EX-10.1






FIRST AMENDMENT TO AMENDED AND RESTATED

LOAN AND SECURITY AGREEMENT




THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this
“Amendment”), dated as of January 8, 2007, is entered into by and among, on the one hand,
the lenders identified on the signature pages hereof (such lenders, together with their respective
successors and permitted assigns, are referred to hereinafter each individually as a
“Lender” and collectively as the “Lenders”), WELLS FARGO FOOTHILL, INC., a
California corporation, as the arranger, administrative agent and security trustee for the Lenders
(“Agent”), and, on the other hand, SMART MODULAR TECHNOLOGIES, INC., a California
corporation, as successor by merger to Modular Merger Corporation, a California corporation
(“US Borrower”), SMART MODULAR TECHNOLOGIES (EUROPE) LIMITED, a company incorporated under
the laws of England and Wales (“UK Borrower”), 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 individually and collectively, as the “Borrowers”), and the other
Obligors identified on the signature pages hereof.



RECITALS




A. Agent, Lenders and Obligors have previously entered into that certain Amended and Restated
Loan and Security Agreement dated as of March 28, 2005 (as the same may be modified, supplemented
or amended from time to time, the “Loan Agreement”), pursuant to which the Lenders have
made certain loans and financial accommodations available to Borrowers. Terms used herein without
definition shall have the meanings ascribed to them in the Loan Agreement.



B. Obligors have requested that Agent and the Lenders amend the Loan Agreement which Agent and
the Lenders are willing to do pursuant to the terms and conditions set forth herein.



C. Each Obligor is entering into this Amendment with the understanding and agreement that,
except as specifically provided herein, none of Agent’s or any Lender’s rights or remedies as set
forth in the Loan Agreement are being waived or modified by the terms of this Amendment.



AGREEMENT




NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:



1. Amendment to Loan Agreement.



(a) Clause (b) of the definition of “Change of Control” set forth in Section 1.1 of the Loan
Agreement is hereby amended and restated in its entirety to read as follows:




“(b) after the first public offering of common stock of Parent, one or more of the
Permitted Holders as a group cease to be the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of 30% or
more of the total voting power of the Voting Stock of Parent;”



2. Conditions Precedent to Effectiveness of this Amendment. This Amendment shall not
become effective until all of the following conditions precedent shall have been satisfied in the
sole discretion of Agent or waived by Agent:



(a) Amendment; Acknowledgement. Agent shall have received this Amendment fully
executed in a sufficient number of counterparts for distribution to all parties.



(b) Representations and Warranties. The representations and warranties set forth
herein and in the Loan Agreement must be true and correct.



(c) Other Required Documentation. Agent shall have received all other documents and
legal matters in connection with the transactions contemplated by this Amendment and such documents
shall have been delivered or executed or recorded and shall be in form and substance satisfactory
to Agent.



3. Representations and Warranties. Each Obligor represents and warrants as follows:



(a) Authority. Each Obligor has the requisite corporate power and authority to
execute and deliver this Amendment, and to perform its obligations hereunder and under the Loan
Documents (as amended or modified hereby) to which it is a party. The execution, delivery and
performance by each Obligor of this Amendment have been duly approved by all necessary corporate
action, have received all necessary governmental approval, if any, and do not contravene any law or
any contractual restriction binding on any Obligor. No other corporate proceedings are necessary
to consummate such transactions.



(b) Enforceability. This Amendment has been duly executed and delivered by each
Obligor. This Amendment and each Loan Document (as amended or modified hereby) is the legal, valid
and binding obligation of each Obligor, enforceable against each Obligor in accordance with its
terms, and is in full force and effect.



(c) Representations and Warranties. The representations and warranties contained in
each Loan Document (other than any such representations or warranties that, by their terms, are
specifically made as of a date other than the date hereof) are correct on and as of the date hereof
as though made on and as of the date hereof.



(d) No Default. No event has occurred and is continuing that constitutes a Default or
Event of Default.



4. Choice of Law. The validity of this Amendment, the construction, interpretation,
and enforcement hereof, and the rights of the parties hereto with respect to all matters arising
hereunder or related hereto shall be determined under, governed by, and construed in accordance
with the laws of the State of New York.



5. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties and separate counterparts, each of which when so executed and delivered, shall be
deemed an original, and all of which, when taken together, shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this Amendment by
telefacsimile shall be effective as delivery of a manually executed counterpart of this Amendment.



6. Reference to and Effect on the Loan Documents.



(a) Upon and after the effectiveness of this Amendment, each reference in the Loan Agreement
to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Loan Agreement,
and each reference in the other Loan Documents to “the Loan Agreement”, “thereof” or words of like
import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as
modified and amended hereby.



(b) Except as specifically amended in Section 1 of this Amendment, the Loan Agreement and all
other Loan Documents, are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable
obligations of each Obligor to Agent and Lenders without defense, offset, claim or contribution.



(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of Agent or any Lender under any
of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.



7. Ratification. Each Obligor hereby restates, ratifies and reaffirms each and every
term and condition set forth in the Loan Agreement, as amended hereby, and the Loan Documents
effective as of the date hereof.



8. Estoppel. To induce Agent and Lenders to enter into this Amendment and to induce
Agent and Lenders to continue to make advances to Borrowers under the Loan Agreement, each Obligor
hereby acknowledges and agrees that, after giving effect to this Amendment, as of the date hereof,
there exists no Default or Event of Default and no right of offset, defense, counterclaim or
objection in favor of any Obligor as against Agent or any Lender with respect to the Obligations.



9. Integration. This Amendment, together with the other Loan Documents, incorporates
all negotiations of the parties hereto with respect to the subject matter hereof and is the final
expression and agreement of the parties hereto with respect to the subject matter hereof.



10. Severability. In case any provision in this Amendment shall be invalid, illegal
or unenforceable, such provision shall be severable from the remainder of this Amendment and the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.



11. Submission of Amendment. The submission of this Amendment to the parties or their
agents or attorneys for review or signature does not constitute a commitment by Agent or any Lender
to waive any of their respective rights and remedies under the Loan Documents, and this Amendment
shall have no binding force or effect until all of the conditions to the effectiveness of this
Amendment have been satisfied as set forth herein.



[Remainder of Page Left Intentionally Blank]






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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.



	 
	 

	EXECUTED AS A DEED BY:

	 

	SMART MODULAR TECHNOLOGIES (FOREIGN HOLDINGS) INC.,

formerly known as Modular (Foreign Holdings) Inc.,

an exempted company organized under the laws of the Cayman Islands, as an

Obligor

By: /s/ Jack A. Pacheco

Name: Jack A. Pacheco

Title: Senior Vice President and Chief Financial Officer

IN THE PRESENCE OF:

	Witness: /s/ Debbie Borden

Name: Debbie Borden

	 

	SMART MODULAR TECHNOLOGIES (DE), INC.,

formerly known as Modular, Inc.,

a Delaware corporation, as an Obligor

By: /s/ Jack A. Pacheco

Name: Jack A. Pacheco

Title: Treasurer

	 

	SMART MODULAR TECHNOLOGIES, INC.,

as successor by merger to Modular Merger Corporation,

a California corporation, as an Obligor

By: /s/ Jack A. Pacheco

Name: Jack A. Pacheco

Title: Senior Vice President and Chief Financial Officer

	 

	EXECUTED AS A DEED BY:

	 

	SMART MODULAR TECHNOLOGIES (EUROPE) LIMITED,

a company organized under the laws of England and Wales, as an Obligor

By: /s/ Jack A. Pacheco

Name: Jack A. Pacheco

Title: Director

IN THE PRESENCE OF:

	Witness: /s/ Debbie Borden

Name: Debbie Borden

	 

	EXECUTED AS A DEED BY:

	 

	SMART MODULAR TECHNOLOGIES (PUERTO RICO) INC.,

an exempted company organized under the laws of the Cayman Islands, as an

Obligor

By: /s/ Jack A. Pacheco

Name: Jack A. Pacheco

Title: Senior Vice President and Chief Financial Officer

IN THE PRESENCE OF:

	Witness: /s/ Debbie Borden

Name: Debbie Borden

	 

	EXECUTED AS A DEED BY:

	 

	SMART MODULAR TECHNOLOGIES (WWH), INC.,

an exempted company organized under the laws of the Cayman Islands, as an

Obligor

By: /s/ Jack A. Pacheco

Name: Jack A. Pacheco

Title: Senior Vice President and Chief Financial Officer

IN THE PRESENCE OF:

	Witness: /s/ Debbie Borden

Name: Debbie Borden

EXECUTED AS A DEED BY:

	 

	SMART MODULAR TECHNOLOGIES (GLOBAL), INC.,

an exempted company organized under the laws of the Cayman Islands, as an

Obligor

By: /s/ Ann T. Nguyen

Name: Ann T. Nguyen

Title: Secretary

IN THE PRESENCE OF:

	Witness: /s/ Debbie Borden

Name: Debbie Borden

EXECUTED AS A DEED BY:

	 

	SMART MODULAR TECHNOLOGIES (DH), INC.,

an exempted company organized under the laws of the Cayman Islands, as an

Obligor

By: /s/ Ann T. Nguyen

Name: Ann T. Nguyen

Title: Secretary

IN THE PRESENCE OF:

	Witness: /s/ Debbie Borden

Name: Debbie Borden

EXECUTED AS A DEED BY:

	 

	SMART MODULAR TECHNOLOGIES (CI), INC.,

an exempted company organized under the laws of the Cayman Islands, as an

Obligor

By: /s/ Ann T. Nguyen

Name: Ann T. Nguyen

Title: Secretary

IN THE PRESENCE OF:

	Witness: /s/ Debbie Borden

Name: Debbie Borden

SMART MODULAR TECHNOLOGIES INDÚSTRIA DE COMPONENTES ELETRÔNICOS LTDA.,

a limited liability company (sociedade limitada) organized under the Federative

Republic of Brazil, as an Obligor

By: /s/ Antonio Noboru Takahashi

Name: Antonio Noboru Takahashi

Title: General Manager / Officer

MODULAR BRASIL PARTICIPAÇÕES LTDA.,

a limited liability company (sociedade limitada) organized under the Federative

Republic of Brazil, as an Obligor

By: /s/ Antonio Noboru Takahashi

Name: Antonio Noboru Takahashi

Title: General Manager / Officer

SMART MODULAR TECHNOLOGIES SDN. BHD.,

a corporation organized under the laws of Malaysia, as an Obligor

By: /s/ Iain MacKenzie

Name: Iain MacKenzie

Title: Director

WELLS FARGO FOOTHILL, INC.

a California corporation, as Agent and as a Lender

By: /s/ Terri Le

Name: Terri Le

Title: Vice President

	 








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