exv10w41



 






Exhibit 10.41




FIRST AMENDMENT AGREEMENT




     FIRST AMENDMENT AGREEMENT, dated as of December 22, 2004 (the “First Amendment”), to
the Receivables Loan and Security Agreement, dated as of June 24, 2004, among Maxtor Receivables
LLC, a Delaware limited liability company (the “Borrower”), Maxtor Corporation, a Delaware
corporation (“Maxtor”), as servicer (the “Servicer”), Merrill Lynch Commercial
Finance Corp., as lender (the “Lender”), Merrill Lynch Commercial Finance Corp., as agent
(the “Agent”), U.S. Bank National Association and the other parties named therein (as the
same has been and may be further amended, supplemented, modified and/or restated in accordance with
its terms, the “RLSA”). Capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed thereto in the RLSA.



     WHEREAS, the parties hereto have agreed to amend the RLSA on the terms and subject to the
conditions herein set forth;



     NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and subject to the fulfillment of the conditions set forth below, the parties hereto
agree as follows:



ARTICLE I. AMENDMENTS TO THE RLSA




            (a) The RLSA is hereby amended by deleting Clause (s) of Section 7.01 of the RLSA in its
entirety and substituting in lieu thereof the following:




     “(s) the non-restricted and unencumbered cash, non-restricted and unencumbered
cash equivalents (determined and valued in accordance with GAAP) and non-restricted and
unencumbered marketable securities (determined and valued in accordance with GAAP) of the
Servicer (if Maxtor or any Affiliate thereof) and its consolidated subsidiaries (including
the Borrower) shall be, in the aggregate, less than (i) $250 million at any time if the
income or loss from operations plus depreciation and amortization of good will and
intangible assets (determined in accordance with GAAP) of the Servicer (if Maxtor or any
Affiliate thereof) and its consolidated subsidiaries (including the Borrower) for the most
recently ended fiscal quarter of the Servicer multiplied by four (4) was less than 20% of
the long-term debt (determined in accordance with GAAP) of the Servicer and its consolidated
subsidiaries (including the Borrower) as of the last day of such fiscal quarter and (ii)
$175 million at any time if the income or loss from operations plus depreciation and
amortization of good will and intangible assets (determined in accordance with GAAP) of the
Servicer (if Maxtor or any Affiliate thereof) and its consolidated subsidiaries (including
the Borrower) for the most recently ended fiscal quarter of the Servicer multiplied by four
(4) was greater than or equal to 20% of the long-term debt (determined in accordance with
GAAP) of the Servicer and its consolidated subsidiaries (including the Borrower) as of the
last day of such fiscal quarter; or”



 









 





            (b) The RLSA is hereby amended by deleting Clause (t) of Section 7.01 of the RLSA in its
entirety and substituting in lieu thereof the following:




     “(t) with respect to each fiscal quarter of the Servicer (if Maxtor or any Affiliate
thereof) other than the fiscal quarters ending on or about December 31, 2004 and March 31,
2005, the income or loss from operations plus depreciation and amortization of good will and
intangible assets (determined in accordance with GAAP) of the Servicer (if Maxtor or any
Affiliate thereof) and its consolidated subsidiaries (including the Borrower) for such
fiscal quarter of the Servicer multiplied by four (4) shall be less than 20% of the
long-term debt (determined in accordance with GAAP) of the Servicer and its consolidated
subsidiaries (including the Borrower) as of the last day of such fiscal quarter;”



            (c) Schedule VI of the RLSA is hereby amended by deleting such Schedule in its
entirety and inserting in lieu thereof Schedule VI attached hereto as Annex I.



     SECTION 2. CONDITIONS TO EFFECTIVENESS



     This First Amendment shall be effective upon the delivery to the Agent of counterparts hereof
executed by each of the parties hereto.



     SECTION 3. MISCELLANEOUS



     (i) The Borrower and the Servicer each hereby certifies that the representations and
warranties set forth in Article IV of the RLSA (and any other representations and warranties made
by the Borrower or the Servicer in the RLSA) are true and correct on the date hereof (after giving
effect to this First Amendment) with the same force and effect as if made on the date hereof,
except to the extent that such representations and warranties speak specifically to an earlier date
in which case they shall have been true and correct on such date. In addition, after giving effect
to this First Amendment, the Borrower and the Servicer each represents and warrants (which
representations and warranties shall survive the execution and delivery hereof) that (a) no
unwaived Early Amortization Event (nor any event that but for notice or lapse of time or both would
constitute an unwaived Early Amortization Event) shall have occurred and be continuing as of the
date hereof nor shall any unwaived Early Amortization Event (nor any event that but for notice or
lapse of time or both would constitute an unwaived Early Amortization Event) occur due to this
First Amendment becoming effective, (b) the Borrower and the Servicer each has the corporate power
and authority to execute and deliver this First Amendment and has taken or caused to be taken all
necessary corporate actions to authorize the execution and delivery of this First Amendment, (c) no
consent of any other person (including, without limitation, shareholders or creditors of the
Borrower or the Servicer), and no action of, or filing with any governmental or public body or
authority is required to authorize, or is otherwise required in connection with the execution and
performance of this First Amendment other than such that have been obtained and (d) this First
Amendment constitutes the legal, valid and binding obligation of the Borrower and the Servicer,
enforceable against such party in accordance



 









 





with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and general principles of equity which may limit the
availability of equitable remedies.




     (ii) The RLSA, as amended hereby, is hereby ratified and confirmed in all respects and
remains in full force and effect in accordance with its terms.



     (iii) All references in the RLSA to “this Agreement” and “herein” and all references to the
RLSA in the documents executed in connection with the RLSA shall mean the RLSA as amended hereby
and as it may in the future be amended, restated, supplemented or modified from time to time.



     (iv) This First Amendment may be executed by the parties hereto individually or in
combination, in one or more counterparts, each of which shall be an original and all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a signature page to
this First Amendment by facsimile shall be effective as delivery of a manually executed counterpart
of this First Amendment.



     (v) In connection with this First Amendment, the Borrower hereby agrees to pay all costs
and expenses incurred by the Lender and the Agent in connection with this First Amendment
including, without limitation, the fees and expenses of Kaye Scholer LLP, counsel to the Lender and
the Agent.



     (vi) GOVERNING LAW. THIS FIRST AMENDMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE
APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.



[Signature pages to follow.]




 









 





          IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.




	 	 	 
	THE BORROWER:

	 	MAXTOR RECEIVABLES LLC
	 
	 	 
	

	 	By: /s/ Glen Haubl
	

	 	Title: Treasurer
	 
	 	 
	THE SERVICER:

	 	MAXTOR CORPORATION
	 
	 	 
	

	 	By: /s/ Duston Williams
	

	 	Title: Chief Financial Officer
	 
	 	 
	THE AGENT:

	 	MERRILL LYNCH COMMERCIAL
	

	 	FINANCE CORP.
	 
	 	 
	

	 	By: /s/ Joseph Magnus
	

	 	Title: Director
	 
	 	 
	THE LENDER:

	 	MERRILL LYNCH COMMERCIAL
	

	 	FINANCE CORP.
	 
	 	 
	

	 	By: /s/ Joseph Magnus
	

	 	Title: Director
	 
	 	 
	THE TRUSTEE:

	 	U.S. BANK NATIONAL
	

	 	ASSOCIATION
	 
	 	 
	

	 	By: /s/ Eve D. Kaplan
	

	 	Title: Vice President






 









 






ANNEX I




(See attached)




 









 








Maxtor Corporation as Servicer for




Maxtor Receivables LLC (MRLLC)




Merrill Lynch/Radian




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Fiscal Month AR	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	activity Used per	 	 	Cut-off Dates – per	 	 	Report Due Date on	 	 	Settlement Date with	 
	 	Books	 	 	Books	 	 	Servicer Report	 	 	Conduit Purchasers	 
	 	Jan-05
	 	 	29-Jan-05	 	 	07-Feb-05	 	 	11-Feb-05	 
	 	Feb-05
	 	 	26-Feb-05	 	 	07-Mar-05	 	 	11-Mar-05	 
	 	Mar-05
	 	 	02-Apr-05	 	 	11-Apr-05	 	 	15-Apr-05	 
	 	Apr-05
	 	 	07-May-05	 	 	16-May-05	 	 	20-May-05	 
	 	May-05
	 	 	04-Jun-05	 	 	13-Jun-05	 	 	17-Jun-05	 
	 	Jun-05
	 	 	02-Jul-05	 	 	12-Jul-05	 	 	18-Jul-05	 
	 	Jul-05
	 	 	02-Jul-05	 	 	15-Aug-05	 	 	19-Aug-05	 
	 	Aug-05
	 	 	03-Sep-05	 	 	13-Sep-05	 	 	19-Sep-05	 
	 	Sep-05
	 	 	01-Oct-05	 	 	10-Oct-05	 	 	14-Oct-05	 
	 	Oct-05
	 	 	05-Nov-05	 	 	14-Nov-05	 	 	18-Nov-05	 
	 	Nov-05
	 	 	03-Dec-05	 	 	12-Dec-05	 	 	16-Dec-05	 
	 	Dec-05
	 	 	31-Dec-05	 	 	 	 	 	 	 	 	 	 	 
	 





Reporting Date = 6th business day after Cut-off Date




Settlement Date = 10th business day after Cut-off Date