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EXHIBIT 10.168
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PURCHASE AND SALE AGREEMENT
among
MAXTOR CORPORATION,
as an Originator and initial Servicer,
CERTAIN SUBSIDIARIES OF MAXTOR CORPORATION
THAT MAY BECOME PARTY HERETO,
as Originators
and
MAXTOR RECEIVABLES CORPORATION,
as the Initial Purchaser
Dated as of July 31, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES .............................4
SECTION 1.1. Agreement to Purchase and Sell..................................4
SECTION 1.2. Timing of Purchases.............................................5
SECTION 1.3. No Recourse.....................................................5
SECTION 1.4. True Sales......................................................6
SECTION 1.5. Consideration for Purchases.....................................6
SECTION 1.6. Initial Purchaser Agreement to Make Demand Loans ...............6
SECTION 1.7. Addition of Originators.........................................7
ARTICLE II
CALCULATION OF PURCHASE PRICE 7
SECTION 2.1. Calculation of Purchase Price...................................7
ARTICLE III
PAYMENT OF PURCHASE PRICE ......................................9
SECTION 3.1. The Initial Purchase Price Payment..............................9
SECTION 3.2. Purchase Price Payments........................................10
SECTION 3.3. Deemed Collections, Etc........................................11
SECTION 3.4. Payments and Computations, Etc.................................12
ARTICLE IV
CONDITIONS TO PURCHASES .......................................12
SECTION 4.1. Conditions Precedent to Initial Purchase.......................12
SECTION 4.2. Conditions Precedent to All Purchases..........................14
SECTION 4.3. Certification as to Representations and Warranties. ...........14
SECTION 4.4. Effect of Payment of Purchase Price............................14
ARTICLE V
REPRESENTATIONS AND WARRANTIES ................................15
SECTION 5.1. Representations and Warranties.................................15
ARTICLE VI
COVENANTS .....................................................18
SECTION 6.1. Affirmative Covenants..........................................18
SECTION 6.2. Negative Covenants.............................................19
SECTION 6.3. Separate Existence.............................................20
(i)
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ARTICLE VII
INDEMNIFICATION................................................20
SECTION 7.1. Indemnities by the Originators.................................20
SECTION 7.2. Contribution...................................................22
SECTION 7.3. After-Tax Basis................................................23
ARTICLE VIII
ADMINISTRATION AND COLLECTIONS; ADDITIONAL RIGHTS AND
OBLIGATIONS IN RESPECT OF THE POOL RECEIVABLES.................23
SECTION 8.1. Servicing of Pool Receivables and Related Rights. .............23
SECTION 8.2. Rights of the Initial Purchaser; Enforcement Rights. ..........23
SECTION 8.3. Responsibilities of the Originator.............................24
SECTION 8.4. Further Action Evidencing Purchases............................25
ARTICLE IX
MISCELLANEOUS .................................................26
SECTION 9.1. Amendments, Etc................................................26
SECTION 9.2. Notices, Etc...................................................26
SECTION 9.3. Acknowledgment and Consent.....................................26
SECTION 9.4. Binding Effect; Assignability..................................27
SECTION 9.5. Costs, Expenses and Taxes......................................28
SECTION 9.6. No Proceedings; Limitation on Payments.........................28
SECTION 9.7. GOVERNING LAW AND JURISDICTION.................................28
SECTION 9.8. Execution in Counterparts......................................29
SECTION 9.9. Survival of Termination........................................29
SECTION 9.10. WAIVER OF JURY TRIAL...........................................29
SECTION 9.11. Entire Agreement...............................................29
SECTION 9.12. Headings.......................................................30
(ii)
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SCHEDULE I LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
SCHEDULE 9.2 ADDRESSES
EXHIBIT A FORM OF PURCHASE REPORT
EXHIBIT B FORM OF INITIAL PURCHASER NOTE
EXHIBIT C FORM OF ORIGINATOR NOTE
(iii)
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PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "Agreement") is entered into as of July 31,
1998, between MAXTOR CORPORATION, a Delaware corporation ("Maxtor" or, together
with the other Persons who may become parties hereto pursuant to Section 1.7, an
"Originator"), as seller and as initial Servicer, and MAXTOR RECEIVABLES
CORPORATION, a California corporation, as initial purchaser (the "Initial
Purchaser").
DEFINITIONS
Unless otherwise defined herein or the context otherwise requires,
certain terms that are used throughout this Agreement (including the Exhibits
hereto) are defined in Appendix A to the Receivables Purchase Agreement, dated
as of even date herewith, among the Initial Purchaser, as Seller, Maxtor, as the
initial Servicer, Blue Keel Funding, LLC, as Purchaser, and Fleet National Bank,
as Administrator (as the same may be amended, modified or supplemented from time
to time, the "Receivables Purchase Agreement"). Any reference to "this
Agreement" or "the Purchase and Sale Agreement", including any such reference in
any Exhibit hereto, shall mean this Agreement in its entirety, including the
Exhibits and other attachments hereto, as amended, modified or supplemented from
time to time in accordance with the terms hereof.
Available Funds shall have the meaning assigned to such term in Section
3.2(a) hereof.
Contributed Receivables shall have the meaning assigned to such term in
Section 1.2(b) hereof.
Cost Discount shall have the meaning assigned to such term in Section
2.1 hereof.
Cost Rate shall have the meaning assigned to such term in Section 2.1
hereof.
Deemed Collection means amounts payable by an Originator pursuant to
Section 3.3.
Earned Discount Rate Percentage shall be equal to a fraction (expressed
as a percentage) (x) the numerator of which is the sum of the products obtained
by multiplying (A) each Earned Discount Rate applicable to any portion of the
Asset Interest as of the first day of such Settlement Period, times (B) the
amount of the Capital (or portion thereof) to which such Earned Discount Rate
applied on such first day, and (y) the denominator of which is the Capital on
such first day.
Fair Market Value Discount Factor shall have the meaning assigned to
such term in Section 2.1 hereof.
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Ineligible Receivable shall have the meaning assigned to such term in
Section 3.3(b) hereof.
Initial Closing Date shall have the meaning assigned to such term in
Section 1.2(a) hereof.
Initial Contributed Receivables shall have the meaning assigned to such
term in Section 1.1(b) hereof.
Initial Cut-Off Date means the Business Day immediately preceding the
Initial Closing Date.
Initial Purchaser Note shall have the meaning assigned to such term in
Section 3.1 hereof.
LIBO Rate shall have the meaning assigned to such term in Section 2.1
hereof.
Loss Discount shall have the meaning assigned to such term in Section
2.1 hereof.
Originator Loan shall have the meaning assigned to such term in Section
1.6 hereof.
Originator Note shall have the meaning assigned to such term in Section
1.6(a) hereof.
Payment Day means (i) the date hereof and (ii) each Business Day
thereafter that an Originator is open for business.
Purchase Price shall have the meaning assigned to such term in Section
2.1 hereof.
Purchase Report shall have the meaning assigned to such term in Section
2.1 hereof.
Related Rights shall have the meaning assigned to such term in Section
1.1(a) hereof.
Sale Indemnified Amounts shall have the meaning assigned to such term in
Section 7.1 hereof.
Sale Indemnified Party shall have the meaning assigned to such term in
Section 7.1 hereof.
Sale Termination Date shall be the Purchase Termination Date under the
Receivables Purchase Agreement.
Seller Material Adverse Effect means, with respect to any event or
circumstance:
(i) an effect on the assets, business, financial condition or
operations of Maxtor and its Subsidiaries, taken as a whole, which could
reasonably be expected to have a material adverse effect on the
creditworthiness of Maxtor;
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(ii) a material adverse effect on the ability of any Originator
to perform its obligations under this Agreement or any other Transaction
Document to which such Originator, in its capacity as such, is a party;
(iii) a material adverse effect on the validity or enforceability
as against any Originator of this Agreement or any other Transaction
Document to which any Originator, in its capacity as such, is a party;
(iv) a material adverse effect on the status, existence,
perfection, priority or enforceability of the Initial Purchaser's
interest in the Receivables Pool and the Related Rights; or
(v) a material adverse effect on the validity, enforceability
or collectibility of a material portion of the Receivables Pool.
PRELIMINARY STATEMENTS
.1. The Initial Purchaser is a limited purpose corporation, all of
the issued and outstanding shares of capital stock of which are wholly owned by
Maxtor.
.2. Each Originator wishes to sell Receivables that it now owns and
from time to time hereafter will own to the Initial Purchaser, and the Initial
Purchaser is willing, on the terms and subject to the conditions contained in
this Agreement, to purchase such Receivables from such Originator at such time.
.3. The Initial Purchaser has entered into the Receivables Purchase
Agreement, pursuant to which, among other things, the Initial Purchaser may sell
to the Administrator, for the benefit of Purchaser, undivided interests in the
Receivables and certain Related Rights.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto agree as follows:
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ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
SECTION I.1. Agreement to Purchase and Sell.
(a) On the terms and conditions hereinafter set forth, and in
consideration of the Purchase Price, each Originator agrees to sell to the
Initial Purchaser, and the Initial Purchaser agrees to purchase from such
Originator, at the times set forth in Section 1.2, but prior to the Sale
Termination Date, all of such Originator's right, title, and interest in and to:
(i) each Receivable (other than Initial Contributed Receivables)
of such Originator that existed and was owing to such Originator as of
the close of such Originator's business on the Initial Cut-Off Date, in
the case of Maxtor, or on the Business Day immediately preceding the day
on which such Originator became a party hereto pursuant to Section 1.7
in the case of each other Originator;
(ii) each Receivable (other than Contributed Receivables) created
or originated by such Originator from the close of such Originator's
business on the Initial Cut-Off Date, in the case of Maxtor, or on the
Business Day immediately preceding the day on which such Originator
became a party hereto pursuant to Section 1.7 in the case of each other
Originator, to and including the Sale Termination Date;
(iii) all rights to, but not the obligations under, all related
Contracts and all Related Security with respect thereto;
(iv) all monies due or to become due with respect to the
foregoing;
(v) all books and records related to any of the foregoing;
(vi) all Lock-Box Accounts, all amounts on deposit therein and
all related agreements between such Originator and the Lock-Box Banks,
in each case to the extent constituting or representing items described
in paragraph (vii) below; and
(vii) all Collections in respect of, and other proceeds of,
Receivables or any other of the foregoing (as defined in the UCC)
received on or after the Initial Cut-Off Date, in the case of Maxtor, or
on the Business Day immediately preceding the day on which such
Originator became a party hereto pursuant to Section 1.7 in the case of
each other Originator, including, without limitation, all funds which
either are received by such Originator, the Initial Purchaser or the
Servicer from or on behalf of the Obligors in payment of any amounts
owed (including, without limitation, finance charges, interest
and
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all other charges) in respect of Receivables, or are applied to such
amounts owed by the Obligors (including, without limitation, insurance
payments, if any, that such Originator or the Servicer applies in the
ordinary course of its business to amounts owed in respect of any
Receivable and net proceeds of sale or other disposition of repossessed
goods or other collateral or property of the Obligors or any other party
directly or indirectly liable for payment of such Receivable and
available to be applied thereon).
All purchases and capital contributions hereunder shall be made without
recourse, but shall be made pursuant to and in reliance upon the
representations, warranties and covenants of the Originators set forth in each
Transaction Document. The proceeds and rights described in subsections (iii)
through (vii) of this Section 1.1(a) are herein collectively called the "Related
Rights".
(b) Agreement to Contribute. In consideration of the capital stock of
the Initial Purchaser issued to Maxtor, Maxtor contributed an undivided five
percent (5%) interest in Maxtor's right, title and interest in, to and under the
Receivables existing on April 8, 1998 pursuant to the Receivables Contribution
and Sale Agreement dated as of April 8, 1998, between Maxtor, as seller, and the
Initial Purchaser, as buyer, which amount is reflected on the balance sheet of
the Initial Purchaser as of the date hereof as stockholder's equity in the
amount of $16,236,550 (the "Initial Contributed Receivables"). Maxtor agrees to
contribute, and does hereby contribute to the Initial Purchaser, and the Initial
Purchaser does hereby accept, from Maxtor, all of Maxtor's right, title and
interest in and to all other Contributed Receivables contributed to the Initial
Purchaser from time to time.
SECTION I.2. Timing of Purchases.
(a) Initial Closing Date Purchase. On the date of the first Purchase
under the Receivables Purchase Agreement (the "Initial Closing Date") Maxtor
shall sell to the Initial Purchaser, and the Initial Purchaser shall purchase,
pursuant to Section 1.1, Maxtor's entire right, title and interest in (i) each
Receivable that existed and was owing to Maxtor as of the close of Maxtor's
business on the Initial Cut-Off Date, and (ii) all Related Rights with respect
thereto. Maxtor acknowledges and confirms that the Receivables repurchased by
the Initial Purchaser under the Repurchase Agreement on the Initial Closing Date
are owned by the Initial Purchaser, free and clear of any Lien or claim of
Maxtor.
(b) Regular Purchases and Contributions. After the Initial Closing Date,
and continuing until the Sale Termination Date, each Receivable described in
Section 1.1(a)(ii) hereof, and all the Related Rights with respect thereto,
created or originated by each Originator shall be sold or contributed by such
Originator to the Initial Purchaser (without any further action) upon the
creation or origination of such Receivable. All such Receivables, other than
those Receivables indicated on a Purchase Report as having been contributed by
the related Originator to the Initial Purchaser (such other Receivables,
together with the Initial Contributed Receivables, the
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"Contributed Receivables"), shall be sold to the Initial Purchaser on such date;
all Contributed Receivables shall be contributed by the related Originator to
the Initial Purchaser on such date.
SECTION I.3. No Recourse. Except as specifically provided in this
Agreement, the purchase and sale of Pool Receivables and Related Rights under
this Agreement shall be without recourse to the related Originator; provided
that each Originator shall be liable to the Initial Purchaser for all
representations, warranties, covenants and indemnities made by such Originator
pursuant to the terms of this Agreement, it being understood that such
obligation of such Originator will not arise on account of the failure of the
Obligor for credit reasons to make any payment in respect of a Pool Receivable.
SECTION I.4. True Sales.
(a) Each of the Initial Purchaser and each Originator intend the
transactions hereunder to constitute true sales (or in the case of Contributed
Receivables, conveyances in the form of capital contributions) of Pool
Receivables and the Related Rights by such Originator to the Initial Purchaser
providing the Initial Purchaser with the full benefits of ownership thereof, and
no party hereto intends the transactions contemplated hereunder to be, or for
any purpose to be characterized as, a loan from the Initial Purchaser to Maxtor.
(b) In the event (but only to the extent) that the conveyance of Pool
Receivables and Related Rights hereunder is characterized by a court or other
governmental authority as a loan rather than a sale or contribution, each
Originator shall be deemed hereunder to have granted to the Initial Purchaser,
and each Originator hereby grants to the Initial Purchaser, effective as of the
Initial Closing Date, a security interest in all of such Originator's right,
title and interest in, to and under all of the Pool Receivables and Related
Rights originated by it, whether now or hereafter owned, existing or arising.
Such security interest shall secure all of such Originator's obligations
(monetary or otherwise) under this Agreement and the other Transaction Documents
to which it is a party, whether now or hereafter existing or arising, due or to
become due, direct or indirect, absolute or contingent. The Initial Purchaser
shall have, with respect to the property described in this Section 1.4(b), and
in addition to all the other rights and remedies available to the Initial
Purchaser under this Agreement and applicable law, all the rights and remedies
of a secured party under the UCC, and this Agreement shall constitute a security
agreement under Applicable Law.
SECTION I.5. Consideration for Purchases. On the terms and subject to
the conditions set forth in this Agreement, the Initial Purchaser agrees to make
all Purchase Price payments to the Originators in accordance with Article III.
SECTION I.6. Initial Purchaser Agreement to Make Demand Loans. On the
terms and subject to the conditions set forth in this Agreement and in the
Receivables Purchase Agreement, the Initial Purchaser agrees to make demand
loans (each such loan being herein called an "Originator Loan") to each
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Originator prior to the Sale Termination Date in such amounts as such Originator
may request from time to time; provided, however, that:
(a) The Originator Loans made to each Originator shall be evidenced by a
demand promissory note in the form of Exhibit C to this Agreement issued by such
Originator to the order of the Initial Purchaser (such demand promissory note,
as it may be amended, supplemented, endorsed or otherwise modified from time to
time in accordance with the Transaction Documents, together with all promissory
notes issued from time to time in substitution therefor or renewal thereof in
accordance with the Transaction Documents, being called the "Originator Note");
and
(b) No Originator Loan shall be made to any Originator to the extent
that the making of such Originator Loan would violate the Receivables Purchase
Agreement.
SECTION I.7. Addition of Originators. Subsidiaries of Maxtor may be
added as Originators under this Agreement provided that all of the following
conditions have been met:
(i) the conditions precedent set forth in paragraphs (b) through
(k) of Section 4.1 are satisfied with respect to such Subsidiary;
(ii) such Subsidiary executes a joinder agreement, in form and
substance satisfactory to the Initial Purchaser and Administrator,
pursuant to which such Subsidiary agrees to become an Originator
hereunder, assumes all of the obligations of an Originator hereunder and
under the other Transaction Documents and makes all of the
representations and warranties set forth in Section 5.1;
(iii) Maxtor executes and delivers a guaranty of such
Subsidiary's obligations hereunder and under the other Transaction
Documents in form and substance satisfactory to the Initial Purchaser
and the Administrator; and
(iv) the Initial Purchaser and the Administrator consent to such
addition in writing, such consent not to be unreasonably withheld,
conditioned or delayed.
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION II.1. Calculation of Purchase Price. On each Reporting Date
(commencing with the first Reporting Date following the Initial Closing Date),
the Servicer shall deliver to the Initial Purchaser, the Administrator, the
Liquidity Agent and Maxtor (if the Servicer is other than Maxtor) a report in
substantially the form of Exhibit A
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(each such report being herein called a "Purchase Report") with respect to the
Initial Purchaser's purchases of Receivables from the Originators
(a) that arose on or prior to the Initial Cut-Off Date (in the
case of the first Purchase Report to be delivered hereunder) and
(b) that arose during the Settlement Period immediately preceding
such Reporting Date (in the case of each successive Purchase Report).
Each Purchase Report shall designate the amount of such Receivables that were
Eligible Receivables on the date of origination (or, in the case of Receivables
transferred or contributed on the Initial Closing Date, on the Initial Closing
Date).
The "Purchase Price" (to be paid to the Originators in accordance with the terms
of Article III) for the Receivables and the Related Rights shall be determined
in accordance with the following formula:
PP = AUB - (AUB X FMVD)
where:
PP = Purchase Price (to be paid to the Originators in
accordance with the terms of Article III) as calculated on
the relevant Reporting Date;
AUB = for purposes of calculating the Purchase Price on the
Initial Closing Date, the aggregate Unpaid Balance of all
Receivables that existed and were owing to Maxtor as
measured as at the Initial Cut-Off Date, and
(ii) for purposes of calculating the Purchase Price for
Receivables on each Reporting Date thereafter, the
aggregate Unpaid Balance of the Receivables described in
Section 1.1(a)(ii) hereof that were generated by the
related Originator during the immediately preceding
Settlement Period, less an amount equal to the sum of the
aggregate Unpaid Balance of all Contributed Receivables, if
any, indicated on the related Purchase Report; and
FMVD = "Fair Market Value Discount Factor" on the determination
date, which is the sum of the Loss Discount and the Cost
Discount, in each case as calculated on the most recent
Reporting Date as set forth in the definitions below.
"Loss Discount" as measured on the Initial Closing Date or any Reporting
Date means the ratio, expressed as a percentage, of (i) the losses (i.e.
write-offs to the bad debt reserve or other write-offs consistent with the
Credit and Collection Policy, in each case, net of recoveries) recognized for
all Pool Receivables during the period equal to twelve (12) months ending on the
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Cut-Off Date immediately preceding the Initial Closing Date or such Reporting
Date, as the case may be, divided by (ii) the Collections on all Pool
Receivables received during such period.
"Cost Discount" as measured on the Initial Closing Date or any Reporting
Date means a percentage determined in accordance with the following formula:
CD = (TD/360) x CR
where:
CD = the Cost Discount as measured on such date;
TD = the Days Sales Outstanding, as set forth in the most
recent Purchase Report; and
CR = the Cost Rate as measured on such Reporting Date.
"Cost Rate" as measured on the Initial Closing Date or any Reporting
Date means a per annum percentage rate equal to the sum of (i) the LIBO Rate for
the Initial Closing Date or the related Settlement Period, as the case may be,
plus (ii) 1.50%.
"LIBO Rate" for the Initial Closing Date or any Settlement Period means
the offered rate per annum (rounded upwards, if necessary, to the nearest 1/16th
of one percent) appearing in The Wall Street Journal for three month LIBOR loans
on the Initial Closing Date or the first Business Day of such Settlement Period,
as the case may be.
"Days Sales Outstanding" means a number of days calculated as (i) Sales
as of the end of the second preceding month divided by the Collections for the
preceding month multiplied by (ii) 30.
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION III.1. The Initial Purchase Price Payment.
(a) On or prior to the Initial Closing Date, the Initial Purchaser shall
pay the Purchase Price for the purchase to be made from Maxtor with respect to
the Receivables existing on or prior to the Initial Cut-Off Date (i) in cash in
an amount equal to the amount received by the Initial Purchaser from the
Purchaser in connection with the first Purchase made pursuant to the Receivables
Purchase Agreement, minus the amount required to be paid by the Initial
Purchaser to repurchase Receivables pursuant to the Repurchase Agreement and
(ii) by the issuance of a
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promissory note in the form of Exhibit B to this Agreement payable to the order
of Maxtor in the initial principal amount equal to the remainder of the Purchase
Price owing after subtracting the amount paid in cash plus the balance of the
Non-Negotiable Term Note dated April 8, 1998, executed and delivered by the
Initial Purchaser in favor of Maxtor, as adjusted after giving effect to the
Repurchase Agreement, and upon such adjustment and transfer of the outstanding
balance pursuant to this Section 3.1(a), the Non-Negotiable Term Note dated
April 8, 1998 shall be deemed cancelled in accordance with the terms of the
Repurchase Agreement (such promissory note together with the promissory note
issued to any other Originator hereunder, as it may be amended, supplemented,
endorsed or otherwise modified from time to time, together with any promissory
notes issued from time to time in substitution therefor or renewal thereof in
accordance with the Transaction Documents, being called an "Initial Purchaser
Note"), each of which Initial Purchaser Note shall, in accordance with its
terms, be subordinated to all interests in Pool Receivables and Related Rights
and all obligations of the Initial Purchaser, of any nature, whether now or
hereafter arising under or in connection with the Receivables Purchase
Agreement.
(b) The Servicer shall hold the Initial Purchaser Note for the benefit
of the related Originator, and shall make all appropriate record-keeping entries
with respect to the Initial Purchaser Note or otherwise to reflect payments on
and adjustments of the Initial Purchaser Note. The Servicer's books and records
shall constitute rebuttable presumptive evidence of the principal amount of and
accrued and unpaid interest on the Initial Purchaser Note at any time. Each
Originator hereby irrevocably authorizes the Servicer to ▇▇▇▇ its Initial
Purchaser Note "CANCELED" and to return such Initial Purchaser Note to the
Initial Purchaser upon the full and final payment thereof after the Sale
Termination Date.
SECTION III.2. Purchase Price Payments. On each Business Day falling
after the date of the Initial Closing Date until the termination of this
Agreement pursuant to Section 9.4, on the terms and subject to the conditions of
this Agreement, the Initial Purchaser shall pay to each Originator the Purchase
Price for the Pool Receivables and Related Rights purchased from such Originator
during the immediately preceding Settlement Period as follows:
(i) First, by paying to such Originator a portion of the
Purchase Price due pursuant to Section 2.1 by depositing into such
account as such Originator shall specify immediately available funds
from monies held by or on behalf of the Initial Purchaser solely to the
extent that such monies do not constitute Collections that are required
to be segregated and held by the Servicer or distributed to the
Administrator or the Purchaser pursuant to the Receivables Purchase
Agreement on the next Settlement Date or required to be paid to the
Servicer as the Servicer's Fee on the next Settlement Date, or otherwise
necessary to pay current expenses of the Initial Purchaser (in its
reasonable discretion)(such available monies, the "Available Funds"),
subject to the terms of the Receivables Purchase Agreement. Any
Collections that have been paid to, or retained by, the related
Originator during such Settlement Period shall be credited towards the
Initial
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Purchaser's obligation pursuant to this clause first; provided, however,
that, if Collections paid to, or retained by, such Originator exceed the
Purchase Price for Pool Receivables and Related Rights purchased from
such Originator for such Settlement Period, or, absent a cash payment,
the Initial Purchaser shall not have sufficient cash to meet its payment
obligations pursuant to the Receivables Purchase Agreement, such
Originator shall turn over such excess to the Initial Purchaser;
(ii) Second, to the extent any portion of the Purchase Price
remains unpaid, the principal amount outstanding under the related
Originator Note automatically shall be reduced and deemed paid in an
amount equal to such remaining Purchase Price, until such outstanding
principal amount is reduced to zero; and
(iii) Third, to the extent any portion of the Purchase Price
remains unpaid, the principal amount outstanding under the Initial
Purchaser Note issued to such Originator automatically shall be
increased in an amount equal to such remaining Purchase Price.
To the extent that (x) the amount due pursuant to Section 2.1 with respect to
all Receivables created or originated by an Originator that arose during the
corresponding Settlement Period is exceeded by (y) the amount paid to such
Originator during such Settlement Period pursuant to the foregoing sentences for
such Receivables, such excess shall be treated as a reduction in the principal
amount of the Initial Purchaser Note, effective as of the last day of the
related Settlement Period; provided, however, that if at any time the unpaid
principal amount of the Initial Purchaser Note has been reduced to zero, such
Originator shall pay the Initial Purchaser the remainder owed with respect
thereto in immediately available funds.
SECTION III.3. Deemed Collections, Etc.
(a) If on any day the Unpaid Balance of any Pool Receivable owed by an
Obligor is reduced or adjusted as a result of any defective, rejected or
returned merchandise or services, any cash discount, any credit, any incorrect
billing, pricing adjustment or any other adjustment by an Originator or any
Affiliate of an Originator, or is reduced or canceled as a result of a setoff in
respect of any claim by the Obligor thereof against an Originator or any
Affiliate of Maxtor (whether such claim arises out of the same or a related or
unrelated transaction) or as a result of any dispute or any obligation of an
Originator or any Affiliate of an Originator to pay to the related Obligor any
rebate or refund, or to rework any product or service, such Originator shall
deliver to the Servicer in same day funds an amount equal to the amount of such
reduction or adjustment, provided that, prior to the Sale Termination Date, such
amount may be paid by a reduction to the Purchase Price to be paid to such
Originator on the next occurring Reporting Date;
(b) if on any day any of the representations or warranties in Sections
5.1 (i) and (k) hereto is not true with respect to any Pool Receivable or if the
representation or warranty in Section 5.1(u) was not true with respect to any
Pool Receivable as of the date it was sold or
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contributed hereunder (each such Receivable, an "Ineligible Receivable"), the
related Originator shall deliver to the Servicer in same day funds an amount
equal to the Unpaid Balance of such Pool Receivable for application by the
Servicer to the same extent as if Collections of such Unpaid Balance had
actually been received on such date, provided that prior to the Sale Termination
Date, such amount may be paid by a reduction to the Purchase Price to be paid to
such Originator on the next occurring Reporting Date;
(c) except as provided in paragraph (a) or (b) of this Section 3.3, or
as otherwise required by Applicable Law or the relevant Contract, all
Collections received from an Obligor of any Pool Receivables shall be applied to
the Pool Receivables of such Obligor in the order of the age of such Pool
Receivables, starting with the oldest such Pool Receivable, unless such Obligor
designates in writing its payment for application to specific Pool Receivables;
(d) if and to the extent that the Initial Purchaser shall be required
for any reason to pay over to an Obligor (or any trustee, receiver, custodian or
similar official in any Event of Bankruptcy) any amount received by it
hereunder, such amount shall be deemed not to have been so received but rather
to have been retained by the related Originator and, accordingly, the Initial
Purchaser shall have a claim against such Originator for such amount, payable
when and to the extent that any distribution from or on behalf of such Obligor
is made in respect thereof; and
(e) in the event that an Originator has paid (by effecting a Purchase
Price reduction or otherwise) to the Initial Purchaser the full Unpaid Balance
of any Receivable pursuant to this Section 3.3, the Initial Purchaser shall
reconvey such Receivable and all Related Rights with respect thereto to such
Originator, without recourse, representation or warranty, but free and clear of
all Liens created by the Initial Purchaser; such reconveyed Receivables and all
Related Rights shall no longer be subject to the terms of this Agreement
(including any obligation to turn over Collections with respect thereto).
SECTION III.4. Payments and Computations, Etc.
(a) All amounts to be paid or deposited by an Originator or the Servicer
hereunder shall be paid or deposited no later than 11:00 a.m. (New York time) on
the day when due in same day funds. All amounts received after 11:00 a.m. (New
York time) will be deemed to have been received on the immediately succeeding
Business Day.
(b) Each Originator shall, to the extent permitted by law, pay interest
on any amount not paid or deposited by such Originator (whether as Servicer, or
otherwise) when due hereunder, at an interest rate equal to 2.0% per annum above
the Alternate Base Rate, payable on demand.
(c) All computations of interest under Section 3.4(b) and all
computations of the Purchase Price, fees, and other amounts hereunder shall be
made on the basis of a 360-day year and actual days elapsed. Whenever any
payment or deposit to be made hereunder shall be due on
17
a day other than a Business Day, such payment or deposit shall be made on the
next succeeding Business Day and such extension of time shall be included in the
computation of such payment or deposit.
ARTICLE IV
CONDITIONS TO PURCHASES
SECTION IV.1. Conditions Precedent to Initial Purchase. The initial
Purchase under this Agreement is subject to the condition precedent that the
Initial Purchaser shall have received each of the following (with copies to the
Administrator), on or before the date of such purchase, each in form and
substance (including the date thereof) satisfactory to the Initial Purchaser and
the Administrator:
(a) The Receivables Purchase Agreement, duly executed by the
parties thereto, together with evidence reasonably satisfactory to the
Initial Purchaser that all conditions precedent to the initial Purchase
of an undivided interest thereunder (other than any condition relating
to the effectiveness of the purchase commitment under this Agreement)
shall have been met;
(b) A certificate of the Secretary of Maxtor certifying (i) a
copy of the resolutions of its Board of Directors approving this
Agreement and the other Transaction Documents to be delivered by it
hereunder and the transactions contemplated hereby; (ii) the names and
true signatures of the officers authorized on its behalf to sign this
Agreement and the other Transaction Documents to be delivered by it
hereunder (on which certificate the Administrator and Initial Purchaser
may conclusively rely until such time as the Administrator shall receive
from Maxtor a revised certificate meeting the requirements of this
subsection (b)); (iii) a copy of its by-laws; and (iv) all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to this Agreement and the other Transaction
Documents;
(c) The Certificate of Incorporation of Maxtor, duly certified
by the Secretary of State of Delaware, as of a recent date acceptable to
Administrator;
(d) Acknowledgment copies or time stamped receipt copies, of the
proper financing statements (Form UCC-1) that have been duly executed
and name Maxtor as the debtor and seller and the Initial Purchaser as
the secured party and purchaser (and the Administrator, for the benefit
of the Purchaser, as assignee of the Initial Purchaser) of the
Receivables and the Related Rights or other, similar instruments or
documents, as may be necessary or, in Servicer's or the Administrators's
opinion, desirable under the UCC or any comparable law of all
appropriate jurisdictions to perfect the Initial Purchaser's ownership
18
interest in all Receivables and Related Rights in which an ownership
interest may be assigned to it hereunder;
(e) A search report provided in writing to and approved by the
Administrator, listing all effective financing statements that name
Maxtor as debtor or assignor and that are filed in the jurisdictions in
which filings were made pursuant to subsection (d) above and in such
other jurisdictions that Administrator shall reasonably request,
together with copies of such financing statements (none of which shall
cover any Pool Assets), and tax and judgment lien search reports from a
Person satisfactory to Servicer and the Administrator showing no
evidence of such liens filed against Maxtor;
(f) Duly executed copies of the Lock-Box Agreements with the
Lock-Box Banks;
(g) A pro forma Purchase Report, prepared in respect of the
proposed initial Purchase, assuming an Initial Cut-Off Date of June 30,
1998;
(h) The Initial Purchaser Note in favor of Maxtor, duly executed
by the Initial Purchaser;
(i) Such other agreements, instruments, UCC financing
statements, certificates, opinions and other documents as the Initial
Purchaser or the Administrator may reasonably request.
SECTION IV.2. Conditions Precedent to All Purchases. Each purchase under
this Agreement is subject to the condition precedent that the agreement of the
Originator to sell Pool Receivables and Related Rights, and the agreement of the
Initial Purchaser to purchase Pool Receivables and Related Rights, shall not
have terminated pursuant to Section 9.4 of this Agreement, and shall be subject
further to the conditions precedent that:
(a) in the case of each purchase, the Servicer shall have
delivered to the Initial Purchaser on or prior to such purchase, a
completed Purchase Report with respect to the immediately preceding
calendar month, together with such additional information as may be
reasonably requested by the Initial Purchaser; and
(b) the representations and warranties contained in Article V
are correct on and as of such day as though made on and as of such day
and shall be deemed to have been
made on such day (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).
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SECTION IV.3. Certification as to Representations and Warranties. Each
Originator, by accepting the Purchase Price (whether in cash or by an increase
in the principal amount outstanding under the Initial Purchaser Note or a
reduction of the Originator Note) paid for each purchase of Pool Receivables and
Related Rights on any day, shall be deemed to have certified that its
representations and warranties contained in Article V are true and correct on
and as of such day, with the same effect as though made on and as of such day
(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).
SECTION IV.4. Effect of Payment of Purchase Price. Upon the
payment of the Purchase Price (whether in cash or by an increase in the
principal amount outstanding under an Initial Purchaser Note or a reduction of
an Originator Note) for any purchase of Pool Receivables and Related Rights,
title to such Pool Receivables and Related Rights shall vest in the Initial
Purchaser, whether or not the conditions precedent to such purchase were in fact
satisfied; provided that the Initial Purchaser shall not be deemed to have
waived any claim it may have under this Agreement for the failure by an
Originator in fact to satisfy any such condition precedent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION V.1. Representations and Warranties. In order to induce the
Initial Purchaser to enter into this Agreement and to make purchases thereunder,
Maxtor hereby represents and warrants as follows:
(a) Organization and Good Standing. Maxtor has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to own
its properties and to conduct its business as such properties are
presently owned and such business is presently conducted.
(b) Due Qualification. Maxtor is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualification, licenses or approvals except where the failure to so
qualify or have such licenses or approvals has not had, and could not
reasonably be expected to have, a Seller Material Adverse Effect.
(c) Power and Authority; Due Authorization. Maxtor (i) has all
necessary power, authority and legal right to (A) execute and deliver
this Agreement and the other Transaction
20
Documents to which it is a party, (B) carry out the terms of the
Transaction Documents to which it is a party, and (C) sell and assign
the Receivables and Related Rights on the terms and conditions herein
provided and (ii) has duly authorized by all necessary corporate action
the execution, delivery and performance of this Agreement and the other
Transaction Documents to which it is a party.
(d) Binding Obligations. This Agreement constitutes, and each
other Transaction Document to be signed by Maxtor when duly executed and
delivered will constitute, a legal, valid and binding obligation of
Maxtor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to
which Maxtor is a party and the fulfillment of the terms hereof and
thereof will not (i) conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse
of time or both) a default under the Maxtor's articles of incorporation
or by-laws or any Contractual Obligation of Maxtor, (ii) result in the
creation or imposition of any Lien upon any of Maxtor's properties
pursuant to the terms of any such Contractual Obligation, other than
this Agreement, or (iii) violate any Applicable Law.
(f) No Proceedings. There is no litigation, proceedings or
investigations pending or, to the best of Maxtor's knowledge,
threatened, before any Governmental Authority or arbitrator (i)
asserting the invalidity of this Agreement or any other Transaction
Document to which Maxtor is a party, (ii) seeking to prevent the sale
and assignment of the Receivables and Related Rights, the collectibility
of the Receivables or the consummation of any of the other transactions
contemplated by this Agreement or any other Transaction Document, or
(iii) seeking any determination or ruling that could reasonably be
expected to have a Seller Material Adverse Effect.
(g) Government Approvals. No Governmental Action is required for
the due execution, delivery and performance by Maxtor of this Agreement
or any other Transaction Document to which it is a party.
(h) Securities Exchange Act. No proceeds of any purchase will be
used to acquire any equity security of a class which is registered
pursuant to Section 12 of the Securities Exchange Act of 1934.
(i) Quality of Title; Valid Sale; Etc. Upon its creation and
prior to its sale or contribution to the Initial Purchaser under this
Agreement, it is the legal and beneficial owner of each of the
Receivables and the Related Rights originated by it free and clear of
any Lien; and upon each purchase or contribution the Initial Purchaser
shall acquire a valid
21
and enforceable ownership interest in each Pool Receivable then existing
or thereafter arising and in the Related Rights with respect thereto,
free and clear of any Lien, enforceable against all creditors of, and
purchasers from, Maxtor. Each Pool Receivable constitutes an "account"
as such term is defined in the UCC. No effective financing statement or
other instrument similar in effect covering any Pool Receivable or
Related Rights with respect thereto is on file in any recording office,
except those filed in favor of the Initial Purchaser pursuant to this
Agreement and in favor of the Administrator pursuant to the Receivables
Purchase Agreement and except those that will be terminated on the
Initial Closing Date.
(j) Accuracy of Information. Each report, information, exhibit,
financial statement, document, book, record or report furnished or to be
furnished at any time by or on behalf of it to the Initial Purchaser or
the Administrator in connection with this Agreement is or will be
accurate in all material respects as of its date or (except as otherwise
disclosed to the Administrator at such time) as of the date so
furnished, and no such item contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary in order to make the statements contained therein, in the
light of the circumstances under which they were made, not materially
misleading.
(k) Offices. The principal place of business and chief executive
office of Maxtor are located at the address of Maxtor referred to in
Section 9.2, and the offices where Maxtor keeps all its books, records
and documents evidencing or relating to Pool Receivables are located at
the address of Maxtor referred to in Section 9.2 (or at such other
locations, notified to the Administrator in accordance with Section
6.1(e), in jurisdictions where all action required by Section 8.4 has
been taken and completed).
(l) Bulk Sales Act. No transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
(m) Margin Regulations. The use of all funds obtained by Maxtor
under this Agreement will not conflict with or contravene any of
Regulations G, T, U or X promulgated by the Federal Reserve Board from
time to time.
(n) Maintenance of Books and Records. It has accounted for each
sale of Pool Receivables and Related Rights in its books and financial
statements as sales, consistent with GAAP.
(o) Credit and Collection Policy. It has complied in all
material respects with the Credit and Collection Policy with regard to
each Receivable.
(p) Solvency. It is solvent; and at the time of (and immediately
after) each sale pursuant to this Agreement it shall be solvent.
22
(q) Compliance with Transaction Documents. It, as Servicer or
Originator, has complied with all of the terms, covenants and agreements
contained in this Agreement and the other Transaction Documents
applicable to it.
(r) Corporate Name. Maxtor's complete corporate name is set
forth in the preamble to this Agreement, and Maxtor does not use and has
not during the last six years used any other corporate name, trade name,
doing business name or fictitious name.
(s) Investment Company Act. It is not, and is not controlled by,
an "investment company" registered or required to be registered under
the Investment Company Act of 1940, as amended.
(t) Eligible Receivables. Each Pool Receivable sold or
contributed by it to the Initial Purchaser hereunder that is designated
as an Eligible Receivable on a Purchase Report is in fact an Eligible
Receivable as of the date of such Purchase Report.
ARTICLE VI
COVENANTS
SECTION VI.1. Affirmative Covenants. From the date hereof until the
Final Payout Date:
(a) Compliance with Laws, Etc. Each Originator will comply in
all material respects with all Applicable Laws, including those with
respect to the Pool Receivables and the related Contracts, except where
noncompliance could not reasonably be expected to have a Seller Material
Adverse Effect.
(b) Preservation of Corporate Existence. Each Originator will
preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its formation, and qualify and remain
qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification could reasonably be expected to
have a Seller Material Adverse Effect.
(c) Audits. (i) Each Originator will at any time and from time
to time during regular business hours, permit the Administrator or any
of its agents or representatives, (A) to examine and make copies of and
abstracts from all books, records and documents (including, without
limitation, computer tapes and disks) in its possession or under its
control relating to Pool Receivables, (B) to visit its offices and
properties for the purpose of examining such materials described in
clause (i)(A) above, and to discuss matters relating to Pool Receivables
or its performance hereunder with any of its officers or
23
employees having knowledge of such matters, and (C) to verify the
existence and amount of the Pool Receivables; and (ii) without limiting
the provisions of clause (i) above, from time to time on request of
Administrator, permit certified public accountants or other auditors
acceptable to the Administrator to conduct, at such Originator's
expense, a review of its books and records with respect to the Pool
Receivables; provided that unless a Liquidation Event exists, such
Originator shall not be responsible for the cost of more than one such
audit in any calendar year.
(d) Keeping of Records and Books of Account. Each Originator
will maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records
evidencing Pool Receivables in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records
and other information reasonably necessary or advisable for the
collection of all Pool Receivables (including, without limitation,
records adequate to permit the daily identification of each new Pool
Receivable and all Collections of and adjustments to each existing Pool
Receivable).
(e) Location of Records. Each Originator will keep its principal
place of business and chief executive office, and the offices where it
keeps its records concerning the Pool Receivables and all related
Contracts and all other agreements related to such Pool Receivables (and
all original documents relating thereto), at its address(es) referred to
in Section 9.2 or, upon 30 days' prior written notice to the
Administrator, at such other locations in jurisdictions where all action
required by Section 8.4 shall have been taken and completed.
(f) Credit and Collection Policies. Each Originator, at its own
expense, will timely and fully perform and comply in all material
respects with the Credit and Collection Policy in regard to each Pool
Receivable and the related Contracts.
(g) Collections. On or before the Initial Closing Date, each
Originator will instruct (i) all Obligors to cause all Collections to be
sent to a Lock-Box that is the subject of a Lock-Box Agreement and (ii)
each Lock-Box Bank to deposit all such Collections directly into a
Lock-Box Account that is the subject of a Lock-Box Agreement. In the
event that any Originator receives Collections directly from any
Obligor, any Originator shall deposit such Collections into a Lock-Box
Account within two Business Days of receipt thereof.
SECTION VI.2. Negative Covenants. From the Initial Closing Date until
the Final Payout Date:
(a) Sales, Liens, Etc. No Originator will, except as otherwise
provided herein or in any other Transaction Document, sell, assign (by
operation of law or otherwise) or
24
otherwise dispose of, or create or suffer to exist any Lien upon or with
respect to, any Pool Receivable or any interest therein.
(b) Extension or Amendment of Receivables. No Originator will,
except as otherwise permitted in any other Transaction Document, extend,
amend or otherwise modify, or permit Servicer to extend, amend or
otherwise modify, the terms of any Pool Receivable; or amend, modify or
waive, or permit Servicer to amend, modify or waive, any term or
condition of any Contract related to a Pool Receivable.
(c) Change in Business or Credit and Collection Policy. No
Originator will make any change in the character of its business or in
the Credit and Collection Policy, which change could impair the
collectibility of any Pool Receivable or otherwise adversely affect the
interests or remedies of the Administrator, Purchaser or the Initial
Purchaser under this Agreement or any other Transaction Document.
(d) Change in Payment Instructions to Obligors. No Originator
will add or terminate any bank as a Lock-Box Bank or any Lock-Box
Account from those listed in Schedule I or make any change, or permit
Servicer to make any change, in its instructions to Obligors regarding
payments to be made to the Initial Purchaser or Servicer or payments to
be made to any Lock-Box Bank, unless the Administrator shall have
received notice of such addition, termination or change and duly
executed copies of Lock-Box Agreements with each new Lock-Box Bank or
with respect to each new Lock-Box Account, as the case may be.
(e) Mergers, Acquisitions, Sales, etc. No Originator will (i) be
a party to any merger or consolidation, or purchase or otherwise acquire
all or substantially all of the assets or any stock of any class of, or
any partnership or joint venture interest in, any other Person without
the consent of the Administrator, unless, in the case of Maxtor, Maxtor
is the surviving corporation, and no Liquidation Event has occurred and
is continuing or would result therefrom or (ii) sell, transfer, convey
or lease all or any substantial part of its assets, or sell or assign
with or without recourse any Receivables or any interest therein (other
than pursuant hereto or to the Receivables Purchase Agreement).
(f) Deposits to Special Accounts. No Originator will deposit or
otherwise credit, or cause or permit to be so deposited or credited, to
any Lock-Box Account cash or cash proceeds other than Collections of
Pool Receivables.
SECTION VI.3. Separate Existence. Each Originator hereby acknowledges
that Purchaser and the Administrator are entering into the transactions
contemplated by the other Transaction Documents in reliance upon the Initial
Purchaser's identity as a legal entity separate from each Originator. Therefore,
from and after the date hereof, each Originator shall take all steps
specifically required by the Transaction Documents or by the Initial
25
Purchaser, Purchaser or Administrator to continue the Initial Purchaser's
identity as a separate legal entity and to make it apparent to third Persons
that the Initial Purchaser is an entity with assets and liabilities distinct
from those of such Originator and any other Person, and is not a division of
such Originator or any other Person.
ARTICLE VII
INDEMNIFICATION
SECTION VII.1. Indemnities by the Originators. Without limiting any
other rights which the Initial Purchaser and each of its permitted assigns,
officers, directors, employees and agents (each of the foregoing Persons being
individually called a "Sale Indemnified Party") may have hereunder or under
applicable law, each Originator, jointly and severally, hereby agrees to
indemnify the Initial Purchaser and each Sale Indemnified Party from and against
any and all damages, losses, claims, judgments, liabilities and related costs
and expenses, including reasonable attorneys' fees and disbursements (all of the
foregoing collectively being called "Sale Indemnified Amounts") arising out of
or resulting from this Agreement (whether directly or indirectly) or the use of
proceeds of purchases or the ownership of any Pool Receivable or Related Rights,
excluding, however, (a) Sale Indemnified Amounts to the extent resulting from
gross negligence or willful misconduct on the part of the Initial Purchaser or
such Sale Indemnified Party, (b) Sale Indemnified Amounts to the extent the same
includes losses in respect of Pool Receivables and reimbursement therefor that
would constitute credit recourse to the Originators for the amount of any Pool
Receivable or Related Rights not paid by the related Obligor for credit reasons,
or (c) any net income taxes or franchise taxes imposed on the Initial Purchaser
or such Sale Indemnified Party by the jurisdiction under the laws of which such
Sale Indemnified Party is organized or any political subdivision thereof.
Without limiting or being limited by the foregoing, but subject to the
exclusions set forth in the immediately preceding sentence, each Originator,
jointly and severally, shall pay on demand to the Initial Purchaser and each
Sale Indemnified Party any and all amounts necessary to indemnify the Initial
Purchaser and such Sale Indemnified Party from and against any and all Sale
Indemnified Amounts relating to or resulting from any of the following:
(i) the transfer by any Originator of an interest in any
Receivable or Related Rights to any Person other than the Initial
Purchaser;
(ii) the failure of any information provided by any Originator,
as Servicer or otherwise, to the Initial Purchaser, the Purchaser, the
Administrator or the Servicer with respect to Pool Receivables or this
Agreement to be true, correct and complete;
(iii) the failure of any representation or warranty or statement
made or deemed made by any Originator (or any of its officers), as
Servicer or otherwise, under or in connection with this Agreement to
have been true and correct when made;
26
(iv) the failure by any Originator, as Servicer or otherwise, to
comply with any Applicable Law, with respect to any Pool Receivable or
Related Rights; or the failure of any Pool Receivable or Related Rights
to conform to any such Applicable Law;
(v) the failure to vest and maintain vested in the Initial
Purchaser a valid and enforceable ownership interest in each Pool
Receivable at any time existing and the Related Rights with respect
thereto, free and clear of any Lien, other than a Lien arising solely as
a result of an act of the Initial Purchaser, the Purchaser, the
Liquidity Agent or the Administrator, whether existing as the time of
purchase of such Pool Receivable or at any time thereafter;
(vi) the failure of any Originator to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws
with respect to any Pool Receivables and the Related Rights in respect
thereof, whether at the time of any purchase or at any subsequent time;
(vii) any dispute, claim, offset or defense (other than discharge
in bankruptcy) of the Obligor to the payment of any Pool Receivable
(including, without limitation, a defense based on such Pool Receivable
or the related Contract not being a legal, valid and binding obligation
of such Obligor enforceable against it in accordance with its terms), or
any other claim resulting from the sale of the goods or services related
to such Pool Receivable or the furnishing or failure to furnish such
goods or services or relating to collection activities with respect to
such Pool Receivable (if such collection activities were performed by
any Originator or any of its Affiliates, acting as Servicer or by any
agent or independent contractor retained by any Originator or any of its
Affiliates);
(viii) any failure of any Originator, as Servicer or otherwise, to
perform its duties or obligations in accordance with the provisions
hereof or under the Receivables Purchase Agreement or to perform its
duties or obligations under the Contracts;
(ix) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with
merchandise, insurance or services which are the subject of any
Contract;
(x) the commingling of Collections of Pool Receivables at any
time with other funds;
(xi) any investigation, litigation or proceeding related to this
Agreement or the use of proceeds of purchases or the ownership of any
Pool Receivable or Related Rights;
(xii) any tax or governmental fee or charge (but not including
taxes upon or measured by net income or representing a franchise or
unincorporated business tax on
27
such Sale Indemnified Party), all interest and penalties thereon or with
respect thereto, and all out-of-pocket costs and expenses, including the
reasonable fees and expenses of counsel in defending against the same,
which may arise by reason of the purchase or ownership of the
Receivables generated by any Originator or any Related Rights connected
with any such Receivables; or
(xiii) any requirement that all or a portion of the distributions
made to the Initial Purchaser pursuant to this Agreement shall be
rescinded or otherwise must be returned to any Originator for any
reason.
SECTION VII.2. Contribution. If for any reason the indemnification
provided above in this Article VII (and subject to the exceptions set forth
therein) is unavailable to the Initial Purchaser or a Sale Indemnified Party or
is insufficient to hold the Initial Purchaser or a Sale Indemnified Party
harmless, then the Originators shall contribute to the maximum amount of Sale
Indemnified Amounts payable or paid by the Initial Purchaser or such Sale
Indemnified Party in such proportion as is appropriate to reflect not only the
relative benefits received by the Initial Purchaser or such Sale Indemnified
Party on the one hand and the Originators on the other hand, but also the
relative fault of such Sale Indemnified Party (if any) and the Originators and
any other relevant equitable considerations.
SECTION VII.3. After-Tax Basis. Indemnification hereunder shall be in an
amount necessary to make the Sale Indemnified Party whole after taking into
account any tax consequences to the Sale Indemnified Party of the receipt of the
indemnity provided hereunder, including the effect of such tax or refund on the
amount of tax measured by net income or profits which is or was payable by the
Sale Indemnified Party.
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ARTICLE VIII
ADMINISTRATION AND COLLECTIONS; ADDITIONAL RIGHTS
AND OBLIGATIONS IN RESPECT OF THE POOL RECEIVABLES
SECTION VIII.1. Servicing of Pool Receivables and Related Rights.
Consistent with the Initial Purchaser's ownership of the Pool Receivables and
the Related Rights, the Initial Purchaser shall have the sole right to service,
administer and collect the Pool Receivables, to assign such right and to
delegate such right to others. In consideration of the Initial Purchaser's
purchase of the Pool Receivables and the Related Rights, each Originator agrees
to cooperate fully with the Initial Purchaser to facilitate the full and proper
performance of such duties and obligations for the benefit of the Initial
Purchaser, the Purchaser, and the Administrator. To the extent that the Initial
Purchaser, individually or through the Servicer, has granted or grants powers of
attorney to the Administrator under the Receivables Purchase Agreement, each
Originator hereby grants a corresponding power of attorney on the same terms to
the Initial Purchaser. Each Originator hereby acknowledges and agrees that the
Initial Purchaser, in all of its capacities, shall assign to the Administrator
for the benefit of the Purchaser and the Administrator such powers of attorney
and other rights and interests granted by such Originator to the Initial
Purchaser hereunder, and agrees to cooperate fully with the Administrator in the
exercise of such rights.
SECTION VIII.2. Rights of the Initial Purchaser; Enforcement Rights.
(a) The Initial Purchaser shall have no obligation to account for, to
replace, to substitute or to return any Receivables and Related Rights to any
Originator. The Initial Purchaser shall have no obligation to account for, or to
return to any Originator, Collections, or any interest or other finance charge
collected pursuant thereto, without regard to whether such Collections and
charges are in excess of the Purchase Price for such Pool Receivables and
Related Rights.
(b) The Initial Purchaser shall have the unrestricted right to further
assign, transfer, deliver, hypothecate, subdivide or otherwise deal with the
Pool Receivables and Related Rights, and all of the Initial Purchaser's right,
title and interest in, to and under this Agreement, on whatever terms the
Initial Purchaser shall determine, pursuant to the Receivables Purchase
Agreement or otherwise.
(c) The Initial Purchaser shall have the sole right to retain any gains
or profits created by buying, selling or holding the Pool Receivables and
Related Rights and, except as expressly set forth in the Transaction Documents,
shall have the sole risk of and responsibility for losses or damages created by
such buying, selling or holding.
29
(d) At any time following the designation of a Servicer (other than
Maxtor) in accordance with the Receivables Purchase Agreement:
(i) the Administrator may direct the Obligors that payment of all
amounts payable under any Pool Receivable be made directly to the
Administrator or its designee;
(ii) the Administrator may instruct Maxtor to give notice of the
Initial Purchaser's interest in the Pool Receivables or the Purchaser's
interest in Pool Receivables to each Obligor, which notice shall direct
that payments with respect to Pool Receivables be made directly to the
Administrator or its designee, and upon such instruction from the
Administrator Maxtor shall give such notice at its expense; provided,
that if Maxtor fails to so notify each Obligor, the Administrator may so
notify the Obligors; and
(iii) the Administrator may request Maxtor to, and upon such
request Maxtor shall, (A) assemble all of the records necessary or
desirable to collect the Pool Receivables and the Related Rights
(including, without limitation, computer programs, tapes and disks,
other than excluded data), and make the same available to the
Administrator or its designee at a place selected by the Administrator,
and (B) segregate all cash, checks and other instruments received by it
from time to time constituting Collections with respect to the Pool
Receivables in a manner acceptable to the Administrator and, promptly
upon receipt, remit all such cash, checks and instruments, duly endorsed
or with duly executed instruments of transfer, to the Administrator or
its designee.
(e) Each Originator hereby authorizes the Initial Purchaser, and
irrevocably appoints the Initial Purchaser as its attorney-in-fact with full
power of substitution and with full authority in the place and stead of such
Originator, which appointment is coupled with an interest, to take any and all
steps in the name of such Originator and on behalf of such Originator necessary
or desirable, in the determination of the Initial Purchaser, to collect any and
all amounts or portions thereof due under any and all Pool Receivables or
Related Rights, including, without limitation, endorsing the name of such
Originator on checks and other instruments representing Collections and
enforcing such Pool Receivables and Related Rights.
SECTION VIII.3. Responsibilities of the Originator. Anything herein to
the contrary notwithstanding:
(a) each Originator agrees to deliver directly to the Servicer (for the
Initial Purchaser's account), within two (2) Business Days of receipt thereof,
any Collections that it receives, in the form so received, and agrees that all
Collections shall be deemed to be received in trust for the Initial Purchaser
and shall be maintained and segregated separate and apart from all other funds
and moneys of such Originator until delivery of the Collections to the Servicer;
30
(b) each Originator agrees to instruct (i) all Obligors to cause all
Collections to be sent to a Lock-Box that is the subject of a Lock-Box Agreement
and (ii) each Lock-Box Bank to deposit all such Collections directly into a
Lock-Box Account that is the subject of a Lock-Box Agreement; and
(c) each Originator shall (i) perform all of its obligations hereunder
and under the Contracts related to the Pool Receivables and Related Rights (and
under its agreements with the Lock-Box Banks) to the same extent as if the Pool
Receivables and Related Rights had not been sold hereunder, and the exercise by
the Initial Purchaser or its designee or assignee of the Initial Purchaser's
rights hereunder or in connection herewith shall not relieve such Originator
from such obligations and (ii) pay when due any taxes, including, without
limitation, any sales taxes payable in connection with the Pool Receivables and
their creation and satisfaction. Notwithstanding anything to the contrary in
this Agreement, none of the Initial Purchaser, the Administrator or the
Purchaser shall have any obligation or liability with respect to any Receivable
or Related Rights nor shall any of them be obligated to perform any of the
obligations of any Originator under any of the foregoing.
SECTION VIII.4. Further Action Evidencing Purchases. Each Originator
agrees that from time to time, at its expense, it will promptly execute and
deliver all further instruments and documents, and take all further action, in
order to perfect, protect or more fully evidence the purchase of the Pool
Receivables and the Related Rights by the Initial Purchaser hereunder, or to
enable the Initial Purchaser to exercise or enforce any of its rights hereunder
or under any other Transaction Document. Each Originator further agrees from
time to time, at its expense, promptly to take all action that the Initial
Purchaser, the Servicer or the Administrator may reasonably request in order to
perfect, protect or more fully evidence such purchase of the Pool Receivables
and the Related Rights or to enable the Initial Purchaser or the Purchaser (as
assignee of the Initial Purchaser) or the Administrator to exercise or enforce
any of its or their respective rights hereunder or under any other Transaction
Document in respect of the Pool Receivables and the Related Rights. Without
limiting the generality of the foregoing each Originator will:
(a) execute and file such financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as the Initial Purchaser or the Administrator may reasonably determine
to be necessary or appropriate; and
(b) to the extent reasonably practicable, ▇▇▇▇ the master data
processing records evidencing the Pool Receivables and, if requested by the
Initial Purchaser or the Administrator, to the extent reasonably practicable,
legend the related Contracts, to reflect the sale of the Pool Receivables and
Related Rights pursuant to this Agreement and the Receivables Purchase
Agreement.
Each Originator hereby authorizes the Initial Purchaser or its designee
or assignee to file one or more financing or continuation statements, and
amendments thereto and assignments
31
thereof, relative to all or any of the Pool Receivables and Related Rights of
such Originator, in each case whether now existing or hereafter generated. If an
Originator fails to perform any of its agreements or obligations under this
Agreement, the Initial Purchaser or its designee or assignee may (but shall not
be required to) itself perform, or cause performance of, such agreement or
obligation, and the reasonable expenses of the Initial Purchaser or its designee
or assignee incurred in connection therewith shall be payable by the Originator
under Section 7.1.
ARTICLE IX
MISCELLANEOUS
SECTION IX.1. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or consent to any departure by any Originator therefrom shall
be effective unless in a writing signed by the Initial Purchaser, and consented
to in writing by the Administrator, and any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No failure on the part of the Initial Purchaser or the Administrator to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
SECTION IX.2. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise expressly stated herein, be in
writing (including facsimile communication) and shall be personally delivered or
sent by certified mail, postage prepaid, or by facsimile, to the intended party
at the address or facsimile number of such party set forth under its name on
Schedule 9.2 hereto or at such other address or Telex or facsimile number as
shall be designated by such party in a written notice to the other parties
hereto. All such notices and communications shall be effective, (a) if
personally delivered, when received, (b) if sent by certified mail, three (3)
Business Days after having been deposited in the mail, postage prepaid, (c) if
sent by overnight courier, one (1) Business Day after having been given to such
courier, and (d) if transmitted by facsimile, when sent, receipt confirmed by
telephone or electronic means.
SECTION IX.3. Acknowledgment and Consent.
(a) Each of Maxtor, as an Originator and as initial Servicer, and each
other Originator acknowledges that, contemporaneously herewith or at any time
hereafter, the Initial Purchaser is assigning or will assign to the
Administrator, for the benefit of the Purchaser, pursuant to the Receivables
Purchase Agreement, one or more undivided interests in all of the Initial
Purchaser's rights, title and interest in, to and under the Pool Receivables and
Related Rights, and all of the Initial Purchaser's right, title and interest in,
to and under this Agreement, it being understood that such assignment shall not
relieve any party hereto from (or require the Purchaser or the
32
Administrator to undertake) the performance of any term, covenant or agreement
on the part of any party hereto to be performed or observed under or in
connection with this Agreement. Each of Maxtor, as Originator and as initial
Servicer, and each other Originator hereby consents to such assignments,
including, without limitation, the assignment by the Initial Purchaser of (i)
the right of the Initial Purchaser, at any time, to enforce this Agreement
against the Originators and the obligations of the Originators hereunder, (ii)
the right to appoint a successor to the Servicer as set forth in the Receivables
Purchase Agreement, (iii) the right, at any time, to give or withhold any and
all consents, requests, notices, directions, approvals, demands, extensions or
waivers under or with respect to this Agreement, any other Transaction Document
or the obligations in respect of the Originators thereunder to the same extent
as the Initial Purchaser may do, and (iv) all of the Initial Purchaser's rights,
remedies, powers and privileges, and all claims of the Initial Purchaser against
each Originator, under or with respect to this Agreement and the other
Transaction Documents (whether arising pursuant to the terms of this Agreement
or otherwise available at law or in equity). Each of the parties hereto
acknowledges and agrees that the Purchaser, the Administrator and the other
Indemnified Parties are third party beneficiaries of the rights of the Initial
Purchaser arising hereunder and under the other Transaction Documents to which
any Originator is a party.
(b) Each Originator hereby agrees to execute all agreements, instruments
and documents, and to take all other action, that the Initial Purchaser or the
Administrator determines is necessary or reasonably desirable to evidence its
consent described in Section 9.3(a).
(c) Each Originator hereby acknowledges that its obligations to the
Purchaser and the Administrator as assignees of the Initial Purchaser are and
shall be, to the extent permitted by Applicable Law or not prohibited by any
order of any court or administrative or regulatory authority, absolute and
unconditional under any and all circumstances and shall be unaffected by any
claims, offsets or other defenses such Originator may have against the Initial
Purchaser, and each Originator agrees that it shall not assert or interpose any
such claims, offsets or defenses as a defense to its performance of its
obligations under the Transaction Documents to which it is a party.
SECTION IX.4. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Initial Purchaser, each Originator
and their respective successors and permitted assigns. No Originator may assign
its rights hereunder or any interest herein without the prior written consent of
the Initial Purchaser, the Administrator and the Liquidity Agent; subject to
Section 9.3, the Initial Purchaser may not assign its rights hereunder or any
interest herein without the prior written consent of Maxtor, the Administrator
and the Liquidity Agent. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the date after the Sale Termination
Date on which each Originator has received payment in full for all of its
Receivables and Related Rights conveyed pursuant to Section 1.1 hereof and has
paid and performed all of its obligations hereunder in full. The rights and
remedies with respect to any breach of any representation and warranty made by
33
any Originator pursuant to Article V shall be continuing and shall survive any
termination of this Agreement.
SECTION IX.5. Costs, Expenses and Taxes. In addition to the rights of
indemnification granted under Article VII, each Originator, jointly and
severally, agrees to pay on demand all costs and expenses in connection with the
preparation, execution, delivery and administration (including, without
limitation, but subject to the proviso to Section 6.1(c), periodic auditing of
Pool Receivables) of this Agreement and the other Transaction Documents, and any
amendment, modification or waiver of or consent to any of the foregoing,
including, without limitation, attorneys' fees for the Administrator, the
Initial Purchaser and their respective Affiliates and agents with respect
thereto and with respect to advising the Administrator, the Initial Purchaser
and their respective Affiliates and agents as to their rights and remedies under
this Agreement and the other Transaction Documents, and all costs and expenses,
if any (including, without limitation, attorneys' fees (including the allocated
fees of in-house counsel)), of the Administrator, the Initial Purchaser and
their respective Affiliates and agents, in connection with the enforcement of
this Agreement and the other Transaction Documents.
SECTION IX.6. No Proceedings; Limitation on Payments.
(a) Each Originator hereby agrees that it will not institute against, or
join any other Person in instituting against, the Initial Purchaser any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, for
one year and one day after the latest maturing Commercial Paper Note is paid in
full. The foregoing shall not limit any Originator's right to file any claim in
or otherwise take any action with respect to any insolvency proceeding that was
instituted by any Person other than an Originator.
(b) Notwithstanding any provisions contained in this Agreement to the
contrary, the Initial Purchaser shall not, and shall not be obligated to, pay
any amount pursuant to this Agreement unless the Initial Purchaser has excess
cash flow from operations or has received funds with respect to such obligation
which may be used to make such payment and, in each case, such payment is
permitted by the Receivables Purchase Agreement.
34
SECTION IX.7. GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF), EXCEPT TO THE EXTENT THAT THE PERFECTION (OR THE
EFFECT OF PERFECTION OR NON-PERFECTION) OF THE INTERESTS OF THE INITIAL
PURCHASER IN THE POOL RECEIVABLES AND THE RELATED RIGHTS IS GOVERNED BY THE LAWS
OF A JURISDICTION OTHER THAN THE STATE OF CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY UNITED STATES FEDERAL
COURT, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES
HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY TRANSACTION DOCUMENT. EACH
PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
SECTION IX.8. Execution in Counterparts. This Agreement may be executed
in any number of 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.
SECTION IX.9. Survival of Termination. The provisions of Section 1.4,
Article VII, Section 9.3, Section 9.5, Section 9.6, Section 9.7, Section 9.10
and this Section 9.9 shall survive any termination of this Agreement.
SECTION IX.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ITS
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
35
CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
SECTION IX.11. Entire Agreement. This Agreement and the other
Transaction Documents embodies the entire agreement and understanding of the
parties hereto, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof. The Exhibits, Schedules and Annexes to this Agreement
shall be deemed incorporated by reference into this Agreement as if set forth
herein.
SECTION IX.12. Headings. The captions and headings of this Agreement and
in any Exhibit hereto are for convenience of reference only and shall not affect
the interpretation hereof or thereof.
36
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MAXTOR CORPORATION, as Originator and as
an initial Servicer
By:
---------------------------------------
Name:
--------------------------------------
Title:
------------------------------------
MAXTOR RECEIVABLES CORPORATION, as
Initial Purchaser
By:
---------------------------------------
Name:
--------------------------------------
Title:
------------------------------------
PURCHASE AND
SALE AGREEMENT
37
SCHEDULE I
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Lock-Box Bank Lock-Box Account
First Union National Bank Account No. 0109-7086
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
38
EXHIBIT A
FORM OF PURCHASE REPORT
PURCHASE REPORT
Maxtor Corporation
Maxtor Receivables Corporation
As of ______________________________
Cut-Off Date
--------------------------------------
Total Receivables UPB $ - Input
Initial Contributed Receivables $ Fixed
Aggregate Unpaid Balance of Receivables AUB $ Calculated
LIBOR 0.0000% Input
Days Sales Outstanding TD 0 Input
12 Month Losses $ - Input
12 Month Collections $ - Input
Purchaser's Total Investment PTI $ Fixed
Cost Rate (LIBOR +1.50%) CR Calculated
Cost Discount (TD/360)*CR CD 0 Calculated
Loss Discount (12 Month Losses/12 Month Coll) LD #DIV/0! Calculated
Fair Market Value Discount (LD+CD) FMVD #DIV/0! Calculated
Purchase Price (AUB-(AUB*FMVD)) PP #DIV/0! Calculated
Eligible Receivables $ - Input
Ineligible Receivables $ - Input
39
EXHIBIT B
FORM OF INITIAL PURCHASER NOTE
NON-NEGOTIABLE PROMISSORY NOTE
July 31, 1998
FOR VALUE RECEIVED, the undersigned, MAXTOR RECEIVABLES CORPORATION, a
California corporation (the "Initial Purchaser"), promises to pay to [NAME OF
ORIGINATOR], a ___________________ corporation (the "Originator"), at its office
at __________________________________________ , on the terms and subject to the
conditions set forth herein and in the Purchase and Sale Agreement referred to
below, the aggregate unpaid Purchase Price of all Pool Receivables and Related
Rights of the Originator purchased and to be purchased by the Initial Purchaser
pursuant to the Purchase and Sale Agreement (subject to adjustment pursuant to
Section 3.3 of such Purchase and Sale Agreement). Such amount as shown in the
records of the Servicer will be rebuttable presumptive evidence of the principal
amount owing under this Note.
1. Purchase and Sale Agreement. This Note is an "Initial Purchaser Note"
described in, and is subject to the terms and conditions set forth in, that
certain Purchase and Sale Agreement, dated as of July 31, 1998 (as the same may
be amended, supplemented, or otherwise modified in accordance with its terms,
the "Purchase and Sale Agreement"), among the Originator and the Initial
Purchaser. Reference is hereby made to the Purchase and Sale Agreement for a
statement of certain other rights and obligations of the Initial Purchaser and
the Originator. In the case of any conflict between the terms of this Note and
the terms of the Purchase and Sale Agreement, the terms of the Purchase and Sale
Agreement shall control.
2. Definitions. Capitalized terms used (but not defined) herein have the
meanings ascribed thereto in the Purchase and Sale Agreement. In addition, as
used herein, the following terms have the following meanings:
"Final Maturity Date" means the date that falls ninety one (91)
days after the later of (x) the Sale Termination Date and (y) the Final
Payout Date.
"Junior Liabilities" means all obligations of the Initial
Purchaser to the Originator under this Note.
"Senior Agent" means the Administrator.
"Senior Interests" means (a) the undivided percentage ownership
interests acquired by the Administrator pursuant to the Receivables
Purchase Agreement, and (b) all obligations of the Initial Purchaser to
the Senior Interest Holders, howsoever
40
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due on or
before the Final Maturity Date.
"Senior Interest Holders" means, collectively, the Purchaser, the
Administrator and the other Indemnified Parties.
"Subordination Provisions" means, collectively, clauses (a)
through (k) of Section 7 hereof.
3. Interest. Subject to the Subordination Provisions, the Initial
Purchaser promises to pay interest on the aggregate unpaid principal amount of
this Note outstanding on each day (a) prior to the final payment in full and in
cash of the Senior Interests, at a variable rate per annum equal to the Earned
Discount Rate Percentage, determined as of the then most recent Reporting Date,
and (b) after such final payment, at a variable rate per annum equal to the
Alternate Base Rate, as determined by the Servicer.
4. Interest Payment Dates. Subject to the Subordination Provisions, the
Initial Purchaser shall pay accrued interest on this Note on each Settlement
Date and on the Final Maturity Date (or, if any such day is not a Business Day,
the next succeeding Business Day). The Initial Purchaser also shall pay accrued
interest on the principal amount of each prepayment hereof on the date of each
such prepayment.
5. Basis of Computation. Interest accrued hereunder shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Subject to the Subordination Provisions, any
unpaid principal of this Note shall be paid on the Final Maturity Date (or, if
such date is not a Business Day, the next succeeding Business Day). Subject to
the Subordination Provisions, the principal amount of and accrued interest on
this Note may be prepaid on any Business Day without premium or penalty.
7. Subordination Provisions. The Initial Purchaser covenants and agrees,
and the Originator, by its acceptance of this Note, likewise covenants and
agrees, that the payment of all Junior Liabilities is hereby expressly
subordinated in right of payment to the payment and performance of the Senior
Interests to the extent and in the manner set forth in the following clauses of
this Section 7:
(a No payment or other distribution of the Initial Purchaser's
assets of any kind or character, whether in cash, securities, or other
rights or property, shall be made on account of this Note except to the
extent such payment or other distribution is (i) permitted under the
Receivables Purchase Agreement or (ii) made pursuant to Sections 4 or 6
of this Note;
41
(b (i) In the event of any Event of Bankruptcy involving the
Initial Purchaser, and (ii) on and after the occurrence of the Sale
Termination Date, the Senior Interests shall first be paid and performed
in full and in cash before the Originator shall be entitled to receive
and to retain any payment or distribution in respect of the Junior
Liabilities. In order to implement the foregoing: (x) all payments and
distributions of any kind or character in respect of the Junior
Liabilities to which the Originator would be entitled except for this
subsection 7(b) shall be made directly to the Senior Agent (for the
benefit of the Senior Interest Holders); and (y) the Originator hereby
irrevocably agrees that the Senior Agent, in the name of the Originator
or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any
and all such payments or distributions, and file, prove and vote or
consent in any such proceeding with respect to any and all claims of the
Originator relating to the Junior Liabilities, in each case until the
Senior Interests shall have been paid and performed in full and in cash.
(c In the event that the Originator receives any payment or other
distribution of any kind or character from the Initial Purchaser or from
any other source whatsoever, in respect of the Junior Liabilities, other
than as expressly permitted by the terms of this Note, such payment or
other distribution shall be received in trust for the Senior Interest
Holders and shall be turned over by the Originator to the Senior Agent
(for the benefit of the Senior Interest Holders) forthwith until the
Senior Interests have been paid in full. All payments and distributions
received by the Senior Agent in respect of this Note, to the extent
received in or converted into cash, may be applied by the Senior Agent
(for the benefit of the Senior Interest Holders) first to the payment of
any and all reasonable expenses (including, without limitation,
reasonable attorneys' fees and other legal expenses) paid or incurred by
the Senior Agent or the Senior Interest Holders in enforcing these
Subordination Provisions, or in endeavoring to collect or realize upon
the Junior Liabilities, and any balance thereof shall, solely as between
the Originator and the Senior Interest Holders, be applied by the Senior
Agent toward the payment of the Senior Interests in a manner determined
by the Senior Agent to be in accordance with the Receivables Purchase
Agreement; but as between the Initial Purchaser and its creditors, no
such payments or distributions of any kind or character shall be deemed
to be payments or distributions in respect of the Senior Interests.
(d Upon the final payment in full and in cash of all Senior
Interests, the Originator shall be subrogated to the rights of the
Senior Interest Holders to receive payments or distributions from the
Initial Purchaser that are applicable to the Senior Interests until the
Junior Liabilities are paid in full.
(e These Subordination Provisions are intended solely for the
purpose of defining the relative rights of the Originator, on the one
hand, and the Senior
42
Interest Holders, on the other hand. Nothing contained in the
Subordination Provisions or elsewhere in this Note is intended to or
shall impair, as between the Initial Purchaser, its creditors (other
than the Senior Interest Holders) and the Originator, the Initial
Purchaser's obligation, which is unconditional and absolute, to pay the
Junior Liabilities as and when the same shall become due and payable in
accordance with the terms hereof and of the Purchase and Sale Agreement
or to affect the relative rights of the Originator and creditors of the
Initial Purchaser (other than the Senior Interest Holders).
(f The Originator shall not, until the Senior Interests have been
finally paid and performed in full and in cash, (i) cancel, waive,
forgive, transfer or assign, or commence legal proceedings to enforce or
collect, or subordinate to any obligation of the Initial Purchaser,
howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, or now or hereafter existing, or due or to
become due, other than the Senior Interests, the Junior Liabilities, or
any rights in respect thereof or (ii) convert the Junior Liabilities
into an equity interest in the Initial Purchaser, unless, in the case of
each of clauses (i) and (ii) above, the Originator shall have received
the prior written consent of the Administrator in each case.
(g The Originator shall not, without the advance written consent
of the Administrator, commence, or join with any other Person in
commencing, any proceedings related to an Event of Bankruptcy with
respect to the Initial Purchaser until at least one year and one day
shall have passed since the Senior Interests shall have been finally
paid and performed in full and in cash.
(h If, at any time, any payment (in whole or in part) made with
respect to any Senior Interest is rescinded or must be restored or
returned by a Senior Interest Holder (whether in connection with any
Event of Bankruptcy or otherwise), these Subordination Provisions shall
continue to be effective or shall be reinstated, as the case may be, as
though such payment had not been made.
(i Each of the Senior Interest Holders may, from time to time, at
its sole discretion, without notice to the Originator, and without
waiving any of its rights under these Subordination Provisions, take any
or all of the following actions: (i) retain or obtain an interest in any
property to secure any of the Senior Interests; (ii) retain or obtain
the primary or secondary obligations of any other obligor or obligors
with respect to any of the Senior Interests; (iii) extend or renew for
one or more periods (whether or not longer than the original period),
alter or exchange any of the Senior Interests, or release or compromise
any obligation of any nature with respect to any of the Senior
Interests; (iv) amend, supplement, or otherwise modify any Transaction
Document; and (v) release its security interest in, or surrender,
release or permit any substitution or exchange for all or any part of
any rights or property securing any of the Senior Interests, or extend
or renew for one or more
43
periods (whether or not longer than the original period), or release,
compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such rights or property.
(j The Originator hereby waives: (i) notice of acceptance of
these Subordination Provisions by any of the Senior Interest Holders;
(ii) notice of the existence, creation, non-payment or non-performance
of all or any of the Senior Interests; and (iii) all diligence in
enforcement, collection or protection of, or realization upon the Senior
Interests, or any thereof, or any security therefor.
(k These Subordination Provisions constitute a continuing offer
from the Initial Purchaser to all Persons who become the holders of, or
who continue to hold, Senior Interests; and these Subordination
Provisions are made for the benefit of the Senior Interest Holders, and
the Administrator may proceed to enforce such provisions on behalf of
each of such Persons.
8. Amendments, Etc. No failure or delay on the part of the Originator in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No amendment, modification or waiver of, or consent with respect to, any
provision of this Note shall in any event be effective unless (a) the same shall
be in writing and signed and delivered by the Initial Purchaser and the
Originator, and (b) all consents required for such actions under the Transaction
Documents shall have been received by the appropriate Persons.
9. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, the Initial Purchaser shall never be required to pay unearned interest
on any amount outstanding hereunder, and shall never be required to pay interest
on the principal amount outstanding hereunder, at a rate in excess of the
maximum interest rate that may be contracted for, charged or received without
violating applicable federal or state law.
10. No Negotiation. This Note is not negotiable.
11. GOVERNING LAW. THIS NOTE SHALL GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF).
12. Captions. Paragraph captions used in this Note are provided solely
for convenience of reference only and shall not affect the meaning or
interpretation of any provision of this Note.
44
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
by its officer thereunto duly authorized on the date first above written.
MAXTOR RECEIVABLES
CORPORATION
By:
------------------------------
Title:
---------------------------
45
EXHIBIT C
FORM OF ORIGINATOR NOTE
DEMAND NOTE
July 31, 1998
The undersigned, [NAME OF ORIGINATOR], a ___________________ corporation
(the "Originator"), for value received, promises to pay to the order of MAXTOR
RECEIVABLES CORPORATION, a California corporation (the "Initial Purchaser"), ON
DEMAND, the aggregate unpaid principal amount of all loans made by the Initial
Purchaser to the Originator (the "Originator Loans") together with accrued
interest on such amounts from time to time outstanding hereunder at the rate
provided below. Such amounts as shown in the records of the Servicer (as such
term is defined in the Purchase and Sale Agreement referred to below) will be
rebuttable presumptive evidence of the principal amount owing under this Demand
Note.
The unpaid principal amount of each Originator Loan from time to time
outstanding shall bear interest (which also shall be payable ON DEMAND) from
(and including) the date on which such Originator Loan was made to (but
excluding) the date on which such Originator Loan is paid in full (a) prior to
the final payment in full and in cash of the Senior Interests (as such term is
defined in the Initial Purchaser Note), at a variable rate per annum equal to
the Earned Discount Rate Percentage, determined as of the then most recent
Payment Date, and (b) after such final payment, at a variable rate per annum
equal to the Alternative Base Rate, as determined by the Servicer. Interest
hereunder shall be computed for the actual number of days elapsed on the basis
of a year consisting of 360 days.
This Demand Note is an Originator Note described in, and is subject to
the terms and conditions set forth in, that certain Purchase and Sale Agreement,
dated as of July 31, 1998 (as the same may at any time be amended, supplemented,
or otherwise modified from time to time in accordance with its terms, the
"Purchase and Sale Agreement"), between the Initial Purchaser and the
Originator. Reference is hereby made to the Purchase and Sale Agreement for a
statement of certain other rights and obligations of the Initial Purchaser. All
capitalized terms used but not otherwise defined herein have the meanings
assigned thereto in the Purchase and Sale Agreement.
All payments of principal and interest hereunder are to be made in
lawful money of the United States of America in same day funds to the account
designated from time to time by the Servicer to the Initial Purchaser.
In addition to and not in limitation of the foregoing, the Originator
further agrees, subject to any limitation imposed by applicable law, to pay all
expenses, including without
C-1
46
limitation reasonable attorney fees, incurred by the holder of this Demand Note
in seeking to collect any amounts payable hereunder which are not paid when due.
No failure or delay on the part of the Initial Purchaser or any other
holder of this Demand Note in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Originator
shall entitle it to any notice or demand in similar or other circumstances. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Demand Note shall in any event be effective unless (i) the same shall be
in writing and signed and delivered by the holder hereof and (ii) all consents
required for such action under the Transaction Documents shall have been given
by the appropriate Persons.
Upon the occurrence of any Event of Bankruptcy with respect to the
Originator, the principal balance hereof and all interest accrued hereon shall
be immediately due and payable, without demand, presentment, protest or notice
of dishonor.
Notwithstanding anything in this Demand Note to the contrary, the
Originator shall never be required to pay unearned interest on any amount
outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
nonusurious interest rate that may be contracted for, charged or received under
applicable federal or state law.
THIS DEMAND NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES THEREOF).
[NAME OF ORIGINATOR]
By:
------------------------------
Title:
---------------------------
C-2
47
PAY TO THE ORDER OF Fleet National Bank, as Administrator, pursuant to that
certain Receivables Purchase Agreement dated as of July 31, 1998, as the same
may be further amended, supplemented, or otherwise modified from time to time.
MAXTOR RECEIVABLES CORPORATION
By:
------------------------------
Title:
---------------------------
C-3