Contract
Exhibit 10.11
SUPPLEMENT NO. 1 dated as of March 1, 2010 (this “Supplement”), to the SECOND LIEN U.S. PLEDGE AGREEMENT dated as of May 1, 2009 (as amended, supplemented or otherwise modified from time to time, the “Second Lien U.S. Pledge Agreement”), among SEAGATE TECHNOLOGY, an exempted limited liability company organized under the laws of the Cayman Islands (the “Company”), each of the other Guarantors of the Notes (each as defined in the Indenture referred to below) listed on Schedule I thereto (each such Guarantor together with the Company, the “Pledgors” and each a “Pledgor”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined in the Second Lien U.S. Security Agreement referred to below).
A. Reference is made to (a) the Indenture, dated as of May 1, 2009 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among Seagate Technology International, an exempted limited liability company organized under the laws of the Cayman Islands and a Subsidiary (as defined in the Indenture) of the Company (the “Issuer”), the Company, the other Guarantors from time to time party thereto (collectively, the “Guarantors”) and Xxxxx Fargo Bank, National Association, as trustee (in such capacity, the “Trustee”), pursuant to which the Issuer issued 10.00% Senior Secured Second-Priority Notes due 2014 (collectively, the “Notes”), (b) the Intercreditor Agreement, dated as of May 1, 2009 (as amended, supplemented, replaced or otherwise modified from time to time, the “Intercreditor Agreement”), among the Issuer, Seagate Technology HDD Holdings, an exempted limited liability company organized under the laws of the Cayman Islands (“Seagate HDD”), the other Guarantors named therein, the Collateral Agent and JPMorgan Chase Bank, N.A., as administrative agent under the Senior Credit Facility (as defined in the Indenture) and (c) the Second Lien U.S. Security Agreement, dated as of May 1, 2009 (as amended, supplemented or otherwise modified from time to time, the “Second Lien U.S. Security Agreement”), among the Issuer, the Company, the other Guarantors from time to time party thereto and the Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien U.S. Pledge Agreement and the Indenture.
C. The Pledgors have entered into the Second Lien U.S. Pledge Agreement in order to induce the Initial Purchasers to purchase the Notes. Pursuant to Article 11 of the Indenture and the Collateral Requirement, (a) each U.S. Notes Party that is formed or acquired after the Issue Date and (b) each other Notes Party that is organized under the laws of the United States of America (including any State thereof and the District of Columbia) that would constitute Collateral if such Notes Party were a party thereto, in each case is required to enter into the Second Lien U.S. Pledge Agreement as a Pledgor
upon becoming a Guarantor. Section 25 of the Second Lien U.S. Pledge Agreement provides that such Subsidiaries may become Pledgors under the Second Lien U.S. Pledge Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Pledgor”) is executing this Supplement in accordance with the requirements of the Indenture to become a Pledgor under the Second Lien U.S. Pledge Agreement to induce the Noteholders to give their consent hereto and as consideration for the Notes previously issued.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
SECTION 1. In accordance with Section 25 of the Second Lien U.S. Pledge Agreement, the New Pledgor by its signature below becomes a Pledgor under the Second Lien U.S. Pledge Agreement with the same force and effect as if originally named therein as a Pledgor and the New Pledgor hereby agrees (a) to all the terms and provisions of the Second Lien U.S. Pledge Agreement applicable to it as a Pledgor thereunder and (b) represents and warrants that the representations and warranties made by it as a Pledgor thereunder are true and correct on and as of the date hereof except to the extent a representation and warranty expressly relates solely to a specific date, in which case such representation and warranty shall be true and correct on such date. In furtherance of the foregoing, the New Pledgor, as security for the payment and performance in full of the Obligations, does hereby create and grant to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all of the New Pledgor’s right, title and interest in and to the Collateral (as defined in the Second Lien U.S. Pledge Agreement) of the New Pledgor. Each reference to a “Subsidiary Pledgor” or a “Pledgor” in the Second Lien U.S. Pledge Agreement shall be deemed to include the New Pledgor. The Second Lien U.S. Pledge Agreement is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Pledgor and the Collateral Agent. Delivery of an executed signature page to this Supplement by facsimile or Adobe .pdf transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set forth on Schedule I attached hereto is a true and correct schedule of all its Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Second Lien U.S. Pledge Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, neither party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Second Lien U.S. Pledge Agreement shall not in any way be affected or impaired (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 16 of the Second Lien U.S. Pledge Agreement. All communications and notices hereunder to the New Pledgor shall be given to it at the address set forth under its signature hereto, below, with a copy to the Borrower.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent.
[Signature Pages Follow]
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly executed this Supplement to the Second Lien U.S. Pledge Agreement as of the day and year first above written.
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SEAGATE HDD CAYMAN |
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by |
/s/ Xxxxxxx X. Xxxxxxxxx |
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Name: Xxxxxxx X. Xxxxxxxxx |
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Title: Director |
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Address: 000 Xxxx Xxxxx |
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Xxxxxx Xxxxxx, Xxxxxxxxxx 00000 |
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent |
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by |
/s/ Xxxxx Xxxx |
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Name: Xxxxx Xxxx |
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Title: Vice President |
[Signature Page to Supplement No. 1 to the Second Lien U.S. Pledge Agreement]
Schedule I to
Supplement No. 1
to the Second Lien U.S. Pledge Agreement
Pledged Securities of the New Pledgor
CAPITAL STOCK OR OTHER EQUITY INTERESTS
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Issuer |
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Number of |
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Registered |
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Number and |
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Percentage of |
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Seagate Technology International |
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21 |
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Seagate HDD Cayman |
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6,441 Class A |
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100% |
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Seagate Technology (US) Holdings, Inc. |
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3 |
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Seagate HDD Cayman |
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200 Common |
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100% |
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DEBT SECURITIES
Supplement No. 1 dated as of March 1, 2010 to the Global Intercompany Note dated as of April 29, 2009 among the Company, Seagate HDD and each of the intercompany lenders and intercompany debtors party thereto.
(1) It is hereby acknowledged that the share certificates of Seagate Technology International (Certificate No. 20) and Seagate Technology (US) Holdings Inc. (Certificates Nos. 1 and 2) that were pledged by the Company pursuant to the Second Lien U.S. Pledge Agreement shall be canceled and replaced with the respective certificates indicated in this Schedule.
Supplement to Schedule II to
the Second Lien U.S. Pledge Agreement
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Issuer |
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Number of |
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Registered |
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Number and |
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Percentage of |
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Seagate HDD Cayman |
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1 |
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Seagate Technology HDD Holdings |
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100 Common |
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100% |
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