exv10w9



 





Exhibit 10.9




	 	 	 	 	 
	Wells Fargo Bank, N.A.
	 	 	 	 
	 Financial Products
	 	 	 	 
	Telephone: 1-877-240-0795

	 	 	 	






FIRST AMENDED AND RESTATED ISDA CONFIRMATION

This Amended and Restated ISDA Confirmation amends, restates and replaces that certain ISDA Confirmation

dated as of April 26, 2005, originaly between party B and Wells Fargo Foothill, inc., (“WFFI”) as assigned to

Party A pursuant to that certain Novation Agreement dated as of April 30, 2007 by and between Party A, Party B

and WFFI. 




	 	 	 
	To:

	 	SMART Modular Technologies (WWH), Inc.
	 

	 	4211 Starboard Drive

Fremont, CA 94538

Attention: Jack Pacheco

Telephone: (510) 624-8134

Fax;(510)360-8500
	 
	 	 
	From:

	 	Wells Fargo Bank, N.A.

550 California Street

MAC A0112-121

San Francisco, CA 94104

Telephone: 1-877-240-0795

Fax: (415) 986-2604
	 
	 	 
	Re:

	 	USD 40,000,000.00 Interest Rate Swap Transaction
(31137)
	 
	 	 
	Date:

	 	May 10, 2007





Ladies and Gentlemen:



The purpose of this letter agreement is to confirm the terms and conditions of the
transaction (“Transaction”) entered into between Wells Fargo Bank, N.A. (“Party A”) and
SMART Modular Technologies (WWH), Inc., an Other corporation (“Party B”). This Transaction
is effective at, and as of 12:01 a.m., California time, on the Trade Date 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 evidences a complete and binding agreement between Party A and Party B
as to the terms of the Transaction to which this Confirmation relates. In addition, Party A
and Party B agree to use all reasonable efforts to promptly negotiate, execute and deliver
a 1992 (ISDA Master Agreement (“Master Agreement”), with such modifications as Party A and
Party B will in good faith agree. Upon the execution by Party A and Party B of such Master
Agreement, the Confirmation will supplement, form a part of, and be subject to Master
Agreement. Ail provisions contained or incorporated by reference in that Master Agreement
upon its execution will govern this Confirmation except as expressly modified below. Until
the parties hereto execute and deliver that Master Agreement, this Confirmation, together
with all other documents referring to the master Agreement (each a “Confirmation”)
confirming transactions (each a ‘Transaction”) entered into between us (notwithstanding
anything to the contrary in a Confirmation), shall supplement, form a part of, and be
subject to a Master Agreement as if we had executed an agreement in such form on the Trade
Date of the first such Transaction between us. In the event of any inconsistency between the
provisions of that Master Agreement and this Confirmation, this Confirmation will prevail
for (he purpose of this Transaction.



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




	 	 	 
	Notional Amount:

	 	USD 40,000,000.00
	Trade Date:

	 	April 26, 2005
	Effective Date:

	 	April 28, 2005






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	Termination Date:
	 	April 28, 2010
	 
	 	 
	Fixed Amounts
	 	 
	Fixed Rate Payer:
	 	Party B
	Fixed Rate Payer
	 	The 1st day of each January, April, July, and October, beginning with July 1, 2005,
	Payment Dates:
	 	continuing up to and including the Termination Date, subject to adjustment in accordance
	 
	 	with the designated Business Day Convention.
	 
	Calculation Period:
	 	From the 1st day of each January,
April, July, and October, up to the 1st day of the
	 
	 	following quarter, continuing until the Termination Date, subject to no adjustment in
	 
	 	accordance with                     the designated Business Day Convention. The first Calculation Period
	 
	 	will be April 28, 2005 to July 1 , 2005.
	Fixed Rate:
	 	4.47%
	Fixed Rate Day
	 	 
	Count Fraction:
	 	30/360 - Unadjusted
	Business Day
	 	 
	Convention:
	 	Following
	 
	 	 
	Floating Amounts
	 	 
	Floating Rate
	 	 
	Payer:
	 	Party A
	 
	Floating
Rate

Payer Payment

Dates:
	 	The 1st day of each January, April,
July, and October, beginning with July 1, 2005, continuing up to and
including the Termination Date, subject to adjustment in accordance with the designated
Business Day Convention.
	 
	Calculation Period:
	 	From the 1st day of each January, April, July, and October, up to the 1st day of the
	 
	 	following quarter, continuing until
the Termination Date, subject to no adjustment in accordance with the
designated Business Day Convention. The first Calculation Period will be April 28, 2005 to July 1, 2005.
	 
	 	 
	Floating Rate
	 	 
	Option:
	 	USD-LIBOR-BBA
	Designated
	 	 
	Maturity:
	 	3 Month
	Spread:
	 	None
	Floating Rate Day
	 	 
	Count Fraction:
	 	30/360 - Unadjusted
	Floating Rate for
	 	 
	Initial Calculation
	 	 
	Period:
	 	3.18688%
	 
	 	 
	Reset Dates:
	 	The 1st day of each January, April, July, and October, subject to no adjustment in
	 
	 	accordance with the designated Business Day Convention. The first Reset Date is April
	 
	 	28, 2005.
	Rate Cut-off Date:
	 	Not Applicable
	Method of
Averaging:
	 	Not Applicable.
	Compounding:
	 	Not Applicable.
	Business Day
	 	 
	Convention:
	 	Following
	 
	 	 
	Business Days:
	 	New York City
	 
	Credit Support Document:
	 	(i) the Loan  Documents, as the same  may be amended,supplemented, modified,
	 
	 	renewed, replaced, consolidated,
restated, substituted or extended from time to time, as
	 
	 	defined in the Loan Agreement; and
	 
	 	 
	 
	 	(ii) the Loan Agreement as defined herein , as the same may be amended, supplemented,
	 
	 	modified, renewed, replaced, consolidated, restated, substituted or extended from time to
	 
	 	time.
	 
	 	 
	 
	 	For purpose of this Confirmation,
the Loan Agreement shall have the following meaning:






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	 	“Loan Agreement” means
that certain Second and Amended Loan and Security Agreement dated April 30,
2007 by and among Smart Modular Technologies, inc., Smart Modular
Technologies (Europe) Limited, and Smart Modular Technologies (Puerto
Rico) Inc., as Borrowers, the other Obligors named therein, the Lenders
that are signatories thereto, as the Lenders and Party A as the
Arranger, Administrative Agent and Security Trustee as amended, supplemented or modified from time to time.
	 
	 	 
	Credit Support Provider
	 	 
	for Party B:
	 	All “Guarantors”, as defined in the Loan Agreement.
	 
	 	 
	Account Details:
	 	 
	Payments due to
Party A:
	 	Settlement instructions to be provided.
	 
	 	 
	Payments due
to Party B:
	 	Settlement instructions to be provided.
	 
	 	 
	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:



Weils Fargo Bank, N.A.

Attention: Documentation Group 

Fax: (415)986-2604



4. Each party represents to the other party hereto that (i) it is not acting as a fiduciary or a
financial or investment advisor for the other party; (ii) it is not relying upon any advice,
counsel or representations (whether written or oral) of the other party other than the
representations expressly set forth in the Master Agreement, any Credit Support Document and
herein; (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 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 this Transaction) based upon its own judgment and upon arty
advice from such advisors as it has deemed necessary and not upon any view expressed by the other
party hereto; (v) it has determined that the rates, prices, or amounts and other terms of this
Transaction in the indicative quotations (if any) provided by the other party hereto reflect those
in the relevant market for similar transactions, and all trading decisions have been the result of
arms length negotiations between the parties; (vi) it is entering into this 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; and (vii) it
is a sophisticated investor.




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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 BANK, N.A,	 	 
	 
	 	 	 	 
	By:

	 	/s/ Mark Khalil	 	 
	Name:

	 	 

Mark Khalil
	 	 
	Its:

	 	Authorized Signatory	 	 
	Accepted and confirmed as of the Trade Date:	 	 
	 
	 	 	 	 
	SMART MODULAR
TECHNOLOGIES (WWH), INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Jack Pacheco	 	 
	 

	 	 	 	 
	Name:

	 	Jack Pacheco	 	 
	Its:

	 	Vice President & CFO	 	 






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Schedule I for Transaction 31137:


Net Cash Flows




	 	 	 	 	 	 	 	 	 
	Start Date	 	End Date	 	Rate Fix Date	 	Payment Date	 	Notional
	04/28/2005
	 	07/01/2005	 	04/26/2005	 	07/01/2005	 	USD 40,000,000.00
	07/01/2005
	 	10/01/2005	 	08/29/2005	 	10/03/2005	 	USD 40,000,000,00
	10/01/2005
	 	01/01/2006	 	09/29/2005	 	01/03/2006	 	USD 40,000,000.00
	01/01/2006
	 	04/01/2006	 	12/29/2005	 	04/03/2006	 	USD 40,000 ,000.00
	04/01/2006
	 	07/01/2006	 	03/30/2006	 	07/03/2006	 	USD 40,000,000.00
	07/01/2006
	 	10/01/2006	 	06/29/2006	 	10/02/2006	 	USD 40,000,000.00
	10/01/2006
	 	01/01/2007	 	09/28/2006	 	01/02/2007	 	USD 40,000,000,00
	01/01/2007
	 	04/01/2007	 	12/28/2006	 	04/02/2007	 	USD 40,000,000.00
	04/01/2007
	 	07/01/2007	 	03/29/2007	 	07/02/2007	 	USD 40 ,000,000.00
	07/01/2007
	 	10/01/2007	 	06/28/2007	 	10/01/2007	 	USD 40,000,000.00
	10/01/2007
	 	01/01/2008	 	09/27/2007	 	01/02/2008	 	USD 40,000,000.00
	01/01/2008
	 	04/01/2008	 	12/28/2007	 	04/01/2008	 	USD 40,000,000.00
	04/01/2008
	 	07/01/2008	 	03/28/2008	 	07/01/2008	 	USD 40,000,000.00
	07/01/2008
	 	10/01/2008	 	06/27/2006	 	10/01/2008	 	USD 40,000,000.00
	10/01/2008
	 	01/01/2009	 	09/29/2008	 	01/02/2009	 	USD 40,000,000.00
	01/01/2009
	 	04/01/2009	 	12/30/2008	 	04/01/2009	 	USD 40,000 ,000. 00
	04/01/2009
	 	07/01 /2009	 	03/30/2009	 	07/01/2009	 	USD 40,000,000.00
	07/01/2009
	 	10/01/2009	 	06/29/2009	 	10/01/2009	 	USD 40,000,000.00
	10/01/2009
	 	01/01/2010	 	09/29/2009	 	01/04/2010	 	USD 40,000,000.00
	01/01/2010
	 	04/01/2010	 	12/30/2009	 	04/01/2010	 	USD 40,000,000.00
	04/01/2010
	 	04/28/2010	 	03/30/2010	 	04/28/2010	 	USD 40,000,000.00






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