EXHIBIT NO. 10.1
U.S. GUARANTEE AGREEMENT dated as of
April 29, 2009 (this “ Agreement ”), among
SEAGATE TECHNOLOGY, an exempted limited liability company organized
under the laws of the Cayman Islands (“ Intermediate
Holdings ”), SEAGATE TECHNOLOGY HDD HOLDINGS, an exempted
limited liability company organized under the laws of the Cayman
Islands (the “ Borrower ”), each of the
subsidiaries of the Borrower listed on Schedule I hereto (each such
subsidiary individually, a “ Subsidiary ” and,
collectively, the “ Subsidiaries ”; and each
such Subsidiary, the Borrower and Intermediate Holdings,
individually, a “ Guarantor ” and, collectively,
the “ Guarantors ”) and JPMORGAN CHASE
BANK, N.A., as administrative agent (in such capacity, the
“ Administrative Agent ”) for the Secured
Parties (as defined in the Credit Agreement referred to
below).
Reference is made to the Second
Amended and Restated Credit Agreement dated as of April 3,
2009 (as amended, supplemented or otherwise modified from time to
time, the “ Credit Agreement ”), among the
Borrower, Intermediate Holdings, the lenders from time to time
party thereto (the “ Lenders ”) and the
Administrative Agent. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make
Loans to the Borrower, and the Issuing Banks have agreed to issue
Letters of Credit for the account of the Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of Intermediate Holdings and each Subsidiary
acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders and the issuance of Letters of
Credit by the Issuing Banks. The obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by
the Guarantors of a Guarantee Agreement in the form hereof. As
consideration therefor and in order to induce the Lenders to make
Loans and the Issuing Banks to issue Letters of Credit, the
Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto
agree as follows:
SECTION 1.
Guarantee . Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary
obligor and not merely as a surety, the Obligations. Each Guarantor
further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee hereunder
notwithstanding any extension or renewal of any
Obligation.
Notwithstanding anything in this
Agreement or any other Loan Document to the contrary, no Obligation
of any U.S. Loan Party shall be required to be Guaranteed by any
CFC Subsidiary or any Qualified CFC Holding Company, in each case
of any U.S. Subsidiary.
SECTION 2. Obligations
Not Waived . To the fullest extent permitted by applicable law,
each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by
(a) the failure of the Administrative Agent or any other
Secured Party to assert any claim or demand or to enforce or
exercise any right or remedy against the Borrower or any other
Guarantor under the provisions of the Credit Agreement, any other
Loan Document or otherwise, (b) any rescission, waiver (except
the effect of any waiver obtained pursuant to Section 12(b)),
amendment or modification of, or any release from any terms or
provisions of any other Loan Document, any other Guarantee or any
other agreement (in each case pursuant to the terms thereof),
including with respect to any other Guarantor under this Agreement,
or (c) the failure to perfect any security interest in, or
release of, any of the security held by or on behalf of the
Administrative Agent or any other Secured Party.
SECTION 3. Security .
Each of the Guarantors authorizes the Administrative Agent and each
of the other Secured Parties to (a) take and hold security for
the payment of its guarantee hereunder and the Obligations and
exchange, enforce, waive and release any such security,
(b) apply such security and direct the order or manner of sale
thereof as they in their sole discretion may determine and
(c) release or substitute any one or more endorsees, other
Guarantors or other obligors.
SECTION 4. Guarantee
of Payment . Each Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had
by the Administrative Agent or any other Secured Party to any of
the security held for payment of the Obligations or to any balance
of any deposit account or credit on the books of the Administrative
Agent or any other Secured Party in favor of the Borrower or any
other Person.
SECTION 5. No
Discharge or Diminishment of Guarantee . The obligations of
each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than
the payment in full in cash of all the Loan Document Obligations),
including any claim of waiver, release, surrender, alteration or
compromise of any of the Obligations, and shall not be subject to
any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor
hereunder shall not be discharged or impaired or otherwise affected
by the failure of the Administrative Agent or any other Secured
Party to assert any claim or demand or to enforce any remedy under
the Credit Agreement, any other Loan Document or any other
agreement, by any waiver or
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modification of any provision of any thereof, by
any default, failure or delay, wilful or otherwise, in the
performance of the Obligations, or the failure to perfect any
security interest in, or the release of, any of the security held
by or on behalf of the Administrative Agent or any other Secured
Party, or by any other act or omission that may or might in any
manner or to any extent vary the risk of any Guarantor or that
would otherwise operate as a discharge of any Guarantor as a matter
of law or equity (other than the payment in full in cash of all the
Loan Document Obligations).
SECTION 6. Defenses of
Borrower Waived . To the fullest extent permitted by applicable
law, each Guarantor waives any defense based on or arising out of
any defense of the Borrower or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Borrower, other than the
final payment in full in cash of all the Loan Document Obligations
(or, in the case of an action seeking payment of less than all the
Loan Document Obligations, payment in full in cash of the portion
of the Loan Document Obligations sought in such action). The
Administrative Agent and the other Secured Parties may, at their
election, foreclose on any security held by one or more of them by
one or more judicial or nonjudicial sales, accept an assignment of
any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with the
Borrower or any other Guarantor or exercise any other right or
remedy available to them against the Borrower or any other
Guarantor, without affecting or impairing in any way the liability
of any Guarantor hereunder except to the extent all the Loan
Document Obligations have been paid in full in cash. Pursuant to
applicable law, each Guarantor waives any defense arising out of
any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrower or any other Guarantor or guarantor,
as the case may be, or any security.
SECTION 7. Agreement
to Pay; Subordination . In furtherance of the foregoing and not
in limitation of any other right that the Administrative Agent or
any other Secured Party has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Borrower or any
other Loan Party to pay any Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each Guarantor hereby promises to and will
forthwith pay, or cause to be paid, to the Administrative Agent or
such other Secured Party as designated thereby in cash the amount
of such unpaid Obligations. Upon payment by any Guarantor of any
sums to the Administrative Agent or any Secured Party as provided
above, all rights of such Guarantor against the Borrower or such
other Loan Party arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment
to the prior payment in full in cash of all the Loan Document
Obligations. If any amount shall erroneously be paid to any
Guarantor on account of such subrogation, contribution,
reimbursement, indemnity or similar right, such amount shall be
held in trust for the benefit of the Secured Parties and shall
forthwith be paid to the Administrative Agent to be credited
against the payment of the Obligations, whether matured or
unmatured, in accordance with the terms of the Loan
Documents.
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SECTION 8.
Information . Each Guarantor assumes all responsibility for
being and keeping itself informed of each Loan Party’s
financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations and the
nature, scope and extent of the risks that such Guarantor assumes
and incurs hereunder, and agrees that none of the Administrative
Agent or the other Secured Parties will have any duty to advise any
Guarantor of information known to it or any of them regarding such
circumstances or risks.
SECTION 9.
Representations and Warranties . Each Guarantor represents
and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and
correct in all material respects.
SECTION 10.
Termination . The guarantees made hereunder (a) shall
terminate when all the Loan Document Obligations have been paid in
full in cash, the Commitments have expired or been terminated, the
principal of and interest on each Loan and all fees payable under
the Loan Documents shall have been paid in full, all Letters of
Credit shall have expired or been terminated (or otherwise provided
for in a manner satisfactory to the applicable Issuing Bank) and
all LC Disbursements shall have been reimbursed and (b) shall
continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Secured Party or any
Guarantor upon the bankruptcy or reorganization of the Borrower,
any Guarantor or otherwise. In the event that any Guarantor ceases
to be a Subsidiary (as such term is used in the Credit Agreement)
pursuant to a transaction permitted under the Credit Agreement,
such Guarantor shall be released from its obligations under this
Agreement without further action. Upon the release of a Guarantor
from its obligations under this Agreement pursuant to this
Section 10, and at the sole expense of such Guarantor, the
Administrative Agent shall execute and deliver to such Guarantor
such documents as such Guarantor may reasonably request to evidence
such termination or release.
SECTION 11. Binding
Effect; Several Agreement; Assignments . Whenever in this
Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf
of the Guarantors that are contained in this Agreement shall bind
and inure to the benefit of each party hereto and their respective
successors and assigns. This Agreement shall become effective as to
any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent,
and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such
Guarantor and the Collateral Agent and their respective successors
and assigns, and shall inure to the benefit of such Guarantor, the
Administrative Agent and the other Secured Parties, and their
respective successors and assigns, except that no Guarantor shall
have the right to assign its rights or obligations hereunder or any
interest herein without the prior written consent of each Lender
(and any such attempted assignment without such consent shall be
void). This Agreement shall be construed as a separate agreement
with respect to each Guarantor and may be amended, modified,
supplemented, waived or released with respect to any Guarantor
without the approval of any other Guarantor and without affecting
the obligations of any other Guarantor hereunder.
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SECTION 12. Waivers;
Amendment . (a) No failure or delay of the Administrative
Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps
to enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent hereunder and of
the other Secured Parties under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Guarantor therefrom
shall in any event be effective unless the same shall be permitted
by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for
which given. No notice or demand on any Guarantor in any case shall
entitle such Guarantor to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor
any provision hereof may be waived, amended or modified except
pursuant to a written agreement entered into between the Guarantors
with respect to which such waiver, amendment or modification
relates and the Administrative Agent, subject to any consent
required in accordance with Section 9.02 of the Credit
Agreement.
SECTION 13. GOVERNING
LAW . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 14.
Notices . All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit
Agreement. All communications and notices hereunder to each
Guarantor shall be given to it at its address or telecopy number
set forth in Schedule I hereto, with a copy to the
Borrower.
SECTION 15. Survival of
Agreement; Severability . (a) All covenants, agreements,
representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the
Administrative Agent and the other Secured Parties and shall
survive the execution and delivery of the Loan Documents and the
making of any Loans and the issuance of the Letters of Credit,
regardless of any investigation made by the Secured Parties or on
their behalf and notwithstanding that any Secured Party may have
had notice or knowledge of any Default or incorrect representation
or warranty at the time any credit is extended under the Credit
Agreement, and shall continue in full force and effect until all
the Loan Document Obligations have been paid in full in cash, the
Commitments have expired or been terminated, the principal of and
interest on each Loan and all fees payable under any Loan Document
shall have been paid in full, all Letters of Credit shall have
expired or been terminated (or otherwise provided for in a manner
satisfactory to the applicable Issuing Bank) and all LC
Disbursements shall have been reimbursed.
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(b) In the event any one or
more of the provisions contained in this Agreement or in any other
Loan Document should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any
way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular
jurisdiction
