EXHIBIT 10.89
FORBEARANCE AGREEMENT
This FORBEARANCE AGREEMENT (the "Agreement") dated as of March 10, 2004 by
and among Radian Reinsurance Inc., as insurer (the "Facility Insurer"), Maxtor
Funding LLC, as borrower (the "Borrower"), Maxtor Corporation (individually,
"Maxtor"), as servicer under the Loan Agreement (as defined below), (together
with its successors and assigns in such capacity, the "Servicer"), and Xxxxxxx
Xxxxx Commercial Finance Corp., as Lender and Agent under the Loan Agreement (in
each such capacity, the "Lender" and the "Agent", respectively), and U.S. Bank
National Association, ("US Bank") in its capacities as "Backup Servicer",
"Trustee", "Collateral Agent" and "Collection Account Bank" under the Loan
Agreement. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Loan Agreement defined below.
PRELIMINARY STATEMENTS
Reference is hereby made to that certain Receivables Loan and
Security Agreement (the "Loan Agreement") dated as of May 9, 2003, by and among
the Facility Insurer, the Borrower, the Servicer, the Lender , the Agent, the
Backup Servicer, Trustee, Collateral Agent and the Collection Account Bank.
WHEREAS, an Early Amortization Event has occurred under Section
7.01(m) of the Loan Agreement, in that the rolling average of the
Dilution-to-Liquidation Ratios for the three preceding Cut-Off Dates as reported
in the Monthly Remittance Report delivered on March 8, 2004, exceeded 15.00%,
and such Early Amortization Event (the "Dilution Trigger Event") gives either
the Agent or the Facility Insurer the right (i) to declare the Amortization
Commencement Date to have occurred and (ii) to declare a Servicer Default under
clause (iv) of the definition thereof on account of such Dilution Trigger Event
and to terminate the rights and obligations of the Servicer under the Loan
Agreement.
WHEREAS, the Borrower has requested that each of the Agent and the
Facility Insurer (collectively, the "Forbearance Parties") forbear from the
exercise of their rights to declare an Amortization Commencement Date pursuant
to Section 7.01 of the Loan Agreement or to terminate Maxtor as Servicer, and
the Forbearance Parties are willing, upon the satisfaction of certain conditions
precedent and subject to the terms herein, to forbear temporarily from the
exercise of such right.
NOW THEREFORE, in consideration of the mutual conditions and
agreements set forth in the Transaction Documents and this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
I. FORBEARANCE.
1.1 Subject to the terms and conditions set forth herein, each
Forbearance Party hereby agrees, during the period from the time this Agreement
becomes effective pursuant to Section 2 until 9:00 a.m. New York time on March
31, 2004 (such period, as it may be prematurely terminated at the option of the
Facility Insurer or the Agent pursuant to the terms of this Agreement, the
"Forbearance Period"), to forbear temporarily from exercising its rights, on
account of the Dilution Trigger Event, to declare an Amortization Commencement
Date or to terminate Maxtor as Servicer under the Loan Agreement. This agreement
to forbear on account of the Dilution Trigger Event as provided herein expires
at the conclusion of the Forbearance Period and any or each Forbearance Party
may, at any time thereafter, exercise any of its rights and remedies with
respect to the Dilution Trigger Event to the same extent as if this Agreement
did not exist, including without limitation, the right to declare the occurrence
of the Amortization Commencement Date, terminate Maxtor as Servicer, and
exercise any remedies set forth in the Transaction Documents which are
exercisable from and after the Amortization Commencement Date.
1.2 The specific agreement to forbear described in Section 1.1 above
applies only to the Dilution Trigger Event and not to any other facts or
circumstances giving rise to an Early Amortization Event or Servicer Default
which may have occurred or may hereafter occur, and nothing in this Agreement
shall be deemed to restrict any right or remedy any Forbearance Party may have
on account of any such other Early Amortization Event or Servicer Default,
including the right to declare the occurrence of the Amortization Commencement
Date at any time during the Forbearance Period on account of any such other
Early Amortization Event or to terminate the Servicer during the Forbearance
Period on account of any such other Servicer Default. The Forbearance Parties
are not hereby waiving the existence of any Early Amortization Event or Servicer
Default, and are merely agreeing to forbear as provided herein during the
Forbearance Period. Except for the forbearance expressly set forth above in
Section 1.1, each Forbearance Party expressly reserves each and every right and
remedy it has under the Transaction Documents and under applicable law, and
nothing in this Agreement shall be deemed to constitute a waiver of any Early
Amortization Event or Servicer Default whether now existing or hereafter
arising, or, constitute a waiver of, or, except for the forbearance expressly
set forth above in Section 1.1, forbearance of, any right or remedy the
Forbearance Parties may have under any of the Transaction Documents or
applicable law.
1.3 The Borrower acknowledges and agrees that, due to the existence
of the Dilution Trigger Event, the conditions precedent to borrowing under
Section 3.02(c)(ii) of the Loan Agreement are not satisfied and the Lender is
not required to advance, nor is the Borrower entitled to receive, any Loans
under the Loan Agreement. The Borrower hereby irrevocably agrees that it shall
not seek any further Loans under the Loan Agreement and will not be entitled to
receive any further Loans hereafter unless the Dilution Trigger Event has been
waived by the Facility Insurer, the Agent and the Lender. The Borrower further
acknowledges that, due to the existence of the Dilution Trigger Event, the
Facility Insurer is entitled to receive Default Premium and the Lender is
entitled to receive Default Yield and such amounts shall be paid from the
Collection Account in accordance with Section 2.05(c) of the Loan Agreement.
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1.4 Each of the Borrower, the Agent, the Lender and the Facility
Insurer hereby irrevocably directs the Trustee, Collateral Agent and Collection
Account Bank, and the Trustee, Collateral Agent and Collection Account Bank
hereby agree, that, notwithstanding anything to the contrary in the Loan
Agreement, during the Forbearance Period, (i) the Trustee shall not release any
funds in the Collection Account to the Originator or the Borrower under Section
2.05(f) of the Loan Agreement until such time as the Loans have been prepaid in
full and all other amounts due and owing to the Facility Insurer, the Agent and
the Lenders have been paid; (ii) on the Remittance Date to occur on or about
March 12, 2004 all funds in the Collection Account shall be applied in the order
of priority set forth in Section 2.05(c) of the Loan Agreement including,
pursuant to clause (vi) thereof, to the repayment of the principal amount of
Loans, and (iii) on each Business Day after such Remittance Date an amount equal
to (x) all funds in the Collection Account minus (y) the amounts otherwise
required to be retained on deposit therein under Section 2.05(f) of the Loan
Agreement in respect of accrued Yield, Premium, Non-Use Fees, Servicing Fees,
Backup Standby Servicer Fees and Trustee Fees, shall be paid to the Lender in
repayment of the principal of Loans.
1.5 During the Forbearance Period, the Borrower and the Servicer
hereby agree to honor and forward promptly to the Facility Insurer and the Agent
all outstanding informational requests made by the Agent and/or the Facility
Insurer or their respective accountants and advisors in connection with their
February 2004 on-site due diligence meetings with the Servicer and further
acknowledge and agree that each of the Agent and the Facility Insurer shall, at
the expense of the Borrower, be entitled to receive additional information and
conduct further audits in accordance with Section 6.13 of the Loan Agreement.
Each of the Facility Insurer and the Agent agrees that it shall concurrently
send to the other a copy of any informational requests or notices related to
this Agreement or the Loan Agreement that such party sends to the Borrower or
the Servicer. The Borrower and the Servicer agree that they shall concurrently
send (i) to the Agent a copy of any requested information and any other notice
related to this Agreement or the Loan Agreement sent to the Facility Insurer and
(ii) to the Facility Insurer a copy of any requested information and any other
notice related to this Agreement or the Loan Agreement sent to the Agent.
1.6 Each of the Borrower and the Servicer expressly acknowledge and
agree that the agreement of the Forbearance Parties under Section 1.1 to forbear
as provided herein is expressly conditioned on compliance by each of the
Borrower and the Servicer with the covenants, agreements, terms and conditions
contained herein and that if the Borrower or the Servicer fails to comply with
any such covenants, agreements, terms or conditions or if the information
provided pursuant to Section 1.5 above is not satisfactory to any Forbearance
Party for any reason, such Forbearance Party shall have the right, by written
notice to the other parties hereto, to declare that the Forbearance Period has
terminated upon which declaration this Agreement shall no longer be of any force
and effect and each Forbearance Party shall be entitled to exercise all rights
the exercise of which are otherwise temporarily postponed under Section 1.1
above.
II. CONDITION PRECEDENT. This Agreement shall become effective, as
of the date first above written, upon execution by each of the parties hereto.
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III. REPRESENTATIONS AND WARRANTIES.
3.1 Upon the effectiveness of this Agreement, each of the Borrower
and the Servicer hereby reaffirms all covenants, representations and warranties
made by it in the Transaction Documents and agrees that all such covenants,
representations and warranties shall be deemed to have been re-made as of the
effective date of this Agreement (except for any representations or warranties
which speak as of a specific date only, in which event they are reaffirmed as of
such date). Additionally, Maxtor hereby reaffirms all covenants, representations
and warranties made by it in the Transaction Documents individually or as
Originator, and agrees that all such covenants, representations and warranties
shall be deemed to have been re-made as of the effective date of this Agreement
(except for any representations or warranties which speak as of a specific date
only, in which event they are reaffirmed as of such date).
3.2 Each of the Borrower and Maxtor (individually and as the
Servicer) hereby represents and warrants, as to itself, that (a) this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms and (b) there is no consent, approval or other
requirement known to it which could reasonably be expected to impair or
materially delay its ability to perform its obligations under this Agreement,
the Loan Agreement or the Transaction Documents as proposed to be modified
hereby.
IV. RATIFICATION AND RELEASE.
4.1 Each Transaction Document is in all respects hereby ratified and
confirmed by the Borrower, Maxtor and the Servicer and, except to the extent
expressly provided in this Agreement, none of the execution, delivery or
effectiveness of this Agreement shall operate as a forbearance in respect of any
rights, powers or remedies of the Agent, the Lender or the Facility Insurer of
any provision contained in any Transaction Document, whether as a result of any
Early Amortization Event, Servicer Default, or otherwise. Each of the Borrower,
Maxtor and the Servicer hereby: (i) ratifies and reaffirms all of its payment
and performance obligations, contingent or otherwise, under each Transaction
Document to which it is a party, (ii) agrees and acknowledges that such
ratification and reaffirmation is not a condition to the continued effectiveness
of such Transaction Document and (iii) acknowledges that no Forbearance Party
has made any promises, covenants or commitments with respect to whether or not
it is willing to waive the Dilution Trigger Event described above.
4.2 The Facility Insurer hereby acknowledges and agrees that none of
the execution, delivery or effectiveness of this Agreement or the performance of
any provisions hereof shall operate as a waiver or forbearance in respect of any
rights, powers or remedies the Agent and/or the Lenders may have as against the
Facility Insurer under the Facility Insurance Policy or the Facility Insurance
Agreement, or otherwise impair, restrict or limit in any manner any such rights
and remedies of the Agent and the Lenders, which Facility Insurance Policy and
Facility Insurance Agreement remain in full force and effect and are hereby
ratified and confirmed in all respects.
4.3 Each of the Borrower, Maxtor and the Servicer hereby
acknowledges and confirms that (i) it does not have any grounds, and hereby
agrees not to challenge (or to allege or to pursue any matter, cause or claim
arising under or with respect to), in any case based upon
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acts or omissions of any of the Forbearance Parties occurring prior to the date
hereof or facts otherwise known to it as of the date hereof, the effectiveness,
genuineness, validity, collectibility or enforceability of any Transaction
Document, or any ownership interests, security interests or other Liens created
thereunder and (ii) it does not possess (and hereby forever waives, remises,
releases, discharges and holds harmless each Forbearance Party and their
respective affiliates, stockholders, directors, officers, employees, attorneys,
agents and representatives and each of their respective heirs, executors,
administrators, successors and assigns (collectively, the "Indemnified Parties")
from and against, and agrees not to allege or pursue) any action, cause of
action, suit, debt, claim, counterclaim, cross-claim, demand, defense, offset,
opposition, and other right of action whatsoever, whether in law, equity or
otherwise (which it, all those claiming by, through or under it, or its
successors or assigns, have or may have) against the Indemnified Parties, or any
of them, by reason of, any matter, cause or thing whatsoever, with respect to
events or omissions occurring or arising on or prior to the date hereof and
relating to any of the Transaction Documents.
V. MISCELLANEOUS
5.1 SEVERABILITY. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
5.2 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument. This Agreement may also be
executed by facsimile and each facsimile signature hereto shall be deemed for
all purposes to be an original signature page.
5.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
5.4 SECTION TITLES. The section titles contained in this Agreement
are and shall be without substance, meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
5.5 TRANSACTION DOCUMENTS. Each of the parties hereto irrevocably
agrees that this Agreement constitutes a "Transaction Document" within the
meaning of the Loan Agreement and that the provisions of Article IX of the Loan
Agreement with respect to amendments, notices to be given, and waivers of jury
trial shall apply to any amendments of this Agreement, any notices to be given
hereunder or any action or proceeding with respect to this Agreement.
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5.6 BINDING EFFECT. This Agreement shall become effective when it
shall have been executed by the parties hereto and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
5.7 EXPENSES. The Servicer hereby agrees to promptly reimburse the
Facility Insurer, the Agent and US Bank for all reasonable out-of-pocket
expenses, including, without limitation, reasonable attorneys' and other
professionals' fees, either such party has heretofore or hereafter incurred or
incurs in connection with the preparation, negotiation, execution and/or
enforcement of this Agreement or any document, instrument, agreement delivered
pursuant to this Agreement, and the Borrower acknowledges that the Borrower is
obligated to pay such amounts under the Loan Agreement and the Insurance
Agreement in the event the Servicer does not do so and that such obligations are
secured under the Loan Agreement.
5.8 INTEGRATION. This Agreement contains the final and complete
understanding by the parties hereto with respect to the subject matter hereof
and shall supersede all other oral or written understandings with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Forbearance Agreement
as of March 10, 2004.
RADIAN REINSURANCE INC., as Facility Insurer
By: /s/
---------------------------------
Name:
Title:
MAXTOR FUNDING LLC
By: /s/
---------------------------------
Name:
Title:
MAXTOR CORPORATION, individually and as Servicer
By: /s/
---------------------------------
Name:
Title:
XXXXXXX XXXXX COMMERCIAL FINANCE CORP.,
as Agent and as Lender
By: /s/
---------------------------------
Name:
Title:
Acknowledged and Agreed:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, Collateral Agent, Collection Account Bank and Backup Servicer
By: /s/
--------------------------------
Name:
Title:
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