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EXHIBIT 10.48
CONTINUING GUARANTY
THIS CONTINUING GUARANTY (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Guaranty") dated as
of April 7, 2001, is made by WESTERN DIGITAL CORPORATION, a Delaware corporation
formerly known as Western Digital Holdings, Inc. ("Guarantor"), in favor of
GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation, as administrative
agent (in such capacity, "Administrative Agent" or "Agent") for the lenders
("Lenders") from time to time parties to the Credit Agreement (as defined
below).
RECITALS
A. Western Digital Technologies, Inc., a Delaware corporation formerly
known as Western Digital Corporation ("Borrower"), the other Credit Parties
party thereto, Agent, Bank of America, N.A., as documentation agent for Lenders
("Documentation Agent"; Administrative Agent and Documentation Agent are
collectively referred to as "Co-Agents" and each, a "Co-Agent"), and Lenders
have entered into that certain Credit Agreement dated as of September 20, 2000,
as amended by the First Amendment to Credit Agreement dated as of March 8, 2001,
the Second Amendment to Credit Agreement dated as of March 23, 2001, and the
Third Amendment to Credit Agreement of even date herewith (collectively, "Credit
Agreement"), pursuant to which Co-Agents and Lenders are providing financial
accommodations to or for the benefit of Borrower upon the terms and conditions
contained therein.
B. Guarantor is the record and beneficial holder of all of the shares of
stock of Borrower and as such derives direct and indirect economic benefits from
the financial accommodations provided to Borrower pursuant to the Credit
Agreement.
C. Borrower previously requested certain amendments to the Credit
Agreement and Requisite Lenders' consent to certain changes in Borrower's and
Credit Parties' capital structure in connection with the Corporate
Reorganization (as defined in the Credit Agreement).
D. Co-Agents are concurrently herewith entering into the Third Amendment
to Credit Agreement of even date herewith, but only upon the condition, among
others, that Guarantor shall have executed and delivered this Guaranty.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor and Agent
agree as follows:
1. DEFINED TERMS; CERTAIN MATTERS OF CONSTRUCTION.
Unless otherwise defined herein, capitalized terms or matters of
construction defined or established in Annex A to the Credit Agreement shall be
applied herein as defined or established therein.
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2. THE GUARANTY.
2.1 Guaranty of Guaranteed Obligations. Guarantor hereby unconditionally
guarantees to Agent, for the benefit of Co-Agents and Lenders, and any of their
respective successors, endorsees, transferees and assignees, the prompt payment
(whether at stated maturity, by acceleration or otherwise) and performance of
the Obligations of Borrower (such Obligations of Borrower hereinafter the
"Guaranteed Obligations"). Guarantor agrees that this Guaranty is a guaranty of
payment and performance and not of collection, and that its Obligations under
this Guaranty shall be primary, absolute and unconditional, irrespective of, and
unaffected by:
(a) the genuineness, validity, regularity, enforceability or any
future amendment of or change in this Guaranty, any other Loan Document
or any other agreement, document or Instrument to which Guarantor or any
Credit Party is or may become a party;
(b) the absence of any action to enforce this Guaranty or any other
Loan Document or the waiver or consent by any Co-Agent or any Lender
with respect to any of the provisions thereof;
(c) the existence, value or condition of, or the failure to perfect
Agent's Lien (for the benefit of Co-Agents and Lenders) against, any
Collateral for the Obligations or any action, or the absence of any
action, by Agent in respect thereof (including the release of any such
Collateral);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstance that might otherwise constitute
a legal or equitable discharge or defense of a surety or guarantor;
it being agreed by Guarantor that its Obligations under this Guaranty shall not
be discharged until the Termination Date. Guarantor shall be regarded, and shall
be in the same position, as a principal obligor with respect to the Guaranteed
Obligations. Guarantor agrees that any notice or directive given at any time to
Agent that is inconsistent with the waiver in the immediately preceding sentence
shall be null and void and may be ignored by Co-Agents and Lenders, and, in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty, unless Co- Agents
and Lenders have specifically agreed otherwise in writing. Guarantor and Agent
acknowledge and agree that the foregoing waivers are of the essence of the
transaction contemplated by the Loan Documents and that, but for this Guaranty
and such waivers, Co-Agents and Lenders would decline to enter into the Third
Amendment.
2.2 Demand by Agent. In addition to the terms of the Guaranty set forth
in Section 2.1, and in no manner imposing any limitation on such terms, it is
expressly understood and agreed that if, at any time, any of the Guaranteed
Obligations are declared to be immediately due and payable, then Guarantor
shall, without demand, pay to the holders of the Guaranteed Obligations the
entire outstanding amount of the Guaranteed Obligations to Agent, for the
benefit of Co-Agents and Lenders. Payment by Guarantor shall be made to Agent,
for the benefit of Co-Agents and Lenders, in immediately available funds in
Dollars to an account designated by Agent or at the address set
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forth herein for the giving of notice to Agent or at any other address that may
be specified in writing from time to time by Agent, and shall be credited and
applied to the Guaranteed Obligations.
2.3 Enforcement of Guaranty. Agent shall have no obligation to proceed
against Borrower or any Credit Party or any Collateral pledged to secure the
Guaranteed Obligations (although it may, at its option, so proceed) before
seeking satisfaction from Guarantor, and Agent may proceed, prior or subsequent
to, or simultaneously with, the enforcement of Agent's rights hereunder, to
exercise any right or remedy that it may have (for the benefit of Co-Agents and
Lenders) against any Collateral as a result of any Lien it may have (for the
benefit of Co-Agents and Lenders) as security for all or any portion of the
Guaranteed Obligations. Notwithstanding anything to the contrary contained
herein or in the other Loan Documents, this Guaranty does not constitute a
pledge or security agreement and Guarantor's execution and delivery of this
Guaranty does not grant Co-Agents and Lenders any Lien in any property or other
collateral, including the capital Stock of Borrower, now or hereafter belonging
to Guarantor.
2.4 Waiver. In addition to any other waivers contained in this Guaranty,
Guarantor waives, and agrees that it shall not at any time insist upon, plead or
in any other manner claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension, marshaling of assets or redemption laws, or
exemption, whether now or at any time hereafter in force, that may delay,
prevent or otherwise affect the performance by Guarantor of its Obligations
under, or the enforcement by Agent, for the benefit of Co-Agents and Lenders,
of, this Guaranty. Guarantor hereby waives diligence, presentment and demand
(whether for non-payment or protest or of acceptance, maturity, extension of
time, change in nature or form of the Obligations, acceptance of further
security, release of further security, composition or agreement arrived at as to
the amount of, or the terms of, the Guaranteed Obligations, notice of adverse
change in Borrower's financial condition or any other fact that might increase
the risk to Guarantor) with respect to any of the Obligations or all other
demands whatsoever and waives the benefit of all provisions of law that are or
might be in conflict with the terms of this Guaranty.
2.5 Benefit of Guaranty. The provisions of this Guaranty are for the
benefit of Co-Agents, Lenders and their respective successors, transferees,
endorsees and assigns, and nothing herein contained shall impair, as between any
Credit Party, on the one hand, and Co-Agents and Lenders, on the other hand, the
Obligations of any Credit Party under the Loan Documents. This Guaranty binds
Guarantor and Guarantor shall not assign, transfer, or endorse this Guaranty. In
the event all or any part of the Guaranteed Obligations are transferred,
indorsed or assigned by Agent or any Lender to any Person or Persons, any
reference to "Agent" or "Lender" herein shall be deemed to refer equally to such
Person or Persons.
2.6 Modification of Guaranteed Obligations. Guarantor hereby
acknowledges and agrees that Agent, for the benefit of Co-Agents and Lenders,
may at any time or from time to time, with or without the consent of, or notice
to, Guarantor:
(a) change or extend the manner, place or terms of payment of, or
renew or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents in the
exercise of any remedy, power or privilege contained therein or
available to it at law, in equity or otherwise, or waive or refrain from
exercising any such remedies, powers or privileges;
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(c) amend or modify, in any manner whatsoever, any of the Loan
Documents;
(d) extend or waive the time for any Credit Party's performance of,
or compliance with, any term, covenant or agreement on its part to be
performed or observed under any of the Loan Documents, or waive such
performance or compliance or consent to a failure of, or departure from,
such performance or compliance;
(e) take and hold Collateral for the payment of the Guaranteed
Obligations guaranteed hereby or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which Agent, for the benefit of Co-Agents and Lenders, has been granted
a Lien, to secure any Obligations, in each case as permitted by the Loan
Documents;
(f) release any Person who may be liable in any manner for the
payment of any amounts owed by Guarantor or any Credit Party to any
Co-Agent or any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of
Guarantor or any Credit Party are subordinated to the claims of any
Co-Agent or any Lender; or
(h) apply any sums paid by any Person and realized in any manner to
any amounts owing by Guarantor or any Credit Party to any Co-Agent or
any Lender in the manner provided in the Credit Agreement;
and Guarantor acknowledges and agrees that neither any Co-Agent nor any Lender
shall incur any liability to Guarantor as a result of any of the foregoing, and
no such action shall impair or release the Obligations of Guarantor.
2.7 Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective should any petition be filed by or against
Guarantor or any Credit Party for liquidation or reorganization, should
Guarantor or any Credit Party become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of Guarantor's or such Credit Party's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Guaranteed Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any Co-Agent or any Lender, whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Guaranteed Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
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2.8 Deferral of Subrogation, Etc. Notwithstanding anything to the
contrary in this Guaranty, or in any other Loan Document, Guarantor hereby:
(a) expressly and irrevocably waives, on behalf of itself and its
successors and assigns (including any surety) until the Termination
Date, any and all rights at law or in equity to subrogation, to
reimbursement, to exoneration, to contribution, to indemnification, to
setoff or to any other rights that could accrue to a surety against a
principal, to a guarantor against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party
accommodated, to a holder or transferee against a maker, or to the
holder of any claim against any Person and that Guarantor may have or
hereafter acquire against any Credit Party in connection with or as a
result of Guarantor's execution, delivery or performance of this
Guaranty, or any other documents to which Guarantor is a party or
otherwise; and
(b) acknowledges and agrees that (i) this waiver is intended to
benefit Co-Agents and Lenders and shall not limit or otherwise affect
Guarantor's liability hereunder or the enforceability of this Guaranty,
and (ii) Co-Agents and Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and
agreements set forth in this Section 2.8 and their rights under this
Section 2.8 shall survive payment in full of the Guaranteed Obligations.
2.9 Election of Remedies. If Agent may, under applicable law, proceed to
realize benefits under any of the Loan Documents giving Agent a Lien (for the
benefit of Co-Agents and Lenders) upon any Collateral owned by any Credit Party,
either by judicial foreclosure or by nonjudicial sale or enforcement, then Agent
may, at its sole option, determine which of its remedies or rights it may pursue
without affecting any of such rights and remedies under this Guaranty. If, in
the exercise of any of its rights and remedies, Agent shall forfeit any of its
rights or remedies, including its right to enter a deficiency judgment against
any Credit Party, whether because of any applicable laws pertaining to "election
of remedies" or the like, Guarantor hereby consents to such action by Agent and
waives any claim based upon such action, even if such action by Agent shall
result in a full or partial loss of any rights of subrogation that Guarantor
might otherwise have had but for such action by Agent. Any election of remedies
that results in the denial or impairment of the right of Agent to seek a
deficiency judgment against any Credit Party shall not impair Guarantor's
obligation to pay the full amount of the Guaranteed Obligations, subject to
Section 11. In the event Agent shall bid at any foreclosure or trustee's sale or
at any private sale permitted by law or the Loan Documents, Agent may bid all or
less than the amount of the Guaranteed Obligations and the amount of such bid
need not be paid by Agent but shall be credited against the Guaranteed
Obligations. The amount of the successful bid at any such sale shall be
conclusively deemed to be the fair market value of the collateral and the
difference between such bid amount and the remaining balance of the Guaranteed
Obligations shall be conclusively deemed to be the amount of the Guaranteed
Obligations guaranteed under this Guaranty, notwithstanding that any present or
future law or court decision or ruling may have the effect of reducing the
amount of any deficiency claim to which Co-Agents and Lenders might otherwise be
entitled but for such bidding at any such sale.
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2.10 Subordination.
(a) Guarantor hereby agrees that, until the Termination Date, all
obligations and all indebtedness of Borrower to Guarantor, including any
and all present and future indebtedness regardless of its nature or
manner of origination now or hereafter to become due and owing by
Borrower to Guarantor (collectively, the "Subordinated Indebtedness"),
are hereby subordinated and postponed and shall be inferior, in all
respects, to the Obligations.
(b) In no circumstance shall any Subordinated Indebtedness be
entitled to any collateral security; provided, that in the event any
such collateral security exists, Guarantor hereby agrees that any now
existing or hereafter arising Lien upon any of the assets of Borrower in
favor of Guarantor, whether created by contract, assignment,
subrogation, reimbursement, indemnity, operation of law, principles of
equity or otherwise, shall be junior and inferior to, and is hereby
subordinated in priority to any now existing or hereafter arising Liens
in favor of Agent, for the benefit of Co-Agents and Lenders, in and
against the Collateral, regardless of the time, manner or order of
creation, attachment or perfection of the respective Liens.
(c) Except as expressly permitted in the Credit Agreement, Guarantor
hereby agrees that it shall not assert, collect, accept payment on or
enforce any of the Subordinated Indebtedness or take collateral or other
security to secure payment of the Subordinated Indebtedness until the
Termination Date. Guarantor shall not demand payment of, accelerate the
maturity of, or declare a default or event of default under the
Subordinated Indebtedness until the Termination Date. Except as
expressly permitted in the Credit Agreement, Guarantor shall not cause
or permit Borrower to make or give, and Guarantor shall not receive or
accept, payment in any form (whether direct or indirect, including by
transfer to an Affiliate or Subsidiary of Borrower or Guarantor) on
account of the Subordinated Indebtedness, make any transfers in respect
of the Subordinated Indebtedness without the express prior written
consent of Agent (which consent may be withheld for any reason in
Agent's sole discretion), or give any collateral security for the
Subordinated Indebtedness. Any payment, transfer, or collateral security
so made or given by Borrower and received or accepted by Guarantor,
without the express prior written consent of Agent, shall be held in
trust by Guarantor for the account of Agent (for the benefit of
Co-Agents and Lenders), and Guarantor shall immediately turn over, in
kind, any such payment to Agent for application in reduction of, or (in
the case of property other than cash) as security for, the Obligations
of Guarantor hereunder.
3. REPRESENTATIONS AND WARRANTIES.
Guarantor makes the following representations and warranties to
Co-Agents and Lenders, each and all of which shall survive the execution and
delivery of this Guaranty:
3.1 Corporate Existence; Compliance with Law. Guarantor (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) is duly qualified to do business and
is in good standing under the laws of each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not result in exposure to
losses, damages or liabilities in excess of $100,000; (iii) has the requisite
corporate power and authority and the legal right to own, pledge, mortgage and
operate its properties, to lease the property it operates under lease, and to
conduct its business as now, heretofore and proposed to be conducted; (iv) has
all licenses, permits, consents or approvals from or by, and has made all
material filings with, and has given all notices to, all Governmental
Authorities having jurisdiction, to the extent required for such ownership,
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operation and conduct; (v) is in compliance with its charter and by-laws; and
(vi) is in compliance with all applicable provisions of law, except where the
failure to comply, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect (as defined below). As used herein,
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, assets, operations or financial condition of Guarantor and its
Subsidiaries considered as a whole, (b) Guarantor's ability to pay any of the
Guaranteed Obligations in accordance with the terms of this Guaranty, or (c) any
Co-Agent's or any Lender's rights and remedies under this Guaranty and the other
Loan Documents.
3.2 Executive Offices. Guarantor's executive office and principal place
of business are as set forth in Schedule I hereto.
3.3 Corporate Power; Authorization; Enforceable Guaranteed Obligations.
The execution, delivery and performance of this Guaranty are within Guarantor's
corporate power, have been duly authorized by all necessary or proper corporate
action, including the consent of stockholders where required, are not in
contravention of any provision of Guarantor's charter or by-laws, do not violate
any law or regulation, or any order or decree of any Governmental Authority
(each, a "Requirement of Law"), do not conflict with or result in the breach of,
or constitute a default under, or accelerate or permit the acceleration of any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement, or other instrument to which Guarantor is a party or by which
Guarantor or any of its property is bound (each, a "Contractual Obligation"), do
not result in the creation or imposition of any Lien upon any of the property of
Guarantor, and the same do not require the consent or approval of any
Governmental Authority or any other Person. This Guaranty shall have been duly
executed and delivered for the benefit of or on behalf of Guarantor, and shall
then constitute a legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms.
3.4 Solvency. Guarantor is Solvent.
3.5 No Setoff, Defense, or Counterclaim. The Guaranteed Obligations are
not subject to any setoff or defense of any kind against Agent, any Lender or
Borrower, and Guarantor specifically waives its right to assert any such defense
or right of setoff. The Guaranteed Obligations shall not be subject to any
counterclaims, setoffs, or defenses against Agent, any Lender or any Credit
Party that may arise in the future, except for (a) any defense of prior
performance or payment based on the occurrence of the Termination Date, or (b)
any defense based on any applicable provision of the Code requiring that the
Collateral be disposed of in a commercially reasonable manner that Guarantor or
any Credit Party may have or assert.
3.6 Payment of Taxes. Guarantor has paid all Taxes imposed by any
Governmental Authority due and payable by Guarantor other than those that are
being contested in good faith by appropriate proceedings and for which (i)
adequate reserves have been established in accordance with GAAP, (ii) no Lien
shall be imposed on the assets of Guarantor to secure payment of such Taxes or
claims and such contest is maintained and prosecuted continuously and with
diligence and operates to suspend collection or enforcement of suchTaxes or
claims, (iii) none of the assets of Guarantor become subject to forfeiture or
loss as a result of such contest (other than cash used to pay such Taxes or
claims), and (iv) Guarantor shall promptly pay or discharge such contested Taxes
or claims and all additional charges, interest, penalties and expenses, if any,
and shall deliver to Co-Agents evidence acceptable to each Co-Agent of such
compliance, payment or discharge, if such contest is terminated or discontinued
adversely to Guarantor or the conditions set forth in this Section 3.6 are no
longer met.
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3.7 No Violation. Guarantor is not in violation of any Requirement of
Law or Contractual Obligation, except where such violation, individually or in
the aggregate, could not be reasonably be expected to have a Material Adverse
Effect.
3.8 Litigation. No litigation, investigation or proceeding of any
Governmental Authority is pending or, to the knowledge of Guarantor, threatened
against Guarantor.
4. NEGATIVE COVENANT
Without the prior written consent of Co-Agents and the Requisite
Lenders, from and after the date hereof until the Termination Date, Guarantor
shall not (a) sell, transfer, convey, assign or otherwise dispose of, or (b)
create, incur, assume or permit to exist any Lien on, its capital Stock of
Borrower.
5. FURTHER ASSURANCES.
Guarantor agrees, upon the written request of Agent, to execute and
deliver to Agent, from time to time, any additional Instruments or documents
reasonably considered necessary by Agent to cause this Guaranty to be, become or
remain valid and effective in accordance with its terms.
6. PAYMENTS FREE AND CLEAR OF TAXES.
All payments required to be made by Guarantor hereunder shall be made to
Agent, for the benefit of Co-Agents and Lenders, free and clear of, and without
deduction for, any and all present or future Taxes. If Guarantor shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder, (a) the sum payable shall be increased as much as shall be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 6) Co-Agents or Lenders, as
applicable, receives an amount equal to the sum it would have received had no
such deductions been made, (b) Guarantor shall make such deductions, and (c)
Guarantor shall pay the full amount deducted to the relevant taxing or other
authority in accordance with applicable law. Within 30 days after the date of
any payment of Taxes, Guarantor shall furnish to Agent the original or a
certified copy of a receipt evidencing payment thereof. Guarantor shall
indemnify and, within ten (10) days of demand therefor, pay Agent, for the
benefit of Co-Agents and Lenders, for the full amount of Taxes (including any
Taxes imposed by any jurisdiction on amounts payable under this Section 6) paid
by Co-Agents or Lenders, as appropriate, with respect to any sum payable by
Guarantor to Agent under this Guaranty or any other Loan Document, and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes were correctly or legally asserted.
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7. APPLICATION OF PAYMENTS.
Any payment made by Guarantor under this Guaranty shall be applied by
Agent first, to the satisfaction of Guarantor's indemnification liabilities
pursuant to Section 8, and then, in the order of priorities set forth in Section
1.11 of the Credit Agreement, subject in all cases to the limitations of Section
11.
8. INDEMNIFICATION.
Guarantor shall indemnify and hold harmless each Co-Agent, each Lender,
and their respective Affiliates, and each such Person's respective officers,
directors, employees, attorneys, agents and representatives (each, an
"Indemnified Person"), from and against any and all suits, actions, proceedings,
claims, damages, losses, liabilities and expenses (including reasonable
attorneys' fees and disbursements and other costs of investigation or defense,
including those incurred upon any appeal) that may be instituted or asserted
against or incurred by any such Indemnified Person in connection with or arising
out of this Guaranty and the other Loan Documents and the transactions
contemplated hereunder and thereunder and any actions or failures to act in
connection therewith (collectively, "Indemnified Liabilities"); provided, that,
Guarantor shall not be liable for any indemnification to an Indemnified Person
to the extent that any such suit, action, proceeding, claim, damage, loss,
liability or expense results solely from (A) such Indemnified Person's gross
negligence or willful misconduct, as finally determined by a court of competent
jurisdiction, or (B) disputes among Co-Agents and Lenders that are not caused by
any action or inaction of Guarantor or any Credit Party. The liabilities of
Guarantor under this Section 8 shall survive the termination of this Guaranty,
subject to the limitations of Section 11.
9. ADDITIONAL WAIVERS.
9.1 Guarantor waives any and all rights of subrogation, reimbursement,
indemnification, and contribution and any other rights and defenses that are or
may become available to Guarantor by reason of California Civil Code Sections
2787 to 2855, inclusive, Sections 2899 and 3433, or other statutory or
decisional law. This means, among other things, that:
(a) Guarantor waives and will be unable to raise any defense based
upon any statute or rule of law that provides that the obligation of a surety
must be neither larger in amount nor in any other respects more burdensome than
that of a principal;
(b) Guarantor waives and will be unable to raise any defense based
upon any statute or rule of law that provides that a creditor may be required to
pursue the principal obligor or the security for the principal obligation before
seeking enforcement against a surety or security pledged by the surety;
(c) Guarantor waives and will be unable to raise any defense based
upon any statute or rule of law that provides that a surety's obligations may be
limited or exonerated by reason of the creditor's alteration of the principal
obligation or of another surety, or by reason of the impairment or suspension of
the creditor's rights or remedies against the principal, another surety, or any
security given for the principal obligation or given for other sureties;
(d) Guarantor waives and will be unable to claim any right to
participate in, or the benefit of, any security given for the principal
obligation now or hereafter held by Agent; and
(e) Subject to Section 2.8, Guarantor waives and will be unable to
claim any right of subrogation and any right to enforce any remedy that Agent
may have against Borrower.
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9.2 Guarantor waives any defense based upon any lack of authority of the
officers, directors, partners or agents acting or purporting to act on behalf of
Borrower or any principal of Borrower or any legal disability or defect in the
formation of Borrower.
9.3 Guarantor waives any defense based upon the application by Borrower
of the proceeds of the Loans for purposes other than the purposes represented by
such Borrower to Agent or intended or understood by Agent or Guarantor.
9.4 Guarantor waives the benefit of any statute of limitations affecting
the liability of Guarantor hereunder or the enforcement hereof, and Guarantor
further agrees that any act or event that tolls any statute of limitations
applicable to the Obligations of Borrower shall similarly operate to toll the
statute of limitations applicable to Guarantor's liability hereunder.
10. OTHER TERMS.
10.1 Entire Agreement. This Guaranty, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements relating to a
guaranty of the loans and advances under the Loan Documents or the Guaranteed
Obligations.
10.2 Headings. The headings in this Guaranty are for convenience of
reference only and are not part of the substance of this Guaranty.
10.3 Recitals. The recitals hereto shall be construed as a part of this
Guaranty.
10.4 Severability. Whenever possible, each provision of this Guaranty
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
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10.5 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other party any communication with respect to this Guaranty, each
such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be given in the manner, and deemed
received, as provided for in the Credit Agreement, and such notice, demand,
request, consent, approval, declaration or other communication shall be served,
given or delivered to the following addresses:
Agent: General Electric Capital Corporation
350 South Beverly Drive, Suite 200
Beverly Hills, California 90212
Attention: Account Manager (Western Digital)
Telephone: (310) 203-0335
Facsimile: (310) 785-0644
With copies to: General Electric Capital Corporation
201 High Ridge Road
Stamford, Connecticut 06927-5100
Attention: Corporate Counsel
Facsimile: (203) 316-7822
Telephone: (203) 316-7500
Murphy Sheneman Julian & Rogers
2049 Century Park East, Suite 2100
Los Angeles, California 90067
Attention: Gary B. Rosenbaum, Esq.
Facsimile: (310) 788-3777
Telephone: (310) 788-3700
Guarantor: Western Digital Corporation
20511 Lake Forest Drive
Lake Forest, California 92630-7741
Attention: Mr. Steven M. Slavin
Telephone: (949) 672-7000
Facsimile: (949) 672-5495
With copies to: Western Digital Corporation
20511 Lake Forest Drive
Lake Forest, California 92630-7741
Attention: Michael A. Cornelius, Esq., General Counsel
Telephone: (949) 672-7000
Facsimile: (949) 672-7837
10.6 Successors and Assigns. This Guaranty and all obligations of
Guarantor hereunder shall be binding upon the successors and assigns of
Guarantor (including a trustee or debtor-in-possession on behalf of Guarantor)
and shall, together with the rights and remedies of Agent, for the benefit of
Co-Agents and Lenders, hereunder, inure to the benefit of Co-Agents and Lenders,
all future holders of any Instrument evidencing any of the Obligations and their
respective successors and assigns. No sales of participations, other sales,
assignments, transfers or other dispositions of any agreement governing or
Instrument evidencing the Obligations or any portion thereof or interest therein
shall in any manner affect the rights of Co-Agents and Lenders hereunder.
Guarantor shall not assign, sell, hypothecate or otherwise transfer any interest
in or obligation under this Guaranty.
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10.7 No Waiver; Cumulative Remedies; Amendments. Neither any Co-Agent
nor any Lender shall by any act, delay, omission or otherwise be deemed to have
waived any of its rights or remedies hereunder, and no waiver shall be valid
unless in writing, signed by Agent and then only to the extent therein set
forth. A waiver by Agent, for the benefit of Co-Agents and Lenders, of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy that Agent would otherwise have had on any future occasion. No
failure to exercise nor any delay in exercising on the part of any Co-Agent or
any Lender any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Guaranty may be waived, altered, modified,
supplemented or amended except by an instrument in writing duly executed by
Agent and Guarantor.
10.8 Termination. This Guaranty is a continuing guaranty and shall
remain in full force and effect until, and shall automatically expire upon, the
Termination Date, subject to Section 2.7. Upon payment and performance in full
of the Guaranteed Obligations, Agent shall deliver to Guarantor such documents
as Guarantor may reasonably request to evidence such termination.
10.9 Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall collectively and separately constitute one and
the same agreement. Delivery of an executed signature page to this Guaranty by
facsimile transmission shall be effective as delivery of a manually executed
counterpart thereof.
10.10 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN
ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. GUARANTY HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN LOS ANGELES COUNTY, CITY OF LOS ANGELES, CALIFORNIA,
SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN GUARANTOR, CO-AGENTS AND LENDERS PERTAINING TO THIS GUARANTY OR ANY OF
THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT CO-AGENTS, LENDERS
AND GUARANTOR ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF LOS ANGELES COUNTY, CITY OF LOS ANGELES,
CALIFORNIA; PROVIDED FURTHER, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR
OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
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COURT ORDER IN FAVOR OF AGENT. GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW,
GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO GUARANTOR AT THE ADDRESS SET FORTH IN SECTION 10.5 AND THAT SERVICE
SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF GUARANTOR'S ACTUAL RECEIPT
THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID.
10.11 WAIVER OF JURY TRIAL.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG CO-AGENTS, LENDERS AND GUARANTOR ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED THERETO.
11. LIMITED RECOURSE TO GUARANTOR.
It is understood and agreed that Co-Agent's and Lenders' sole recourse
and remedy hereunder against Guarantor shall be limited to Guarantor's right,
title and interest in the capital Stock of Borrower.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, Guarantor has executed and delivered this Continuing
Guaranty as of the date first above written.
"GUARANTOR"
WESTERN DIGITAL CORPORATION,
a Delaware corporation formerly known
as Western Digital Holdings, Inc.
By: /s/ STEVEN M. SLAVIN
---------------------------------
Name: Steven M. Slavin
-------------------------------
Title: Vice President, Taxes &
Treasurer
------------------------------
"AGENT"
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ROBERT S. YASUDA
---------------------------------
Robert S. Yasuda
Duly Authorized Signatory
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SCHEDULE I
GUARANTOR'S EXECUTIVE OFFICE AND PRINCIPAL PLACE OF BUSINESS
Western Digital Corporation
20511 Lake Forest Drive
Lake Forest, California 92630-7741
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