30
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is entered into as of
December 29, 1995 between Maxtor Corporation, a Delaware corporation (the
"Borrower"), and Hyundai Electronics America (the "Lender"), a California
corporation.
Capitalized terms used in this Agreement and not defined elsewhere
herein shall have the meanings set forth in Section 8.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lender and Hyundai Acquisition, Inc., a
Delaware corporation and a wholly-owned subsidiary of the Lender ("HAI"),
have entered into that certain Agreement and Plan of Merger dated November
2, 1995 (the "Merger Agreement") pursuant to which HAI offered to purchase
any and all outstanding shares of the common stock of the Borrower and to
merge with the Borrower upon the terms and conditions set forth therein;
WHEREAS, the Borrower has requested that the Lender loan funds to the
Borrower for working capital purposes; and
WHEREAS, the Lender is willing to advance the Borrower up to
$100,000,000 on a revolving basis for working capital purposes on the terms
set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Lender and the Borrower hereby agree as follows:
Section 1. The Loans
1.1 Revolving Loan Commitment.
a. The Commitment. From time to time prior to the Maturity Date,
the Lender, on a revolving basis, agrees to provide to the Borrower
advances in accordance with the terms and conditions of this Agreement (the
"Credit Facility"). The total principal amount of all advances outstanding
under this Agreement may not exceed at any one time One Hundred Million
Dollars ($100,000,000.00). Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow amounts loaned under the Credit
Facility. The Borrower may, from time to time, deliver to the Lender in
the form of Exhibit A hereto a request for loan in an amount not less than
$1,000,000 or more than $30,000,000, in which shall be certified certain
information as required thereby ("Request Certificate"); provided, however,
if the principal amount remaining available for draw under the Credit
Facility is less than $1,000,000, then the Borrower may submit a Request
Certificate to the Lender only for the entire principal amount remaining
available for draw under the Credit Facility. At no time shall the
Borrower deliver a Request Certificate to the Lender more frequently than
once a week.
b. Funding of Loans. Within two (2) Business Days of oral notice
by the Borrower of a request for an advance and within one (1) Business Day
of receipt by the Lender of a Request Certificate relating to such advance,
the Lender shall determine in good faith the completeness and accuracy of
the information set forth therein (such determination to be conclusive) and
shall, if such determination is favorable, remit to the Borrower the amount
specified therein (such advances being herein referred to individually as a
"Loan" and collectively as "Loans").
c. The Note. The Borrower shall execute and deliver to Lender a
promissory note in the form of Exhibit B hereto (the "Note"). The Lender
is hereby authorized to reflect on the schedule to the Note each advance of
a Loan thereunder and the amounts indicated thereon shall be conclusive (in
the absence of manifest error) in determining interest and principal
balances from time to time outstanding, as provided in the Note.
d. Interest Rate. The outstanding principal balance of each Loan
shall bear interest at a fixed rate per annum equal to the sum of (i) the
three-month LIBOR rate quoted in The Wall Street Journal on the date of the
making of the Loan, plus (ii) sixty-five (65) basis points; provided,
however, at no time shall the rate of interest charged on any Loan exceed
the maximum amount permitted by any applicable usury law. All interest
hereunder shall be computed on the basis of a 360-day year. Any principal
or interest on any Loan which is not paid when due (whether as stated, by
acceleration or otherwise) shall bear interest at a rate equal to the sum
of the interest rate for such Loan (as determined above) plus two hundred
(200) basis points.
e. Principal and Interest Payments. The outstanding principal
balance and all accrued and unpaid interest under the Note shall become due
and payable on the earlier of (i) April 10, 1996, (ii) the date that is 90
days after the closing of the Merger (as that term is defined in the Merger
Agreement), (iii) the date (whichever comes first) that any Person (other
than the Lender or any of its Affiliates) shall (A) acquire ownership or
control, directly or indirectly, of more than 50% of the voting power of
the Borrower, (B) merge with or into the Borrower, or (C) have transferred
to it all or substantially all of the assets of the Borrower, or (iv) the
date of the termination of the Merger Agreement under Section 7.1(b)(i)
thereof (the earlier of all of such dates is herein called the "Maturity
Date"). Prior to the Maturity Date, the Borrower may pay all or part of
the outstanding principal balance of any Loan or Loans upon at least two
(2) Business Days' oral notice to the Lender (which notice shall be
immediately confirmed in writing) in an amount not less than $1,000,000,
together with payment of all accrued and unpaid interest on the principal
amount so prepaid. Said notice shall specify the Loan or Loans being paid
down and such notice, when given, shall be irrevocable and commit the
Borrower to pay down the Loan or Loans as set forth in such notice.
f. Prepayment; Taxes. All payments of principal and interest paid
or accrued in accordance with the provisions of this Agreement shall be
made under the Note as set forth therein. All payments in respect of this
Agreement shall be made by the Borrower to the Lender without defense,
setoff or counterclaim and free and clear of all present and future taxes,
levies, imposts, fees, duties and withholdings or other deductions
whatsoever, but excluding any taxes imposed on the net income of the Lender
(collectively, "Taxes"). If any such Tax becomes payable in respect of
this Agreement or any amendment, modification, extension or renewal hereof
or thereof, the Borrower agrees to pay the same, together with any interest
or penalties assessed thereon, plus an amount which, after provision for
such Tax, is necessary to yield and remit to the Lender payments at the
applicable rate set forth herein, and agrees to hold the Lender harmless
with respect thereto. The Borrower shall provide evidence that Taxes in
respect of which indemnification is provided under this Agreement shall
have been paid to the appropriate taxing authorities by delivery to the
Lender of the official tax receipts or notarized copies of such receipts
within 30 days after the payment of any such Tax. If the Borrower fails to
make any such payments when due, the Borrower shall indemnify the Lender
for any additions to Tax, interest or penalties that may become payable by
the Lender as a result of any such failure.
g. Use of Proceeds of Loans. The proceeds of the Loans shall be
used for working capital purposes for the Borrower and its Subsidiaries as
specified in any Request Certificate delivered in connection with each such
Loan. Without limiting the foregoing sentence in any way, the Borrower
agrees that none of the proceeds of any Loan shall be used to pay down any
Existing Debt (as defined in Section 2.12).
1.2 Security. The obligations of the Borrower to pay all sums due,
and to do all things and perform all obligations and agreements of any
nature (whether direct or contingent, liquidated or unliquidated, or
otherwise), hereunder and under each of the Loan Documents, as the same may
be amended, modified, extended or renewed from time to time (the
"Obligations"), shall be secured by a first priority security interest in
all of the accounts receivable of the Borrower, as evidenced by that
certain Security Agreement executed by Borrower and delivered to Lender in
the form of Exhibit C hereto (the "Security Agreement").
Section 2. Representations and Warranties
The Borrower hereby makes the following representations and warranties
to the Lender on the date of this Agreement, on the date of each Request
Certificate and on the date of the making of each Loan:
2.1 Legal Status. Each of the Borrower and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite corporate power and
authority and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as now being conducted,
except where the failure to be so organized, existing and in good standing
or to have such power, authority and governmental approvals would not have
a Materially Adverse Effect. The Borrower and each of its Subsidiaries is
duly qualified or licensed to do business and in good standing in all
jurisdictions in which such qualification or licensing is required or in
which the failure to so qualify or to be so licensed could have a
Materially Adverse Effect. A list of all Subsidiaries of the Borrower as
of the date hereof is set forth on Schedule 2.1.
2.2 Authorization and Validity. Each of the Loan Documents has been
duly authorized, and upon the execution and delivery thereof by the
Borrower in accordance with the provisions of this Agreement will
constitute legal, valid and binding agreements and obligations of the
Borrower enforceable in accordance with their respective terms.
2.3 Corporate Powers; No Violation. The execution, delivery and
performance by the Borrower of each of the Loan Documents and the
consummation of the transactions contemplated thereby are within the
Borrower's corporate powers and have been duly authorized by all necessary
corporate action, and do not (I) except as set forth in Schedule 2.3,
require the consent or approval of any Person, (ii) violate any provision
of any law or regulation, (iii) contravene any provision of its charter or
by-laws, or (iv) result in a breach of or constitute a default under any
contract, obligation, indenture or other instrument to which the Borrower
is a party or by which the Borrower is or may be bound. The Borrower has
not amended its Certificate of Incorporation or By-Laws since the date of
the Merger Agreement.
2.4 Litigation. To the best of the Borrower's knowledge, except as
set forth on Schedule 2.4, there are no pending or threatened actions,
claims, investigations, suits or proceedings before any governmental
authority, court or administrative agency, including, without limitation,
any Environmental Action, which may (i) have a Materially Adverse Effect,
or (ii) affect the legality, validity or enforceability of any of the Loan
Documents. Neither the Borrower nor any of its Subsidiaries is in default
with respect to any order, writ, injunction, decree or demand of any court
or other governmental or regulatory authority.
2.5 Correctness of Financial Statements. The audited Consolidated
financial statements of the Borrower dated for its fiscal year ended March
25, 1995, and the unaudited Consolidated financial statements of the
Borrower for the six months ended September 30, 1995, heretofore delivered
by the Borrower to the Lender, are complete and correct and present fairly
and accurately the financial condition of the Borrower and its
Subsidiaries, disclose all liabilities of the Borrower and its Subsidiaries
that are required to be reflected or reserved against under generally
accepted accounting principles ("GAAP"), whether liquidated or
unliquidated, fixed or contingent, and have been prepared in accordance
with GAAP consistently applied. Since September 30, 1995, there has been
no change likely to cause any Materially Adverse Effect except as disclosed
in Schedule 2.5 hereto.
2.6 Taxes. All federal, state and other tax returns of the Borrower
and its Subsidiaries required by law to be filed have been duly filed, and
all taxes and other governmental charges or levies upon Borrower, its
Subsidiaries or any of their respective properties, income, profits and
assets which are due and payable have been paid. The charges, accruals and
reserves on the books of Borrower and its Subsidiaries in respect of taxes
are adequate. The Borrower has paid all employment taxes required by law,
including without limitation, payroll taxes.
2.7 No Subordination. There is no agreement, indenture, contract or
instrument to which the Borrower is a party or by which the Borrower may be
bound that requires the subordination in right of payment of any Obligation
of the Borrower.
2.8 Permits, Franchises. Each of the Borrower and its Subsidiaries
possesses, and will hereafter possess, all permits, memberships,
franchises, contracts and licenses required to enable it to conduct the
business in which it is now engaged other than where failure to so obtain
the same is not likely to have a Materially Adverse Effect.
2.9 ERISA.
a. Compliance Each of the Borrower and its Subsidiaries is in
compliance in all material respects with all applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and no ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan covering the employees of the Borrower or
any of its Subsidiaries thereunder.
b. Funded Current Liabilities. 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 change likely to cause any Materially Adverse Effect in the funding
status of any such Plan since such date.
c. Withdrawal Liability. Neither Borrower 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
Materially Adverse Effect.
d. Reorganization or Termination. Neither Borrower 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.
e. SFAS 106. Except as set forth in the financial statements
referred to in Section 2.5 and in Section 4.3, each of the Borrower and
its Subsidiaries has no material liability with respect to "expected
post retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
2.10 Other Obligations. Neither the Borrower nor any of its
Subsidiaries is in default on any Debt or any other material lease,
commitment, contract, instrument or obligation.
2.11 Environmental Laws. Each of the Borrower and its Subsidiaries
is in compliance with all applicable Environmental Laws and Environmental
Permits, except where non-compliance would not have a Materially Adverse
Effect. The Borrower is not aware that it or any of its Subsidiaries is
under investigation by any local, state, federal or foreign agency designed
to enforce any Environmental Laws and Environmental Permits. Any past non-
compliance by Borrower or its Subsidiaries 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 Materially
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 Materially Adverse Effect.
2.12 Existing Debt. Set forth on Schedule 2.12 hereto is a complete
and correct list of all Debt of the Borrower and its Subsidiaries to any
Person which has a principal balance in excess of $100,000 or borrowing
availability in excess of $500,000 (the "Existing Debt").
2.13 Security Agreement Representations. Each of the representations
and warranties of Borrower set forth in the Security Agreement are true and
correct on the date hereof. Without limiting the foregoing in any way, (i)
there are no Liens on any Collateral (as that term is defined in the
Security Agreement) except for Permitted Liens and Liens set forth on
Schedule 2.13 hereto and (ii) to the Borrower's knowledge, there are no
Liens on any other property or assets of the Borrower or any of its
Subsidiaries except for Permitted Liens and Liens set forth on Schedule
2.13 hereto (collectively, "Existing Liens").
Section 3. Conditions Precedent
3.1 Initial Loan. The obligation of the Lender hereunder to make the
initial Loan shall be subject to the satisfaction by the Borrower of all of
the following conditions precedent on or prior to the date hereof:
a. Approval of the Lender's Counsel. All legal matters and
documentation incidental hereto shall be reasonably satisfactory to counsel
for the Lender.
b. The Note, Etc. The Lender shall have received the Note and all
of the other Loan Documents, duly and validly executed by the Borrower.
c. Consents, Etc. The Lender shall have received the consent of
all Persons that are required for the making of the Loans to the Borrower,
the incurrence of any of the Obligations by the Borrower or the incurrence
of any Liens in connection therewith, with each such consent to be in form
and substance reasonably satisfactory to the Lender.
d. Resolutions, Etc. The Lender shall have received an incumbency
certificate of persons authorized to execute the Loan Documents for the
Borrower and a copy of the resolutions authorizing, approving and ratifying
the Loan Documents and the transactions contemplated herein and therein,
duly adopted by the Board of Directors of the Borrower, together with a
certificate of the Secretary of the Borrower, dated the date of the initial
Loan, that such copy is a true and correct copy of resolutions duly adopted
at a meeting, or by the unanimous written consent, of the Board of
Directors of the Borrower and that such resolutions have not been modified,
amended, rescinded or revoked in any respect and are in full force and
effect as of the date hereof.
e. Special Committee Approval. The Lender shall have received a
written certification from the Borrower that the Loan Documents and the
transactions contemplated thereunder have been approved by the Special
Committee.
f. Legal Opinion. The Lender shall have received the legal
opinion of counsel to the Borrower, dated as of the date of the initial
Loan, and addressed to the Lender in form and substance satisfactory to the
Lender and its counsel.
g. Perfected Security Interest. The Security Agreement shall
create in favor of the Lender a valid, perfected security interest in the
property described therein or contemplated thereby, free of Liens except
for Permitted Liens and the Lender shall have received evidence of Lien
searches, through a date satisfactory to the Lender, showing no Liens
affecting the property or assets covered thereby other than Permitted
Liens.
h. Good Standing Certificates. The Borrower shall have delivered
to the Lender good standing certificates, as of a recent date satisfactory
to the Lender, from California, Colorado and Delaware.
i. No Action, Suit, Etc. Other than set forth on Schedule 2.4,
there shall exist no action, suit, investigation, litigation or proceeding
affecting either the Borrower or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Materially 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.
j. Other Matters. The Lender shall have received all other
documents, instruments, agreements, opinions, certificates, insurance
policies, consents and evidences of other legal matters, in form and
substance reasonably satisfactory to the Lender and its counsel, as the
Lender may reasonably request.
3.2 All Loans. The obligations of the Lender hereunder to make any
Loan (including the initial Loan) shall be subject to the further
satisfaction by the Borrower of all of the following conditions precedent
on or prior to the date hereof:
a. No Default. No Default or Event of Default shall have occurred
and be continuing, and the Borrower shall be in compliance with all of the
covenants contained in this Agreement.
b. Representations and Warranties True. Each of the
representations and warranties contained in the Loan Documents shall be
true on and as of the date of the making of such Loan as though such
representations and warranties had been made on and as of such date (unless
such representation and warranty specifically relates to an earlier date).
c. Certificate. The Lender shall have received a certificate
(which may, at the Borrower's option, be one of the Request Certificates)
of an officer of the Borrower, dated the date of each Loan, that (I) each
of the representations and warranties contained in the Loan Documents is
true and correct on and as of the date thereof with the same force and
effect as if made on and as of such date; (ii) all Obligations, covenants,
agreements and conditions contained in the Loan Documents, to be performed
or satisfied by the Borrower on or prior to the date thereof have been
performed or satisfied in all respects, (iii) except as set forth on
Schedule 2.5, there has been no Materially Adverse Effect since September
30, 1995; and (d) no Default or Event of Default shall have occurred and be
continuing or shall exist.
Section 4. Affirmative Covenants
The Borrower covenants that so long as any Obligations of the Borrower
to the Lender under any of the Loan Documents remain outstanding, and until
final payment or satisfaction in full of all indebtedness of the Borrower
to the Lender subject to this Agreement, the Borrower shall (and shall
cause its Subsidiaries to):
4.1 Payment of Obligations and Performance of Covenants. Make full
and timely payment of all Obligations as required under each of the Loan
Documents, at the time and place and in the manner specified therein,
including without limitation the Note, together with any fees or other
liabilities due under any of the other Loan Documents at the times and
place and in the manner specified therein.
4.2 Accounting Records. Maintain adequate books and records in
accordance with GAAP consistently applied, and from time to time as
requested by the Lender upon reasonable prior notice, permit a
representative of the Lender at any reasonable time to inspect, audit and
examine such books and records, to make copies of the same and to inspect
the properties of the Borrower.
4.3 Financial Statements and Other Information. Furnish to the
Lenders:
a. Monthly Financials. As soon as available and in any event
within 20 days after the end of each monthly fiscal period, Consolidated
and consolidating balance sheets of the Borrower and its Subsidiaries as of
the end of such monthly fiscal period 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 monthly fiscal period, duly certified (subject to year-
end audit adjustments) by the chief financial officer of the Borrower as
having been prepared in accordance with GAAP, 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;
b. Quarterly Financials. As soon as available and in any event
within 45 days after the end of each quarterly fiscal period, Consolidated
and consolidating balance sheets of the Borrower and its Subsidiaries as of
the end of such quarterly fiscal period 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 quarterly fiscal period, duly certified (subject to
year-end audit adjustments) by the chief financial officer of the Borrower
as having been prepared in accordance with GAAP, 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;
c. Annual Financials. 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 Lender by independent public
accountants reasonably acceptable to the Lender, provided that in the event
of any change in GAAP used in the preparation of such financial statements,
the Borrower shall also provide a statement of reconciliation conforming
such financial statements to GAAP;
d. Default. As soon as possible and in any event within five (5)
days after any 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;
e. Filings, etc. Promptly after the sending or filing thereof,
copies of all reports and registration statements that the Borrower or any
of its Subsidiary files with the Securities and Exchange Commission or any
national securities exchange;
f. Proceedings. Promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the type
described in Section 2.4;
g. ERISA Event. (i) Promptly and in any event within 10 days
after the Borrower 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
Borrower or such ERISA Affiliate has taken and proposes to take with
respect thereto, and (ii) 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;
h. PBGC Notices. Promptly and in any event within two Business
Days after receipt thereof by the Borrower 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;
i. Funded Current Liability Notices. Promptly and in any event
within 30 days after the receipt thereof by the Borrower 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 or which exceeds
$1,000,000;
j. Multiemployer Plan Notices. Promptly and in any event within
five Business Days after receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (I) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (ii) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan, or (iii) the
amount of liability incurred, or that may be incurred, by the Borrower or
any ERISA Affiliate in connection with any event described in clause (i) or
(ii);
k. Environmental Matters. 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 Materially Adverse Effect; and
l. Other Information. Such other information respecting the
Borrower or any of its Subsidiaries as the Lender may from time to time
reasonably request.
4.4 Existence; Compliance with Law. Preserve and maintain its
existence and all of its licenses, permits, governmental approvals, rights,
privileges and franchises, conduct its business in an orderly and regular
manner, comply with the provisions of all documents pursuant to which the
Borrower is organized and/or which govern the Borrower's continued
existence and comply with the requirements of all applicable laws, rules,
regulations, orders of any governmental authority and requirements for the
maintenance of the Borrower's insurance, licenses, permits, governmental
approvals, rights, privileges and franchises, such compliance to include,
without limitation, compliance with ERISA, Environmental Laws and
Environmental Permits, except in each case where failure to do so is not
likely to cause a Materially Adverse Effect.
4.5 Insurance. Maintain and keep in force insurance of the types and
in amounts customarily carried in lines of business similar to the
Borrower's, including but not limited to fire, extended coverage, public
liability, property damage and workers' compensation, carried by insurers
and in amounts reasonably satisfactory to the Lender and deliver to the
Lender from time to time at the Lender's request schedules setting forth
all insurance then in effect.
4.6 Facilities. Keep all of the Borrower's properties useful or
necessary to the Borrower's business in good repair and condition, and from
time to time make necessary repairs, renewals and replacements thereto so
that the Borrower's properties shall be fully and efficiently preserved and
maintained.
4.7 Payment of Taxes and Claims. Pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or upon any properties belonging to it prior to the date
on which penalties attach thereto, and all lawful claims for labor,
materials and supplies which, if unpaid, might become a Lien upon any of
its properties and timely file all information returns required by foreign,
federal, state or local tax authorities to be filed by each of them;
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 cash reserves are being maintained, unless and
until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
4.8 Transactions With Affiliates. 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 arms-length transaction
with a Person not an Affiliate.
Section 5. Negative Covenants
The Borrower further covenants that so long as any Obligations of the
Borrower to the Lender under any of the Loan Documents remain outstanding,
and until final payment in full or satisfaction of all indebtedness of the
Borrower to the Lender subject to this Agreement, the Borrower shall not
(and shall not permit its Subsidiaries to), without prior written consent
of the Lender:
5.1 Additional 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:
a. Subordinated. in the case of the Borrower, Subordinated Debt;
b. Subsidiaries. in the case of any of its Subsidiaries, Debt owed
to the Borrower or to a wholly-owned Subsidiary of the Borrower; and
c. Other. in the case of the Borrower and any of its
Subsidiaries,
(i) Debt under the Loan Documents,
(ii) Capitalized Leases not to exceed in the aggregate $10,000,000
at any time outstanding,
(iii) the Existing Debt and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, any Existing 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 Existing 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.
iv) endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business, and
(v) other Debt the aggregate principal amount of which, together
with the aggregate indebtedness secured by the Liens referred to in Section
5.2(b), shall not exceed $35,000,000 in the aggregate at any time
outstanding.
5.2 Liens. 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:
a. Permitted. Permitted Liens.
b. Purchase Money. 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 extended, renewed or
replaced, provided further that the aggregate principal amount of the
indebtedness secured by the Liens referred to in this clause (b) and the
Debt incurred in connection with Section 5.1(c)(v) shall not exceed
$35,000,000 in the aggregate at any time outstanding.
c. Existing. The Existing Liens, except that the Lien of the CIT
Group, Inc. in the assets of the Borrower may remain in place until, but
shall have been released by, the date of the making of the initial Loan.
5.3 Transfer of Assets, Etc. Make any substantial change in the
nature of the Borrower's business or acquire all or substantially all of
the assets of any Person.
5.4 Loans; Advances; Investments. Make or commit to make any loans
or other advances to or investments of any kind in any Person; provided,
however, that the Borrower may make intercompany loans to any Subsidiary
that is a wholly-owned Subsidiary (i) solely for working capital purposes,
and (ii) on terms and in amounts consistent with past practice.
5.5 Distributions. Declare or pay any distribution either in cash or
any other property of the Borrower to any of its stockholders or other
security holders (except that a wholly-owned Subsidiary of the Borrower may
make such a distribution solely to the Borrower).
5.6 Regulations G, T and U. Use the proceeds of any credit
accommodation hereunder, directly or indirectly, to purchase or carry any
margin stock (within the meaning of Regulations G, T and U of the Board of
Governors of the Federal Reserve System) or extend credit to others for the
purpose of purchasing or carrying, directly or indirectly, any margin
stock.
5.7 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 GAAP.
Section 6. Events of Default.
6.1 Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" under this Agreement, whether such
occurrence shall be voluntary or involuntary, or come about or be effected
by operation of law or otherwise:
a. Payment. The Borrower shall fail to pay any principal or
interest under any of the Loan Documents within two Business Days after
such payment is due and payable.
b. Representations, etc. Any representation or warranty made by
the Borrower under any of the Loan Documents shall prove to have been
materially incorrect in any respect when made.
c. Covenants. (i) The Borrower shall fail to perform or observe
any Obligation, term, covenant or agreement contained in Sections 5.1, 5.2,
5.3, 5.4 or 5.5, or (ii) the Borrower 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 (other than set forth in Section 6.1(a))
if such failure shall remain unremedied for 15 days after written notice
thereof shall have been given to the Borrower by the Lender or its
designated agent or representative;
d. Cross-Default. The Borrower 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 (but excluding Debt outstanding hereunder) of the Borrower 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. Insolvency, etc. The Borrower 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 Borrower 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 30 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 Borrower or any of its Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
Section 6.1(e); or
f. Judgments. Any judgment or order for the payment of money in
excess of $5,000,000 shall be rendered against the Borrower and/or any of
its Subsidiaries and either (I) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order, or (ii) there shall
be any period of 10 consecutive days during which such judgment remains
unsatisfied and a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect; or
g. ERISA Event. 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
h. Withdrawal Liability. Either Borrower 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 the Borrower 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
i. Reorganization, etc. of Multiemployer Plan. Either Borrower 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
the Borrower 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;
j. Dissolution, etc. The dissolution or liquidation of the
Borrower or any of its Subsidiaries, or the Borrower shall take action
seeking to effect the dissolution or liquidation of the Borrower or its
Subsidiaries or any of the Borrower's Subsidiaries seeks to withdraw from
the Borrower;
then, and in any such event, the Lender may (i) upon notice to the
Borrower, have no obligation to make further Loans to the Borrower
regardless of whether a Request Certificate has been submitted therefor
(except in the case of the occurrence of an Event of Default under Section
6.1(e), then the obligation of the Lender to make further Loans to the
Borrowers shall automatically be terminated), (ii) upon notice to the
Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to become
immediately due and payable, whereupon the Notes, all such interest and all
such amounts shall become and be forthwith due and payable (except in the
case of the occurrence of an Event of Default under Section 6.1(e), then
the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents shall automatically become
immediately due and payable), without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower, and (iii) have all rights, powers and remedies available to
Lender under each of the Loan Documents, or accorded by law, including,
without limitation, the right to resort to any or all security subject
hereto and to exercise any or all of the rights of a beneficiary or secured
party pursuant to applicable law and the right to effect setoff against any
Obligations of the Borrower outstanding of any and all fees or payments due
and owing from time to time by the Lender or its Affiliates to the
Borrower. All rights, powers and remedies of the Lender may be exercised
at any time by the Lender and from time to time after the occurrence of any
Event of Default. All rights, powers and remedies of the Lender in
connection with each of the Loan Documents are cumulative and not exclusive
and shall be in addition to any other rights, powers or remedies provided
by law or equity.
Section 7. General
7.1 No Waiver. No delay, failure or discontinuance of the Lender, or
any holder of any promissory note or other evidence of indebtedness subject
hereto, in exercising any right, power or remedy under any of the Loan
Documents shall affect or operate as a waiver of such right, power or
remedy; nor shall any single or partial exercise of any such right, power
or remedy preclude, waive or otherwise affect any other or further exercise
thereof or the exercise of any other right, power or remedy. Any waiver,
permit, consent or approval of any kind by the Lender of any breach of or
default under any of the Loan Documents must be in writing and shall be
effective only to the extent set forth in such writing.
7.2 Notices. All notices, requests and demands given to or made upon
any party hereto must be in writing and shall be deemed to have been given
or made when personally delivered or sent via telecopier with answer back
received or two (2) days after any of the same are deposited in the U.S.
mail, air mail and postage prepaid, addressed as follows:
Borrower: Maxtor Corporation
Xxxxx Xxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxx
Vice President of Finance & Treasurer
with a copy to: Maxtor Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, Esq.
General Counsel
Lender: Hyundai Electronics America
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Senior Vice President of
Finance & Administration
or to such other address or addresses as any party may designate by written
notice to all other parties.
7.3 Successors: Assignment. This Agreement shall be binding on and
inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties; provided, however,
that this Agreement may not be assigned by the Borrower without the prior
written consent of the Lender. Any purported assignment in violation of
the foregoing prohibition on assignment shall be null and void. The Lender
reserves the right, subject to the Borrower's approval (such approval not
to be unreasonably withheld, and except that no approval shall be required
for any assignment or transfer to any Affiliate of the Lender) to sell,
assign, transfer, negotiate or grant participation in all or any part of or
any interest in the Lender's rights and benefits under each of the Loan
Documents. In connection therewith, the Lender may disclose, under an
appropriate nondisclosure agreement, all documents and information which
the Lender now has or may hereafter acquire relating to credit extended by
the Lender to the Borrower or its businesses, or any collateral required
hereunder.
7.4 Entire Agreement; Amendment. This Agreement and each other of
the Loan Documents constitutes the entire agreement between the Borrower
and the Lender with respect to any extension of credit by the Lender to the
Borrower and supersede all prior negotiations, communications, discussions
and correspondence concerning the subject matter hereof and thereof, and
may be amended or modified only by a written instrument executed by each
party hereto and thereto.
7.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.6 Time. Time is of the essence of each and every provision of the
Loan Documents.
7.7 Severability of Provisions. If any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or any remaining
provisions of this Agreement.
7.8 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without giving
effect to conflict of laws principles.
7.9 Arbitration. Any action, claim or controversy arising out of,
related to or in connection with this Agreement, the Note or any other Loan
Document shall be submitted to arbitration in San Jose, California, before
a single arbitrator in accordance with the Commercial Rules of Arbitration
of the American Arbitration Association. The costs and expenses of such
arbitration, including, without limitation, the compensation of the
arbitrator and any stenographer employed by such arbitrator, shall be borne
by the party against whom the arbitrator renders a decision as herein
provided. In addition, the party against whom the arbitrator renders a
decision shall be liable for the attorneys' fees and expenses of the
prevailing party. The decision of the arbitrator shall be final and
binding upon the parties and may be enforced in any court of competent
jurisdiction.
7.10 Further Assurances. At any time or from time to time upon the
Lender's request, the Borrower will execute and deliver such further
documents and do such other acts and things as the Lender may reasonably
request in order to effect fully the purposes of this Agreement and the
other Loan Documents and to provide for the payment of any Loans made
hereunder and interest thereon in accordance with the terms of the Loan
Documents.
7.11 Expenses. The Borrower shall reimburse the Lender on demand for
50% of the reasonable fees and expenses of the Lender's counsel in the
negotiation, preparation and closing of the Loan Documents. If there shall
occur an Event of Default, all such reasonable out-of-pocket expenses
incurred by the Lender (including fees and disbursements of counsel) in
connection with such Event of Default and collection and other enforcement
proceedings (including bankruptcy proceedings) resulting therefrom shall be
paid by the Borrower, whether or not suit is actually commenced to obtain
any relief provided hereunder; provided, however, that in any action on
this Agreement or any other Loan Documents, the parties who are determined
to be the prevailing party thereon, whether such party or parties have
instituted the action, shall be entitled to reasonable attorneys' fees in
addition to other costs and any other relief to which such party or parties
may be entitled.
7.12 Currency. All currency expressed under this Agreement are in
U.S. Dollars.
Section 8. Definitions.
"Affiliate" means with respect to the Borrower, any other Person that
directly or indirectly controls, is controlled by or is under direct or
indirect common control with the Borrower; provided, however, that neither
the Lender nor any of its Affiliates is an Affiliate of the Borrower or
vice-versa.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which commercial banks are permitted or authorized to close in
California by law.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Consolidated" means the consolidation of accounts in accordance with
GAAP.
"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 Capitalized 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.
"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 Permits" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of Borrower's controlled group, or under common control
with Borrower, 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 the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower 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 ground for the
termination of, or the appointment of a trustee to administer, a Plan.
"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.
"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.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"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 and any and all documents or
agreements heretofore or hereafter entered into by or for the benefit of
the Borrower in favor of the Lender or any of its Affiliates in connection
herewith or therewith, including, without limitation, the Note, the Request
Certificates and the Security Agreement. The term "Loan Documents" shall
not include the Merger Agreement.
"Materially Adverse Effect" means materially adverse to the condition
(financial or other), results of operations, performance, properties,
obligations, liabilities, operations, business or prospects of the Borrower
and its Subsidiaries, taken as a whole.
"MultiEmployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five 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
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which Borrower 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.
"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) Lien for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section 4.7
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 5.1(c)(ii); (h) Liens arising solely by virtue of any
statutory or common law provisions 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.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than Borrower and the
ERISA Affiliates, or (b) was so maintained and in respect of which Borrower
or any ERISA Affiliate could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"Subordinated Debt" means any Debt of the Borrower that is subordinated
to the Obligations of the Borrower under the Loan Documents on, and that
otherwise contains, terms and conditions satisfactory to the 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.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered as of the day and year first
written above.
MAXTOR CORPORATION
By:
--------------------------------
Name:
Title:
HYUNDAI ELECTRONICS AMERICA
By:
--------------------------------
Name:
Title:
List of Exhibits
Exhibit A - Request Certificate
Exhibit B - Note
Exhibit C - Security Agreement
List of Schedules
Schedule 2.1 - Subsidiaries
Schedule 2.3 - Required Consents
Schedule 2.4 - Litigation
Schedule 2.5 - Materially Adverse Changes
Schedule 2.12 - Existing Debt
Schedule 2.13 - Existing Liens
PROMISSORY NOTE
$100,000,000 January 5, 1996
FOR VALUE RECEIVED, the undersigned, MAXTOR CORPORATION, a Delaware
corporation (the "Company"), hereby promises to pay to the order of HYUNDAI
ELECTRONICS AMERICA, a California corporation (the "Lender"), at the office
of the Lender at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, or such
other address of the Lender as the Lender may from time to time direct, the
principal sum of One Hundred Million Dollars ($100,000,000) or, if less, the
aggregate unpaid principal amount of the Loans made by the Lender to the
Company pursuant to that certain Credit Agreement, dated December 29, 1995
between the Company and the Lender (as amended from time to time, the "Credit
Agreement"), in lawful money of the United States of America and in
immediately available funds, in the amounts and at the times provided by the
Credit Agreement, and to pay interest on the unpaid principal amount from
time to time outstanding on this Note, at such office, in like money and
funds, at the applicable rates and on the dates provided in the Credit
Agreement.
This Note is given under the Credit Agreement and evidences the Loans
made by the Lender thereunder. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit Agreement. Reference is
made to the Credit Agreement for provisions regarding mandatory and optional
prepayments of the principal of this Note and for the acceleration of the
maturity of this Note upon the occurrence of the Events of Default specified
therein, and regarding the rate of interest which may be charged or collected
by the Lender under the Credit Agreement. In no event shall the rate of
interest charged under this Note exceed the maximum rate permitted by
applicable law.
This Note is secured by the Security Agreement, and reference is made
thereto for a description of the Collateral securing the Obligations and the
rights of the Lender with respect thereto.
The amount and date of the Loans made by the Lender and all repayments
of the principal thereof shall be recorded by the Lender in its records
(which, absent manifest error, shall be conclusive) and, prior to any
transfer of this Note, endorsed by the Lender on the reverse of this Note or
on a schedule attached to this Note or any continuation thereof; provided
that any failure by the Lender to make any such endorsement shall not affect
the obligations of the Company under the Credit Agreement and this Note.
IN WITNESS WHEREOF, the Company has caused this Promissory Note to be
duly executed as of the date first above written.
MAXTOR CORPORATION
By:
-------------------------------------
Name:
Title:
Principal Schedule
Date
Principal Added
Principal Paid
Principal Balance
Initials
EXHIBIT C
SECURITY AGREEMENT
This Security Agreement (the "Agreement"), dated as of
,1995, is entered into between Maxtor Corporation, a Delaware corporation
("Debtor"), and Hyundai Electronics America, a California corporation
("Secured Party").
This Agreement is contemplated by Section 1.2 of that certain Credit
Agreement, dated as of , 1995 (the "Credit Agreement"), between
Debtor and Secured Party, pursuant to which Debtor has agreed to grant
Secured Party a security interest in the collateral described below.
Therefore, Debtor and Secured Party agree as follows:
1. Definitions. All capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement. In addition,
all terms used in Section 3 hereof but not expressly defined therein which
are defined in the California Uniform Commercial Code (the "Code") shall have
the same meaning herein as in the Code.
2. Grant of Security Interest. Debtor hereby pledges and delivers to
Secured Party, and grants to Secured Party a security interest in, the
Collateral, as defined in Section 3 hereof, to secure the payment and
performance of all of the Obligations.
3. Collateral. The collateral in which Secured Party is granted a
security interest by this Agreement (herein referred to collectively as the
"Collateral") is:
(a) All of Debtor's accounts, instruments, documents and
chattel paper due or to become due to Debtor of any kind (the "Receivables"),
whether now existing or hereafter arising, and whether now owned or hereafter
acquired, and all rights now or hereafter existing in and to all guarantees,
security agreements or other agreements or instruments securing or otherwise
relating to any such Receivables (the "Related Agreements"); and
(b) All proceeds and products of any and all of the foregoing
Collateral (including, without limitation, proceeds which constitute property
of the types described in clause (a) of this Section 3 and proceeds of any
tort claims relating to any of the foregoing Collateral) and, to the extent
not otherwise included, all payments under insurance or in connection with
any indemnity, warranty or guarantee payable by reason of loss or damage to
or otherwise with respect to any of the foregoing Collateral;
excluding, however, from all of the above all hazardous and non-hazardous
wastes, including but not limited to recyclable waste materials. The
inclusion of proceeds in this Agreement does not authorize Debtor to sell,
dispose of or otherwise use the Collateral in any manner not specifically
authorized hereby.
The term "Intangible Collateral" as used herein shall mean all
Receivables and Related Agreements.
4. Representations, Warranties and Covenants. Debtor hereby
represents, warrants and covenants as follows:
4.1 Organizational Status. Debtor is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and is in good standing as a foreign corporation in the State of
California, the State of Colorado and any other state in which the nature of
its business requires it to be so qualified or failure to be qualified would
have a Materially Adverse effect on Debtor.
4.2 Power and Authority. Debtor has full power and authority
to enter into this Agreement, grant to Secured Party a valid security
interest in the Collateral and perform all of its obligations under this
Agreement. The execution, delivery and performance by Debtor of this
Agreement do not contravene Debtor's restated certificate of incorporation or
amended and restated bylaws or violate any provision of any statute, law,
rule, regulation, judgment, order or decree applicable to Debtor and will not
conflict with, or constitute a breach or default under, any indenture, loan
agreement, contract or other agreement or instrument to which Debtor is a
party or by which Debtor or any of its property is bound.
4.3 Governmental Authorization. No authorization, consent or
approval or other action by, and no notice to or other filing with, any
Person is required for the grant by Debtor of the security interest granted
hereby, the due execution and delivery by Debtor of this Agreement or the
performance by Debtor of any of its obligations hereunder.
4.4 Title to Collateral. Except for the security interest
granted hereby and Permitted Liens, on the date of the funding of the initial
Loan Debtor is, and as to any Collateral acquired by Debtor after the date
thereof will be, the legal and beneficial owner and holder of all the
Collateral, free and clear of any Lien, and Debtor will defend all of the
Collateral against all claims and demands of all Persons at any time claiming
the same or any interest therein, and will take all steps to maintain the
security interest of Secured Party as a valid and fully perfected Lien.
4.5 Place of Business and Name. Debtor's chief place of
business and chief executive office is at the address set forth in Section
7.2 of the Credit Agreement and has not been moved or relocated within the
four-month period commencing on the date of this Agreement. Debtor has no
other offices or facilities of any type located in the United States of
America where documents comprising the Collateral or records regarding the
Collateral are kept except for its offices and facilities in Longmont,
Colorado. Debtor will not change its name or the location of its chief place
of business and chief executive office or open any other office or facility
in the United States of America, without giving at least 30 days' prior
written notice to Secured Party of any such proposed change. Debtor has not
utilized any trade names in the conduct of its business and, unless it shall
have first given at least 30 days' prior written notice to Secured Party,
Debtor will not utilize any such trade names or other trade names.
4.6 Financing Statements; Related Instruments.
(a) No financing statement or other document evidencing
a Lien on any of the Collateral or any proceeds thereof is on file in any
public office in any jurisdiction, other than financing statements and other
appropriate documents in favor of Secured Party and the financing statements,
if any, identified on Schedule 2.13 to the Credit Agreement. At the request
of Secured Party, Debtor will execute and deliver to Secured Party one or
more financing statements and other appropriate documents in form and
substance reasonably satisfactory to Secured Party and will pay the cost of
filing the same in all public offices where filing is deemed by Secured Party
to be necessary or desirable to perfect the Liens intended to be created
hereunder. Debtor authorizes Secured Party to prepare and file financing
statements and other appropriate documents without the signature of Debtor
where permitted by law and, if Debtor's signature shall be required, Debtor
hereby irrevocably appoints Secured Party as Debtor's agent and attorney-in-
fact for the purpose of signing and filing such financing statements, other
appropriate documents and schedules in all public offices deemed necessary or
desirable by Secured Party. If any financing statements, other appropriate
documents and/or schedules are so signed by Secured Party, Secured Party
shall send a copy thereof to Debtor. Debtor promises to pay to Secured Party
all fees and expenses incurred in filing financing statements and other
appropriate documents and any continuation statements or amendments thereto,
which fees and expenses shall become a part of the Obligations secured by
this Agreement. A carbon, photographic or other reproduction of this
Agreement or any financing statement or other appropriate document covering
the Collateral or any part thereof shall be sufficient as a financing
statement or other appropriate document, and may be filed by Secured Party in
accordance with the provisions of this Section.
(b) Debtor shall duly endorse and deliver to Secured
Party upon request all instruments or documents, the possession of which is
necessary to perfect Secured Party's interest in any of the Collateral
hereunder.
4.7 Transfers; Other Liens. Neither Debtor nor its agents,
servants or employees will sell, assign or offer to sell or assign or
otherwise transfer any part of the Collateral, without the prior written
consent of Secured Party. Debtor will not, without the prior written consent
of Secured Party, create or permit to exist any Lien on any of the
Collateral, other than the security interest in favor of Secured Party
created by this Agreement and Permitted Liens.
4.8 Schedules, Inspection of Books and Records. Debtor will
furnish to Secured Party from time to time (I) statements and schedules
further identifying and describing the Collateral, and (ii) such other
reports in connection with the Collateral as Secured Party may reasonably
request, all in reasonable detail. Debtor will permit Secured Party or its
duly authorized representatives to examine its books and records during
business hours upon reasonable prior notice and shall furnish to Secured
Party such financial statements and other financial data as Secured Party may
reasonably request from time to time. Secured Party agrees to, and agrees to
cause its agents and representatives to, take reasonable precautions to
preserve the confidentiality of all such data, reports and information
obtained from or on behalf of Debtor.
4.9 Intangible Collateral. With respect to the Intangible
Collateral:
(a) Debtor's records concerning all Intangible
Collateral are and will be kept at the address indicated in the first
sentence of Section 4.5 hereof as Debtor's chief place of business and
chief executive office. Debtor will not remove any of such records from
such address without the prior written consent of Secured Party.
Without in any way excusing a breach of the foregoing sentence by
Debtor, if for any reason any of such records concerning the Intangible
Collateral shall at any time be moved to another location or locations,
Debtor will promptly notify Secured Party of any such change in the
location of such records and will execute and deliver such financing
statements and other appropriate documents and do such other acts and
things as Secured Party may reasonably request pursuant to Section 7
hereof.
(b) To the best of Debtor's knowledge, each item of the
Receivables is, or at such time as it becomes part of the Collateral
will be, a bona fide, valid and legally enforceable obligation of the
account debtor or other obligor in respect thereof, subject to no
defense, setoff or counterclaim against Debtor and in connection with
which there is no default with respect to any payment or performance on
the part of Debtor or any other party.
(c) Debtor will at all times keep accurate and complete
records of payment and performance by Debtor, the respective account
debtors and all other parties obligated on Intangible Collateral.
(d) After the occurrence and during the continuance of
any Event of Default, Debtor hereby authorizes Secured Party, upon prior
notice to Debtor, to cure any default in payment or performance by
Debtor with respect to Intangible Collateral; provided, however, that
Secured Party shall be under no obligation to do so and, provided
further, that the curing by Secured Party of any default shall not
constitute a waiver by Secured Party of any default hereunder. Debtor
agrees to reimburse Secured Party on demand with interest at the highest
rate applicable to any Loan for any payment made or any expense
reasonably incurred by Secured Party pursuant to the foregoing
authorization, and any payment made or expense reasonably incurred by
Secured Party pursuant to the foregoing authorization shall be part of
the Obligations.
(e) Notwithstanding the security interest in the
Intangible Collateral granted hereunder, Debtor shall have the right to
collect such Intangible Collateral and, so long as an Event of Default
has not occurred and is continuing, use the proceeds therefrom in the
ordinary course of its business. Upon request of Secured Party after
the occurrence and during the continuation of an Event of Default,
Debtor shall, and Secured Party may, in the name of Secured Party or
Debtor, at any time notify the account debtor or other obligor on any
item of Intangible Collateral of Secured Party's security interest.
Secured Party may, in its own name or the name of Debtor, at any time
after the occurrence and during the continuation of an Event of Default
hereunder, upon prior notice to Debtor, demand, xxx for, collect or
receive any money or property payable or receivable on any Intangible
Collateral and settle, release, compromise, adjust, xxx upon, foreclose,
realize upon or otherwise enforce any item of Intangible Collateral as
Secured Party may determine, and for the purpose of realizing Secured
Party's rights herein, Secured Party may receive, open and dispose of
mail addressed to Debtor and endorse notes, checks, drafts, money
orders, documents of title or other forms of payment on behalf of and in
the name of Debtor. Secured Party may at any time in its discretion,
after the occurrence and during the continuance of any Event of Default
hereunder, transfer any notes, securities or other Intangible Collateral
into its own name or that of its nominee and receive the income thereon
and hold the same as Collateral for the Obligations or apply the same to
the payment of principal or interest due on the Obligations. Debtor
agrees to reimburse Secured Party on demand with interest at the highest
rate applicable to any Loan for any payment made or any expense
reasonably incurred by Secured Party pursuant to the foregoing
authorization, and any payment made or expense reasonably incurred by
Secured Party pursuant to the foregoing authorization shall be part of
the Obligations.
5. Rights and Remedies Upon Default.
(a) Upon the occurrence and during the continuation of any
Event of Default, Secured Party shall have, in addition to all other rights
and remedies provided herein, in the Credit Agreement, or by applicable law,
all of the rights and remedies of a Secured Party under the Code, and under
the Uniform Commercial Code as enacted in any jurisdiction in which the
Collateral may be found, or in which Debtor becomes involved in proceedings
in insolvency or bankruptcy.
(b) Debtor agrees that, to the extent notice of sale shall be
required by law, at least 10 days' notice to Debtor of the time and place of
any public sale or the time after which any private sale or any other
intended disposition is to be made shall constitute reasonable notification
of such sale or disposition. Secured Party shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given.
Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(c) Secured Party may, instead of exercising the powers of
sale provided for herein and under the Code, proceed by a suit or suits, at
law or in equity, to foreclose the security interest granted under this
Agreement and sell the Collateral, or any portion thereof, under a judgment
or decree of any court or courts of competent jurisdiction. Secured Party
shall also have the right to apply for and have a receiver appointed by a
court of competent jurisdiction in any action taken by Secured Party to
enforce its rights and remedies hereunder, to manage, protect and preserve
the Collateral or continue the operation of the business of Debtor, and
Secured Party shall be entitled to collect all revenues and profits thereof
and apply the same to the payment of all expenses and other charges of such
receivership, including the compensation of the receiver, and to the payment
of the Obligations until a sale or other disposition of such Collateral shall
be finally made and consummated.
(d) In the event of any disposition or collection of or any
other realization upon all or any part of the Collateral, Secured Party shall
apply the proceeds of such disposition, collection or other realization as
follows:
(I) First, to the payment of the reasonable costs and
expenses of Secured Party in exercising or enforcing its rights
hereunder, including, but not limited to, costs and expenses incurred in
retaking, holding and/or preparing the Collateral for sale, lease or
other disposition, and in collecting or attempting to collect any of the
Collateral, and to the payment of all amounts payable to Secured Party
pursuant to Section 6 hereof;
(ii) Second, to the payment of the Obligations; and
(iii) Third, after payment in full of all of the
Obligations, the surplus, if any, shall be paid to Debtor or to
whomsoever may be lawfully entitled to receive such surplus.
6. Indemnity and Expenses. Debtor agrees to indemnify Secured Party
from and against any and all claims, losses, liabilities and obligations
arising out of or resulting from this Agreement (including, without
limitation, enforcement of this Agreement or any actions taken by Secured
Party pursuant to Section 7 of this Agreement) except claims, losses,
liabilities or obligations resulting from Secured Party's own gross
negligence or willful misconduct. Debtor will on demand pay to Secured Party
the amount of any and all reasonable out of pocket costs and expenses,
including but not limited to the reasonable fees and disbursements of its
counsel and of any experts or agents, which Secured Party may incur in
connection with (I) the exercise or enforcement by Secured Party of any of
its rights or remedies hereunder, or (ii) any failure by Debtor to perform
any of the Obligations.
7. Further Assurances and Power of Attorney. Debtor will execute and
deliver to Secured Party, at Secured Party's request, at any time and from
time to time, such financing statements and other instruments and documents
(and pay the cost of filing or recording the same in all public offices
deemed necessary or desirable by Secured Party) and do such other acts and
things as Secured Party may reasonably deem necessary or desirable in order
to establish and maintain a valid Lien in the Collateral in favor of Secured
Party (free and clear of all other Liens, except for Permitted Liens) or in
order to facilitate the collection of the Collateral. To effectuate the
rights and remedies of Secured Party hereunder, Debtor hereby irrevocably
appoints Secured Party attorney-in-fact for Debtor in the name of Debtor or
Secured Party, with full power of substitution, after the occurrence and
during the continuance of any Event of Default, to sign, execute and deliver
any and all instruments, documents, licenses, sublicenses, registrations,
filings and other writings and do any and all acts and things to the same
extent as Debtor could do, to sell, assign and transfer any Collateral,
including, but not limited to, taking all action necessary or desirable to
obtain the approval of any governmental body to the transfer or issuance to
Secured Party or any other person, firm or corporation of any Collateral.
8. Debtor Remains Liable. Anything herein to the contrary
notwithstanding, (I) Debtor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (ii) the exercise by Secured Party of
any of its rights hereunder shall not release Debtor from any of its duties
or obligations under the contracts and agreements included in the Collateral,
and (iii) Secured Party shall not have any obligation or liability under the
contracts and agreements included in the Collateral by reason of this
Agreement, nor shall Secured Party be obligated to perform any of the
obligations or duties of Debtor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
9. [Intentionally Left Blank]
10. Waivers; Remedies Cumulative. Debtor waives notice of the
acceptance of this Agreement and all other notices, demands or protests to
which Debtor might otherwise be entitled by law in respect to this Agreement,
the Obligations or the Collateral, and which may be lawfully waived. Secured
Party shall have no duty as to the collection or protection of the Collateral
or any income thereon, nor as to the preservation of rights against prior
parties, nor as to the preservation of any rights pertaining to the
Collateral beyond reasonable care in the custody or preservation thereof.
Secured Party may exercise its rights and remedies with respect to the
Collateral without resorting or regard to other security or sources for
payment. All rights and remedies of Secured Party hereunder or with respect
to the Obligations or the Collateral shall be cumulative and may be exercised
singularly or concurrently.
11. Assignment. If at any time or times by sale, assignment,
negotiation, pledge or otherwise, Secured Party transfers any of the
Obligations, such transfer shall carry with it such Secured Party's rights
and remedies under this Agreement with respect to the Obligations
transferred, and the transferee shall become vested with such rights and
remedies whether or not they are specifically referred to in the transfer.
If and to the extent Secured Party retains any other Obligations, Secured
Party shall continue to have the rights and remedies herein set forth with
respect thereto.
12. Notices. Any notice or communication required or permitted to be
given or delivered under this Agreement shall be in writing and shall be
given in accordance with the procedures set forth in Section 7.2 of the
Credit Agreement. Debtor's address and Secured Party's address for notices
or communications shall be as stated in the Credit Agreement.
13. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California applicable to contracts made and to
be performed in the State of California, except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Collateral are governed by the laws
of a jurisdiction other than the State of California. Whenever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
14. Miscellaneous. Neither this Agreement nor any provision hereof may
be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. This Agreement shall be
binding upon Debtor and its successors and assigns, and all persons claiming
under or through Debtor or any such successor or assign, and shall inure to
the benefit of and be enforceable by Secured Party and its successors and
assigns. Upon payment in full and performance of the Obligations, this
Agreement shall terminate and be of no further force and effect, and Secured
Party will redeliver and reassign to Debtor the remaining Collateral and take
all action necessary to terminate the security interest of the Secured Party
in the Collateral.
15. Counterparts. This Agreement and any amendments, waivers, consents
or supplements hereto and thereto may be executed in any number of
counterparts, and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
Each such agreement shall become effective upon the execution of a
counterpart hereof or thereof by each of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Security Agreement as
of the day and year first above written.
DEBTOR:
MAXTOR CORPORATION
By:
Title:
SECURED PARTY:
HYUNDAI ELECTRONICS AMERICA
By:
Title:
