Exhibit 10.72
EXECUTION COPY
REPURCHASE AGREEMENT
REPURCHASE AGREEMENT (the "Agreement") dated as of December 31, 2002
among MAXTOR RECEIVABLES CORPORATION, a California corporation ("Seller"),
MAXTOR CORPORATION, a Delaware corporation ("Servicer"), the financial
institutions named herein (the "Purchasers") and FLEET NATIONAL BANK, a national
banking association, as administrator for the Purchasers (in such capacity, the
"Administrator").
PRELIMINARY STATEMENTS.
(1) The Seller, the Servicer, Blue Keel Funding, LLC (the "Conduit
Purchaser"), the Purchasers and the Administrator are parties to an Amended and
Restated Receivables Purchase Agreement dated as of November 15, 2001 (as
amended, the "RPA"). Terms not defined herein are used as defined in the RPA.
(2) The Conduit Purchaser has assigned all of its right, title and
interest under the RPA to the Purchasers in their capacities as Liquidity
Providers.
(3) The Seller desires (i) to repurchase from the Purchasers all
of the Pool Receivables and all of the other Pool Assets, (ii) to repay in full
all other amounts due to the Administrator and the Purchasers pursuant to the
RPA, and (iii) to terminate the RPA.
NOW, THEREFORE, the parties hereto hereby acknowledge and agree as
follows:
1. The Purchasers hereby agree to transfer and assign on December
31, 2002 (the "Repurchase Date"), and the Seller hereby agrees to acquire on and
as of such date, all of the Purchasers' interest in each of the Pool Receivables
and other Pool Assets previously sold and assigned by the Seller to the
Purchasers pursuant to the RPA. The purchase price for the interests of the
Purchasers in such Pool Receivables and other Pool Assets shall be an amount
equal to the sum of (a) the aggregate Capital for all Asset Interests, plus (b)
Earned Discount through the Repurchase Date, plus (c) all accrued and unpaid
fees due to the Administrator or the Purchasers under the RPA, in each case as
set forth in Schedule I hereto. All amounts set forth in Schedule I shall be
paid to the Administrator no later than 12:00 noon (New York City time) on the
Repurchase Date, and shall be made in immediately available funds in U.S.
Dollars by wire transfer to an account designated by the Administrator. The
Administrator shall promptly remit the amounts described in clauses (a), (b) and
(c) above to the applicable Purchasers.
2. Effective upon the Administrator's receipt of the amounts
described in Section 1 above, the RPA shall be terminated (provided, that such
termination shall not apply to those provisions of the RPA which, by their
express terms survive the termination of the RPA), and other than as set forth
herein, the Seller and its Affiliates shall have no further obligations or
liabilities thereunder to the Administrator and the Purchasers. Concurrently
with its receipt of the amounts described in Section 1 above, all Liens that the
Originator or the Seller granted in connection with
the RPA and the other Transaction Documents, whether or not specifically
referred to herein, shall be automatically released and terminated and shall be
of no further force or effect.
3. The Seller further agrees to indemnify and hold harmless the
Administrator and the Purchasers (each an "Indemnified Party") from and against
any and all damages, losses, claims, liabilities and related costs and expenses
including, without limitation, the reasonable fees and disbursements of counsel
(all of the foregoing being collectively referred to as "Indemnified Amounts"),
growing out of or resulting from this Agreement and any other documents
delivered hereunder, excluding, however, (a) Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of such
Indemnified Party, or (b) any income taxes incurred by such Indemnified Party
arising out of or as a result of this Agreement and any other documents
delivered hereunder. The Seller agrees to pay on demand all reasonable costs and
expenses in connection with the preparation, execution, delivery and
administration of this Agreement and any other documents to be delivered
hereunder including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Administrator and the Purchasers with respect
thereto and with respect to advising the Administrator and the Purchasers as to
the rights and remedies of each under this Agreement, and all reasonable costs
and expenses, if any (including reasonable counsel fees and expenses), in
connection with the enforcement of this Agreement and any other documents to be
delivered hereunder.
4. The Administrator and each Purchaser agrees to execute and
deliver such further documents and do such further acts as the Seller from time
to time may reasonably request for the purpose of further evidencing,
confirming, recording or otherwise documenting the retransfers and terminations
contemplated by this Agreement, including, without limitation, preparing and
filing any necessary UCC termination statements, subject in each case to the
Seller's payment on demand by the Administrator of the costs and expenses
(including reasonable counsel fees and disbursements) of the Administrator and
the Purchasers in connection therewith; provided, however, that no such party
shall be required to take any action which exposes the Administrator or the
Purchasers to liability or which is contrary to this Agreement or applicable
law. Without limiting the foregoing, the Administrator and the Purchasers hereby
authorize the Seller to file such UCC termination statements as may be necessary
in order to effectuate the transaction contemplated by this Agreement.
5. This Agreement 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 to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
6. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, except with respect to the
conflicts of laws provisions thereof.
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IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be duly executed by their authorized officers thereunto duly authorized, as
of the date first above written.
MAXTOR RECEIVABLES CORPORATION, as Seller
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: CFO
MAXTOR CORPORATION, as Servicer
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
FLEET NATIONAL BANK, as a Purchaser
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Director
THE BANK OF NOVA SCOTIA, as a Purchaser
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
COMERICA BANK, as a Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK, as Administrator
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Director
Signature Page to Repurchase Agreement
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SCHEDULE I
All of the following amounts are computed as of December 31, 2002 (inclusive):
Capital $ 25,714,285.43
Earned Discount $ 66,927.59
Liquidity Fee $ 11,759.49
Other Costs and Expenses, including counsel fees $ 4,080.00
TOTAL: $ 25,797,052.51
