EXHIBIT 10.92
SECOND AMENDMENT TO AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT
This Second Amendment to Amended and Restated Receivables Purchase
Agreement, dated as of March 15, 2002 (this "Amendment"), is among MAXTOR
RECEIVABLES CORPORATION, a California corporation ("Seller"), MAXTOR
CORPORATION, a Delaware corporation ("Maxtor"), the commercial paper conduits
named herein (the "Conduit Purchasers"), the financial institutions named herein
(the "Committed Purchasers"), the parties named herein as agents (the "Agents"),
and FLEET NATIONAL BANK, a national banking association, as administrator for
the Purchasers (in such capacity, the "Administrator").
BACKGROUND
1. Seller, Maxtor, 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 "Receivables Purchase Agreement").
2. 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. Purchase Limit. Section 1.01 of the Receivables Purchase
Agreement is hereby amended by deleting the number "$300,000,000" where it
appears therein and substituting therefor the number "$210,000,000".
SECTION 3. Termination of Holland Limited Securitization as a Purchaser.
Effective as of the receipt by Holland Limited Securitization, Inc. ("Holland")
of the amounts set forth in the following sentence, Holland shall no longer be a
Conduit Purchaser and ING Baring (U.S.) Capital Markets LLC ("ING") shall no
longer be a Committed Purchaser or an Agent pursuant to the Receivables Purchase
Agreement. On the date hereof, (i) Blue Keel Funding, LLC and Liberty Street
Funding Corp. shall fund an amount such that after giving effect to such
funding, each of them shall have outstanding Capital equal to its Percentage
(calculated after giving effect to the termination of Holland's Commitment) of
the aggregate then outstanding Capital, which amount shall be paid to Holland
and (ii) Seller shall pay to Holland an amount equal to all of the accrued and
unpaid Earned Discount with respect to Holland's Funded Percentage of the
Capital.
Effective upon receipt by Holland of the foregoing amounts, all of Holland's and
ING's interests and rights in and to the Pool Assets shall be assigned to the
Administrator, for the benefit of the remaining Purchasers, and Holland and ING
shall have no further interest therein. From and after such date, neither
Holland nor ING shall have any further rights or obligations under the
Receivables Purchase Agreement or any other Transaction Document, except with
respect to (i) any rights to indemnities, fees, costs or expenses under the
Receivables Purchase Agreement to the extent such rights arise from events or
circumstances existing or arising prior to such date and (ii) those provisions
of the Receivables Purchase Agreement that expressly survive termination.
SECTION 4. Sales-Based Default Ratio. Section 10.01(h) of the
Receivables Purchase Agreement is hereby amended by deleting the text thereof in
its entirety and substituting therefor the following:
(h) The average of the Sales-Based Default Ratios for any three
successive Cut-Off Dates exceeds 5%; or
SECTION 5. Continued Effectiveness of Amendment. The parties hereto
hereby agree that, notwithstanding anything to the contrary contained in Section
5 thereof, the effectiveness of the First Amendment to Amended and Restated
Receivables Purchase Agreement, dated as of February 15, 2002 shall not expire
on May 15, 2002, but shall continue in full force and effect.
SECTION 6. 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 7. 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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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
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Title: Treasurer
---------------------------------
MAXTOR CORPORATION
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
----------------------------------
Title: Treasurer
---------------------------------
S-1
BLUE KEEL FUNDING, LLC,
as a Conduit Purchaser
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name Printed: Xxxxxx X. Xxxxxx
--------------------------
Title: Vice President
---------------------------------
S-2
FLEET NATIONAL BANK, as Administrator
and as Blue Keel Agent
By: /s/ XXXX XXXXXXXXX
------------------------------------
Name Printed: Xxxx Xxxxxxxxx
--------------------------
Title: Director
---------------------------------
S-3
FLEET NATIONAL BANK, as a
Committed Purchaser
By: /s/ XXX X. XXXXXX-XXXXXXX
------------------------------------
Name Printed: Xxx X. Xxxxxx-Xxxxxxx
--------------------------
Title: Director
---------------------------------
S-4
COMERICA BANK, as a Committed Purchaser
By: /s/ XXXX X. XXXXXX
------------------------------------
Name Printed: Xxxx X. Xxxxxx
--------------------------
Title: Vice President
---------------------------------
S-5
HOLLAND LIMITED SECURITIZATION, INC.,
By: ING Baring (U.S.) Capital Markets
LLC, as Attorney-in-Fact
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name Printed: Xxxxxx X. Xxxxxx
--------------------------
Title: Vice President
---------------------------------
S-6
ING BARING (U.S.) CAPITAL MARKETS LLC,
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name Printed: Xxxxxx X. Xxxxxx
--------------------------
Title: Vice President
---------------------------------
S-7
ING BARING (U.S.) CAPITAL MARKETS LLC
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name Printed: Xxxxxx X. Xxxxxx
--------------------------
Title: Vice President
---------------------------------
X-0
XXXXXXX XXXXXX FUNDING CORP., as a
Conduit Purchaser
By: /s/ XXXXX X. XXXXX
------------------------------------
Name Printed: Xxxxx X. Xxxxx
--------------------------
Title: Vice President
---------------------------------
X-0
XXX XXXX XX XXXX XXXXXX, as Liberty
Street Agent
By: /s/ XXXX XXXXXXX
------------------------------------
Name Printed: Xxxx Xxxxxxx
--------------------------
Title: Managing Director
---------------------------------
X-00
XXX XXXX XX XXXX XXXXXX, as a Committed
Purchaser
By: /s/ XXXX XXXXXXX
------------------------------------
Name Printed: Xxxx Xxxxxxx
--------------------------
Title: Managing Director
---------------------------------
S-11
