Third Amendment to Second Amended and Restated Loan and Security Agreement
Execution Version
Exhibit 10.37
Third Amendment to Second Amended and Restated Loan
and Security Agreement
and Security Agreement
This Third Amendment to Second Amended and Restated Loan and Security Agreement (this
“Amendment”), dated as of April 30, 2010, is by and among the lenders identified on the signature
pages hereto (the “Lenders”), ▇▇▇▇▇ Fargo Bank, National Association, a national banking
association, as the arranger, administrative agent and security trustee for the Lenders (in such
capacity, the “Agent”), Smart Modular Technologies, Inc., a California corporation (“US
Borrower”), Smart Modular Technologies (Europe) Limited, a company incorporated under the
laws of England and Wales (“UK Borrower”), and Smart Modular Technologies (Puerto Rico)
Inc., an exempted company organized under the laws of the Cayman Islands (“PR Borrower”, and
together with US Borrower and UK Borrower, each individually referred to herein as a “Borrower” and
collectively, as the “Borrowers”).
Recitals
A. Lenders, Agent, Borrowers and the other Obligors (as defined hereafter) identified on the
signature pages thereto have previously entered into that certain Second Amended and Restated Loan
and Security Agreement, dated as of April 30, 2007, as amended by that certain First Amendment to
Second Amended and Restated Loan and Security Agreement, dated as of November 26, 2008 and that
certain Second Amendment to Second Amended and Restated Loan and Security Agreement (as so amended,
the “Loan and Security Agreement”).
B. Borrowers have requested that Lenders and Agent extend the Maturity Date to April 30, 2012
and amend certain financial covenants and other terms and provisions of the Loan and Security
Agreement.
C. In response to the requests of Borrowers, and in reliance upon the representations made in
support thereof, and the other terms and provisions of this Amendment, the parties hereto desire to
amend the Loan and Security Agreement as set forth herein and on the terms and conditions contained
herein.
Now, Therefore, for good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the parties hereto agree as follows:
1. Defined Terms. Each capitalized term used but not otherwise defined herein has the meaning
ascribed thereto in the Loan and Security Agreement.
2. Amendments to Loan and Security Agreement. Subject to the satisfaction of the conditions
precedent set forth in Section 4 of this Amendment, the following amendments to the Loan and
Security Agreement shall be effective as of the Effective Date (notwithstanding the date of
execution of this Amendment) and for the periods thereafter:
(a) Amendments to Section 1.1.
(i) The definition of “Base Rate Margin” is hereby deleted in its entirety and the following
is substituted therefor:
“Base Rate Margin” means one hundred and twenty-five basis
points (1.25%).
(ii) The definition of “LIBOR Rate Margin” is hereby deleted in its entirety and the following
is substituted therefor:
“LIBOR Rate Margin” means two hundred and twenty five basis
points (2.25%).
(iii) The definition of “Maturity Date” is hereby deleted in its entirety and the following is
substituted therefor:
“Maturity Date” means April 30, 2012.
(iv) The following definition of “Quarterly Adjusted EBITDA” is hereby added to Section 1.1 in
its appropriate alphabetical order:
“Quarterly Adjusted EBITDA” means, with respect to any period,
Parent and its Subsidiaries’ Consolidated Net Income, minus, without
duplication and to the extent included in determining such Consolidated Net
Income, extraordinary gains and interest income, plus, without duplication
and to the extent excluded in determining such Consolidated Net Income, (i)
extraordinary or other non-recurring non-cash losses or charges, including
any non-cash charges for stock-based compensation expenses, (ii) interest
expense, (iii) income taxes, (iv) depreciation and amortization, and (v)
cash restructuring expenses and acquisition related costs (including,
without limitation, legal fees and other professional fees) in an aggregate
amount of up to $1,250,000 in such fiscal quarter of the Parent and its
Subsidiaries, in each case for such period, as determined in accordance with
GAAP.
(v) The following definition of “Third Amendment Adjusted EBITDA” is hereby added to Section
1.1 in its appropriate alphabetical order:
“Third Amendment Adjusted EBITDA” means, with respect to any
period, Parent and its Subsidiaries’ Consolidated Net Income, minus, without
duplication and to the extent included in determining such Consolidated Net
Income, extraordinary gains and interest income, plus, without duplication
and to the extent excluded in determining such Consolidated Net Income, (i)
extraordinary or other non-recurring non-cash losses or charges, including
any
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non-cash charges for stock-based compensation expenses, (ii) interest
expense, (iii) income taxes, (iv) depreciation and amortization, and (v)
cash restructuring expenses and acquisition related costs (including,
without limitation, legal fees and other professional fees) in an aggregate
amount of up to $5,000,000 in any rolling twelve month period for the Parent
and its Subsidiaries, in each case for such period, as determined in
accordance with GAAP.
(vi) The following definition of “Third Amendment Adjusted Quick Ratio” is hereby added to
Section 1.1 in its appropriate alphabetical order:
“Third Amendment Adjusted Quick Ratio” means, as of any date of
determination, the ratio of (i) the sum of Aggregate Accounts Receivable
plus Aggregate Unrestricted Cash Equivalents to (ii) the sum of the Revolver
Usage plus, without duplication, Current Liabilities.
(vii) The following definition of “Third Amendment Effective Date” is hereby added to Section
1.1 in its appropriate alphabetical order:
“Third Amendment Effective Date” means April 30, 2010.
(b) Amendment to Section 2.11(a). Section 2.11(a) of the Loan and Security Agreement is
hereby deleted in its entirety and the following is substituted therefor:
(a) Unused Line Fee. An annual unused line fee of One Hundred Forty
Thousand Dollars ($140,000), payable on the first day of each quarter during
the term of this Agreement in arrears, in an amount equal to Thirty-Five
Thousand Dollars ($35,000); provided however, that Borrowers shall receive a
credit applicable to such quarterly installment (which credit shall not (a)
otherwise reduce the quarterly installment below zero dollars ($0), (b) be
credited to future quarters or (c) otherwise be refundable in cash to
Borrower) in an aggregate amount equal to the product of (i) Seven Hundred
Dollars ($700) times (ii) the result of (1) the average daily collected
balance maintained by Borrowers in deposit account no. 4100055896 at ▇▇▇▇▇
Fargo Bank, National Association during the quarter in which the unused line
fee otherwise accrued divided by (2) one million,
(c) Amendments to Section 2.12.
(i) Section 2.12(a)(ii) of the Loan and Security Agreement is hereby amended by deleting it in
its entirety and substituting the following in its place therefor:
(ii) the US Borrower Letter of Credit Usage would exceed $35,000,000
less the PR Borrower Letter of Credit Usage less the UK Borrower Letter of
Credit Usage, or
(ii) Section 2.12(b)(ii) of the Loan and Security Agreement is hereby amended by deleting it
in its entirety and substituting the following in its place therefor:
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(ii) the UK Borrower Letter of Credit Usage would exceed $35,000,000
less the PR Borrower Letter of Credit Usage less the US Borrower Letter of
Credit Usage, or
(iii) Section 2.12(c)(ii) of the Loan and Security Agreement is hereby amended by deleting it
in its entirety and substituting the following in its place therefor:
(ii) the PR Borrower Letter of Credit Usage would exceed $35,000,000
less the US Borrower Letter of Credit Usage less the UK Borrower Letter of
Credit Usage, or
(c) Amendment to Section 3. Section 3 of the Loan and Security Agreement is hereby amended by
deleting Section 3.7 in its entirety.
(d) Amendment to Section 6.3(b)(ii). Section 6.3(b)(ii) of the Loan and Security Agreement is
hereby amended by deleting such section in its entirety and inserting the following therefor:
a certificate of such accountants addressed to Agent and the Lenders stating
that such accountants do not have knowledge of the existence of any Default
or Event of Default under Section 7.17 as of the end of such fiscal year,
(e) Amendment to Section 7.17. The last paragraph of Section 7.17 is hereby deleted in its
entirety.
(f) Amendment to Section 7.17(a). Section 7.17(a) of the Loan and Security Agreement is
hereby amended by deleting it in its entirety and substituting the following in its place therefor:
(a) Third Amendment Adjusted Quick Ratio. From and after March 1, 2010
and at all times thereafter, fail to cause Borrowers to maintain a Third
Amendment Adjusted Quick Ratio equal to or greater than 1.45 to 1.00 as of
the end of each fiscal quarter of Borrowers;
(g) Amendment to Section 7.17(b). Section 7.17(b) of the Loan and Security Agreement is
hereby amended by deleting it in its entirety and substituting the following in its place therefor:
(b) Third Amendment Adjusted EBITDA. From and after March 1, 2010 and
at all times thereafter, fail to cause Borrowers to maintain Third Amendment
Adjusted EBITDA of not less than $40,000,000 as of the end of each fiscal
quarter of Borrowers, determined based upon Borrowers’ immediately preceding
four fiscal quarters then ended;
(h) Amendment to Section 7.17(c). Section 7.17(c) of the Loan and Security Agreement is
hereby amended by deleting it in its entirety and substituting the following in its place therefor:
(c) Funded Debt/Third Amendment Adjusted EBITDA. From and after March
1, 2010 and at all times thereafter, fail to cause Borrowers to maintain a
Funded Debt to Third Amendment Adjusted EBITDA Ratio equal to or less than
2.25 to 1.00, as of the end of each fiscal quarter of Borrowers;
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(i) Insertion of New Section 7.17(d). A new Section 7.17(d) of the Loan and Security
Agreement is hereby inserted immediately after Section 7.17(c) as follows:
(d) Quarterly Adjusted EBITDA. (i) From and after the Third Amendment
Effective Date and continuing with each fiscal quarter thereafter, fail to
cause Borrowers to maintain Quarterly Adjusted EBITDA of not less than
$5,000,000 as of the end of each fiscal quarter of Borrowers, based upon
Borrowers’ fiscal quarter then ended.
(i) Amendment to Section 7.18. Section 7.18 of the Loan and Security Agreement is hereby
deleted and the following is substituted therefor:
7.18 Capital Expenditures. Incur (i) Capital Expenditures and (ii)
Capital Leases in an aggregate amount (considering the aggregate
expenditures and incurrence of obligations for Capital Expenditures and
Capital Leases by all Obligors, collectively) for any fiscal year ending on
or after August 27, 2010, in excess of Forty Million Dollars ($40,000,000)
during any fiscal year of the Obligors.
3. Amendment Fee. Borrowers shall pay to Bank a fully-earned and non-refundable amendment fee
in the amount of One Hundred Thousand Dollars ($100,000) (the “Third Amendment Fee”) for the
amendments provided by this Amendment.
4. Conditions to Effectiveness. The provisions of this Amendment shall become effective on
the date (the “Effective Date”) that all of the following conditions precedent have been satisfied:
(a) Agent shall have received three original counterparts of this Amendment, duly
executed and delivered by Borrowers, Agent and the Lenders;
(b) Agent shall have received an original legal opinion from Borrowers’ in-house
counsel acceptable to Agent and the Lenders, in form and substance satisfactory to Agent,
opining as to the due authorization, execution and delivery of this Amendment by the
Borrowers;
(c) Each of the representations and warranties of Borrowers in Section 5 of this
Amendment shall be true, correct and accurate as of the Effective Date;
(d) Agent shall have received from Borrowers payment in full in immediately available
funds of the Third Amendment Fee; and
(e) All legal matters incident to the execution and delivery of this Amendment shall be
satisfactory to Agent and its counsel.
5. Representations, Warranties and Agreements. Each of the Borrowers hereby represents,
warrants and agrees in favor of Agent and each Lender as follows:
(a) No Default or Event of Default has occurred and is continuing (or would result from
the amendment of the Loan and Security Agreement contemplated hereby);
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(b) The execution, delivery and performance by Borrowers of this Amendment have been
duly authorized by all necessary corporate and/or other action and do not and will not
require any registration with, consent or approval of, notice to or action by, any Person in
order to be effective and enforceable. Each of the Loan and Security Agreement and the
other Loan Documents to which any Borrower or Guarantor is a party constitutes and continues
to constitute the legally, valid and binding obligation of such Borrower or Guarantor, in
each case enforceable against such Borrower or Guarantor, as applicable, in accordance with
its terms;
(c) All of the representations and warranties of the Borrowers and the Guarantors
contained in the Loan and Security Agreement and the other Loan Documents are true and
correct on and as of the date hereof and will be true and correct on the Effective Date
(except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier date);
(d) Each of the Borrowers is entering into this Amendment on the basis of such Person’s
own business judgment, without reliance upon Agent, the Lenders or any other Person; and
(e) Each of the Borrowers acknowledges and agrees that the execution and delivery by
Agent and Lenders of this Amendment shall not be deemed to create a course of dealing or
otherwise obligate Agent, Lenders or any other Person to execute similar agreements under
the same or similar circumstances in the future. Neither the Agent nor the Lenders has any
obligation to Borrowers or any other Person to further amend provisions of the Loan and
Security Agreement or the other Loan Documents. Other than as specifically contemplated
hereby, all of the terms, covenants and provisions of the Loan and Security Agreement (and
the other Loan Documents) are and shall remain in full force and effect.
6. Post-Effective Date Covenants. Borrowers hereby agree that they shall cause the following
to be delivered to Agent not later than 60 days following the Effective Date (or such other time as
may be agreed by Agent in its Permitted Discretion):
(a) reaffirmation by the Guarantors of the Guaranty Agreements (“Guarantors’
Reaffirmation”) listed on Schedule A hereto, with such Guarantors’ Reaffirmation
substantially in the form attached hereto as Exhibit A and otherwise in and form and
substance satisfactory to Agent;
(b) reaffirmation of the Intercompany Subordination Agreement by the parties thereto
(“ISA Reaffirmation”), with such ISA Reaffirmation substantially in the form attached hereto
as Exhibit B and otherwise in and form and substance satisfactory to Agent;
(c) reaffirmation of the security agreements and other documents listed on Schedule B
hereto (“Security Documents”) by the parties thereto (“Security Document Reaffirmation”, and
collectively with the Guarantors’ Reaffirmation and the ISA Reaffirmation, the
“Reaffirmation Documents”), with such Security Document Reaffirmation substantially in the
form attached hereto as Exhibit C and otherwise in form and substance satisfactory to Agent;
(d) legal opinions or other written confirmation in form and substance satisfactory to
Agent relating to the due authorization, execution and delivery of, and the continuing
enforceability of the Guaranty Agreements, the Intercompany Subordination Agreement and the
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Security Documents and the liens and security interests provided by the Security Documents
and confirming that each of the foregoing remains unmodified by the terms and provisions of
the Amendment; and
(e) (i) a Guaranty Agreement duly authorized, executed and delivered by Smart Modular
Technologies (AZ), Inc., an Arizona corporation, in form and substance reasonably
satisfactory to Agent and (ii) resolutions authorizing Smart Modular Technologies (AZ), Inc.
to guaranty the obligations under the Loan and Security Agreement, certified by the
Secretary or Assistant Secretary of Smart Modular Technologies (AZ), Inc.
Each of the Borrowers acknowledges and agrees that the failure to provide any of the items
listed in clauses (a) through (e) above within the timeframe specified above shall constitute an
immediate Event of Default under Section 8.2(a) of the Loan and Security Agreement.
7. General Provisions.
(a) Upon the effectiveness of this Amendment, all references in the Loan and Security
Agreement and in the other Loan Documents to the Loan and Security Agreement shall refer to
the Loan and Security Agreement as modified hereby. This Amendment shall be deemed
incorporated into, and a part of, the Loan and Security Agreement. This Amendment is a Loan
Document. THIS AMENDMENT IS EXPRESSLY SUBJECT TO THE PROVISIONS OF SECTION 13 (CHOICE OF
LAW AND VENUE; JURY TRIAL WAIVER) AND SECTION 17.8 (JURISDICTION, SERVICE OF PROCESS AND
VENUE) OF THE LOAN AND SECURITY AGREEMENT, WHICH PROVISIONS ARE INCORPORATED HEREIN AND MADE
APPLICABLE HERETO BY THIS REFERENCE.
(b) This Amendment is made pursuant to Section 15.1 of the Loan and Security Agreement
and shall be binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns. No third party beneficiaries are intended in
connection with this Amendment.
(c) This Amendment may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Amendment by telecopy shall be effective as delivery of a manually
executed counterpart of this Amendment.
(d) Each provision of this Amendment shall be severable from every other provision of
this Amendment for the purpose of determining the legal enforceability of any specific
provision.
(e) Promptly upon the request by Agent or Required Lenders, Borrowers shall and shall
cause each of their Subsidiaries, each of the Guarantors and Pledgors and any other Persons
requested by Agent or Required Lenders to take such further acts (including the
acknowledgement, execution, delivery, recordation, filing and registering of documents) as
may reasonably be required from time to time to: (a) carry out more effectively the
purposes of this Amendment, the Loan and Security Agreement or any other Loan Document; (b)
subject to the Liens created by any of the Loan Documents any of the properties, rights or
interests covered by any of the Loan Documents or any other properties, rights or interests
constituting Collateral
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acquired by any of the Borrowers, any other Obligor or any other Person who has granted, or
is otherwise required to grant, a security interest to Agent pursuant to the Loan Documents
following the Closing Date; (c) perfect and maintain the validity, effectiveness and
priority of the Liens created or intended to be created by any of the Loan Documents; and
(d) better assure, convey, grant, assign, transfer, preserve, protect and confirm to Agent
and Required Lenders the rights, remedies and privileges existing or granted or now or
hereafter intended to be granted to such Persons under any Loan Document or other document
executed in connection therewith.
(f) Borrowers shall promptly pay to Agent all attorneys’ fees and expenses incurred in
connection with the preparation, negotiation and closing of this Amendment and the
Borrowers’ compliance with the post Effective Date covenants set forth in this Amendment,
including without limitation, Section 6 hereof.
(g) The appearing parties herein declare that all the terms and conditions of the Loan
and Security Agreement continue to remain, as herein amended, in full force and effect and
by these presents the appearing parties hereby ratify, reaffirm and confirm all the terms
and conditions of the Loan and Security Agreement and further declare that it is their
express intention that the transactions set forth in this Amendment shall in no way, manner
or form be construed or be interpreted as an extinctive novation of any of the obligations
and agreements set forth in the Loan and Security Agreement.
[Document continues with signature pages.]
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In Witness Whereof, the parties hereto have caused this Third Amendment to Loan and
Security Agreement to be duly executed as of the date first written above.
| Borrowers:
Smart Modular Technologies, Inc. a California corporation |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Director, President and CEO | |||
| Smart Modular Technologies (Europe) Limited, a company incorporated under the laws of England and Wales |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
| IN THE PRESENCE OF: |
||||
| Witness: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| EXECUTED AS A DEED BY: Smart Modular Technologies (Puerto Rico) Inc., an exempted company organized under the laws of the Cayman Islands |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Director, President and CEO | |||
| IN THE PRESENCE OF: |
||||
| Witness: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
S-1
| Agent: ▇▇▇▇▇ Fargo Bank, National Association, a national banking association |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
| Lender: ▇▇▇▇▇ Fargo Bank, National Association, a national banking association |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
S-2
Schedule A
Guaranty Agreements
| 1. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (WWH), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 2. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (Global), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 3. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (DH), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 4. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (CI), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 5. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (Foreign Holdings), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 6. | Amended and Restated Guaranty, dated April 30, 2007, executed by Modular Brasil
Participações Ltda. and Smart Modular Technologies Indústria de Componentes Eletrônicos
Ltda. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 7. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies Sdn. Bhd. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 8. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies, Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 9. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (Europe) Limited in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 10. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (Puerto Rico) Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 11. | Guaranty, dated January 15, 2009, executed by Smart Modular Technologies (DE), Inc. in
favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 12. | Guaranty, dated January 15, 2009, executed by Euroground I B.V. in favor of ▇▇▇▇▇ Fargo
Bank, National Association. |
Sch. A-1
Schedule B
Security Documents
| 1. | Collateral Assignment of Patents (Security Agreement), dated as of April 16, 2004, as
amended by the Amendment to Collateral Assignment of Patents (Security Agreement), dated as
of March 28, 2005, and the Second Amendment to Collateral Assignment of Patents (Security
Agreement), dated as of April 30, 2007, between Smart Modular Technologies, Inc. and ▇▇▇▇▇
Fargo Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. |
|
| 2. | Collateral Assignment of Trademarks (Security Agreement), dated as of April 16, 2004,
as amended by the Amendment to Collateral Assignment of Trademarks (Security Agreement),
dated as of March 28, 2005, and the Second Amendment to Collateral Assignment of Trademarks
(Security Agreement), dated as of April 30, 2007, between Smart Modular Technologies, Inc.
and ▇▇▇▇▇ Fargo Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. |
|
| 3. | Amended and Restated Stock Pledge Agreement, dated as of April 30, 2007, between Smart
Modular Technologies (DH), Inc. and ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 4. | Share Charge in respect of shares in Smart Modular Technologies (Puerto Rico) Inc.,
dated April 16, 2004, granted by Smart Modular Technologies (Foreign Holdings) Inc. in
favor of ▇▇▇▇▇ Fargo Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc.
under the Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 5. | Share Charge in respect of shares in Smart Modular Technologies (Global), Inc., dated
March 28, 2005, granted by Smart Modular Technologies (WWH), Inc. in favor of ▇▇▇▇▇ Fargo
Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. under the Deed of
Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 6. | Share Charge in respect of shares in Smart Modular Technologies (DH), Inc., dated March
28, 2005, granted by Smart Modular Technologies (Global), Inc. in favor of ▇▇▇▇▇ Fargo
Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. under the Deed of
Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 7. | Share Charge in respect of shares in Smart Modular Technologies (CI), Inc., dated March
28, 2005, granted by Smart Modular Technologies (Global), Inc. in favor of ▇▇▇▇▇ Fargo
Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. under the Deed of
Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 8. | Share Charge in respect of shares in Smart Modular Technologies (Foreign Holdings),
Inc., dated March 28, 2005, granted by Smart Modular Technologies (CI), Inc. in favor of
▇▇▇▇▇ Fargo Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. under the
Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 9. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (CI), Inc.
to ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 10. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (DH), Inc.
to ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 11. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (Global),
Inc. to ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 12. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (Foreign
Holdings), Inc. to ▇▇▇▇▇ Fargo Bank, National Association. |
Sch. B-1
| 13. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (Puerto
Rico), Inc. to ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 14. | Deed of Charge, dated April 16, 2004, granted by Smart Modular Technologies (Foreign
Holdings) Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇
Fargo Foothill, Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April
30, 2007. |
|
| 15. | Deed of Charge, dated April 16, 2004, granted by Smart Modular Technologies (Puerto
Rico) Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo
Foothill, Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30,
2007. |
|
| 16. | Deed of Charge, dated March 28, 2005, granted by Smart Modular Technologies (WWH), Inc.
in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo Foothill,
Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 17. | Deed of Charge, dated March 28, 2005, granted by Smart Modular Technologies (Global),
Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo
Foothill, Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30,
2007. |
|
| 18. | Deed of Charge, dated March 28, 2005, granted by Smart Modular Technologies (DH), Inc.
in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo Foothill,
Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 19. | Deed of Charge, dated March 28, 2005, granted by Smart Modular Technologies (CI), Inc.
in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo Foothill,
Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 20. | Deed of Confirmation and Amendment to Security, dated April 2007, between Smart Modular
Technologies (Europe) Limited, as Chargor, Smart Modular Technologies, Inc., as Parent, and
▇▇▇▇▇ Fargo Bank, National Association, as Chargee. |
|
| 21. | Stock Pledge Agreement, dated April 30, 2007, as amended by (a) First Amendment to the
Stock Pledge Agreement, dated April 30, 2007 and (b) Second Amendment to the Stock Pledge
Agreement, dated January 9, 2009, between ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇
Fargo Foothill, Inc., Smart Modular Technologies (Puerto Rico) Inc., Euroground I B.V., and
Smart Modular Technologies Indústria de Componentes Eletrônicos Ltda. |
|
| 22. | Memorandum of Deposit and Charge Over Shares, dated April 16, 2004, as supplemented by the
Supplemental Memorandum of Deposit and Charge Over Shares, dated March 28, 2005, granted by Smart
Modular Technologies (Foreign Holdings) Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association as
New Pledgee under the Novation Agreement, dated April 30, 2007. |
Sch. B-2
EXHIBIT A
Guarantors’ Reaffirmation
This Guarantors’ Reaffirmation, dated as of
, 2010, is executed by each of the
undersigned (each, a “Guarantor,” and, collectively, “Guarantors”) in favor of Agent (as defined
hereinafter) and each of the Lenders (as defined hereinafter).
Each of the undersigned Guarantors acknowledges and agrees that such Guarantor has received,
read and is familiar with, and consents to, all of the terms and conditions of that certain Third
Amendment to Second Amended and Restated Loan and Security Agreement, dated as of April 30, 2010
(the “Third Amendment”), among the lenders identified on the signature pages thereto (the
“Lenders”), ▇▇▇▇▇ Fargo Bank, National Association, a national banking association, as the
arranger, administrative agent and security trustee for the Lenders (in such capacity, the
“Agent”), Smart Modular Technologies, Inc., a California corporation (“US Borrower”), Smart Modular
Technologies (Europe) Limited, a company incorporated under the laws of England and Wales (“UK
Borrower”), and Smart Modular Technologies (Puerto Rico) Inc., an exempted company organized under
the laws of the Cayman Islands (“PR Borrower”, and together with US Borrower and UK Borrower, each
individually referred to herein as a “Borrower” and collectively, as the “Borrowers”). In light of
the foregoing, each Guarantor confirms and agrees that all of the terms, provisions and obligations
of its Amended and Restated Guaranty (as listed on Schedule A hereto), dated April 30,
2007, previously executed by such Guarantor in favor of Agent (as amended, modified and/or
supplemented from time to time, a “Guaranty,” and, collectively, the “Guaranties”), are ratified
and reaffirmed, and that such Guarantor’s Guaranty shall continue in full force and effect, without
modification.
Although Agent has informed each of the Guarantors of the terms of the Third Amendment, each
Guarantor understands and agrees that Agent has no duty under any agreement with Borrowers or any
of them (including, without limitation, under the Third Amendment), under the Guaranties, or under
any other agreement with any Guarantor to so notify any Guarantor or to seek this or any future
acknowledgment, consent, or reaffirmation, and nothing contained herein is intended to, or shall
create, such a duty as to any transactions occurring hereafter.
[Signature page follows.]
Exh. A-1
IN WITNESS WHEREOF, the undersigned have each executed and delivered this Guarantors’
Reaffirmation as of the date set forth in the first paragraph hereof.
| Smart Modular Technologies, Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (DH), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Foreign Holdings) Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (WWH), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Global), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (CI), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
Exh. A-2
| Smart Modular Technologies (Puerto Rico), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Europe) Limited |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Euroground I B.V. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies Indústria de Componentes Eletrônicos Ltda. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies Sdn. Bhd. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (DE), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
Exh. A-3
Schedule A
Guaranty Agreements
| 1. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (WWH), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 2. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (Global), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 3. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (DH), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 4. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (CI), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 5. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (Foreign Holdings), Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 6. | Amended and Restated Guaranty, dated April 30, 2007, executed by Modular Brasil
Participações Ltda. and Smart Modular Technologies Indústria de Componentes Eletrônicos
Ltda. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 7. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies Sdn. Bhd. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 8. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies, Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 9. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (Europe) Limited in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 10. | Amended and Restated Guaranty, dated April 30, 2007, executed by Smart Modular
Technologies (Puerto Rico) Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 11. | Guaranty, dated January 15, 2009, executed by Smart Modular Technologies (DE), Inc. in
favor of ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 12. | Guaranty, dated January 15, 2009, executed by Euroground I B.V. in favor of ▇▇▇▇▇ Fargo
Bank, National Association. |
Exh. A-4
EXHIBIT B
ISA Reaffirmation
This ISA Reaffirmation, dated as of
, 2010, is executed by each of the undersigned
(each, an “Obligor,” and, collectively, “Obligors”) in favor of Agent (as defined hereinafter) and
each of the Lenders (as defined hereinafter).
Each of the undersigned Obligors acknowledges and agrees that such Obligor has received, read
and is familiar with, and consents to, all of the terms and conditions of that certain Third
Amendment to Second Amended and Restated Loan and Security Agreement, dated as of April 30, 2010
(the “Third Amendment”), among the lenders identified on the signature pages thereto (the
“Lenders”), ▇▇▇▇▇ Fargo Bank, National Association, a national banking association, as the
arranger, administrative agent and security trustee for the Lenders (in such capacity, the
“Agent”), Smart Modular Technologies, Inc., a California corporation (“US Borrower”), Smart Modular
Technologies (Europe) Limited, a company incorporated under the laws of England and Wales (“UK
Borrower”), and Smart Modular Technologies (Puerto Rico) Inc., an exempted company organized under
the laws of the Cayman Islands (“PR Borrower”, and together with US Borrower and UK Borrower, each
individually referred to herein as a “Borrower” and collectively, as the “Borrowers”). In light of
the foregoing, each of the Obligors hereby confirms and agrees that all of the terms, provisions
and obligations of that certain Amended and Restated Intercompany Subordination Agreement, dated as
of March 28, 2005, previously executed by such Obligor in favor of Agent (as amended, modified
and/or supplemented from time to time, the “Intercompany Subordination Agreement”), are ratified
and reaffirmed, and that such Intercompany Subordination Agreement has and shall continue in full
force and effect, without modification.
Although Agent has informed each of the Obligors of the terms of the Third Amendment, each
Obligor understands and agrees that Agent has no duty under any agreement with Borrowers or any of
them (including, without limitation, under the Third Amendment), under the Intercompany
Subordination Agreement, or under any other agreement with any Obligor to so notify any Obligor or
to seek this or any future acknowledgment, consent, or reaffirmation, and nothing contained herein
is intended to, or shall create, such a duty as to any transactions occurring hereafter.
[Signature page follows.]
Exh. B-1
IN WITNESS WHEREOF, the undersigned have each executed and delivered this ISA Reaffirmation as
of the date set forth in the first paragraph hereof.
| Smart Modular Technologies, Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (DH), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Foreign Holdings) Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (WWH), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Global), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (CI), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
Exh. B-2
| Smart Modular Technologies (Puerto Rico), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Europe) Limited |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Euroground I B.V. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies Indústria de Componentes Eletrônicos Ltda. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies Sdn. Bhd. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (DE), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
Exh. B-3
EXHIBIT C
Security Document Reaffirmation
This Security Document Reaffirmation, dated as of
, 2010, is executed by each of the
undersigned (each, a “Pledgor,” and, collectively, “Pledgors”) in favor of Agent (as defined
hereinafter) and each of the Lenders (as defined hereinafter).
Each of the undersigned Pledgors acknowledges and agrees that such Pledgor has received, read
and is familiar with, and consents to, all of the terms and conditions of that certain Third
Amendment to Second Amended and Restated Loan and Security Agreement, dated as of April 30, 2010
(the “Third Amendment”), among the lenders identified on the signature pages thereto (the
“Lenders”), ▇▇▇▇▇ Fargo Bank, National Association, a national banking association, as the
arranger, administrative agent and security trustee for the Lenders (in such capacity, the
“Agent”), Smart Modular Technologies, Inc., a California corporation (“US Borrower”), Smart Modular
Technologies (Europe) Limited, a company incorporated under the laws of England and Wales (“UK
Borrower”), and Smart Modular Technologies (Puerto Rico) Inc., an exempted company organized under
the laws of the Cayman Islands (“PR Borrower”, and together with US Borrower and UK Borrower, each
individually referred to herein as a “Borrower” and collectively, as the “Borrowers”). In light of
the foregoing, each Pledgor confirms and agrees that all of the terms, provisions and obligations
of the documents to which it is a party (as listed on Schedule A attached hereto) (as
amended, modified and/or supplemented from time to time, a “Security Document,” and, collectively,
the “Security Documents”), are ratified and reaffirmed, and that all security interests, liens,
charges and other interests evidenced by each of the Security Documents shall continue in full
force and effect, without modification.
Although Agent has informed each of the Pledgors of the terms of the Third Amendment, each
Pledgor understands and agrees that Agent has no duty under any agreement with Borrowers or any of
them (including, without limitation, under the Third Amendment), under the Security Documents, or
under any other agreement with any Pledgor to so notify any Pledgor or to seek this or any future
acknowledgment, consent, or reaffirmation, and nothing contained herein is intended to, or shall
create, such a duty as to any transactions occurring hereafter.
[Signature page follows.]
Exh. C-1
IN WITNESS WHEREOF, the undersigned have each executed and delivered this Security Document
Reaffirmation as of the date set forth in the first paragraph hereof.
| Smart Modular Technologies, Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (DH), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Foreign Holdings) Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (WWH), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Global), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
Exh. C-2
| Smart Modular Technologies (CI), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Puerto Rico), Inc. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies (Europe) Limited |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Euroground I B.V. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Smart Modular Technologies Indústria de Componentes Eletrônicos Ltda. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
Exh. C-3
Schedule A
Security Documents
| 1. | Collateral Assignment of Patents (Security Agreement), dated as of April 16, 2004, as
amended by the Amendment to Collateral Assignment of Patents (Security Agreement), dated as
of March 28, 2005, and the Second Amendment to Collateral Assignment of Patents (Security
Agreement), dated as of April 30, 2007, between Smart Modular Technologies, Inc. and ▇▇▇▇▇
Fargo Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. |
|
| 2. | Collateral Assignment of Trademarks (Security Agreement), dated as of April 16, 2004,
as amended by the Amendment to Collateral Assignment of Trademarks (Security Agreement),
dated as of March 28, 2005, and the Second Amendment to Collateral Assignment of Trademarks
(Security Agreement), dated as of April 30, 2007, between Smart Modular Technologies, Inc.
and ▇▇▇▇▇ Fargo Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. |
|
| 3. | Amended and Restated Stock Pledge Agreement, dated as of April 30, 2007, between Smart
Modular Technologies (DH), Inc. and ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 4. | Share Charge in respect of shares in Smart Modular Technologies (Puerto Rico) Inc.,
dated April 16, 2004, granted by Smart Modular Technologies (Foreign Holdings) Inc. in
favor of ▇▇▇▇▇ Fargo Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc.
under the Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 5. | Share Charge in respect of shares in Smart Modular Technologies (Global), Inc., dated
March 28, 2005, granted by Smart Modular Technologies (WWH), Inc. in favor of ▇▇▇▇▇ Fargo
Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. under the Deed of
Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 6. | Share Charge in respect of shares in Smart Modular Technologies (DH), Inc., dated March
28, 2005, granted by Smart Modular Technologies (Global), Inc. in favor of ▇▇▇▇▇ Fargo
Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. under the Deed of
Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 7. | Share Charge in respect of shares in Smart Modular Technologies (CI), Inc., dated March
28, 2005, granted by Smart Modular Technologies (Global), Inc. in favor of ▇▇▇▇▇ Fargo
Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. under the Deed of
Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 8. | Share Charge in respect of shares in Smart Modular Technologies (Foreign Holdings),
Inc., dated March 28, 2005, granted by Smart Modular Technologies (CI), Inc. in favor of
▇▇▇▇▇ Fargo Bank, National Association, as Assignee of ▇▇▇▇▇ Fargo Foothill, Inc. under the
Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 9. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (CI), Inc.
to ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 10. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (DH), Inc.
to ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 11. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (Global),
Inc. to ▇▇▇▇▇ Fargo Bank, National Association. |
Exh. C-4
| 12. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (Foreign
Holdings), Inc. to ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 13. | Letter of Undertaking, dated April 30, 2007, from Smart Modular Technologies (Puerto
Rico), Inc. to ▇▇▇▇▇ Fargo Bank, National Association. |
|
| 14. | Deed of Charge, dated April 16, 2004, granted by Smart Modular Technologies (Foreign
Holdings) Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇
Fargo Foothill, Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April
30, 2007. |
|
| 15. | Deed of Charge, dated April 16, 2004, granted by Smart Modular Technologies (Puerto
Rico) Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo
Foothill, Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30,
2007. |
|
| 16. | Deed of Charge, dated March 28, 2005, granted by Smart Modular Technologies (WWH), Inc.
in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo Foothill,
Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 17. | Deed of Charge, dated March 28, 2005, granted by Smart Modular Technologies (Global),
Inc. in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo
Foothill, Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30,
2007. |
|
| 18. | Deed of Charge, dated March 28, 2005, granted by Smart Modular Technologies (DH), Inc.
in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo Foothill,
Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 19. | Deed of Charge, dated March 28, 2005, granted by Smart Modular Technologies (CI), Inc.
in favor of ▇▇▇▇▇ Fargo Bank, National Association as Assignee of ▇▇▇▇▇ Fargo Foothill,
Inc. under the Deed of Assignment, Reaffirmation and Consent, dated April 30, 2007. |
|
| 20. | Deed of Confirmation and Amendment to Security, dated April 2007, between Smart Modular
Technologies (Europe) Limited, as Chargor, Smart Modular Technologies, Inc., as Parent, and
▇▇▇▇▇ Fargo Bank, National Association, as Chargee. |
|
| 21. | Stock Pledge Agreement, dated April 30, 2007, as amended by (a) First Amendment to the
Stock Pledge Agreement, dated April 30, 2007 and (b) Second Amendment to the Stock Pledge
Agreement, dated January 9, 2009, between ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇
Fargo Foothill, Inc., Smart Modular Technologies (Puerto Rico) Inc., Euroground I B.V., and
Smart Modular Technologies Indústria de Componentes Eletrônicos Ltda. |
|
| 22. | Memorandum of Deposit and Charge Over Shares, dated April 16, 2004, as supplemented by
the Supplemental Memorandum of Deposit and Charge Over Shares, dated March 28, 2005,
granted by Smart Modular Technologies (Foreign Holdings) Inc. in favor of ▇▇▇▇▇ Fargo Bank,
National Association as New Pledgee under the Novation Agreement, dated April 30, 2007. |
Exh. C-5