exv4w12



 






Exhibit 4.12




FIRST AMENDMENT TO

GUARANTY




April 20, 2005




Wells Fargo Foothill, Inc., as Agent 

2450 Colorado Avenue, Suite 3000 West 

Santa Monica, California 90404




	 	Re:	 	SMART Modular Technologies, Inc., a California
corporation (“US Borrower”), SMART Modular Technologies (Europe)
Limited, a company organized under the laws of England and Wales (“UK
Borrower”), and SMART Modular Technologies (Puerto Rico) Inc., a
corporation organized under the laws of the Cayman Islands (“PR
Borrower” and together with US Borrower and UK Borrower, collectively
referred to herein as “Borrowers”)





Ladies and Gentlemen:




Wells Fargo Foothill, Inc., as arranger and administrative agent (in such capacity “Agent”) for
certain lenders (“Lenders”), Lenders and Borrowers have entered into certain financing arrangements
pursuant to which Agent and Lenders may make loans and advances and provide other financial
accommodations to Borrowers as set forth in the Amended and Restated Loan and Security Agreement
dated as of March 28, 2005, by and among Borrowers, Agent, Lenders, and the other Obligors
identified on the signature pages thereto (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, the “Loan Agreement”), and other
agreements, documents and instruments referred to in the Loan Agreement as the “Loan Documents”.
Initially capitalized terms used herein without definitions shall have the meanings given in the
Loan Agreement.



This First Amendment to Guaranty (“Amendment”) is made with reference to the Guaranty executed by
each of the undersigned (each a “Guarantor” and
collectively the “Guarantors”) in connection
with the Loan Agreement and more particularly described on the signature pages hereto.



The Guarantors understand that the Parent will execute an ISDA Master Agreement dated as of April
20, 2005 with Wells Fargo Foothill, Inc. (the “ISDA Agreement”), and the Guarantors have agreed to
guaranty the full and timely payment of all obligations of the Parent thereunder. To evidence such
obligations, the undersigned Guarantors have agreed that their respective Guaranties shall be
amended as follows:



     (1) A new second paragraph shall be added to each Guaranty, reading in its entirety as
follows:




     “The Parent and Wells Fargo Foothill, Inc. are parties to an
ISDA Master Agreement dated as of April 20, 2005 (the “ISDA
Agreement”), and as a condition to its execution thereof, Wells



 









 






Fargo Foothill, Inc. has required that Guarantor guaranty to Wells
Fargo Foothill, Inc. the full and timely payment to Wells Fargo
Foothill, Inc. of all obligations of Parent to Wells Fargo Foothill,
Inc. arising under the ISDA Agreement.”



     (2) Section 1(a) shall be amended and restated in its entirety to read as follows:




     (a) Guarantor absolutely, unconditionally and irrevocably guarantees and
agrees to be liable for the full payment and performance when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise, of
the “Obligations” (as defined in the Loan Agreement) of each Applicable Borrower and
all “Bank Product Obligations” (as described in the Loan Agreement) of the Parent
(including, without limitation, all Bank Product Obligations under the ISDA
Agreement) (all of which obligations of Guarantor are collectively referred to
herein as the “Guaranteed Obligations”); provided, however, that Guarantor
shall only be liable under this Guaranty for the maximum amount of such liability
that can be hereby incurred without rendering this Guaranty, as it relates to
Guarantor, voidable under applicable laws relating to fraudulent conveyance or
fraudulent transfer and not for any greater amount.



Except as expressly amended hereby, each Guarantor ratifies and confirms all of the terms and
provisions of its Guaranty.



This Amendment may be executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be an original, and
all of which, when taken together, shall constitute but one and the same agreement. Delivery of an
executed counterpart of this Amendment by telefacsimile shall be equally as effective as delivery
of an original executed counterpart of this Amendment. Any party delivering an executed counterpart
of this Amendment by telefacsimile also shall deliver an original executed counterpart of this
Amendment but the failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment.



     IN WITNESS WHEREOF, each Guarantor has executed and delivered this Amendment as of the day and
year first above written with reference to the Guaranty more particularly described below its
signature block.



 









 





	 	 	 	 	 
	 	 	EXECUTED AS A
DEED BY:
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES (DH), INC.,
	 	 	an exempted company organized under the laws of
	 	 	the Cayman Islands
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	IN THE PRESENCE OF:
	 
	 	 	 	 
	 	 	Witness: /s/ A. Nguyen
	 	 	Name: A. Nguyen
	 
	 	 	 	 
	 	 	With Reference to its Guaranty dated March 28, 2005
	 
	 	 	 	 
	 	 	EXECUTED AS A DEED BY:
	 
	 	 	 	 
	 	 	SMART MODULAR
TECHNOLOGIES (GLOBAL), INC.,
	 	 	an exempted company organized under the laws of
	 	 	the Cayman Islands
	 
	 	 	 	 
	 

	 	By:
	 	/s/
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	IN THE PRESENCE
OF:
	 
	 	 	 	 
	 	 	Witness: /s/ A. Nguyen
	 	 	Name: A. Nguyen
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED MARCH 28, 2005







 









 








	 	 	 	 	 
	 	 	EXECUTED AS A DEED BY:
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES (CI), INC.,
	 	 	an exempted company organized under the laws of
	 	 	the Cayman Islands
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title : VP/CFO
	 
	 	 	 	 
	 	 	IN THE PRESENCE OF:
	 
	 	 	 	 
	 	 	Witness: /s/ Ann Nguyen
	 	 	Name: Ann Nguyen
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED MARCH 28, 2005
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES SDN, BHD.,
	 	 	a company incorporated in Malaysia with limited
	 	 	liability
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED MARCH 28, 2005
	 
	 	 	 	 
	 	 	MODULAR BRASIL
PARTICIPAÇÕES LTDA.,
	 	 	a limited liability company (sociedade limitada)
	 	 	organized under the Federative Republic of Brazil
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED MARCH 28, 2005






 









 






	 	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES
	 	 	INDUSTRIA DE COMPONENTES
	 	 	ELETRÔNICOS LTDA.,
	 	 	a limited liability company (sociedade limitada)
	 	 	organized under the Federative Republic of Brazil
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED MARCH 28, 2005
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES (DE), INC.,
	 	 	formerly known as
Modular, Inc., a Delaware corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED APRIL 16, 2004
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES, INC.,
	 	 	as successor by merger to Modular Merger
	 	 	Corporation, a California corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED APRIL 16, 2004






 









 






	 	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES
	 	 	(PUERTO RICO) INC.,
	 	 	an exempted company organized under the laws of
	 	 	the Cayman Islands
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED APRIL 16, 2004
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES
	 	 	(FOREIGN HOLDINGS), INC.,
	 	 	an exempted company organized under the laws of
	 	 	the Cayman Islands
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED APRIL
16, 2004
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES
	 	 	(EUROPE) LIMITED,
	 	 	a company organized under the laws of England
	 	 	and Wales
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Title: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED APRIL
16, 2004






ACCEPTED AND AGREED

this ___ day of April, 2005



WELLS FARGO FOOTHILL, INC.,

as Agent



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 
	 	 
	Title:
	 	 	 	 
	 

	 	 
	 	 






 









 






	 	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES
	 	 	(PUERTO RICO) INC.,
	 	 	an exempted company organized under the laws of
	 	 	the Cayman Islands
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Titte: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED APRIL 16, 2004
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES
	 	 	(FOREIGN HOLDINGS), INC.,
	 	 	an exempted company
organized under the laws of
	 	 	the Cayman Islands
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Titte: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED APRIL 16, 2004
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES
	 	 	(EUROPE) LIMITED,
	 	 	a company organized under the laws of England
	 	 	and Wales
	 
	 	 	 	 
	 

	 	By:
	 	/s/ 
	 

	 	 	 	 
	 	 	Titte: VP/CFO
	 
	 	 	 	 
	 	 	WITH REFERENCE TO THAT CERTAIN
	 	 	GUARANTY DATED APRIL 16, 2004






ACCEPTED AND AGREED

this ___ day of April, 2005



WELLS FARGO FOOTHILL, INC.,

as Agent



	 	 	 	 	 
	By:

	 	/s/	 	 
	 

	 	 	 	 
	Title:

	 	Vice President