Exhibit 10.71
FIFTH AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This Fifth Amendment to Amended and Restated Receivables Purchase
Agreement dated as of December 13, 2002 (the "Amendment") is among MAXTOR
RECEIVABLES CORPORATION, a California corporation ("Seller"), MAXTOR
CORPORATION, a Delaware corporation ("Servicer"), the financial institutions
named herein (the "Committed Purchasers") and FLEET NATIONAL BANK, a national
banking association, as administrator for the Purchasers (in such capacity, the
"Administrator").
BACKGROUND
1. Seller, Servicer, the Conduit Purchasers, the Committed
Purchasers, the "Agents" and the Administrator are parties to that certain
Amended and Restated Receivables Purchase Agreement, dated as of November 15,
2001, as amended by the First Amendment to Amended and Restated Receivables
Purchase Agreement, dated as of February 15, 2002, the Second Amendment to
Amended and Restated Receivables Purchase Agreement, dated as of March 15, 2002,
the Third Amendment to Amended to Restated Receivables Purchase Agreement, dated
as of May 28, 2002, the Waiver and Amendment dated as of October 21, 2002 and
the Fourth Amendment to Amended and Restated Receivables Purchase Agreement
dated as of November 5, 2002 (the "Receivables Purchase Agreement").
2. The Committed Purchasers, acting in their respective
capacities as Liquidity Banks have made Liquidity Fundings for the benefit of
the applicable Conduit Purchasers.
3. The parties hereto desire to amend the Receivables Purchase
Agreement in certain respects as 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 parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment
and not otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
SECTION 2. Termination Date. 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 "January 3, 2003".
SECTION 3. Additional Reporting. On each of December 16, 23 and
30, 2002, Servicer shall deliver to the Administrator a report of the balances
in Servicer's account no. 19268 in the Blackrock Provident Institutional Funds,
Tempfund 024. Such reports shall be issued or verified by Provident Financial
and may be delivered by facsimile.
SECTION 4. Representations and Warranties. Each of Parent and
Seller hereby represents and warrants that, after giving effect to this
Amendment, (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.
SECTION 5. Miscellaneous. The Receivables Purchase Agreement, as
amended hereby, remains in full force and effect. Any reference to the
Receivables Purchase Agreement from and after the date hereof shall be deemed to
refer to the Receivables Purchase Agreement as amended hereby. This 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 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 Amendment.
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2
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment
to be executed and delivered by its duly authorized officer as of the date first
above written.
MAXTOR RECEIVABLES CORPORATION
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: CFO
MAXTOR CORPORATION
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
FLEET NATIONAL BANK, as successor to Blue
Keel Funding, LLC., as Administrator and as
a Committed Purchaser
By: /s/ Xxx X. Xxxxxx-Xxxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx-Xxxxxxx
Title: Director
COMERICA BANK, as a Committed Purchaser
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as successor to
Liberty Street Funding Corp, and as a
Committed Purchaser
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
Title: Director
