exv10w42



 






Exhibit 10.42


SECOND AMENDMENT AGREEMENT




     SECOND AMENDMENT AGREEMENT, dated as of March 4, 2005 (the “Second 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:



     SECTION 1. AMENDMENTS TO THE RLSA



     (a) The RLSA is hereby amended by deleting the percentage “17.5%” at the end of clause (m) of
Section 7.01 of the RLSA and substituting in lieu thereof “20.0%”.



     (b) The RLSA is hereby amended by inserting the words “and/or restated” immediately after
the phrase “may be amended” at the end of clause (a) of Section 2.07 of the RLSA.



     SECTION 2. CONDITIONS TO EFFECTIVENESS



     This Second Amendment shall be effective upon the delivery to the Agent of (i) counterparts
hereof executed by each of the parties hereto and (ii) counterparts of an amendment and restatement
of the Fee Letter (in form and substance satisfactory to the Agent) executed by each of the parties
thereto.



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     SECTION 3. FORBEARANCE



     The Agent hereby agrees to forbear permanently from exercising its rights and remedies on
account of that certain Early Amortization Event which occurred under Section 7.01(m) of the RLSA
due to the rolling average of the Dilution-to-Liquidation Ratios for the preceding three Cut-Off
Dates, as reported in the Monthly Remittance Report delivered on February 7, 2005, exceeding 17.50%
(the “Dilution Trigger Event”). The specific agreement to forbear described in the
sentence above applies only to the Dilution Trigger Event and not to any other facts or
circumstances giving rise to any Early Amortization Event or Servicer Default which may have
occurred or may hereafter occur, and nothing in this Section 3 shall be deemed to restrict any
right or remedy the Agent may have on account of any such other Early Amortization Event or
Servicer Default.



     SECTION 4. 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 Second 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 Second 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
Second Amendment becoming effective, (b) the Borrower and the Servicer each has the corporate power
and authority to execute and deliver this Second Amendment and has taken or caused to be taken all
necessary corporate actions to authorize the execution and delivery of this Second 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 Second Amendment other than such that have been obtained and (d) this Second
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.



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     (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 Second 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 Second Amendment by facsimile shall be effective as delivery of a manually executed
counterpart of this Second Amendment.



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



     (vi) GOVERNING LAW. THIS SECOND 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.]




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



	 	 	 
	THE BORROWER:

	 	MAXTOR RECEIVABLES LLC
	 
	 	 
	

	 	By: /s/ Glen T. Haubl
	

	 	Title: Treasurer
	 
	 	 
	THE SERVICER:

	 	MAXTOR CORPORATION
	 
	 	 
	

	 	By: /s/ Glen T. Haubl
	

	 	Title: Treasurer
	 
	 	 
	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






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