Exhibit 10.1
MAXTOR CORPORATION,
SEAGATE TECHNOLOGY,
SEAGATE TECHNOLOGY (US) HOLDINGS,
INC.
and
U.S. BANK NATIONAL
ASSOCIATION,
TRUSTEE
SECOND SUPPLEMENTAL
INDENTURE
Dated as of
June 1, 2009
Supplementing the Indenture dated as
of August 15, 2005,
as amended by the First Supplemental Indenture
dated as of May 19, 2006
The SECOND SUPPLEMENTAL INDENTURE,
dated as of June 1, 2009 (this “ Second
Supplemental Indenture ”), by and among MAXTOR
CORPORATION, a Delaware corporation (the “
Company ”), SEAGATE TECHNOLOGY (US) HOLDINGS,
INC., a Delaware corporation (“ Holdings
”), SEAGATE TECHNOLOGY, an exempted company incorporated with
limited liability under the laws of the Cayman Islands (“
Parent ”), and U.S. BANK NATIONAL ASSOCIATION,
as Trustee (the “ Trustee
”).
RECITALS
WHEREAS, the Company is a wholly
owned direct subsidiary of Holdings, and Holdings is a wholly owned
indirect subsidiary of Parent;
WHEREAS, the Company has heretofore
executed and delivered to the Trustee an Indenture, dated as of
August 15, 2005 (the “ Indenture
”), as supplemented and amended by a Supplemental Indenture,
dated as of May 19, 2006 (the “ First Supplemental
Indenture ”), providing for the creation and issuance
by the Company of 2.375% Convertible Senior Notes due 2012
(the “ Securities ”) and the
guarantee thereof by Parent;
WHEREAS, the Company and Holdings
have entered into an Assignment and Assumption Agreement, dated as
of June 1, 2009 (the “ Assignment and Assumption
Agreement ”), by and between the Company and
Holdings, pursuant to which: (i) the Company will assign all
of the Company’s assets to Holdings (the “
Assignment ”); and (ii) Holdings will
assume the Company’s obligations under the Securities and the
Indenture (the “ Assumption
”);
WHEREAS, the Company, Parent and
Holdings have entered into an Agreement of Merger, dated as of
June 1, 2009 (the “ Merger
Agreement ”), by and among the Company, Parent and
Holdings, pursuant to which, immediately following the Assignment
and the Assumption: (i) the Company will merge with and into
Holdings (the “ Merger ”, and
together with the Assignment and the Assumption, the “
Transactions ”); (ii) Holdings will
continue as the surviving and continuing corporation and succeed to
and assume all the rights and obligations of the Company in
accordance with the Delaware General Corporation Law; and
(iii) Parent will unconditionally guarantee the obligations of
Holdings under the Securities and the Indenture, as supplemented
and amended by the First Supplemental Indenture;
WHEREAS, in accordance with
Section 5.01 of the Indenture, as supplemented and amended by
the First Supplemental Indenture, the Company, Parent, Holdings and
Trustee have agreed in connection with the Transactions to execute
this Second Supplemental Indenture to provide for the assumption by
Holdings of all of the obligations of the Company under the
Securities and the Indenture, as supplemented and amended by the
First Supplemental Indenture;
WHEREAS, Parent has previously
provided for the full and unconditional guaranty by Parent of the
Company’s obligations to the Holders of the Securities under
the Indenture, as supplemented and amended by the First
Supplemental Indenture;
WHEREAS, Section 9.01(d) of the
Indenture, as supplemented and amended by the First Supplemental
Indenture, provides that the parties hereto may execute this Second
Supplemental Indenture without the consent of the Holders of the
Securities;
WHEREAS, in accordance with
Section 10.10 of the Indenture, as supplemented and amended by
the First Supplemental Indenture, the Company issued notice to
Holders regarding the Transactions at least ten days prior to the
date hereof;
WHEREAS, in accordance with
Section 9.06 of the Indenture, the Trustee is authorized to
execute and deliver this Second Supplemental Indenture;
WHEREAS, in accordance with
Section 5.01(a) of the Indenture, as supplemented and amended
by the First Supplemental Indenture, Holdings is a corporation
organized and existing under the laws of the state of
Delaware;
WHEREAS, in accordance with
Section 5.01(b) of the Indenture, as supplemented and amended
by the First Supplemental Indenture, none of the Company, Parent or
Holdings is now or will be immediately hereafter in default under
the Indenture; and
WHEREAS, in accordance with
Sections 5.01(c) and 11.04(1) and (2) of the Indenture,
as supplemented and amended by the First Supplemental Indenture,
the Trustee has received an Officers’ Certificate and an
Opinion of Counsel of the Company relating to the Transactions and
this Second Supplemental Indenture.
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Company, Parent,
Holdings and the Trustee, acting for itself and the
Holders
