exv4w11



 





Exhibit
4.11

AMENDED AND RESTATED INTERCOMPANY SUBORDINATION AGREEMENT




          THIS AMENDED AND RESTATED INTERCOMPANY SUBORDINATION AGREEMENT (this “Agreement”),
dated as of March 28, 2005, is made among the Obligors (as defined below), and WELLS FARGO
FOOTHILL, INC., a California corporation, as Agent (in such capacity, “Agent”) for the
Lenders (as defined below).




          WHEREAS, the Borrowers (as defined below), the guarantors defined therein, the financial
institutions signatory thereto, Congress Financial Corporation (Western), as syndication agent, and
Agent were parties to that certain Loan and Security Agreement, dated as of April 15, 2004 (the
“2004 Loan Agreement”) pursuant to which the lenders thereunder agreed to make certain
financial accommodations to the Borrowers;




          WHEREAS, the Borrowers, the Guarantors (as defined below), the financial institutions set
forth below (the “Lenders”) and Agent have agreed that the 2004 Loan Agreement shall be amended and
restated in its entirety pursuant to that certain Amended and Restated Loan and Security Agreement
of even date herewith (as so amended and restated and as further amended, modified, renewed,
extended, or replaced from time to time, the “Loan Agreement”);




          WHEREAS, certain Obligors (as defined below) have made or may make certain loans or advances
from time to time to one or more other Obligors;




          WHEREAS, in order to induce Agent and the Lenders to enter into the 2004 Loan Agreement,
certain Obligors agreed to the subordination of indebtedness of certain other Obligors to such
Obligors pursuant to the terms of that certain Intercompany Subordination Agreement dated as of
April 16, 2004 (the “2004 Subordination Agreement”);




          WHEREAS, the Obligors and Agent have agreed that the 2004 Subordination Agreement shall be
amended and restated in its entirety, all upon the terms and subject to the conditions set forth in
this Agreement.




          NOW, THEREFORE, in consideration of the mutual promises, covenants, conditions,
representations, and warranties set forth herein and for other good and valuable consideration, the
parties hereto agree that the 2004 Subordination Agreement shall be amended and restated in its
entirety as follows:




          SECTION 1. Definitions; Interpretation.




          (a) Terms Defined in Loan Agreement. All capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings assigned to them in the Loan Agreement.




          (b) Certain Defined Terms. As used in this Agreement, the following terms shall have
the following meanings:




          “Agent” has the meaning set forth in the preamble to this Agreement.




 









 








          “Agreement” has the meaning set forth in the preamble to this Agreement.




          “Borrowers” means, collectively, Smart Modular Technologies, Inc., a California
corporation, Smart Modular Technologies (Europe) Limited, a company organized under the laws of
England and Wales, and Smart Modular Technologies (Puerto Rico) Inc., a corporation organized under
the laws of the Cayman Islands.




          “Guarantors” means, collectively, Borrowers, [Modular, Inc., a Delaware corporation,]
Smart Modular Technologies (DE), Inc., a Delaware corporation, Smart Modular (Foreign Holdings)
Inc., an exempted company organized under the laws of the Cayman Islands, Smart Modular
Technologies (WWH), Inc., an exempted company organized under the laws of the Cayman Islands, Smart
Modular Technologies (Global), Inc., an exempted company organized under the laws of the Cayman
Islands, Smart Modular Technologies (DH), Inc., an exempted company organized under the laws of the
Cayman Islands, Smart Modular Technologies (CI), Inc., an exempted company organized under the laws
of the Cayman Islands, Smart Modular Technologies SDN. BHD., a corporation organized under the laws
of Malaysia, Smart Modular Technologies Indústria De Componentes Eletrônicos LTDA., a limited
liability company (sociedade limitada) organized under the laws of the Federative Republic of
Brazil, and Modular Brasil Participações LTDA., a limited liability company (sociedade limitada)
organized under the laws of the Federative Republic of Brazil.




          “Insolvency Event” has the meaning set forth in Section 3.




          “Lenders” has the meaning set forth in the recitals to this Agreement.




          “Obligors” means, collectively, Guarantors, Borrowers and each of their respective
subsidiaries.




          “Senior Debt” means the “Obligations” of any Borrower or any Guarantor as defined in
the Loan Agreement.




          “Subordinated Debt” means, with respect to each Obligor, all indebtedness,
liabilities, and other obligations of any other Obligor owing to such Obligor in respect of any and
all loans or advances made by such Obligor to such other Obligor whether now existing or hereafter
arising, and whether due or to become due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, including all fees and all other amounts payable by any other Obligor
to such Obligor under or in connection with any documents or instruments related thereto.




          “Subordinated Debt Payment” means any payment or distribution by or on behalf of an
Obligor, directly or indirectly, of assets of such Obligor of any kind or character, whether in
cash, property, or securities (including on account of the purchase, redemption, or other
acquisition of Subordinated Debt) as a result of a collection, sale, or other disposition of
Collateral, or by setoff, exchange, or in any other manner, in each case for or on account of the
Subordinated Debt.




          “2004 Loan Agreement” has the meaning set forth in the recitals to this Agreement.




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          “2004 Subordination Agreement” has the meaning set forth in the recitals to this
Agreement.




          (c) Interpretation. Unless the context of this Agreement clearly requires otherwise,
references to the plural include the singular, references to the singular include the plural, the
term “including” is not limiting, and the term “or” has, except where otherwise indicated, the
inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,”
“hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. Section, subsection, clause, schedule, and exhibit
references are to this Agreement unless otherwise specified. References to agreements and other
contractual instruments shall be deemed to include all subsequent amendments and other
modifications thereto. References to statutes or regulations are to be construed as including all
statutory and regulatory provisions consolidating, amending, or replacing the statute or regulation
referred to. The captions and headings are for convenience of reference only and shall not affect
the construction of this Agreement.




          SECTION 2. Subordination to Payment of Senior Debt. As to each Obligor, all payments
on account of the Subordinated Debt shall be subject, subordinate, and junior, in right of payment
and exercise of remedies, to the extent and in the manner set forth herein, to the prior payment,
in full, in cash or cash equivalents of the Senior Debt.




          SECTION 3. Subordination Upon Any Distribution of Assets of the Obligors. As to each
Obligor, in the event of any payment or distribution of assets of any other Obligor of any kind or
character, whether in cash, property, or securities, upon the dissolution, winding up, or total or
partial liquidation or reorganization, readjustment, arrangement, or similar proceeding relating to
such other Obligor or its property, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership, arrangement, or similar proceedings or upon an assignment for the benefit of
creditors, or upon any other marshaling or composition of the assets and liabilities of such other
Obligor, or otherwise, in each case except in connection with any transaction permitted by Section
7.3(a) of the Loan Agreement (such events, collectively, the “Insolvency Events”): (i) all
amounts owing on account of the Senior Debt shall first be paid, in full, in cash, or payment
provided for in cash or in cash equivalents, before any Subordinated Debt Payment is made; and (ii)
to the extent permitted by applicable law, any Subordinated Debt Payment to which such Obligor
would be entitled except for the provisions hereof, shall be paid or delivered by the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, or other liquidating agent making such
payment or distribution directly to Agent for application to the payment of the Senior Debt in
accordance with clause (i), after giving effect to any concurrent payment or distribution or
provision therefor to Agent or any Lender or Bank Product Provider in respect of such Senior Debt.




          SECTION 4. Payments on Subordinated Debt.




          (a) Permitted Payments. Subject to Section 4(b), each Obligor may make, and each
other Obligor shall be entitled to accept and receive, payments on account of the Subordinated
Debt.




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          (b) No Payment Upon Senior Debt Defaults. Upon the occurrence of any Event of
Default, and until such Event of Default is cured or waived, except for Subordinated Debt Payments
made (i) to a Borrower or (ii) in connection with any transaction permitted under Section 7.3(a) of
the Loan Agreement, no Obligor shall make, and no Obligor or Subsidiary shall accept or receive,
any Subordinated Debt Payment.




          SECTION 5. Subordination of Remedies. As long as any Senior Debt shall remain
outstanding and unpaid, upon the occurrence of any Event of Default and until such Event of Default
is cured or waived, except for Subordinated Debt Payments made (i) to a Borrower or (ii) in
connection with any transaction permitted under Section 7.3(a) of the Loan Agreement, no Obligor
shall, without the prior written consent of Agent:




          (a) accelerate, make demand, or otherwise make due and payable prior to the original due date
thereof any Subordinated Debt or bring suit or institute any other actions or proceedings to
enforce its rights or interests in respect of any Subordinated Debt of any other Obligor owing to
such Obligor;




          (b) exercise any rights under or with respect to any guaranties of Subordinated Debt, if any;




          (c) exercise any rights to set-offs and counterclaims in respect of any indebtedness,
liabilities, or obligations of such Obligor to any other Obligor against any of the Subordinated
Debt; or




          (d) commence, or cause to be commenced, or join with any creditor other than Agent or the
Lenders in commencing, any bankruptcy, insolvency, or receivership proceeding against any other
Obligor.




          SECTION 6. Payment Over to Agent. In the event that, notwithstanding the provisions
of Section 3, Section 4, and Section 5, any Subordinated Debt Payment shall
be received in contravention of Section 3, Section 4, or Section 5 by any
Obligor before all Senior Debt is paid, in full, in cash or cash equivalents, such Subordinated
Debt Payment shall be held in trust for the benefit of Agent, the Lenders and any Bank Product
Provider and shall be paid over or delivered to Agent for application to the payment, in full, in
cash or cash equivalents of all Senior Debt remaining unpaid to the extent necessary to give effect
to Section 3, Section 4, and Section 5, after giving effect to any
concurrent payments or distributions to Agent or any Lender or Bank Product Provider in respect of
the Senior Debt.




          SECTION 7. Authorization to Agent. If, while any Subordinated Debt is outstanding,
any Insolvency Event shall occur and be continuing with respect to any other Obligor or its
property: (i) Agent hereby is irrevocably authorized and empowered (in the name of each Obligor or
otherwise), but shall have no obligation, to demand, sue for, collect, and receive every payment or
distribution in respect of Subordinated Debt and give acquittance therefor and to file claims and
proofs of claim and take such other action (including voting any Subordinated Debt) as it may deem
necessary or advisable for the exercise or enforcement of any of the rights or interests of Agent
or any Lender or Bank Product Provider; and (ii) each Obligor shall promptly take such action as
Agent reasonably may request, to the extent permitted under




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applicable law, (A) to collect the Subordinated Debt for the account of Agent, the Lenders and
the Bank Product Providers and to file appropriate claims or proofs of claim in respect of the
Subordinated Debt, (B) to execute and deliver to Agent such powers of attorney, assignments, and
other instruments as it may request to enable it to enforce any and all claims with respect to the
Subordinated Debt, and (C) to collect and receive any and all Subordinated Debt Payments.




          SECTION 8. Certain Agreements of Each Obligor.




          (a) No Benefits. Each Obligor understands that there may be various agreements
between or among Agent, the Lenders and/or the Bank Product Providers, on the one hand, and the
other Obligors, on the other hand, evidencing and governing the Senior Debt, and each Obligor
acknowledges and agrees that such agreements are not intended to confer any benefits on such
Obligor and that neither Agent nor any Lender or Bank Product Provider shall have any obligation to
such Obligor or any other Person to exercise any rights, enforce any remedies, or take any actions
which may be available to them under such agreements.




          (b) No Interference. Each Obligor acknowledges that each other Obligor has granted to
Agent for the benefit of the Lenders and Bank Product Providers Liens on all of such other
Obligor’s assets (subject to certain exceptions set forth in the Loan Documents), and agrees not to
interfere with or in any manner oppose a disposition of any Collateral by Agent in accordance with
applicable law and the Loan Documents.




          (c) Reliance by Agent and the Lenders. Each Obligor acknowledges and agrees that
Agent and the Lenders will have relied upon and will continue to rely upon the subordination
provisions provided for herein and the other provisions hereof in entering into the Loan Documents
and making or issuing the Advances, the Letters of Credit, or other financial accommodations
thereunder.




          (d) Waivers. Except as provided under the Loan Agreement, to the extent permitted by
applicable law, each Obligor hereby waives any and all notice of the incurrence of the Senior Debt
or any part thereof and any right to require marshaling of assets.




          (e) Obligations of Each Obligor Not Affected. Each Obligor hereby agrees, to the
extent permitted by applicable law, that at any time and from time to time, without notice to or
the consent of such Obligor, without incurring responsibility to such Obligor, and without
impairing or releasing the subordination provided for herein or otherwise impairing the rights of
Agent or any Lender hereunder, (i) the time for any other Obligor’s performance of or compliance
with any of its agreements contained in the Loan Documents may be extended or such performance or
compliance may be waived by Agent, Lenders or Bank Product Providers (in accordance with the Loan
Documents or the Bank Product Agreements); (ii) the agreements of any other Obligor with respect to
the Loan Documents or Bank Product Agreements may from time to time be modified by such other
Obligor, Agent, Lenders or Bank Product Providers (in accordance with the Loan Documents or the
Bank Product Agreements) for the purpose of adding any requirements thereto or changing in any
manner the rights and obligations of such other Obligor, Agent, Lenders or Bank Product Providers
thereunder; (iii) the manner, place, or terms for payment of Senior Debt or any portion thereof may
be altered or the terms for payment extended, or the Senior Debt may be renewed in whole or in
part; (iv) the maturity of the Senior





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Debt may be accelerated in accordance with the terms of any present or future agreement by any
other Obligor, Agent, Lenders or Bank Product Providers (in accordance with the Loan Documents or
Bank Product Agreements); (v) any Collateral may be sold, exchanged, released, or substituted and
any Lien in favor of Agent or any Lender or Bank Product Provider may be terminated, subordinated,
or fail to be perfected or become unperfected; (vi) any Person liable in any manner for Senior Debt
may be discharged, released, or substituted; and (vii) all other rights against the other Obligors,
any other Person, or with respect to any Collateral may be exercised (or Agent or any Lender or
Bank Product Provider may waive or refrain from exercising such rights in accordance with the Loan
Documents or the Bank Product Agreements).




          (f) Rights of Agent and the Lenders Not to Be Impaired. No right of Agent or any
Lender or Bank Product Provider to enforce the subordination provided for herein or to exercise its
other rights hereunder shall at any time in any way be prejudiced or impaired by any act or failure
to act by any other Obligor, Agent or any Lender or Bank Product Provider hereunder or under or in
connection with the other Loan Documents or by any noncompliance by the other Obligors with the
terms and provisions and covenants herein or in any other Loan Document, regardless of any
knowledge thereof Agent or any Lender or Bank Product Provider may have or otherwise be charged
with.




          (g) Financial Condition of the Obligors. Except as provided under the Loan Agreement,
no Obligor shall have any right to require Agent or any Lender or Bank Product Provider to obtain
or disclose any information with respect to: (i) the financial condition or character of any other
Obligor or the ability of any other Obligor to pay and perform the Senior Debt; (ii) the existence
or nonexistence of any guarantees of, or any other subordination agreements with respect to, all or
any part of the Senior Debt; (iii) any action or inaction on the part of Agent, any Lender or any
other Person; or (iv) any other matter, fact, or occurrence whatsoever. The Obligors that are not
party to the Loan Agreement shall not have any right to require Agent or any Lender, or any Bank
Product Provider to obtain or disclose any information with respect to: (i) the financial
condition or character of any other Obligor or the ability of the other Obligors to pay and perform
Senior Debt; (ii) the Senior Debt; (iii) the Collateral or other security for any or all of the
Senior Debt; (iv) the existence or nonexistence of any guarantees of, or any other subordination
agreements with respect to, all or any part of the Senior Debt; (v) any action or inaction on the
part of Agent, any Lender, any Bank Product Provider or any other Person; or (vi) any other matter,
fact or occurrence whatsoever.




          (h) Acquisition of Liens or Guaranties. Except as permitted under the Loan Agreement,
no Obligor shall, without the prior consent of Agent, acquire any right or interest in or to any
Collateral not owned by such Obligor or accept any guaranties for the Subordinated Debt.




          SECTION 9. Subrogation.




          (a) Subrogation. Until the payment and performance in full in cash of all Senior
Debt, no Obligor shall have, or directly or indirectly exercise, any rights that it may acquire by
way of subrogation under this Agreement, by any payment or distribution to Agent or any Lender or
Bank Product Provider hereunder or otherwise. Upon the payment and performance in full in cash of
all Senior Debt, each Obligor shall be subrogated to the rights of




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Agent, Lenders and the Bank Product Providers to receive payments or distributions applicable
to the Senior Debt until the Subordinated Debt shall be paid in full. For the purposes of the
foregoing subrogation, no payments or distributions to Agent or any Lender or Bank Product Provider
of any cash, property, or securities to which any Obligor would be entitled except for the
provisions of Section 3, Section 4, or Section 5 shall, as among such
Obligor, its creditors (other than Agent, Lenders and the Bank Product Providers), and the other
Obligors, be deemed to be a payment by the other Obligors to or on account of the Senior Debt.




          (b) Payments Over to the Obligors. If any payment or distribution to which any
Obligor would otherwise have been entitled but for the provisions of Section 3, Section
4, or Section 5 shall have been applied pursuant to the provisions of Section
3, Section 4, or Section 5 to the payment of all amounts payable under the
Senior Debt, such Obligor shall be entitled to receive from Agent or any Lender or Bank Product
Provider, as the case may be, any payments or distributions received by such Person in excess of
the amount sufficient to pay in full in cash all amounts payable under or in respect of the Senior
Debt. If any such excess payment is made to Agent or any Lender or Bank Product Provider, such
Person shall promptly remit such excess to such Obligor and until so remitted shall hold such
excess payment for the benefit of such Obligor.




          SECTION 10. Continuing Agreement; Reinstatement.




          (a) Continuing Agreement. This Agreement is a continuing agreement of subordination
and shall continue in effect and be binding upon each Obligor until payment and performance in full
in cash of the Senior Debt. The subordinations, agreements, and priorities set forth herein shall
remain in full force and effect regardless of whether any party hereto in the future seeks to
rescind, amend, terminate, or reform, by litigation or otherwise, its respective agreements with
the other Obligors.




          (b) Reinstatement. This Agreement shall continue to be effective or shall be
reinstated, as the case may be, if, for any reason, any payment of the Senior Debt by or on behalf
of any other Obligor shall be rescinded or must otherwise be restored by Agent or any Lender,
whether as a result of an Insolvency Event or otherwise.




          SECTION 11. Transfer of Subordinated Debt. Except as permitted under the Loan
Agreement, no Obligor may assign or transfer its rights and obligations in respect of the
Subordinated Debt without the prior written consent of Agent, and any such transferee or assignee,
as a condition to acquiring an interest in the Subordinated Debt shall agree to be bound hereby, in
form reasonably satisfactory to Agent.




          SECTION 12. Obligations of the Obligors Not Affected. The provisions of this
Agreement are intended solely for the purpose of defining the relative rights of each Obligor
against the other Obligors, on the one hand, and of Agent and the Lenders and Bank Product
Providers against the Obligors, on the other hand. Nothing contained in this Agreement shall (i)
impair, as between each Obligor and the other Obligors, the obligation of the other Obligors to pay
their respective obligations with respect to the Subordinated Debt as and when the same shall
become due and payable, or (ii) otherwise affect the relative rights of each Obligor against




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the other Obligors, on the one hand, and of the creditors (other than Agent and the Lenders
and the Bank Product Providers) of the other Obligors against the other Obligors, on the other
hand.




          SECTION 13. Endorsement of Obligor Documents; Further Assurances and Additional Acts.




          (a) Endorsement of Obligor Documents. At the request of Agent, all documents and
instruments evidencing any of the Subordinated Debt, if any, shall be endorsed with a legend noting
that such documents and instruments are subject to this Agreement, and each Obligor shall promptly
deliver to Agent evidence of the same.




          (b) Further Assurances and Additional Acts. Each Obligor shall execute, acknowledge,
deliver, file, notarize, and register at its own expense all such further agreements, instruments,
certificates, financing statements, documents, and assurances, and perform such acts as Agent
reasonably shall deem necessary or appropriate to effectuate the purposes of this Agreement, and
promptly provide Agent with evidence of the foregoing reasonably satisfactory in form and substance
to Agent.




          SECTION 14. Notices. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be delivered in accordance with the notice provisions
contained in the Loan Agreement.




          SECTION 15. No Waiver; Cumulative Remedies. No failure on the part of Agent or any
Lender to exercise, and no delay in exercising, any right, remedy, power, or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right,
remedy, power, or privilege preclude any other or further exercise thereof or the exercise of any
other right, remedy, power, or privilege. The rights and remedies under this Agreement are
cumulative and not exclusive of any rights, remedies, powers, and privileges that may otherwise be
available to Agent or any Lender.




          SECTION 16. Intentionally Omitted.




          SECTION 17. Survival. All covenants, agreements, representations and warranties made
in this Agreement shall, except to the extent otherwise provided herein, survive the execution and
delivery of this Agreement, and shall continue in full force and effect so long as any Senior Debt
remains unpaid.




          SECTION 18. Benefits of Agreement. This Agreement is entered into for the sole
protection and benefit of the parties hereto and their successors and assigns, and no other Person
shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action
or -claim in connection with, this Agreement.




          SECTION 19. Binding Effect. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by each Obligor, Agent, each Lender and their respective successors
and permitted assigns.




          SECTION 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE




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STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.




          SECTION 21. SUBMISSION TO JURISDICTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH PARTY HERETO HEREBY (i) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS LOCATED IN THE BOROUGH OF MANHATTAN, COUNTY OF NEW YORK, STATE OF NEW YORK, FOR THE PURPOSE
OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, (ii) AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH COURTS, OR
IN ANY OTHER COURT OF ITS OWN CORPORATE DOMICILE, AT THE ELECTION OF THE PLAINTIFF, IN RESPECT OF
ACTIONS BROUGHT AGAINST IT AS A DEFENDANT (iii) IRREVOCABLY WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY OBJECTION WHICH IT NOW OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
ACTION OR PROCEEDING BROUGHT IN ANY OF THE FOREGOING COURTS, AND ANY OBJECTION ON THE GROUND THAT
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND (iv)
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PERMITTED BY LAW.




          SECTION 22. Entire Agreement; Amendments and Waivers.




          (a) Entire Agreement. This Agreement constitutes the entire agreement of each of the
Obligors, Agent and each of the Lenders with respect to the matters set forth herein and supersedes
any prior agreements, commitments, draft, communications, discussions and understandings, oral or
written, with respect thereto.




          (b) Amendments and Waivers. No amendment or waiver of any provision of this
Agreement, and no consent with respect to any departure by any Obligor therefrom, shall be
effective unless the same shall be in writing and signed by the Agent and Obligors and made in
compliance with the terms of the Loan Agreement, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given. No failure
by Agent or any other Lender to exercise any right, remedy, or option under this Agreement, or
delay by Agent or any other Lender in exercising the same, will operate as a waiver thereof. No
waiver by Agent on any occasion shall affect or diminish Agent’s or each other Lender’s rights
thereafter to require strict performance by each Obligor of any provision of this Agreement.
Agent’s and each other Lender’s rights under this Agreement will be cumulative and not exclusive of
any other right or remedy that Agent or any other Lender may have.




          SECTION 23. Conflicts. In case of any conflict or inconsistency between any terms of
this Agreement, on the one hand, and any documents or instruments in respect of the Subordinated
Debt, on the other hand, then the terms of this Agreement shall control.




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          SECTION 24. Severability. Each provision of this Agreement shall be severable from
every other provision of this Agreement for the purpose of determining the legal enforceability of
any specific provision.




          SECTION 25. Interpretation. This Agreement is the result of negotiations between, and
have been reviewed by the respective counsel to, the Obligors, Agent and each Lender and is the
product of all parties hereto. Accordingly, this Agreement shall not be construed against Agent or
any Lender merely because of their involvement in the preparation hereof.




          SECTION 26. Counterparts; Telefacsimile Execution. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate counterparts, each of which
when so executed 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 Agreement
by telefacsimile shall be equally effective as delivery of an original executed counterpart of this
Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile also
shall deliver an original executed counterpart of this Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement.




          SECTION 27. Termination of Agreement. Upon payment and performance in full in cash of
the Senior Debt (other than unmatured contingent obligations) and the termination of the
Commitments, this Agreement shall terminate and Agent shall promptly execute and deliver to each
Obligor such documents and instruments as shall be reasonably necessary to evidence such
termination. Upon the consummation of any Permitted Disposition of any party hereto, such party
shall be automatically released from its obligations hereunder, and the Pledgee shall, at the
expense of the Pledgor, execute and deliver such documents, and take such other action, as may be
requested from time to time by such party to evidence such release.




[Signature page follows.]




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          IN WITNESS WHEREOF, the undersigned has executed and delivered this Agreement as of the date
first written above.




	 	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES, INC.,
	 	 	as successor by merger to Modular Merger Corporation,
	 	 	a California corporation
	 
	 	 	 	 
	 

	 	By:	 	/s/ Iain Mackenzie
	 

	 	 	 	 
	 

	 	Name:	 	Iain Mackenzie
	 

	 	Title:	 	CEO & President
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES (EUROPE) LIMITED,
	 	 	a company organized under the laws of England and Wales
	 
	 	 	 	 
	 

	 	By:	 	/s/ Ann Nguyen
	 

	 	 	 	 
	 

	 	Name:	 	Ann Nguyen
	 

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

	 	By:	 	Iain Mackenzie
	 

	 	 	 	 
	 

	 	Name:	 	Iain Mackenzie
	 

	 	Title:	 	CEO & President
	 
	 	 	 	 
	 	 	IN THE PRESENCE OF:
	 
	 	 	 	 
	 

	 	Witness:	 	/s/ Nandan Kamath
	 

	 	 	 	 
	 

	 	Name:	 	Nandan Kamath
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES (DE), INC.,
	 	 	formerly known as Modular, Inc.,
	 	 	a Delaware corporation
	 
	 	 	 	 
	 

	 	By:	 	/s/ Ann Nguyen
	 

	 	 	 	 
	 

	 	Name:	 	Ann Nguyen
	 

	 	Title:	 	Assistant Secretary






S-1









 






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

	 	By:	 	/s/ Iain Mackenzie
	 

	 	 	 	 
	 

	 	Name:	 	Iain Mackenzie
	 

	 	Title:	 	President
	 
	 	 	 	 
	 	 	IN THE PRESENCE OF:
	 
	 	 	 	 
	 

	 	Witness:	 	/s/ Nandan Kamath
	 

	 	 	 	 
	 

	 	Name:	 	Nandan Kamath
	 

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

	 	By:	 	/s/ Ann Nguyen
	 

	 	 	 	 
	 

	 	Name:	 	Ann Nguyen
	 

	 	Title:	 	Secretary
	 
	 	 	 	 
	 	 	IN THE PRESENCE OF:
	 
	 	 	 	 
	 

	 	Witness:	 	/s/ Nandan Kamath
	 

	 	 	 	 
	 

	 	Name:	 	Nandan Kamath
	 

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

	 	By:	 	/s/ Ann Nguyen
	 

	 	 	 	 
	 

	 	Name:	 	Ann Nguyen
	 

	 	Title:	 	Assistant Secretary
	 
	 	 	 	 
	 	 	IN THE PRESENCE OF:
	 
	 

	 	Witness:	 	/s/ Nandan Kamath
	 

	 	 	 	 
	 

	 	Name:	 	Nandan Kamath
	 

	 	 	 	 





S-2









 






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

	 	By:	 	/s/ Ann Nguyen
	 

	 	 	 	 
	 

	 	Name:	 	Ann Nguyen
	 

	 	Title:	 	Assistant Secretary
	 
	 	 	 	 
	 	 	IN THE PRESENCE OF:
	 
	 	 	 	 
	 

	 	Witness:	 	/s/ Nandan Kamath
	 

	 	 	 	 
	 

	 	Name:	 	Nandan Kamath
	 

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

	 	By:	 	Noboru Takahashi
	 

	 	 	 	 
	 

	 	Name:	 	Noboru Takahashi
	 

	 	Title:	 	Officer
	 
	 	 	 	 
	 	 	MODULAR BRASIL PARTICIPAÇÕES LTDA.,
	 	 	a limited liability company (sociedade limitada) organized under the Federative
Republic of Brazil
	 
	 	 	 	 
	 

	 	By:	 	/s/ Noboru Takahashi
	 

	 	 	 	 
	 

	 	Name:	 	Noboru Takahashi
	 

	 	Title:	 	Officer
	 
	 	 	 	 
	 	 	SMART MODULAR TECHNOLOGIES SDN. BHD.,
	 	 	a corporation organized under the laws of Malaysia
	 
	 	 	 	 
	 

	 	By:	 	/s/ Iain Mackenzie
	 

	 	 	 	 
	 

	 	Name:	 	Iain Mackenzie
	 

	 	Title:	 	Director






S-3









 







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

	 	By:	 	/s/ Iain MacKenzie
	 

	 	 	 	 
	 

	 	Name:	 	Iain MacKenzie
	 

	 	 	 	 
	 

	 	Title:	 	President
	 
	 	 	 	 
	 	 	IN THE PRESENCE OF:
	 
	 	 	 	 
	 

	 	Witness:	 	/s/ Nandan Kamath
	 

	 	 	 	 
	 

	 	Name:	 	Nandan Kamath
	 

	 	 	 	 





S-4









 







	 	 	 	 	 
	 	 	WELLS FARGO FOOTHILL, INC.,
	 	 	a California corporation, as Agent
	 
	 	 	 	 
	 

	 	By:	 	/s/ Trent A. Smart
	 

	 	 	 	 
	 

	 	Name:	 	Trent A. Smart
	 

	 	Title:	 	Vice President







S-5