Borrower in connection herewith would include
an untrue statement of a material fact or omit to state any
material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under
which they were made, not misleading, and
(d) the aggregate amount of such Competitive Bid
Borrowing and all Revolving Credit Borrowings to be made on
the same day is within the aggregate amount of the Unused
Revolving Commitments of the Lenders, computed prior to such
Borrowings.
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified
in Section 3.01, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice
from such Lender prior to the date that the Borrower, by notice
to the Lenders, designates as the proposed Effective Date,
specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Effective
Date.
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 Notes, and each other Loan
Document to which it is or is to be a party, and the
consummation of the transactions contemplated hereby, are
within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not
contravene (i) such Loan Party's charter or by-laws or
(ii) any law, regulation (including, without limitation,
Regulations U and X of the Board of Governors of the Federal
Reserve System) or contractual restriction binding on or
affecting the Loan Parties.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for
the due execution, delivery and performance by either Loan
Party of this Agreement, the Notes or any other Loan
Document to which it is or is to be a party, except for
those authorizations, approvals, actions, notices and
filings listed on Schedule 4.01(c) hereto, all of which have
been duly obtained, taken, given or made and are in full
force and effect 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) (i) The Consolidated balance sheet of the
Borrower and its Subsidiaries as at March 30, 1996, and the
related Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for the fiscal year then
ended, accompanied by an opinion of Ernst & Young,
independent public accountants, and the Consolidated balance
sheet of the Borrower and its Subsidiaries as at March 30,
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 March 30, 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 March 30,
1996, there has been no Material Adverse Change, 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, 1995, 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, 1995, there has been no
Material Adverse Change, other than as provided on Schedule
4.01(e)(ii) hereto.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting either Loan
Party or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or
enforceability of this Agreement, any Note or any other Loan
Document or the consummation of the transactions
contemplated hereby.
(g) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System), and
no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(h) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan.
(i) As of the last annual actuarial valuation date,
the funded current liability percentage, as defined in
Section 302(d)(8) of ERISA, of each Plan exceeds 90% and
there has been no Material Adverse Change in the funding
status of any such Plan since such date.
(j) Neither Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan that has had or is
reasonably likely to have a Material Adverse Effect.
(k) Neither Loan Party nor any ERISA Affiliate has
been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(l) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.01(i), the
Loan Parties and their respective Subsidiaries have no
material liability with respect to "expected post retirement
benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(m) The operations and properties of the Borrower and
each of its Subsidiaries comply with all applicable
Environmental Laws and Environmental Permits, except such
non-compliance that would not have a Material Adverse
Effect, all past non-compliance with such Environmental Laws
and Environmental Permits has been resolved without ongoing
obligations or costs, and no circumstances exist that could
be reasonably likely to (i) form the basis of an
Environmental Action against the Borrower or any of its
Subsidiaries or any of their properties that could have a
Material Adverse Effect or (ii) cause any such property to
be subject to any restrictions on ownership, occupancy, use
or transferability under any Environmental Law that could
have a Material Adverse Effect.
(n) None of the properties currently or, to the best
of its knowledge, formerly owned or operated by the Borrower
or any of its Subsidiaries is listed or proposed for listing
on the National Priorities List under the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("NPL") or on the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by
the U.S. Environmental Protection Agency ("CERCLIS") or any
analogous foreign, state or local list or, to the best
knowledge of the Borrower, is adjacent to any such property;
there are no and never have been any underground or
aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed
of by the Borrower or any of its Subsidiaries or, to the
best of its knowledge, by any other Person, on any property
currently or, to the best of its knowledge, formerly owned
or operated by the Borrower or any of its Subsidiaries;
there is no friable asbestos or, other than as is being
maintained in accordance with applicable Environmental Laws,
other asbestos or asbestos-containing material on any
property currently owned or operated by the Borrower or any
of its Subsidiaries; and Hazardous Materials have not been
released, discharged or disposed of by the Borrower or any
of its Subsidiaries or, to the best of its knowledge, by any
other Person, on any property currently or, to the best of
its knowledge, formerly owned or operated by the Borrower or
any of its Subsidiaries or any adjoining property.
(o) Neither the Borrower nor any of its Subsidiaries
is undertaking, and has not completed, either individually
or together with other potentially responsible parties, any
investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of
any governmental or regulatory authority or the requirements
of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at or
transported to or from any property currently or formerly
owned or operated by the Borrower or any of its Subsidiaries
have been disposed of in a manner not reasonably expected to
result in material liability to the Borrower or any of its
Subsidiaries.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance
with ERISA and Environmental Laws as provided in
Section 5.01(j).
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments
and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in
good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until
any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates; provided,
however, that the Borrower and its Subsidiaries may self-
insure to the same extent as other companies engaged in
similar businesses and owing similar properties in the same
general areas in which the Borrower or such Subsidiary
operates and to the extent consistent with prudent business
practice.
(d) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises; provided, however,
that the Borrower and its Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(c) and
provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or
franchise if the Board of Directors of the Borrower or such
Subsidiary shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that
the loss thereof is not disadvantageous in any material
respect to the Borrower, such Subsidiary 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 Administrative Agent,
any of the Lenders or any agents or representatives 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 that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event
within 45 days after the end of each of the first three
quarters of each fiscal year of the Borrower,
Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such
quarter and Consolidated and consolidating statements
of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of
the previous fiscal year and ending with the end of
such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the
Borrower as having been prepared in accordance with
generally accepted accounting principles, provided that
in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower
shall also provide a statement of reconciliation
conforming such financial statements to GAAP;
(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 Required Lenders by Ernst &
Young or other independent public accountants
acceptable to the Required Lenders, provided that in
the event of any change in GAAP used in the preparation
of such financial statements, the Borrower shall also
provide a statement of reconciliation conforming such
financial statements to GAAP;
(iii) as soon as available and in any
event within 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 adjustments) 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 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 Required
Lenders by Samil Accounting Corporation, a member firm
of Price Waterhouse, or other independent public
accountants acceptable to the Required Lenders;
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(f);
(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 current liability percentage
(as defined in Section 302(d)(8) of ERISA) of which is
less than 90% or the unfunded current liability of
which exceeds $1,000,000;
(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 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) such other information respecting
either Loan Party or any of its Subsidiaries as any
Lender through the Administrative Agent may from time
to time reasonably request.
(j) Compliance with Environmental Laws. Comply, and
cause each of its Subsidiaries and all lessees and other
Persons operating or occupying its properties to comply, in
all material respects, with all applicable Environmental
Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and
properties; and conduct, and cause each of its Subsidiaries
to conduct, any investigation, study, sampling and testing,
and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials
from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however,
that neither the Borrower nor any of its Subsidiaries shall
be required to undertake any such cleanup, removal, remedial
or other action to the extent that such action is not
required by Environmental Laws or to the extent that its
obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid 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 purpose of
financing the acquisition of such property or
equipment, or Liens existing on such property or
equipment at the time of its acquisition (other than
any such Liens created in contemplation of such
acquisition that were not incurred to finance the
acquisition of such property) or extensions, renewals
or replacements of any of the foregoing for 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 Guarantor, to the extent such
Liens become operative only after the Commitments shall
have been terminated and the Administrative Agent and
the Lenders shall have been paid in full for all
obligations of the Borrower hereunder and under the
Notes, and
(v) Liens to secure Debt permitted under
Section 5.02(b)(iii)(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,
(B) Debt under the Loan Documents,
(C) If such Extending Lenders'
Commitments are less than the full amount
requested by the Borrower to be extended pursuant
to Section 2.05(c), then, from and after the
extension date relating to any such request, Debt
equal to the amount of the difference between the
amount requested by the Borrower to be extended
(not to exceed the aggregate amount of the
Commitments) and the Extending Lenders'
Commitments on such date; provided, however, that
such Debt shall be on terms no less favorable to
the Borrower or the Lenders than Debt under the
Loan Documents and
(D) If, within 21 days after the
notice by the Borrower of the Commitment Increase,
the aggregate amount of increase in the
Commitments obtained by the Administrative Agent
from Increasing Lenders is less than the full
amount requested by the Borrower, and, if, within
an additional 21 days the Administrative Agent is
unable to obtain the full amount of such requested
increase from Increasing Lenders and Eligible
Assignees, then, from and after such Increase
Date, Debt equal to the amount of the difference
between (x) the full amount of increase requested
by the Borrower and (y) the aggregate amount of
increase in the Commitments of Increasing Lenders
and Eligible Assignees obtained by the
Administrative Agent.
(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 transactions listed
on Schedule 5.02(b)(iii)(A) to the extent (x) each
item of such Debt does not exceed the amount
corresponding to each such item on such Schedule
and (y) such Debt does not exceed $199,000,000 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) indorsement 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)(ii), 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
5.02(b)(iii) aggregating not more than $50,000,000
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.
(d) Accounting Changes. Make or permit, or permit any
of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as
required or permitted by generally accepted accounting
principles.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable, or the
Borrower shall fail to pay any interest on any Advance or
any other amount payable hereunder, or either Loan Party
shall fail to make any other payment of fees or other
amounts payable under any Loan Document within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by either Loan
Party under or in connection with any Loan Document shall
prove to have been incorrect in any material respect when
made; or
(c) (i) The Borrower shall fail to perform or observe
any term, covenant or agreement contained in
Section 5.01(d), (e), (h) or (i) or 5.02 or (ii) either Loan
Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its
part to be performed or observed if such failure shall
remain unremedied for 15 days after written notice thereof
shall have been given to such Loan Party by the
Administrative Agent or any 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 or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to
be due and payable, or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof;
or
(e) Either Loan Party or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted
by or against either Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for
any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or
unstayed for a period of 45 days, or any of the actions
sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall
occur; or either Loan Party or any of its Subsidiaries shall
take any corporate action to authorize any of the actions
set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $5,000,000 in the case of the Borrower and
$15,000,000 in the case of the Guarantor shall be rendered
against such Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there
shall be any period of 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 that, upon consummation, will result in its or
their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or
policies of the Guarantor; or
(i) Any ERISA Event shall have occurred with respect
to a Plan and the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of such
Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $5,000,000;
or
(j) Either Loan Party or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan
that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid to Multiemployer Plans
by such Loan Party and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification),
exceeds $5,000,000 or requires payments exceeding $1,250,000
per annum; or
(k) Either Loan Party or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the
aggregate annual contributions of such Loan Party and the
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$1,250,000; or
(l) Any provision of the Guaranty shall for any reason
cease to be valid and binding on or enforceable against the
Guarantor, or the Guarantor shall revoke the Guaranty;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders,
by notice to the Borrower, declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately
terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Notes, all such interest
and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to either Loan
Party under the Federal Bankruptcy Code, (A) the obligation of
each Lender to make Advances shall automatically be terminated
and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender
(in its capacity as a Lender) hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including, without
limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action
that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice
of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may
treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for either Loan Party), independent public
accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants
or experts; (iii) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with any Loan Document; (iv) shall
not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of either Loan Party
or to inspect the property (including the books and records) of
either Loan Party; (v) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any
other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or
telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect
to its Commitments, the Advances made by it and the Note issued
to it, Citibank shall have the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as
though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Citibank in its individual capacity. Citibank
and its Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business
with, either Loan Party, any of its Subsidiaries and any Person
who may do business with or own securities of either Loan Party
or any such Subsidiary, all as if Citibank were not the
Administrative Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on the
financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent 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.
SECTION 7.05. Indemnification. The Lenders agree to
indemnify the Administrative Agent (to the extent not reimbursed
by the Borrower) from and against such Lender's ratable share of
any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Administrative Agent in any way
relating to or arising out of any Loan Document or any action
taken or omitted by the Administrative Agent under any Loan
Document, provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon
demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in
connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, the
Loan Documents, to the extent that the Administrative Agent is
not reimbursed for such expenses by the Borrower. For purposes
of this Section 7.05, the Lenders' respective ratable shares of
any amount shall be determined, at any time, according to the sum
of (i) the aggregate principal amount of the Revolving Credit
Advances outstanding at such time and owing to the respective
Lenders and (ii) their respective Unused Commitments at such
time. The failure of any Lender to reimburse the Administrative
Agent promptly upon demand for its ratable share of any amount
required to be paid by such Lender to the Administrative Agent as
provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse the Administrative Agent for
its ratable share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse the
Administrative Agent for such other Lender's ratable share of
such amount. Without prejudice to the survival of any other
agreement of any Lender hereunder, the agreement and obligations
of each Lender contained in this Section 7.05 shall survive the
payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon
any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent, subject to
the Borrower's approval, which shall not be unreasonably
withheld. If no successor Administrative Agent shall have been
so appointed by the Required Lenders, and shall not have accepted
such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the
Lenders and after consulting with the Borrower, appoint a
successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After
any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under
this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver
of any provision of any Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Borrower and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed
by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any
additional obligations (other than as permitted by Section
2.05(c) to the extent any of such Lenders consents thereunder),
(c) reduce the principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder,
(d) postpone any date fixed for any payment of principal of, or
interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the
Revolving Credit Notes or the number of Lenders, that in each
case shall be required for the Lenders or any of them to take any
action hereunder, (f) reduce or limit the obligations of the
Guarantor under Section I of the Guaranty or otherwise limit the
Guarantor's liability with respect to the obligations owing to
the Administrative Agent and the Lenders or (g) amend this
Section 8.01; provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent
under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the
Borrower, at its address at 510 Cottonwood Drive, Milpitas,
California 95035, telecopy no. (408) 432-4480, Attention: Meryl
Rains, Vice President - Finance & Treasurer, with a copy to Glenn
H. Stevens, Esq., General Counsel, at 2190 Miller Drive,
Longmont, Colorado 80501, telecopy no. (303) 678-3111; if to any
Initial Lender, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; 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; and if to the Administrative Agent, at its address at 1
Court Square, 7th Floor, Zone 1, Long Island City, New York
11120, Attention: John Makrinos, telecopy no. (718) 248-4844,
telephone no. (718) 248-4531; or, as to the Borrower or the
Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and
the Administrative Agent. All such notices and communications
shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to
the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not
be effective until received by the Administrative Agent.
Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the
part of any Lender or the Administrative Agent to exercise, and
no delay in exercising, any right hereunder or under any Note
shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower
agrees to pay on demand all costs and expenses of the
Administrative Agent and CSI in connection with the preparation,
execution, delivery, administration, modification and amendment
of the Loan Documents and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and
audit expenses and (B) the reasonable fees and expenses of
counsel for the Administrative Agent with respect thereto and
with respect to advising the Administrative Agent as to its
rights and responsibilities under the Loan Documents. After an
Event of Default, the Borrower further agrees to pay on demand
all costs and expenses of the Administrative Agent, CSI and the
Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of
the Loan Documents and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and
expenses of counsel for the Administrative Agent, CSI and each
Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless
the Administrative Agent and each Lender and each of their
Affiliates and their officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against any and
all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense
of, any investigation, litigation or proceeding arising out of,
related to or in connection with (i) the Facilities, the Loan
Documents, any of the transactions contemplated herein or therein
or the actual or proposed use of the proceeds of the Advances or
(ii) the actual or alleged presence of Hazardous Materials on any
property of either Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to either Loan Party or
any of its Subsidiaries, in each case whether or not such
investigation, litigation or proceeding is brought by either Loan
Party, its directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful
misconduct. The Borrower also agrees not to assert any claim
against the Administrative Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, this Agreement, the
other Loan Documents, any of the transactions contemplated herein
or therein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of,
any Eurodollar Rate Advance or LIBO Rate Advance is made by the
Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.05, 2.08(d) or (e),
2.10 or 2.12, acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, or by an Eligible
Assignee to a Lender other than on the last day of the Interest
Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a),
the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by any Lender to fund or maintain such
Advance.
(d) Without prejudice to the survival of any other
agreement of either Loan Party hereunder or under any other Loan
Document, the agreements and obligations of the Borrower
contained in Sections 2.11, 2.14 and 8.04 shall survive the
payment in full of principal, interest and all other amounts
payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent
to declare the Notes due and payable pursuant to the provisions
of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of
the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees
promptly to notify within one Business Day the Borrower after any
such set-off and application, provided that the failure to give
such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under
this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that
such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall
become effective (other than Sections 2.01 and 2.03, which shall
only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower,
the Administrative Agent and each Lender and their permitted
respective successors and assigns, except that the Borrower shall
not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a)
Each Lender may, with the consent (except as provided below), not
to be unreasonably withheld, of (i) the Administrative Agent and
(ii), prior to the occurrence and continuance of a Default, the
Borrower, and, each Lender if demanded by the Borrower (following
a demand by such Lender pursuant to Section 2.11 or 2.14) upon at
least 5 Business Days' notice to such Lender and the
Administrative Agent, will, with the consent of the
Administrative Agent, not to be unreasonably withheld, and only
if no Default has occurred and is continuing, assign to one or
more Persons all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its Commitment, the Revolving Credit Advances owing to it and
the Revolving Credit Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under
and in respect of the Revolving Credit Facility (other than any
right to make Competitive Bid Advances, Competitive Bid Advances
owing to it and Competitive Bid Notes), (ii) except in the case
of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's
rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event
be less than $3,000,000 or an integral multiple of $500,000 in
excess thereof, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) each such assignment made as a result
of a demand by the Borrower pursuant to this Section 8.07(a)
shall be arranged by the Administrative Agent after consultation
with the Borrower and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or
other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (vi) no
Lender shall be obligated to make any such assignment as a result
of a demand by the Borrower pursuant to this Section 8.07(a)
unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of
payment of such principal amount and all other amounts payable to
such Lender under this Agreement and (vii) the parties to each
such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Credit
Note subject to such assignment and a processing and recordation
fee of $3,000, except that such fee is not payable if the
assignee is an existing Lender and is replacing the assigning
Lender at the demand of the Borrower. Each Lender may, without
the consent of, but upon notice to, the Administrative Agent and
the Borrower, assign all or a portion of its rights and
obligations under this Agreement to any of its Affiliates.
(b) By executing and delivering an 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 Administrative
Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(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 Revolving Credit
Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its
receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for
the surrendered Revolving Credit Note a new Revolving Credit Note
to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the Assigning Lender has retained a Commitment
hereunder, a new Revolving Credit Note to the order of the
Assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Revolving Credit Note or Notes shall be
in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Revolving Credit Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1
hereto.
(d) The Administrative Agent shall maintain at its
address referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances 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, the Administrative Agent
and the 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, any 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 participations to one or more
banks or other entities (other than either Loan Party or any of
its Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Revolving Credit Advances
owing to it and the Revolving Credit Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Administrative Agent and the
other 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 8.07, 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.
(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 Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. None of the
Administrative Agent, any Lender shall use or disclose any
Confidential Information to any other Person without the consent
of the Borrower, other than (a) to the Administrative Agent's,
such Lender's Affiliates and their officers, directors,
employees, agents and advisors and, as contemplated by
Section 8.07(h), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process,
(c) to any rating agency when required by it, provided that,
prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender and
(d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to
which it is a party, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement
shall affect any right that any party may otherwise have to bring
any action or proceeding relating to this Agreement or any of the
other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any of the other
Loan Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the
Borrower, the Administrative Agent 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 the Administrative
Agent and any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
MAXTOR CORPORATION
By
Title:
CITIBANK, N.A.,
as Agent
By
Title:
Commitment Initial Lenders
- ---------- -----------------
$12,000,000 CITIBANK, N.A.
By
Title:
$12,000,000 HANIL BANK, NEW YORK
AGENCY
By
Title:
$ 8,000,000 ABN AMRO BANK, N.V.
SAN FRANCISCO
INTERNATIONAL BRANCH
By: ABN AMRO NORTH AMERICA,
INC., AS AGENT
By
Title:
$ 8,000,000 ROYAL BANK OF CANADA
By
Title:
$ 6,000,000 FLEET NATIONAL BANK
By
Title:
$ 4,000,000 BANCA COMMERCIALE ITALIANA
LOS ANGELES FOREIGN BRANCH
By
Title:
$ 4,000,000 THE BANK OF NOVA SCOTIA
By
Title:
$ 4,000,000 BANKERS TRUST COMPANY, HONG
KONG BRANCH
By
Title:
$ 4,000,000 CHO HUNG BANK, NEW YORK
BRANCH
By
Title:
$ 4,000,000 THE COMMERCIAL BANK OF
KOREA, LTD., NY AGENCY
By
Title:
$ 4,000,000 THE DAI-ICHI KANGYO BANK,
LIMITED, SAN FRANCISCO AGENCY
By
Title:
$ 4,000,000 KOREA FIRST BANK, NEW YORK
AGENCY
By
Title:
$ 4,000,000 NOMURA BANK INTERNATIONAL
PLC
By
Title:
$ 4,000,000 SHINHAN BANK NEW YORK BRANCH
By
Title:
$ 4,000,000 THE SUMITOMO BANK, LTD.,
SAN FRANCISCO BRANCH
By
Title:
$86,000,000 Total of Commitments
COPY AS EXECUTED
U.S. $86,000,000
364-DAY CREDIT AGREEMENT
Dated as of August 29, 1996
Among
MAXTOR CORPORATION,
as Borrower,
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
CITICORP SECURITIES, INC.,
and
HANIL BANK,
as Joint Arrangers,
CITIBANK, N.A.,
as Administrative Agent,
ABN AMRO BANK, N.V. SAN FRANCISCO INTERNATIONAL BRANCH
and
ROYAL BANK OF CANADA,
as Co-Agents,
and
FLEET NATIONAL BANK,
as Manager
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 14
SECTION 1.03. Accounting Terms 14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances 14
SECTION 2.02. Making the Revolving Credit Advances 15
SECTION 2.03. The Competitive Bid Advances 16
SECTION 2.04. Fees 21
SECTION 2.05. Termination, Reduction, Increase or
Extension of the Commitments 21
SECTION 2.06. Repayment of Revolving Credit Advances 25
SECTION 2.07. Interest on Revolving Credit Advances 25
SECTION 2.08. Interest Rate Determination 26
SECTION 2.09. Optional Conversion of Revolving Credit
Advances 27
SECTION 2.10. Prepayments 28
SECTION 2.11. Increased Costs 28
SECTION 2.12. Illegality 29
SECTION 2.13. Payments and Computations 29
SECTION 2.14. Taxes 31
SECTION 2.15. Sharing of Payments, Etc. 33
SECTION 2.16. Use of Proceeds 34
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03 34
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing 36
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing 37
SECTION 3.04. Determinations Under Section 3.01 38
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower 38
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 42
SECTION 5.02. Negative Covenants 47
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default 50
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action 53
SECTION 7.02. Administrative Agent's Reliance, Etc. 53
SECTION 7.03. Citibank and Affiliates 54
SECTION 7.04. Lender Credit Decision 54
SECTION 7.05. Indemnification 55
SECTION 7.06. Successor Administrative Agent 55
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. 56
SECTION 8.02. Notices, Etc. 56
SECTION 8.03. No Waiver; Remedies 57
SECTION 8.04. Costs and Expenses 57
SECTION 8.05. Right of Set-off 59
SECTION 8.06. Binding Effect 59
SECTION 8.07. Assignments and Participations 59
SECTION 8.08. Confidentiality 63
SECTION 8.09. Governing Law 63
SECTION 8.10. Execution in Counterparts 63
SECTION 8.11. Jurisdiction, Etc. 63
SECTION 8.12. Waiver of Jury Trial 65
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations and Approvals
Schedule 4.01(e)(i) - Material Adverse Changes (Borrower)
Schedule 4.01(e)(ii) - Material Adverse Changes (Guarantor)
Schedule 5.02(a) - Existing Liens
Schedule 5.02(b)(iii)(A) - Permitted Debt Transactions
Schedule 5.02(b)(iii)(C) - Surviving Debt
Exhibits
Exhibit A-1 -Form of Revolving Credit Note
Exhibit A-2 -Form of Competitive Bid Note
Exhibit B-1 -Form of Notice of Revolving Credit Borrowing
Exhibit B-2 -Form of Notice of Competitive Bid Borrowing
Exhibit C -Form of Assignment and Acceptance
Exhibit D-Form of Notice of Extension of Termination Date
Exhibit E -Form of Guaranty
Exhibit F-1 -Form of Opinion of New York Counsel for the Borrower
Exhibit F-2-Form of Opinion of General Counsel to the Borrower
Exhibit G-1-Form of Opinion of Counsel for the Guarantor
Exhibit G-2-Form of Opinion of Corporate Counsel for the
Guarantor
Exhibit H-Form of Assumption Agreement
CREDIT AGREEMENT
Dated as of August 29, 1996
MAXTOR CORPORATION, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the
Initial Lenders (the "Initial Lenders"), CITICORP SECURITIES,
INC., and HANIL BANK, as Joint Arrangers, CITIBANK, N.A.
("Citibank"), as administrative agent (the "Administrative
Agent") for the Lenders (as hereinafter defined), ABN AMRO BANK,
N.V.SAN FRANCISCO INTERNATIONAL BRANCH and ROYAL BANK OF CANADA,
as co-agents, and FLEET NATIONAL BANK, as manager, agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Administrative Agent's Account" means the account of
the Administrative Agent maintained by the Administrative
Agent at Citibank with its office at 1 Court Square, 7th
Floor, Zone 1, Long Island City, New York 11120, Account
No. 36852248, Attention: John Makrinos.
"Advance" means a Revolving Credit Advance or a
Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person. For purposes of this definition,
the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to
direct or cause the direction of the management and policies
of such Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the
case of a Competitive Bid Advance, the office of such Lender
notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive
Bid Advance.
"Applicable Margin" means, as of any date, a percentage
per annum equal to 0% for Base Rate Advances and .305% for
Eurodollar Rate Advances.
"Assigning Lender" has the meaning specified in Section
8.07(b).
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly
by Citibank in New York, New York, from time to time,
as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of
1% or, if there is no nearest 1/16 of 1%, to the next
higher 1/16 of 1%) of (i) 1/2 of 1% per annum, plus
(ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined
weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for
the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank
from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by
the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve
requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities)
three-month U.S. dollar non-personal time deposits in
the United States, plus (iii) the average during such
three-week period of the annual assessment rates
estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized by law to close in New York
City, San Francisco or Philadelphia and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market
and, if the applicable Business Day relates to any
communication or transaction with any Lender for which the
lending office specified on Schedule I is located in Hong
Kong, on which banks are not required or authorized by law
to close in Hong Kong.
"Capitalized Leases" means all leases that have been or
should be, in accordance with GAAP, recorded as capitalized
leases.
"CSI" means Citicorp Securities, Inc.
"Commitment" means, 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 in the
Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Commitment", as such
amount may be reduced pursuant to Section 2.05 or by
Competitive Bid Reductions.
"Competitive Bid Advance" means an advance by a Lender
to the Borrower as part of a Competitive Bid Borrowing
resulting from the competitive bidding procedure described
in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing
consisting of simultaneous Competitive Bid Advances from
each of the Lenders whose offer to make one or more
Competitive Bid Advances as part of such borrowing has been
accepted under the competitive bidding procedure described
in Section 2.03.
"Competitive Bid Note" means a promissory note of the
Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified
in Section 2.03(c).
"Confidential Information" means information that the
Borrower furnishes to the Administrative Agent or any 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 Administrative Agent or such Lender from a source other
than the Borrower.
"Consolidated" refers to the consolidation of accounts
in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Revolving Credit Advances of one Type into
Revolving Credit Advances of the other Type pursuant to
Section 2.08 or 2.09.
"Debt" of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase
price of property or services, (c) all obligations of such
Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all obligations of such Person
created or arising under any conditional sale or other title
retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of
default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee
under leases that have been or should be, in accordance with
GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of
credit, (g) all Debt of others referred to in clauses (a)
through (f) above or clause (h) below guaranteed directly or
indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt,
(2) to purchase, sell or lease (as lessee or lessor)
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 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 and the
Administrative Agent.
"Effective Date" has the meaning specified in
Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized
under the laws of the United States, or any State thereof,
and having a combined capital and surplus of at least
$250,000,000; (iv) a commercial bank organized under the
laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the
International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any
such country, and having a combined capital and surplus of
at least $250,000,000, so long as such bank is acting
through a branch or agency located in the country in which
it is organized or another country that is described in this
clause (iv); and (v) any other Person approved by the
Administrative Agent and the Borrower, such approval not to
be unreasonably withheld or delayed; provided, however, that
neither the Loan Parties nor an Affiliate of either of the
Loan Parties shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in
any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for
damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural
resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization
required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of either Loan Party's
controlled group, or under common control with either Loan
Party, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by
the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2)
of such Section) are met with a contributing sponsor, as
defined in Section 4001(a)(13) of ERISA, of a Plan, and an
event described in paragraph (9), (10), (11), (12) or (13)
of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of
any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations
at a facility of either Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by either Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for
each Eurodollar Rate Advance comprising part of the same
Revolving Credit Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Revolving Credit Borrowing
to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing shall be
determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit
Advance that bears interest as provided in
Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest
Period for all Eurodollar Rate Advances or LIBO Rate
Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes
deposits by reference to which the interest rate on
Eurodollar Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by
the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Guarantor" means Hyundai Electronics Industries Co.,
Ltd., a company incorporated with limited liability in the
Republic of Korea.
"Guaranty" has the meaning specified in Section
3.01(h)(iv).
"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.
"Information Memorandum" means the information
memorandum dated July 16, 1996, used by the Administrative
Agent in connection with the syndication of the Commitments.
"Insufficiency" means, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Revolving Credit
Borrowing and each LIBO Rate Advance comprising part of the
same Competitive Bid Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or LIBO Rate Advance or
the date of the Conversion of any Base Rate Advance into
such Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar
Rate Advances, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending
on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as
the Borrower may, upon notice received by the Administrative
Agent not later than 12:00 P.M. (noon) (New York City time)
on the third Business Day, in the case of a Revolving Credit
Borrowing, or on the fourth Business Day, in the case of a
Competitive Bid Borrowing, prior to the first day of such
Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest
Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same
date for Eurodollar Rate Advances comprising part of
the same Revolving Credit Borrowing or for LIBO Rate
Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any
Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest
Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if
such extension would cause the last day of such
Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur
on the next preceding Business Day; and
(iv) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person
that shall become a Lender hereto pursuant to Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO
Rate Advances comprising part of the same Competitive Bid
Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum
at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first
day of such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. The LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from
the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions
of Section 2.08.
"LIBO Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Lien" means any lien, security interest or other
charge or encumbrance of any kind, or any other type of
preferential arrangement, including, without limitation, the
lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to
real property.
"Loan Documents" means this Agreement, the Notes and
the Guaranty, in each case as amended or otherwise modified
from time to time.
"Loan Parties" means the Borrower and the Guarantor.
"Material Adverse Change" means any material adverse
change in the business, financial condition, operations,
performance, properties or prospects of either Loan Party or
either Loan Party and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse
effect on (a) the business, financial condition, operations,
performance, properties or prospects of either Loan Party or
either Loan Party and its Subsidiaries taken as a whole,
(b) the rights and remedies of the Administrative Agent or
any Lender under this Agreement or any other Loan Document
or (c) the ability of either Loan Party to perform its
obligations under this Agreement or any other Loan Document.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which either Loan
Party or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of either Loan Party or any ERISA
Affiliate and at least one Person other than the Loan
Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which either Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be
terminated.
"Note" means a Revolving Credit Note or a Competitive
Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor).
"Permitted Liens" means such of the following as to
which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to
the extent not required to be paid under Section 5.01(b)
hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a
period of more than 30 days; (c) pledges or deposits to
secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory
obligations; (d) easements, rights of way and other
encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its
present purposes; (e) Liens consisting of judgment or
judicial attachment liens, provided that the enforcement of
such Liens is effectively stayed; (f) Liens on assets of
corporations that become Subsidiaries after the date of this
Agreement, provided, however, that such Liens existed at the
time the respective corporations became Subsidiaries and
were not created in anticipation thereof or in connection
with the creation of such Subsidiaries; (g) Liens securing
Capitalized Lease obligations on assets subject to such
Capitalized Leases, provided that such Capitalized Leases
are permitted under subsection 5.02(b)(iii)(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 or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Pro Rata Share" of any amount means, with respect to
any Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such
Lender's Commitment at such time and the denominator of
which is the Revolving Credit Facility at such time.
"Reference Banks" means Citibank, Royal Bank of Canada
and the Sumitomo Bank, Ltd.
"Register" has the meaning specified in
Section 8.07(d).
"Required Lenders" means at any time Lenders owed or
holding at least 66_% of the aggregate principal amount of
the Advances outstanding at such time, or, if no such
principal amount is outstanding at such time, Lenders
holding at least 66_% of the Revolving Credit Facility at
such time.
"Responsible Officer" means any officer of the
Borrower.
"Revolving Credit Advance" means an advance by a Lender
to the Borrower as part of a Revolving Credit Borrowing and
refers to a Base Rate Advance or a Eurodollar Rate Advance
(each of which shall be a "Type" of Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Revolving Credit Advances of the
same Type made by each of the Lenders pursuant to
Section 2.01.
"Revolving Credit Facility" means, at any time, the
aggregate amount of the Lenders' Commitments at such time.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances made by such
Lender.
"Securitization" means transaction Number 1 described
on Schedule 5.02(b)(iii)(A).
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of either Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of
which either Loan Party or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Subordinated Debt" means any Debt of the Borrower that
is subordinated to the obligations of the Borrower under the
Loan Documents on, and that otherwise contains, terms and
conditions reasonably satisfactory to the Required Lenders.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust
or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture
or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Surviving Debt" means Debt of the Borrower identified
on Schedule 5.02(b)(iii)(C) hereto.
"Termination Date" means, with respect to each Lender,
the earlier of (a) August 29, 1999 and (b) the date of
termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"364-Day Agreement" means the 364-Day Credit Agreement
dated as of August 29, 1996 among Maxtor Corporation, as
Borrower, the Initial Lenders named therein, as Initial
Lenders, Citicorp Securities, Inc., and Hanil Bank, as Joint
Arrangers, and Citibank, N.A., as Agent.
"Unused Commitment" means, with respect to any Lender
at any time, (a) such Lender's Commitment (computed with
regard to all existing Competitive Bid Reductions) at such
time minus (b) the aggregate principal amount of all
Revolving Credit Advances made by such Lender and
outstanding at such time.
"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other Person,
the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by
the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms
not specifically defined herein shall be construed in accordance
with, in the case of the Borrower, generally accepted accounting
principles, and, in the case of the Guarantor, generally accepted
financial accounting standards in the Republic of Korea
consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each
Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Revolving Credit Advances to the Borrower from
time to time on any Business Day during the period from the
Effective Date until the Termination Date in an amount for each
such Advance not to exceed such Lender's Unused Commitment at
such time. Each Revolving Credit Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof (or, if less, an aggregate amount
equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by the Borrower exceeds the
aggregate amount of Competitive Bid Advances offered to be made
by the Lenders and accepted by the Borrower in respect of such
Competitive Bid Borrowing, if such Competitive Bid Borrowing is
made on the same date as such Revolving Credit Borrowing) and
shall consist of Revolving Credit Advances of the same Type made
on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's
Unused Commitment, the Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.10 and reborrow under this
Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances.
(a) Each Revolving Credit Borrowing shall be made on notice,
given not later than 3:00 P.M. (New York City time) on the fourth
Business Day prior to the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting
of Eurodollar Rate Advances, or the Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by
the Borrower to the Administrative Agent, which shall give to
each Lender prompt notice thereof by telecopier or telex. Each
such notice of a Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier or telex in substantially
the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of
Revolving Credit Advances comprising such Revolving Credit
Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period
for each such Revolving Credit Advance. Each Lender shall,
before 3:00 P.M. (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's
ratable portion of such Revolving Credit Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's address referred to in
Section 8.02 not later than 4:00 P.M. (New York City time).
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances for any Revolving Credit Borrowing if the aggregate
amount of such Revolving Credit Borrowing is less than
$10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may
not be outstanding as part of more than five separate Revolving
Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any
Revolving Credit Borrowing that the related Notice of Revolving
Credit Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice
of Revolving Credit Borrowing for such Revolving Credit Borrowing
the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such
Lender as part of such Revolving Credit Borrowing when such
Revolving Credit Advance, as a result of such failure, is not
made on such date.
(d) Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Revolving
Credit Borrowing that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such
Revolving Credit Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the
Administrative Agent on the date of such Revolving Credit
Borrowing in accordance with subsection (a) of this Section 2.02
and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to Revolving Credit Advances
comprising such Revolving Credit Borrowing and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Revolving Credit
Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving
Credit Advance to be made by it as part of any Revolving Credit
Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Revolving Credit Advance on the
date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the
date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each
Lender severally agrees that the Borrower may make Competitive
Bid Borrowings under this Section 2.03 from time to time on any
Business Day during the period from the date hereof until the
date occurring 30 days prior to the Termination Date in the
manner set forth below; provided that, following the making of
each Competitive Bid Borrowing, the aggregate amount of the
Advances then outstanding shall not exceed the aggregate amount
of the Commitments of the Lenders (computed without regard to any
Competitive Bid Reduction); and provided further that the
aggregate amount of any proposed Competitive Bid Borrowing and
any Revolving Credit Borrowings to be made on the same day is
within the aggregate amount of the Unused Commitments of the
Lenders.
(i) The Borrower may request a Competitive Bid
Borrowing under this Section 2.03 by delivering to the
Administrative Agent, by telecopier or telex, a notice of a
Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such
proposed Competitive Bid Borrowing, (w) aggregate amount of
such proposed Competitive Bid Borrowing, (x) in the case of
a Competitive Bid Borrowing consisting of LIBO Rate
Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity
date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date
may not be earlier than the date occurring 14 days after the
date of such Competitive Bid Borrowing or later than the
earlier of (I) 180 days after the date of such Competitive
Bid Borrowing and (II) the Termination Date), (y) interest
payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing,
not later than 3:00 P.M. (New York City time) (A) at least
two Business Days prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall specify in
the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates
per annum (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "Fixed Rate Advances")
and (B) at least five Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall
instead specify in the Notice of Competitive Bid Borrowing
that the rates of interest be offered by the Lenders are to
be based on the LIBO Rate (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO
Rate Advances"). Each Notice of Competitive Bid Borrowing
shall be irrevocable and binding on the Borrower. The
Administrative Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing
received by it from the Borrower by sending such Lender a
copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Competitive Bid Advances to the Borrower as part of such
proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by
notifying the Administrative Agent (which shall give prompt
notice thereof to the Borrower), before12:00 P.M. (noon)
(New York City time) on the Business Day prior to the date
of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances
and before 1:00 P.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, of the minimum amount and
maximum amount of each Competitive Bid Advance that such
Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the
first proviso to the first sentence of this Section 2.03(a),
exceed such Lender's Commitment, if any), the rate or rates
of interest therefor and such Lender's Applicable Lending
Office with respect to such Competitive Bid Advance;
provided that if the Administrative Agent in its capacity as
a Lender shall, in its sole discretion, elect to make any
such offer, it shall notify the Borrower of such offer at
least 30 minutes before the time and on the date on which
notice of such election is to be given to the Administrative
Agent by the other Lenders. If any Lender shall elect not
to make such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time)
on the date on which notice of such election is to be given
to the Administrative Agent by the other Lenders, and such
Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give
such notice shall not cause such Lender to be obligated to
make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 2:00 P.M.
(New York City time) on the Business Day prior to the date
of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances
and before 3:00 P.M. (New York City time) four Business Days
before the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by
giving the Administrative Agent notice to that effect,
or
(y) accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii) above,
in its sole discretion, by giving notice to the
Administrative Agent of the amount of each Competitive
Bid Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above
by giving the Administrative Agent notice to that
effect. The Borrower shall accept the offers made by
any Lender or Lenders to make Competitive Bid Advances
in order of the lowest to the highest rates of interest
offered by such Lenders. If two or more Lenders have
offered the same interest rate, the Borrower may, in
its sole discretion, accept one or more such offers and
reject the remainder of such offers. The aggregate
amount of the Competitive Bid Advances made as part of
a Competitive Bid Borrowing shall not exceed the
aggregate amount of the proposed Competitive Bid
Borrowing requested by the Borrower in the related
Notice of Competitive Bid Borrowing.
(iv) If the Borrower notifies the Administrative Agent
that such Competitive Bid Borrowing is cancelled pursuant to
paragraph (iii)(x) above, the Administrative Agent shall
give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y)
above, the Administrative Agent shall in turn promptly
notify (A) each Lender that has made an offer as described
in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer
or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender
that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive
Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to
make a Competitive Bid Advance as part of such Competitive
Bid Borrowing, upon receipt, that the Administrative Agent
has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 12:00 noon (New York
City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Administrative
Agent pursuant to clause (A) of the preceding sentence or
any later time when such Lender shall have received notice
from the Administrative Agent pursuant to clause (C) of the
preceding sentence, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in
Article III and after receipt by the Administrative Agent of
such funds, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's
address referred to in Section 8.02 not later than 3:00 P.M.
(New York City time). Promptly after each Competitive Bid
Borrowing the Administrative Agent will notify each Lender
of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will
terminate.
(vi) If the Borrower notifies the Administrative Agent
that it accepts one or more of the offers made by any Lender
or Lenders pursuant to paragraph (iii)(y) above, such notice
of acceptance shall be irrevocable and binding on the
Borrower. The Borrower shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date
specified in the related Notice of Competitive Bid Borrowing
for such Competitive Bid Borrowing the applicable conditions
set forth in Article III, including, without limitation, any
loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure,
is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and, following the making of each
Competitive Bid Borrowing, the Borrower shall be in compliance
with the limitation set forth in the first proviso to the first
sentence of subsection (a) above.
(c) The aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to the extent of
the aggregate amount of the Competitive Bid Advances then
outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably
according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "Competitive Bid
Reduction").
(d) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time borrow
under this Section 2.03, repay or prepay pursuant to
subsection (e) below, and reborrow under this Section 2.03,
provided that a Competitive Bid Borrowing shall not be made
within three Business Days of the date of any other Competitive
Bid Borrowing.
(e) The Borrower shall repay to the Administrative
Agent for the account of each Lender that has made a Competitive
Bid Advance, on the maturity date of each Competitive Bid Advance
(such maturity date being that specified by the Borrower for
repayment of such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance), the then unpaid
principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any
Competitive Bid Advance unless, and then only on the terms,
specified by the Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and set forth in the Competitive Bid Note
evidencing such Competitive Bid Advance.
(f) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the date of
such Competitive Bid Advance to the date the principal amount of
such Competitive Bid Advance is repaid in full, at the rate of
interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect
thereto delivered pursuant to subsection (a)(ii) above, payable
on the interest payment date or dates specified by the Borrower
for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such
Competitive Bid Advance. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive
Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be
paid on such Competitive Bid Advance under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance
unless otherwise agreed in such Competitive Bid Note.
(g) The indebtedness of the Borrower resulting from
each Competitive Bid Advance made to the Borrower as part of a
Competitive Bid Borrowing shall be evidenced by a separate
Competitive Bid Note of the Borrower payable to the order of the
Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower
agrees to pay to the Administrative Agent for the account of each
Lender a facility fee on the aggregate amount of such Lender's
Commitment, without regard to any reduction of such Commitment by
Competitive Bid Reductions, from the date hereof in the case of
each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in
the case of each other Lender until the Termination Date at a
rate per annum equal to .225%, payable in arrears quarterly on
the last Business Day of each March, June, September and
December, commencing September 30, 1996, and on the Termination
Date.
(b) Administrative Agent's Fees. The Borrower shall
pay to the Administrative Agent for its own account such fees as
may from time to time be agreed between the Borrower and the
Administrative Agent.
SECTION 2.05. Termination or Reduction of the
Commitments. The Borrower shall have the right, upon at least
three Business Days' notice to the Administrative Agent,
permanently to terminate in whole or reduce in part the unused
portions of the Commitments, provided that (i) each partial
reduction of the Revolving Credit Facility shall be in the
minimum aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof, (ii) each partial reduction of
the Revolving Credit Facility shall be made ratably among the
Lenders in accordance with their Commitments and (iii) the
aggregate amount of the Commitments of the Lenders shall not be
reduced to an amount that is less than the aggregate principal
amount of the Competitive Bid Advances then outstanding. Once
terminated, such portion of the Revolving Credit Facility may not
be reinstated.
SECTION 2.06. Repayment of Revolving Credit Advances.
The Borrower shall repay to the Administrative Agent for the
ratable account of the Lenders on the Termination Date the
aggregate principal amount of the Revolving Credit Advances then
outstanding.
SECTION 2.07. Interest on Revolving Credit Advances.
(a) Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to
each Lender from the date of such Revolving Credit Advance until
such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per
annum equal at all times to the sum of (x) the Base Rate in
effect from time to time plus (y) the Applicable Margin in
effect from time to time, payable in arrears quarterly on
the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Revolving Credit Advance is a Eurodollar Rate Advance,
a rate per annum equal at all times during each Interest
Period for such Revolving Credit Advance to the sum of
(x) the Eurodollar Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in
effect from time to time, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs
during such Interest Period every three months from the
first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during
the continuance of a Default, the Borrower shall pay interest on
(i) the unpaid principal amount of each Revolving Credit Advance
owing to each Lender, payable in arrears on the dates referred to
in clause (a)(i) or (a)(ii) above, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be
paid on such Revolving Credit Advance pursuant to clause (a)(i)
or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder
that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a
rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurodollar
Rate and each LIBO Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such
interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Administrative Agent shall give
prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes
of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by
each Reference Bank for the purpose of determining the interest
rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances,
the Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration
of any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Administrative Agent will
forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any
Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of
any Default, (i) each Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
(f) If fewer than two Reference Banks in good faith
are able to furnish timely information to the Administrative
Agent for determining the Eurodollar Rate or LIBO Rate for any
Eurodollar Rate Advances or LIBO Rate Advances, as the case may
be,
(i) the Administrative Agent shall forthwith notify
the Borrower and the Lenders that the interest rate cannot
be determined for such Eurodollar Rate Advances or LIBO Rate
Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each
such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance,
will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 12:00 P.M.
(noon) (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions
of Sections 2.08 and 2.12, Convert all Revolving Credit Advances
of one Type comprising the same Borrowing into Revolving Credit
Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances
into Eurodollar Rate Advances shall be in an amount not less than
the minimum amount specified in Section 2.02(b) and no Conversion
of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion,
(ii) the Revolving Credit Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of
the initial Interest Period for each such Advance. Each notice
of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments. (a) Optional. The
Borrower may, with notice given to the Administrative Agent not
later than 3:00 P.M. (New York City time) on the Business Day
prior to the date of the prepayment for Base Rate Advances, or
with at least three Business Days' notice to the Administrative
Agent for Eurodollar Rate Advances, stating the proposed date and
aggregate principal amount of the prepayment, and if such notice
is given the Borrower shall, prepay the outstanding principal
amount of the Revolving Credit Advances comprising part of the
same Revolving Credit Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on
the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
(b) Mandatory. The Borrower shall, on each Business
Day, prepay an aggregate principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowings
equal to the amount by which the sum of the aggregate principal
amount of the Revolving Credit Advances then outstanding exceeds
the Revolving Credit Facility on such Business Day.
SECTION 2.11. Increased Costs. (a) If, due to either
(i) the introduction of or any change in or in the interpretation
of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law), there shall
be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO
Rate Advances (excluding for purposes of this Section 2.11 any
such increased costs resulting from (i) Taxes or Other Taxes (as
to which Section 2.14 shall govern) and (ii) changes in the basis
of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the
laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender
additional amounts sufficient to compensate such 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 and the
Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error; provided that
the Borrower shall have no obligation to any Lender under this
Section 2.11(a) if such 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 such Lender shall have or
should reasonably have become aware of such event.
(b) If any 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 such Lender or any
corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder (and other commitments of
this type), then, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), the Borrower shall pay to
the Administrative Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the
light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to
the existence of such 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 and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error;
provided that the Borrower shall have no obligation to any Lender
under this Section 2.11(b) if such 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 such
Lender shall have or should reasonably have become aware of such
event.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the
Administrative Agent that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that
it is unlawful, for any Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar Rate
Advances or LIBO Rate Advances or to fund or maintain Eurodollar
Rate Advances or LIBO Rate Advances hereunder, (i) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be,
will automatically, upon one Business Day's notice to the
Borrower, Convert into a Base Rate Advance or an Advance that
bears interest at the rate set forth in Section 2.07(a)(i), as
the case may be, and (ii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The
Borrower shall make each payment hereunder and under the Notes
not later than 1:00 P.M. (New York City time) on the day when due
in U.S. dollars to the Administrative Agent at the Administrative
Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if
such payment by the Borrower is in respect of principal,
interest, facility fees or any other obligation then payable
hereunder and under the Notes to more than one Lender, to such
party for the account of their respective Applicable Lending
Offices ratably in accordance with the amounts of such respective
obligations then payable to such party and (ii) if such payment
by the Borrower is in respect of any obligation then payable
hereunder to one Lender, to such party for the account of its
Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and
to the extent payment owed to such Lender is not made when due
hereunder or under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with
such Lender any amount so due.
(c) All computations of interest based on the Base
Rate shall be made by the Administrative Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations
of interest based on the Eurodollar Rate, the LIBO Rate or the
Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the
Administrative Agent 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 Notes
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the
computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances
or LIBO Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business
Day.
(e) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to the Lenders hereunder that the Borrower will
not make such payment in full, the Administrative Agent may
assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrower shall not
have so made such payment in full to the Administrative Agent,
each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in
accordance with Section 2.13, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or
the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction of
such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this Section 2.14) such Lender or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies that arise from any
payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any taxes imposed by any
jurisdiction on amounts payable under this Section 2.14) imposed
on or paid by such Lender or the Administrative Agent (as the
case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such
Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at
its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not
a United States person, if the Borrower determines that no Taxes
are payable in respect thereof, the Borrower shall furnish, or
shall cause such payor to furnish, to the Administrative Agent,
at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e),
the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue
Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Initial Lender and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of
each other 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 each of the
Administrative Agent and 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 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.
SECTION 2.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) (a) on
account of obligations due and payable to such Lender hereunder
and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such
obligations due and payable to such Lender at such time to
(ii) the aggregate amount of the obligations due and payable to
all Lenders hereunder and under the Notes at such time) of
payments on account of the obligations due and payable to all
Lenders hereunder and under the Notes at such time obtained by
all the Lenders at such time or (b) on account of obligations
owing (but not due and payable) to such Lender hereunder and
under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such
obligations owing to such Lender at such time to (ii) the
aggregate amount of the obligations owing (but not due and
payable) to all Lenders hereunder and under the Notes at such
time) of payments on account of the obligations owing (but not
due and payable) to all Lenders hereunder and under the Notes at
such time obtained by all of the Lenders at such time, such
Lender shall forthwith purchase from the other Lenders such
participations in the obligations due and payable or owing to
them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender such purchase
from each Lender shall be rescinded and such Lender shall repay
to the purchasing Lender, the purchase price to the extent of
such recovery together with an amount equal to such Lender's
ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to
this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of
such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the
Advances shall be available (and the Borrower agrees that it
shall use such proceeds) solely for working capital purposes and
refinancing of Surviving Debt 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 March 30, 1996,
and there shall have occurred no Material Adverse Change
with respect to the Guarantor since December 31, 1995, other
than as provided on Schedules 4.01(e)(i) and (ii) hereto.
(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
Memorandum was or has become misleading, incorrect or
incomplete 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 each Lender and
the Administrative Agent in writing as to the proposed
Effective Date.
(f) The Borrower shall have paid all accrued fees and
expenses of the Administrative Agent and the Lenders
(including the accrued fees and expenses of counsel to the
Administrative Agent).
(g) On the Effective Date, the following statements
shall be true and the Administrative Agent shall have
received for the account of each Lender a certificate signed
by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
(i) The representations and warranties
contained in each Loan Document are correct on and as
of the Effective Date, and
(ii) No event has occurred and is continuing
that constitutes a Default.
(h) The Administrative Agent shall have received on or
before the Effective Date the following, each dated such
day, in form and substance satisfactory to the
Administrative Agent and (except for the Revolving Credit
Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order
of the Lenders, respectively.
(ii) Certified copies of the resolutions of
the Board of Directors of each Loan Party approving
this Agreement, the Notes, each other Loan Document to
which it is or is to be a party, and of all documents
evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement, the Notes and each other Loan Document.
(iii) A certificate of the Secretary or
an Assistant Secretary 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 Notes, each
other Loan Document to which it is or is to be a party
and the other documents to be delivered hereunder and
thereunder.
(iv) A guaranty in substantially the form of
Exhibit E (as amended, supplemented or modified from
time to time in accordance with its terms, the
"Guaranty"), duly executed by the Guarantor.
(v) Favorable opinions of Morrison &
Foerster, New York counsel for the Borrower, and the
General Counsel of the Borrower, substantially in the
form of Exhibits F-1 and F-2 hereto, respectively, and
as to such other matters as any Lender through the
Administrative Agent may reasonably request.
(vi) Favorable opinions of Lee & Ko, counsel
for the Guarantor, or other Korean counsel to the
Guarantor acceptable to the Administrative Agent, and
the Corporate Counsel of the Guarantor, substantially
in the form of Exhibits G-1 and G-2 hereto,
respectively, and as to such other matters as any
Lender through the Administrative Agent may reasonably
request.
(vii) A favorable opinion of Shearman &
Sterling, counsel for the Administrative Agent, in form
and substance satisfactory to the Administrative Agent.
(viii) Evidence of the cancellation of the
$100,000,000 Credit Agreement dated as of August 31,
1995, by and among the Borrower, the Initial Lenders
and the Issuing Bank thereunder and the Administrative
Agent and the Guaranty dated August 31, 1995, issued by
the Guarantor in relation thereto.
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing. The obligation of each Lender to make a
Revolving Credit Advance on the occasion of each Revolving Credit
Borrowing (including the initial Borrowing) shall be subject to
the conditions precedent that the Effective Date shall have
occurred and on the date of such Revolving Credit Borrowing
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower of the proceeds of such Revolving
Credit Borrowing shall constitute a representation and warranty
by the Borrower that on the date of such Borrowing or issuance
such statements are true):
(i) the representations and warranties contained in
each Loan Document are correct in all material respects on
and as of the date of such Revolving Credit Borrowing or
issuance, before and after giving effect to such Revolving
Credit Borrowing or issuance and to the application of the
proceeds therefrom, as though made on and as of such date,
and
(ii) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or issuance or
from the application of the proceeds therefrom, that
constitutes a Default;
and (b) the Administrative Agent shall have received such other
approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing. The obligation of each Lender that is to make a
Competitive Bid Advance on the occasion of a Competitive Bid
Borrowing to make such Competitive Bid Advance as part of such
Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Administrative Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect
thereto, (ii) on or before the date of such Competitive Bid
Borrowing, but prior to such Competitive Bid Borrowing, the
Administrative Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more
Competitive Bid Advances to be made by such Lender as part of
such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be
evidenced thereby and otherwise on such terms as were agreed to
for such Competitive Bid Advance in accordance with Section 2.03,
and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance
by the Borrower of the proceeds of such Competitive Bid Borrowing
shall constitute a representation and warranty by the Borrower
that on the date of such Competitive Bid Borrowing such
statements are true):
(a) the representations and warranties contained in
each Loan Document are correct in all material respects on
and as of the date of such Competitive Bid Borrowing, before
and after giving effect to such Competitive Bid Borrowing
and to the application of the proceeds therefrom, as though
made on and as of such date,
(b) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default,
(c) no event has occurred and no circumstance exists
as a result of which the information concerning the Borrower
that has been provided to the Administrative Agent and each
Lender by the Borrower in connection herewith would include
an untrue statement of a material fact or omit to state any
material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under
which they were made, not misleading, and
(d) the aggregate amount of such Competitive Bid
Borrowing and all Revolving Credit Borrowings to be made on
the same day is within the aggregate amount of the Unused
Revolving Commitments of the Lenders, computed prior to such
Borrowings.
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified
in Section 3.01, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice
from such Lender prior to the date that the Borrower, by notice
to the Lenders, designates as the proposed Effective Date,
specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Effective
Date.
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 Notes, and each other Loan
Document to which it is or is to be a party, and the
consummation of the transactions contemplated hereby, are
within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not
contravene (i) such Loan Party's charter or by-laws or
(ii) any law, regulation (including, without limitation,
Regulations U and X of the Board of Governors of the Federal
Reserve System) or contractual restriction binding on or
affecting the Loan Parties.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for
the due execution, delivery and performance by either Loan
Party of this Agreement, the Notes or any other Loan
Document to which it is or is to be a party, except for
those authorizations, approvals, actions, notices and
filings listed on Schedule 4.01(c) hereto, all of which have
been duly obtained, taken, given or made and are in full
force and effect 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 Agreement has been, and each of the Notes and
each other Loan Document when delivered hereunder will have
been, duly executed and delivered by each Loan Party
thereto. This Agreement is, and each of the Notes and each
other Loan Document when delivered hereunder will be, the
legal, valid and binding obligation of each Loan Party
thereto enforceable against each such Loan Party in
accordance with their respective terms.
(e) (i) The Consolidated balance sheet of the
Borrower and its Subsidiaries as at March 30, 1996, and the
related Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for the fiscal year then
ended, accompanied by an opinion of Ernst & Young,
independent public accountants, and the Consolidated balance
sheet of the Borrower and its Subsidiaries as at March 30,
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 March 30, 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 March 30,
1996, there has been no Material Adverse Change, 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, 1995, 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, 1995, there has been no
Material Adverse Change, other than as provided on Schedule
4.01(e)(ii) hereto.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting either Loan
Party or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or
enforceability of this Agreement, any Note or any other Loan
Document or the consummation of the transactions
contemplated hereby.
(g) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System), and
no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(h) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan.
(i) As of the last annual actuarial valuation date,
the funded current liability percentage, as defined in
Section 302(d)(8) of ERISA, of each Plan exceeds 90% and
there has been no Material Adverse Change in the funding
status of any such Plan since such date.
(j) Neither Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan that has had or is
reasonably likely to have a Material Adverse Effect.
(k) Neither Loan Party nor any ERISA Affiliate has
been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(l) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.01(i), the
Loan Parties and their respective Subsidiaries have no
material liability with respect to "expected post retirement
benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(m) The operations and properties of the Borrower and
each of its Subsidiaries comply with all applicable
Environmental Laws and Environmental Permits, except such
non-compliance that would not have a Material Adverse
Effect, all past non-compliance with such Environmental Laws
and Environmental Permits has been resolved without ongoing
obligations or costs, and no circumstances exist that could
be reasonably likely to (i) form the basis of an
Environmental Action against the Borrower or any of its
Subsidiaries or any of their properties that could have a
Material Adverse Effect or (ii) cause any such property to
be subject to any restrictions on ownership, occupancy, use
or transferability under any Environmental Law that could
have a Material Adverse Effect.
(n) None of the properties currently or, to the best
of its knowledge, formerly owned or operated by the Borrower
or any of its Subsidiaries is listed or proposed for listing
on the National Priorities List under the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("NPL") or on the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by
the U.S. Environmental Protection Agency ("CERCLIS") or any
analogous foreign, state or local list or, to the best
knowledge of the Borrower, is adjacent to any such property;
there are no and never have been any underground or
aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed
of by the Borrower or any of its Subsidiaries or, to the
best of its knowledge, by any other Person, on any property
currently or, to the best of its knowledge, formerly owned
or operated by the Borrower or any of its Subsidiaries;
there is no friable asbestos or, other than as is being
maintained in accordance with applicable Environmental Laws,
other asbestos or asbestos-containing material on any
property currently owned or operated by the Borrower or any
of its Subsidiaries; and Hazardous Materials have not been
released, discharged or disposed of by the Borrower or any
of its Subsidiaries or, to the best of its knowledge, by any
other Person, on any property currently or, to the best of
its knowledge, formerly owned or operated by the Borrower or
any of its Subsidiaries or any adjoining property.
(o) Neither the Borrower nor any of its Subsidiaries
is undertaking, and has not completed, either individually
or together with other potentially responsible parties, any
investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of
any governmental or regulatory authority or the requirements
of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at or
transported to or from any property currently or formerly
owned or operated by the Borrower or any of its Subsidiaries
have been disposed of in a manner not reasonably expected to
result in material liability to the Borrower or any of its
Subsidiaries.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance
with ERISA and Environmental Laws as provided in
Section 5.01(j).
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments
and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in
good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until
any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates; provided,
however, that the Borrower and its Subsidiaries may self-
insure to the same extent as other companies engaged in
similar businesses and owing similar properties in the same
general areas in which the Borrower or such Subsidiary
operates and to the extent consistent with prudent business
practice.
(d) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises; provided, however,
that the Borrower and its Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(c) and
provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or
franchise if the Board of Directors of the Borrower or such
Subsidiary shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that
the loss thereof is not disadvantageous in any material
respect to the Borrower, such Subsidiary 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 Administrative Agent,
any of the Lenders or any agents or representatives 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 that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event
within 45 days after the end of each of the first three
quarters of each fiscal year of the Borrower,
Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such
quarter and Consolidated and consolidating statements
of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of
the previous fiscal year and ending with the end of
such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the
Borrower as having been prepared in accordance with
generally accepted accounting principles, provided that
in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower
shall also provide a statement of reconciliation
conforming such financial statements to GAAP;
(ii) as soon as available and in any event
within 90 days after the end of each fiscal year of the
Borrower, a copy of the annual audit report for such
year for the Borrower and its Subsidiaries, containing
Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such
fiscal year and Consolidated and consolidating
statements of income and cash flows of the Borrower and
its Subsidiaries for such fiscal year, in each case
accompanied by an opinion acceptable to the Required
Lenders by Ernst & Young or other independent public
accountants acceptable to the Required Lenders,
provided that in the event of any change in GAAP used
in the preparation of such financial statements, the
Borrower shall also provide a statement of
reconciliation conforming such financial statements to
GAAP;
(iii) as soon as available and in any
event within 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 adjustments) 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 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 Required
Lenders by Samil Accounting Corporation, a member firm
of Price Waterhouse, or other independent public
accountants acceptable to the Required Lenders;
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 ad 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(f);
(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 current liability percentage
(as defined in Section 302(d)(8) of ERISA) of which is
less than 90% or the unfunded current liability of
which exceeds $1,000,000;
(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 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) such other information respecting
either Loan Party or any of its Subsidiaries as any
Lender through the Administrative Agent may from time
to time reasonably request.
(j) Compliance with Environmental Laws. Comply, and
cause each of its Subsidiaries and all lessees and other
Persons operating or occupying its properties to comply, in
all material respects, with all applicable Environmental
Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and
properties; and conduct, and cause each of its Subsidiaries
to conduct, any investigation, study, sampling and testing,
and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials
from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however,
that neither the Borrower nor any of its Subsidiaries shall
be required to undertake any such cleanup, removal, remedial
or other action to the extent that such action is not
required by Environmental Laws or to the extent that its
obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid 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 purpose of
financing the acquisition of such property or
equipment, or Liens existing on such property or
equipment at the time of its acquisition (other than
any such Liens created in contemplation of such
acquisition that were not incurred to finance the
acquisition of such property) or extensions, renewals
or replacements of any of the foregoing for 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 Guarantor, to the extent such
Liens become operative only after the Commitments shall
have been terminated and the Administrative Agent and
the Lenders shall have been paid in full for all
obligations of the Borrower hereunder and under the
Notes, and
(v) Liens to secure Debt permitted under
Section 5.02(b)(iii)(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,
(B) Debt under the Loan Documents,
(C) If (a) the Borrower reasonably
determines not to request an extension of the
364-Day Agreement under Section 2.05(c) of the
364-Day Agreement on the basis that such extension
will not provide a current market rate for such
facility, or (b) less than 51% of the aggregate
amount of the commitments requested by the
Borrower to be extended agree to extend under such
Section 2.05(c), then, from and after the
extension date relating to any such request, Debt
equal to the amount not so extended pursuant to
clause (a) or equal to the amount of the
difference between the amount requested by the
Borrower to be extended (not to exceed the
aggregate amount of the commitments) and the
Extending Lenders' commitments on such date;
provided, however, that such Debt shall be
unsecured and pari passu with the Debt under the
Loan Documents and
(D) If the aggregate amount of
increase in the Commitments obtained by the
Administrative Agent from Increasing Lenders
pursuant to Section 2.05(b) of the 364-Day
Agreement is less than the amount requested by the
Borrower in accordance with the terms thereof,
from and after the Increase Date (as determined
under such Section 2.05(b)), Debt equal to the
amount of the difference between (x) the full
amount of increase requested by the Borrower and
(y) the aggregate amount of increase in the
Commitments of Increasing Lenders and Eligible
Assignees obtained by the Administrative Agent.
(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 transactions listed
on Schedule 5.02(b)(iii)(A) to the extent (x) each
item of such Debt does not exceed the amount
corresponding to each such item on such Schedule
and (y) such Debt does not exceed $191,000,000 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) indorsement 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)(ii), shall not exceed
$35,000,000 in the aggregate at any time
outstanding,
(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 any Subsidiary obligor of such Debt,
not otherwise permitted by this Section
5.02(b)(iii) aggregating not more than $50,000,000
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.
(d) Accounting Changes. Make or permit, or permit any
of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as
required or permitted by generally accepted accounting
principles.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable, or the
Borrower shall fail to pay any interest on any Advance or
any other amount payable hereunder, or either Loan Party
shall fail to make any other payment of fees or other
amounts payable under any Loan Document within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by either Loan
Party under or in connection with any Loan Document shall
prove to have been incorrect in any material respect when
made; or
(c) (i) The Borrower shall fail to perform or observe
any term, covenant or agreement contained in
Section 5.01(d), (e), (h) or (i) or 5.02 or (ii) either Loan
Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its
part to be performed or observed if such failure shall
remain unremedied for 15 days after written notice thereof
shall have been given to such Loan Party by the
Administrative Agent or any 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 or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to
be due and payable, or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof;
or
(e) Either Loan Party or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted
by or against either Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for
any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or
unstayed for a period of 45 days, or any of the actions
sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall
occur; or either Loan Party or any of its Subsidiaries shall
take any corporate action to authorize any of the actions
set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $5,000,000 in the case of the Borrower and
$15,000,000 in the case of the Guarantor shall be rendered
against such Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there
shall be any period of 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 that, upon consummation, will result in its or
their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or
policies of the Guarantor; or
(i) Any ERISA Event shall have occurred with respect
to a Plan and the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of such
Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $5,000,000;
or
(j) Either Loan Party or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan
that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid to Multiemployer Plans
by such Loan Party and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification),
exceeds $5,000,000 or requires payments exceeding $1,250,000
per annum; or
(k) Either Loan Party or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the
aggregate annual contributions of such Loan Party and the
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$1,250,000; or
(l) Any provision of the Guaranty shall for any reason
cease to be valid and binding on or enforceable against the
Guarantor, or the Guarantor shall revoke the Guaranty;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders,
by notice to the Borrower, declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately
terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Notes, all such interest
and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to either Loan
Party under the Federal Bankruptcy Code, (A) the obligation of
each Lender to make Advances shall automatically be terminated
and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender
(in its capacity as a Lender) hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including, without
limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action
that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice
of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may
treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for either Loan Party), independent public
accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants
or experts; (iii) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with any Loan Document; (iv) shall
not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of either Loan Party
or to inspect the property (including the books and records) of
either Loan Party; (v) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any
other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or
telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect
to its Commitments, the Advances made by it and the Note issued
to it, Citibank shall have the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as
though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Citibank in its individual capacity. Citibank
and its Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business
with, either Loan Party, any of its Subsidiaries and any Person
who may do business with or own securities of either Loan Party
or any such Subsidiary, all as if Citibank were not the
Administrative Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on the
financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent 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.
SECTION 7.05. Indemnification. The Lenders agree to
indemnify the Administrative Agent (to the extent not reimbursed
by the Borrower) from and against such Lender's ratable share of
any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Administrative Agent in any way
relating to or arising out of any Loan Document or any action
taken or omitted by the Administrative Agent under any Loan
Document, provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon
demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in
connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, the
Loan Documents, to the extent that the Administrative Agent is
not reimbursed for such expenses by the Borrower. For purposes
of this Section 7.05, the Lenders' respective ratable shares of
any amount shall be determined, at any time, according to the sum
of (i) the aggregate principal amount of the Revolving Credit
Advances outstanding at such time and owing to the respective
Lenders and (ii) their respective Unused Commitments at such
time. The failure of any Lender to reimburse the Administrative
Agent promptly upon demand for its ratable share of any amount
required to be paid by such Lender to the Administrative Agent as
provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse the Administrative Agent for
its ratable share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse the
Administrative Agent for such other Lender's ratable share of
such amount. Without prejudice to the survival of any other
agreement of any Lender hereunder, the agreement and obligations
of each Lender contained in this Section 7.05 shall survive the
payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon
any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent, subject to
the Borrower's approval, which shall not be unreasonably
withheld. If no successor Administrative Agent shall have been
so appointed by the Required Lenders, and shall not have accepted
such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the
Lenders and after consulting with the Borrower, appoint a
successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After
any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under
this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver
of any provision of any Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Borrower and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed
by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest
on, the Revolving Credit Notes or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Notes or any
fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Revolving Credit Notes or the number of
Lenders, that in each case shall be required for the Lenders or
any of them to take any action hereunder, (f) reduce or limit the
obligations of the Guarantor under Section I of the Guaranty or
otherwise limit the Guarantor's liability with respect to the
obligations owing to the Administrative Agent and the Lenders or
(g) amend this Section 8.01; provided further that no amendment,
waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the
Borrower, at its address at 510 Cottonwood Drive, Milpitas,
California 95035, telecopy no. (408) 432-4480, Attention: Meryl
Rains, Vice President - Finance & Treasurer, with a copy to Glenn
H. Stevens, Esq., General Counsel, 2190 Miller Drive, Longmont,
Colorado 80501, telecopy no. (303) 678-3111; if to any Initial
Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent, at its address at 1 Court Square, 7th
Floor, Zone 1, Long Island City, New York 11120, Attention: John
Makrinos, telecopy no. (718) 248-4844, telephone no. (718) 248-
4531; or, as to the Borrower or the Administrative Agent, at such
other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written
notice to the Borrower and the Administrative Agent. All such
notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by
telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to
Article II, III or VII shall not be effective until received by
the Administrative Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the
part of any Lender or the Administrative Agent to exercise, and
no delay in exercising, any right hereunder or under any Note
shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower
agrees to pay on demand all costs and expenses of the
Administrative Agent and CSI in connection with the preparation,
execution, delivery, administration, modification and amendment
of the Loan Documents and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and
audit expenses and (B) the reasonable fees and expenses of
counsel for the Administrative Agent with respect thereto and
with respect to advising the Administrative Agent as to its
rights and responsibilities under the Loan Documents. After an
Event of Default, the Borrower further agrees to pay on demand
all costs and expenses of the Administrative Agent, CSI and the
Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of
the Loan Documents and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and
expenses of counsel for the Administrative Agent, CSI and each
Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless
the Administrative Agent and each Lender and each of their
Affiliates and their officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against any and
all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense
of, any investigation, litigation or proceeding arising out of,
related to or in connection with (i) the Facilities, the Loan
Documents, any of the transactions contemplated herein or therein
or the actual or proposed use of the proceeds of the Advances or
(ii) the actual or alleged presence of Hazardous Materials on any
property of either Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to either Loan Party or
any of its Subsidiaries, in each case whether or not such
investigation, litigation or proceeding is brought by either Loan
Party, its directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful
misconduct. The Borrower also agrees not to assert any claim
against the Administrative Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, this Agreement, the
other Loan Documents, any of the transactions contemplated herein
or therein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of,
any Eurodollar Rate Advance or LIBO Rate Advance is made by the
Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to 2.05, 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, or by an Eligible Assignee
to a Lender other than on the last day of the Interest Period for
such Advance upon an assignment of rights and obligations under
this Agreement pursuant to Section 8.07 as a result of a demand
by the Borrower pursuant to Section 8.07(a), the Borrower shall,
upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other
agreement of either Loan Party hereunder or under any other Loan
Document, the agreements and obligations of the Borrower
contained in Sections 2.11, 2.14 and 8.04 shall survive the
payment in full of principal, interest and all other amounts
payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent
to declare the Notes due and payable pursuant to the provisions
of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of
the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees
promptly to notify within one Business Day the Borrower after any
such set-off and application, provided that the failure to give
such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under
this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that
such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall
become effective (other than Sections 2.01 and 2.03, which shall
only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower,
the Administrative Agent and each Lender and their permitted
respective successors and assigns, except that the Borrower shall
not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a)
Each Lender may, with the consent (except as provided below), not
to be unreasonably withheld, of (i) the Administrative Agent and
(ii), prior to the occurrence and continuance of a Default, the
Borrower, and, each Lender if demanded by the Borrower (following
a demand by such Lender pursuant to Section 2.11 or 2.14) upon at
least 5 Business Days' notice to such Lender and the
Administrative Agent, will, with the consent of the
Administrative Agent, not to be unreasonably withheld, and only
if no Default has occurred and is continuing, assign to one or
more Persons all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its Commitment, the Revolving Credit Advances owing to it and
the Revolving Credit Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under
and in respect of the Revolving Credit Facility (other than any
right to make Competitive Bid Advances, Competitive Bid Advances
owing to it and Competitive Bid Notes), (ii) except in the case
of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's
rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event
be less than $3,000,000 or an integral multiple of $500,000 in
excess thereof, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) each such assignment made as a result
of a demand by the Borrower pursuant to this Section 8.07(a)
shall be arranged by the Administrative Agent after consultation
with the Borrower and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or
other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (vi) no
Lender shall be obligated to make any such assignment as a result
of a demand by the Borrower pursuant to this Section 8.07(a)
unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of
payment of such principal amount and all other amounts payable to
such Lender under this Agreement and (vii) the parties to each
such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Credit
Note subject to such assignment and a processing and recordation
fee of $3,000, except that such fee is not payable if the
assignee is an existing Lender and is replacing the assigning
Lender at the demand of the Borrower. Each Lender may, without
the consent of, but upon notice to, the Administrative Agent and
the Borrower, assign all or a portion of its rights and
obligations under this Agreement to any of its Affiliates.
(b) By executing and delivering an 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 Administrative
Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(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 Revolving Credit
Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its
receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for
the surrendered Revolving Credit Note a new Revolving Credit Note
to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the Assigning Lender has retained a Commitment
hereunder, a new Revolving Credit Note to the order of the
Assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Revolving Credit Note or Notes shall be
in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Revolving Credit Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1
hereto.
(d) The Administrative Agent shall maintain at its
address referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances 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, the Administrative Agent
and the 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, any 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 participations to one or more
banks or other entities (other than either Loan Party or any of
its Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Revolving Credit Advances
owing to it and the Revolving Credit Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Administrative Agent and the
other 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 8.07, 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.
(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 Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. None of the
Administrative Agent, any Lender shall use or disclose any
Confidential Information to any other Person without the consent
of the Borrower, other than (a) to the Administrative Agent's,
such Lender's Affiliates and their officers, directors,
employees, agents and advisors and, as contemplated by
Section 8.07(h), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process,
(c) to any rating agency when required by it, provided that,
prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender and
(d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to
which it is a party, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement
shall affect any right that any party may otherwise have to bring
any action or proceeding relating to this Agreement or any of the
other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any of the other
Loan Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the
Borrower, the Administrative Agent 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 the Administrative
Agent and any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
MAXTOR CORPORATION
By
Title:
CITIBANK, N.A.,
as Agent
By
Title:
Commitment Initial Lenders
- ---------- ---------------
$18,000,000 CITIBANK, N.A.
By
Title:
$18,000,000 HANIL BANK, NEW YORK
AGENCY
By
Title:
$12,000,000 ABN AMRO BANK, N.V.
SAN FRANCISCO
INTERNATIONAL BRANCH
By: ABN AMRO NORTH AMERICA,
INC., AS AGENT
By
Title:
$12,000,000 ROYAL BANK OF CANADA
By
Title:
$ 9,000,000 FLEET NATIONAL BANK
By
Title:
$ 6,000,000 BANCA COMMERCIALE ITALIANA
LOS ANGELES FOREIGN BRANCH
By
Title:
$ 6,000,000 THE BANK OF NOVA SCOTIA
By
Title:
$ 6,000,000 BANKERS TRUST COMPANY, HONG
KONG BRANCH
By
Title:
$ 6,000,000 CHO HUNG BANK, NEW YORK
BRANCH
By
Title:
$ 6,000,000 THE COMMERCIAL BANK OF
KOREA, LTD., NY AGENCY
By
Title:
$ 6,000,000 THE DAI-ICHI KANGYO BANK,
LIMITED, SAN FRANCISCO AGENCY
By
Title:
$ 6,000,000 KOREA FIRST BANK, NEW YORK
AGENCY
By
Title:
$ 6,000,000 NOMURA BANK INTERNATIONAL
PLC
By
Title:
$ 6,000,000 SHINHAN BANK NEW YORK BRANCH
By
Title:
$ 6,000,000 THE SUMITOMO BANK, LTD.,
SAN FRANCISCO BRANCH
By
Title:
$129,000,000 Total of Commitments
COPY AS EXECUTED
U.S. $129,000,000
CREDIT AGREEMENT
Dated as of August 29, 1996
Among
MAXTOR CORPORATION,
as Borrower,
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
CITICORP SECURITIES, INC.,
and
HANIL BANK,
as Joint Arrangers,
CITIBANK, N.A.,
as Administrative Agent,
ABN AMRO BANK, N.V. SAN FRANCISCO INTERNATIONAL BRANCH
and
ROYAL BANK OF CANADA,
as Co-Agents,
and
FLEET NATIONAL BANK,
as Manager
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 14
SECTION 1.03. Accounting Terms 14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances 14
SECTION 2.02. Making the Revolving Credit Advances 14
SECTION 2.03. The Competitive Bid Advances 16
SECTION 2.04. Fees 21
SECTION 2.05. Termination or Reduction of the
Commitments 21
SECTION 2.06. Repayment of Revolving Credit Advances 21
SECTION 2.07. Interest on Revolving Credit Advances 21
SECTION 2.08. Interest Rate Determination 22
SECTION 2.09. Optional Conversion of Revolving Credit
Advances 23
SECTION 2.10. Prepayments 24
SECTION 2.11. Increased Costs 24
SECTION 2.12. Illegality 25
SECTION 2.13. Payments and Computations 26
SECTION 2.14. Taxes 27
SECTION 2.15. Sharing of Payments, Etc. 29
SECTION 2.16. Use of Proceeds 30
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03 30
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing 32
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing 33
SECTION 3.04. Determinations Under Section 3.01 34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower 34
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 38
SECTION 5.02. Negative Covenants 43
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default 46
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action 49
SECTION 7.02. Administrative Agent's Reliance, Etc. 49
SECTION 7.03. Citibank and Affiliates 50
SECTION 7.04. Lender Credit Decision 50
SECTION 7.05. Indemnification 51
SECTION 7.06. Successor Administrative Agent 51
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. 52
SECTION 8.02. Notices, Etc. 52
SECTION 8.03. No Waiver; Remedies 53
SECTION 8.04. Costs and Expenses 53
SECTION 8.05. Right of Set-off 55
SECTION 8.06. Binding Effect 55
SECTION 8.07. Assignments and Participations 55
SECTION 8.08. Confidentiality 58
SECTION 8.09. Governing Law 59
SECTION 8.10. Execution in Counterparts 59
SECTION 8.11. Jurisdiction, Etc. 59
SECTION 8.12. Waiver of Jury Trial 60
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations and Approvals
Schedule 4.01(e)(i) - Material Adverse Changes (Borrower)
Schedule 4.01(e)(ii) - Material Adverse Changes (Guarantor)
Schedule 5.02(a) - Existing Liens
Schedule 5.02(b)(iii)(A) - Permitted Debt Transactions
Schedule 5.02(b)(iii)(C) - Surviving Debt
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Intentionally Left Blank
Exhibit E - Form of Guaranty
Exhibit F-1 - Form of Opinion of New York Counsel for the
Borrower
Exhibit F-2 - Form of Opinion of General Counsel to the
Borrower
Exhibit G-1 - Form of Opinion of Counsel for the Guarantor
Exhibit G-2 - Form of Opinion of Corporate Counsel for the
Guarantor
