EXHIBIT 10.9
WAIVER AND AMENDMENT
Reference is hereby made to the Amended and Restated Receivables
Purchase Agreement, dated as of November 15, 2001 (as heretofore amended, the
"Receivables Purchase Agreement") among MAXTOR RECEIVABLES CORPORATION, a
California corporation ("Seller"), MAXTOR CORPORATION, a Delaware corporation
("Maxtor"), the commercial paper conduits named therein (the "Conduit
Purchasers"), the financial institutions named therein (the "Committed
Purchasers"), the parties named therein as agents (the "Agents"), and FLEET
NATIONAL BANK, a national banking association, as administrator for the
Purchasers (in such capacity, the "Administrator"). Capitalized terms used in
this Waiver and not otherwise defined herein shall have the meanings assigned
thereto in the Receivables Purchase Agreement.
The Committed Purchasers and the Administrator hereby waive the
occurrence of a Liquidation Event pursuant to Section 10.01(p)(i) of the
Receivables Purchase Agreement resulting from the failure of the Parent to have
the Tangible Net Worth required pursuant to such section for any day occurring
on or prior to September 30, 2002, so long as, and only so long as, the Parent's
Tangible Net Worth is not less than negative fifty million Dollars
(-$50,000,000).
The definition of "Termination Date" set forth in Appendix A to the
Receivables Purchase Agreement is hereby amended by deleting the date set forth
in clause (c) thereof and substituting therefor the date "November 13, 2002".
Maxtor hereby agrees to pay to each Committed Purchaser that executes
and delivers this Waiver and Agreement to the Administrator on or before 5:00
p.m., New York time, on October 22, 2002, a waiver fee of $15,000. Such waiver
fee shall be payable in immediately available funds on or before October 23,
2002.
Each of Parent and Seller hereby represents and warrants that, after
giving effect to this Waiver, (i) the representations and warranties contained
in Article VI of the Receivables Purchase Agreement are true and correct on and
as of the date hereof and shall be deemed to have been made on such date (except
that any such representation or warranty that is expressly stated as being made
only as of a specified earlier date shall be true and correct in all material
respects as of such earlier date) and (ii) no Liquidation Event or Unmatured
Liquidation Event has occurred and is continuing.
The Receivables Purchase Agreement remains in full force and effect.
This Waiver is only with respect to the specified circumstance described above,
and does not relate to any other Liquidation Event or Unmatured Liquidation
Event, either now existing or hereafter occurring. This Waiver and Amendment may
be executed in counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement. This Waiver and Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York. Seller, on demand, shall
pay, or reimburse the Administrator for, all of the costs and expenses,
including legal fees and disbursements, incurred by the Administrator or any
Purchaser in connection with this Waiver.
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IN WITNESS WHEREOF, each of the undersigned has caused this Waiver and
Amendment to be executed and delivered by its duly authorized officer as of
this 21st day of October, 2002.
MAXTOR RECEIVABLES CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: CFO
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MAXTOR CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Treasurer
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S-1
FLEET NATIONAL BANK, as Administrator
By: /s/ Xxxxx X. Sakeipe
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Name Printed: Xxxxx X. Sakeipe
Title: Vice President
S-2 Waiver and Amendment
FLEET NATIONAL BANK, as a
Committed Purchaser
By: /s/ Xxx X. Xxxxxx-Xxxxxxx
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Name Printed: Xxx X. Xxxxxx-Xxxxxxx
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Title: Director
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WAIVER
COMERICA BANK, as a Committed Purchaser
By: Xxxxx Xxxxxxxx
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Name Printed: Xxxxx Xxxxxxxx
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Title: Vice President
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S-4
Waiver and Amendment
THE BANK OF NOVA SCOTIA, as a Committed
Purchaser
By: /s/ J. Xxxx Xxxxxxx
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Name Printed: J. XXXX XXXXXXX
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Title: MANAGING DIRECTOR
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WAIVER AND AMENDMENT
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