exv10w9



 







Exhibit 10.9



Wells Fargo Foothill, Inc.



EXHIBIT I




FORM OF CONFIRMATION




	 	 	 
	To:

	 	SMART Modular Technologies (WWH), Inc.
	 

	 	c/o SMART Modular Technologies, Inc.
	 

	 	4211 Starboard Drive
 Fremont, CA
94538
	 
	 	 
	 

	 	ATTENTION: Jack Pacheco, Chief Financial Officer
	 
	 	 
	 

	 	Fax: (510)380-8500
	 

	 	Telephone: (510)624-8134
	 
	 	 
	From:

	 	Wells Fargo Foothill, Inc.
	 

	 	Paz Hernandez
	 

	 	2450 Colorado Avenue,
Suite 3000 West 
	 

	 	Santa Monica, CA 90404
	 
	 

	 	Fax No.: (310)453-7442
	 

	 	Telephone: (310)453-7260
	 
	 	 
	Re:

	 	USD $40,000,000 Interest Rate Swap Transaction (31137)
	 
	 	 
	Date:

	 	April 26, 2005





Dear Mr., Pacheco:



The purpose of this letter agreement is to confirm the terms and conditions of the Transaction
entered into between Wells Fargo Foothill, Inc. and you on the Trade Date specified below (the
“Transaction”). This communication constitutes a
“Confirmation” as referred to in the Master
Agreement specified below.



The definitions and provisions contained in the 2000 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc. (“ISDA”)), including the Annex to the 2000
ISDA Definitions (the “Definitions”), are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation, this Confirmation
will govern.





	1.	 	This confirmation supplements, forms part of, and is subject
to, the ISDA Master Agreement
dated as of
April 20, 2005, (as the same may be amended, modified or supplemented from time to time, the
“Agreement”) between Wells Fargo Foothill, Inc. and you. This communication itself
constitutes a
binding agreement setting forth the essential terms of the Transaction described herein. All
provisions
contained in the Agreement shall govern this Confirmation except as expressly modified below.






	2.	 	The terms of the particular Transaction to which this Confirmation relates are as
follows:





	 	 	 
	Parties to the Transaction:
	 	 
	 

	 	WELLS FARGO FOOTHILL, INC.

	 

	 	Party A
	 
	 	 
	 

	 	SMART MODULAR TECHNOLOGIES (WWH), INC.
	 

	 	Party B






	 	 	 	 	 
	 

	 	 	 	 
	TRADE NUMBER 31137 ISDA Confirm

	 	 	1	 






 









 








	 	 	 	 	 
	 

	 	Notional Amount:
	 	USD $40,000,000
	 
	 	 	 	 
	 

	 	Trade Date:
	 	April 26, 2005
	 
	 	 	 	 
	 

	 	Effective Date:
	 	April 28, 2005, subject to adjustment in accordance
with the Following Business Day Convention.
	 
	 	 	 	 
	 

	 	Termination Date:
	 	April 28, 2010, subject to
adjustment in accordance with the Following Business Day Convention.
	 
	 	 	 	 
	Fixed Amounts:	 	 
	 
	 	 	 	 
	 

	 	Fixed Rate Payer:
	 	Party B
	 
	 	 	 	 
	 

	 	Fixed Rare Payer	 	 
	 

	 	Payment Dates:
	 	The 1st day of each July, October, January and April
beginning with July 1, 2005, and thereafter
continuing until the Termination Dates subject to
adjustment in accordance with the
Following Business Day Convention.
	 
	 	 	 	 
	 

	 	Calculation Period:
	 	From the 1st day of each July, October, January and
April beginning with April 28, 2005, up to the 1st
day of the following quarter, continuing until the
Termination Date, subject to adjustment in accordance
with the Following Business Day Convention.
The initial Calculation Period will be April 28,
2005 to July 1, 2005.
	 
	 	 	 	 
	 

	 	Fixed Rate:
	 	4.47%
	 
	 	 	 	 
	 

	 	Fixed Rate Day Count Fraction:
	 	30/360 -Unadjusted
	 
	 	 	 	 
	Floating Amounts:	 	 
	 
	 	 	 	 
	 

	 	Floating Rate Payer:
	 	Party A
	 
	 	 	 	 
	 

	 	Floating Rate Payer	 	 
	 

	 	Payment Dates:
	 	The 1st day of each July, October, January and April
beginning with July 1, 2005, and thereafter
continuing until the Termination Date, subject to
adjustment in accordance with the
Following Business Day Convention.
	 
	 	 	 	 
	 

	 	Calculation Period:
	 	From the 1st day of each July, October, January and
April beginning with April 28, 2005, up to the 1st
day of the following quarter, continuing until the
Termination Date, subject to adjustment in
accordance with the Following Business Day
Convention. The initial Calculation Period will
be April 28, 2005 to July 1, 2005.
	 
	 	 	 	 
	 

	 	Floating Rate Option:
	 	USD-LTBOR-BBA
	 
	 	 	 	 
	 

	 	Designated Maturity:
	 	Three (3) month
	 
	 	 	 	 
	 

	 	Spread:
	 	None
	 
	 	 	 	 
	 

	 	Floating Rate Day	 	 
	 

	 	Count Fraction:
	 	30/360 -Unadjusted






	 	 	 	 	 
	 

	 	 	 	 
	TRADE NUMBER 31137 ISDA Confirm

	 	 	2	 














 





	 	 	 	 	 
	 

	 	Floating Rate for Initial	 	 
	 

	 	Calculation Period:
	 	3.18688%
	 
	 	 	 	 
	 

	 	Reset Dates:
	 	The first day of each Calculation Period, subject to
adjustment in accordance with the Following Business
Day Convention. The Erst Reset Date is April 28,
2005.
	 
	 	 	 	 
	 

	 	Method of Averaging:
	 	Inapplicable
	 
	 	 	 	 
	 

	 	Compounding:
	 	Inapplicable
	 
	 	 	 	 
	Business Days:	 	New York
	 
	 	 	 	 
	Credit Support
Document:	 	This Guaranty of each Guarantor, as defined in the
Loan Agreement, in favor of Party A as Agent for the
Lenders, dated as of April 16, 2004, as modified by
that certain Amended and Restated Loan and Security
Agreement dated March 28, 2005, as further modified
by that certain First Amendment Guaranty dated as
of April 20, 2005 and as further modified from time
to time; and




The Loan Agreement, as the same may be amended,
supplemented, modified, renewed, replaced,
consolidated, substituted or extended from time to
time.
	 
	 	 	 	 
	Credit Support Provider for Party B:	 	SMART Modular Technologies, Inc.,
SMART Modular


Technologies (Puerto Rico) Inc., SMART Modular


Technologies (Europe) Limited, SMART Modular


Technologies (Global), Inc., SMART Modular


Technologies (DH), Inc., SMART Modular

 Technologies (DE), Inc., SMART Modular 

Technologies (CI), Inc.,
SMART Modular Technologies 

(Foreign Holdings), Inc.,
SMART Modular 

Technologies Industria de Components Eletronicos

Ltd., SMART Modular Technologies SDN.
BHD., and Modular Brasil Participacões Ltda.
	Account Details:	 	 
	 
	 	 	 	 
	 

	 	Payment to Party A:
	 	Made via debit to Foothill Loan Account
	 

	 	 	 	(Loan No. SMT000)
	 
	 	 	 	 
	 

	 	Payment to Party B:
	 	Made via credit to Foothill Loan Account 
	 

	 	 	 	(Loan No. SMT000)
	 
	 	 	 	 
	Calculation Agent:	 	Party A







	3.	 	Please confirm that the foregoing correctly sets forth the terms of our agreement
by having an authorized
officer sign one copy of this telecopy Confirmation and returning it to us by telecopier to:





	 
	Wells Fargo Foothill, Inc.

	Attention: Paz Hernandez 

	Fax No: (310) 453-7442








	4.	 	Each party represents and warrants that, in connection with the negotiation of and entering
into this
Agreement, any Credit Support Document and each Transaction (i) the other party hereto is not
acting as
a fiduciary or a financial or investment advisor for it; (ii) it is not relying upon any
advice, counsel or





	 	 	 	 	 
	 

	 	 	 	 
	TRADE NUMBER 31137 ISDA Confirm

	 	 	3	 






 









 









representations (whether written or oral) of the other party hereto other than the
representations expressly set forth in this Agreement, in such Credit Support Document
and in any Confirmation; (iii) the other party hereto has not given to it any advice or
counsel as to the expected or projected success, return, performance, result,
consequence or benefit (either legal, regulatory, tax, financial, accounting, or
otherwise) of this Agreement, such Credit Support Document or such Transaction; (iv) it
has consulted with its own legal, regulatory, tax, business, investment financial and
accounting advisors to the extent it has deemed necessary and has made its own
investment, hedging, and trading decisions (including decisions regarding the
suitability of such Transaction pursuant to this Agreement) based upon its own judgment
and upon any advice from such advisors as it has deemed necessary and not upon any view
expressed by the other party hereto; (v) all trading decisions have been the result of
arms length negotiations between the parties; and (vi) it is entering into this
Agreement, such Credit Support Document and such Transaction with a full understanding
of all of the terms, conditions and risks thereof (economic and otherwise), and it is
capable of assuming and willing to assume (financially and otherwise) those risks.




	5.	 	This Confirmation will be governed by and construed in accordance with the laws of
the State of New York without reference to choice of law doctrine.




Yours sincerely,



WELLS FARGO FOOTHILL, INC.




	 	 	 	 	 
	 	 	 
	 	By: 	/s/ Paz Hernandez
 	 
	 	Name:  	Paz Hernandez 	 
	 	Its:        Senior Vice President 	 
	 


Confirmed as of the date first above written:




	 	 	 	 	 
	 	SMART MODULAR TECHNOLOGIES (WWH), INC.,

a company incorporated under the laws of the Cayman Islands

 	 
	 	By: 	/s/ Jack Pacheco
 	 
	 	Name:  	Jack Pacheco 	 
	 	Its: VP/CFO 	 
	 



	 	 	 	 	 

	 

	 	 	 	 
	TRADE NUMBER 31137 ISDA Confirm

	 	 	4