Amendment No. 2 to the Loan and Security Agreement



 Exhibit 10.28 
  
 AMENDMENT NO. 2 
 TO 
 LOAN AND SECURITY AGREEMENT 
  
 THIS AMENDMENT NO. 2 TO LOAN
AND SECURITY AGREEMENT (this “Amendment”), is entered into this 28th day of July, 2004 (the “Effective Date”), by and between
PALMONE, INC., a Delaware corporation (“Borrower”), and SILICON VALLEY BANK
(“Bank”). Capitalized terms used herein without definition shall have the same meanings given them in the Loan Agreement (as defined below). 
  
 RECITALS 
  
 A. Borrower and Bank have entered into that certain Loan and Security Agreement dated as of August 28, 2003, as amended by that certain Amendment
No. 1 dated as of January 14, 2004 (the “Loan Agreement”), pursuant to which the Bank has agreed to extend and make available to Borrower certain advances of money. 
  
 B. Borrower wishes to delete the requirement in Section 6.8 that
Borrower deposit and maintain with Bank or an Affiliate of Bank not less than Thirty Million Dollars ($30,000,000). 
  
 C. Subject to the representations and warranties of Borrower herein and upon the terms and conditions set forth in this Amendment, Bank has agreed
to delete such requirement and is willing to so amend the Loan Agreement. 
  
 AGREEMENT 
  
 NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be legally bound, the parties hereto agree as follows: 
  
 1. AMENDMENT TO LOAN AGREEMENT. 
  
 1.1 Section 6.8 (Investable Funds with Bank). Section
6.8 of the Loan Agreement is amended in its entirety and replaced with the following: 
  
 6.8 [Intentionally omitted] 
  
 2. BORROWER’S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that: 
  
 (a) immediately upon giving effect to this Amendment (i) the
representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are
true and correct as of such date), and (ii) no Event of Default has occurred and is continuing; 
  
 (b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement,
as amended by this Amendment; 







 (c) the certificate of incorporation, bylaws and other organizational documents of Borrower
delivered to Bank on the Closing Date remain true, accurate and complete and have not been amended, supplemented or restated since June 15, 2004 and are and continue to be in full force and effect; 
  
 (d) the execution and delivery by Borrower of this Amendment and the
performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower; and 
  
 (e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower,
enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or
affecting creditors’ rights. 
  
 3.
LIMITATION. The amendments set forth in this Amendment shall be limited precisely as written and shall not be deemed (a) to be a waiver or modification of any other term or condition of the Loan Agreement or
of any other instrument or agreement referred to therein or to prejudice any right or remedy which Bank may now have or may have in the future under or in connection with the Loan Agreement or any instrument or agreement referred to therein; or (b)
to be a consent to any future amendment or modification or waiver to any instrument or agreement the execution and delivery of which is consented to hereby, or to any waiver of any of the provisions thereof. Except as expressly amended hereby, the
Loan Agreement shall continue in full force and effect. 
  
 4.
EFFECTIVENESS. This Amendment shall become effective upon the satisfaction of all the following conditions precedent: 
  

4.1 Amendment. Borrower and Bank shall have duly executed and delivered this Amendment to Bank. 
  
 4.2 Payment of Bank Expenses. Borrower shall have paid all Bank
Expenses (including all reasonable attorneys’ fees and reasonable expenses) incurred through the Effective Date. 
  
 5. COUNTERPARTS. This Amendment may be signed in any number of counterparts, and by different parties hereto
in separate counterparts, with the same effect as if the signatures to each such counterpart were upon a single instrument. All counterparts shall be deemed an original of this Amendment. 
  
 6. INTEGRATION. This Amendment and any documents executed in connection herewith
or pursuant hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, offers and negotiations, oral or written, with respect thereto and no extrinsic
evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Amendment; except that any financing statements or other agreements or instruments filed by Bank with respect to Borrower shall remain in full
force and effect. 
  

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 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. 
  
 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above. 
  

									
	BORROWER:	 	 	 	PALMONE, INC.
	 	 	 	 	 	 	a Delaware corporation
					
	 	 	 	 	 	 	By:	 	 /s/ PHILIPPE MORALI


	 	 	 	 	 	 	Printed Name:	 	 Philippe Morali


	 	 	 	 	 	 	Title:	 	 Interim CFO


			
	BANK:	 	 	 	SILICON VALLEY BANK
					
	 	 	 	 	 	 	By:	 	 /s/ QUENTIN FALCONER


	 	 	 	 	 	 	Printed Name:	 	 Quentin Falconer


	 	 	 	 	 	 	Title:	 	 Senior Vice President



  

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