Common use of Post Effective Date Covenants Clause in Contracts

Post Effective Date Covenants. Borrowers hereby agree that they shall cause the following to be delivered to Agent not later than 60 days following the Effective Date (or such other time as may be agreed by Agent in its Permitted Discretion): (a) reaffirmation by the Guarantors of the Guaranty Agreements (“Guarantors’ Reaffirmation”) listed on Schedule A hereto, with such Guarantors’ Reaffirmation substantially in the form attached hereto as Exhibit A and otherwise in and form and substance satisfactory to Agent; (b) reaffirmation of the Intercompany Subordination Agreement by the parties thereto (“ISA Reaffirmation”), with such ISA Reaffirmation substantially in the form attached hereto as Exhibit B and otherwise in and form and substance satisfactory to Agent; (c) reaffirmation of the security agreements and other documents listed on Schedule B hereto (“Security Documents”) by the parties thereto (“Security Document Reaffirmation”, and collectively with the Guarantors’ Reaffirmation and the ISA Reaffirmation, the “Reaffirmation Documents”), with such Security Document Reaffirmation substantially in the form attached hereto as Exhibit C and otherwise in form and substance satisfactory to Agent; (d) legal opinions or other written confirmation in form and substance satisfactory to Agent relating to the due authorization, execution and delivery of, and the continuing enforceability of the Guaranty Agreements, the Intercompany Subordination Agreement and the Security Documents and the liens and security interests provided by the Security Documents and confirming that each of the foregoing remains unmodified by the terms and provisions of the Amendment; and (e) (i) a Guaranty Agreement duly authorized, executed and delivered by Smart Modular Technologies (AZ), Inc., an Arizona corporation, in form and substance reasonably satisfactory to Agent and (ii) resolutions authorizing Smart Modular Technologies (AZ), Inc. to guaranty the obligations under the Loan and Security Agreement, certified by the Secretary or Assistant Secretary of Smart Modular Technologies (AZ), Inc. Each of the Borrowers acknowledges and agrees that the failure to provide any of the items listed in clauses (a) through (e) above within the timeframe specified above shall constitute an immediate Event of Default under Section 8.2(a) of the Loan and Security Agreement.

Post Effective Date Covenants. In addition to all other covenants and agreements of Borrowers set forth in this Agreement, Borrowers hereby covenant and agree that they shall cause timely comply each of the following (collectively, the “Post-Effective Date Covenants”) and any failure to so timely comply shall constitute an Event of Default: (a) With respect to any consultant retained by any Borrower to perform such duties, and for such period of time, as Agent shall deem necessary in its reasonable discretion (any such consultant, a “Consultant”), (i) Borrowers shall be delivered solely responsible for any and all of such Consultant’s fees, costs, and expenses, (ii) Borrowers shall cause Agent and Lenders to have direct and unfettered communication with such Consultant, including, without limitation, communication outside the presence of any Borrowers’ representatives, and (iii) Borrowers shall deliver (or cause such Consultant to deliver) to Agent not all work product produced by such Consultant promptly after such work product is delivered by such Consultant to Borrowers. (b) Borrowers shall deliver to Agent weekly (no later than 60 days following the Effective Date second Business Day of each calendar week) statements of cash flow (“Weekly Cash Flow Reporting”) until such time as Agent, in its sole discretion, provides written notice to Borrowers that the Weekly Cash Flow Reporting shall terminate; provided, that Agent shall not be required to terminate Weekly Cash Flow Reporting and any termination thereof shall not prohibit Agent from reinstating Weekly Cash Flow Reporting by written notice to Borrowers at such time Agent deems necessary and/or appropriate. (c) On or before December 31, 2020 (or such other time later date as may be agreed upon in writing by Agent in Agent’s sole discretion), Borrowers shall (i) consummate a Permitted Fixed Asset Loan from Ameristate Bank (“Ameristate”) secured by a Permitted Fixed Asset Lien on certain Real Property as approved by Agent in its Permitted Discretion): Discretion (a) reaffirmation by such Real Property, the Guarantors of the Guaranty Agreements (“Guarantors’ Reaffirmation”) listed on Schedule A hereto, with such Guarantors’ Reaffirmation substantially in the form attached hereto as Exhibit A and otherwise in and form and substance satisfactory to Agent; (b) reaffirmation of the Intercompany Subordination Agreement by the parties thereto (“ISA ReaffirmationSpecified Real Property”), (ii) shall deliver appraisals with respect to the Specified Real Property, each performed by an appraiser reasonably acceptable to Agent, to Agent, (iii) shall have paid all Net Cash Proceeds of such ISA Reaffirmation substantially Permitted Fixed Asset Loan, in the form attached hereto as Exhibit B and otherwise minimum amount equal to $9,000,000, to Agent for application to the Obligations in and form and substance satisfactory to Agent; (c) reaffirmation accordance with the terms of the security agreements Credit Agreement, (iv) to cause Ameristate to execute and other documents listed on Schedule B hereto (“Security Documents”) by the parties thereto (“Security Document Reaffirmation”, and collectively with the Guarantors’ Reaffirmation and the ISA Reaffirmation, the “Reaffirmation Documents”), with such Security Document Reaffirmation substantially in the form attached hereto as Exhibit C and otherwise deliver a mortgagee’s waiver in form and substance satisfactory acceptable to Agent;, and (v) shall have satisfied all Partial Release Conditions with respect to such Real Property. (d) legal opinions On or other written confirmation before December 31, 2020 (or such later date as agreed upon in form and substance satisfactory to writing by Agent relating to the due authorizationin Agent’s sole discretion), execution and delivery of, and the continuing enforceability of the Guaranty Agreements, the Intercompany Subordination Agreement and the Security Documents and the liens and security interests provided by the Security Documents and confirming that each of the foregoing remains unmodified by the terms and provisions of the Amendment; and (e) Borrowers shall (i) consummate a Guaranty Agreement duly authorizedPermitted Fixed Asset Loan from Greater Nevada Credit Union secured by a Permitted Fixed Asset Lien on certain Equipment as approved by Agent in its Permitted Discretion (such Equipment, executed and delivered by Smart Modular Technologies (AZthe “Specified Equipment”), Inc., an Arizona corporation, in form and substance reasonably satisfactory to Agent and (ii) resolutions authorizing Smart Modular Technologies shall deliver appraisals with respect to the Specified Equipment, each performed by an appraiser reasonably acceptable to Agent, to Agent, (AZ)iii) shall have paid all Net Cash Proceeds of such Permitted Fixed Asset Loan, Inc. in the minimum amount equal to guaranty $13,500,000, to Agent for application to the obligations under Obligations in accordance with the Loan and Security terms of the Credit Agreement, certified by and (iv) shall have satisfied all Partial Release Conditions with respect to such Specified Equipment. The foregoing post-closing covenants in this Section 4.1 amend and restate the Secretary or Assistant Secretary of Smart Modular Technologies (AZ), Inc. Each post-closing covenants set forth in Section 5.1 of the Borrowers acknowledges and agrees that the failure to provide any of the items listed in clauses (a) through (e) above within the timeframe specified above shall constitute an immediate Event of Default under Section 8.2(a) of the Loan and Security AgreementFourteenth Amendment.

Post Effective Date Covenants. Borrowers hereby agree that they shall cause the following to be delivered to Agent not later than 60 days following the Effective Date (or such other time as may be agreed by Agent in its Permitted Discretion): (a) reaffirmation by the Guarantors of the Guaranty Agreements (“Guarantors’ Reaffirmation”) listed on Schedule A hereto, with such Guarantors’ Reaffirmation substantially in the form attached hereto as Exhibit A and otherwise in and form and substance satisfactory to Agent; (b) reaffirmation of the Intercompany Subordination Agreement by the parties thereto (“ISA Reaffirmation”), with such ISA Reaffirmation substantially in the form attached hereto as Exhibit B and otherwise in and form and substance satisfactory to Agent; (c) reaffirmation of the security agreements and other documents listed on Schedule B hereto (“Security Documents”) by the parties thereto (“Security Document Reaffirmation”, and collectively with the Guarantors’ Reaffirmation and the ISA Reaffirmation, the “Reaffirmation Documents”), with such Security Document Reaffirmation substantially in the form attached hereto as Exhibit C and otherwise in form and substance satisfactory to Agent; (d) legal opinions or other written confirmation in form and substance satisfactory to Agent relating to the due authorization, execution and delivery of, and the continuing enforceability of the Guaranty Agreements, the Intercompany Subordination Agreement and the Security Documents and the liens and security interests provided by the Security Documents and confirming that each of the foregoing remains unmodified by the terms and provisions of the Amendment; and (e) (i) a Guaranty Agreement duly authorized, executed and delivered by Smart Modular Technologies (AZDE), Inc., an Arizona corporation, a Delaware corporation in form and substance reasonably satisfactory to Agent and (ii) resolutions authorizing Smart Modular Technologies (AZ), Inc. to guaranty the obligations under the Loan and Security Agreement, certified by the Secretary or Assistant Secretary of Smart Modular Technologies (AZ), Inc. Agent. Each of the Borrowers acknowledges and agrees that the failure to provide any of the items listed in clauses (a) through (e) above within the timeframe specified above shall constitute an immediate Event of Default under Section 8.2(a) of the Loan and Security Agreement.

Post Effective Date Covenants. In addition to all other covenants and agreements of Borrowers set forth in this Agreement, Borrowers hereby covenant and agree that they shall cause timely comply each of the following (collectively, the “Post-Effective Date Covenants”) and any failure to so timely comply shall constitute an Event of Default: (a) With respect to any consultant retained by any Borrower to perform such duties and for such period of time as Agent shall deem necessary in its reasonable discretion (any such consultant, a “Consultant”), (i) Borrowers shall be delivered solely responsible for any and all of such Consultant’s fees, costs, and expenses, (ii) Borrowers shall cause Agent and Lenders to have direct and unfettered communication with such Consultant, including, without limitation, communication outside the presence of any Borrowers’ representatives, and (iii) Borrowers shall deliver (or cause such Consultant to deliver) to Agent not all work product produced by such Consultant promptly after such work product is delivered by such Consultant to Borrowers. (b) Borrowers shall deliver to Agent weekly (no later than 60 days following the Effective Date second Business Day of each calendar week) statements of cash flow (or “Weekly Cash Flow Reporting”) until such other time as may Agent, in its sole discretion, provides written notice to Borrowers that the Weekly Cash Flow Reporting shall terminate; provided, that Agent shall not be agreed required to terminate Weekly Cash Flow Reporting and any termination thereof shall not prohibit Agent from reinstating Weekly Cash Flow Reporting by written notice to Borrowers at such time Agent deems necessary and/or appropriate. (c) On or before June 30, 2020 (or, subject to Agent’s written consent (given or withheld in Agent’s sole discretion) up to ten Business Days after June 30, 2020), Borrowers shall (i) consummate a Permitted Fixed Asset Loan from Ameristate Bank (“Ameristate”) secured by a Permitted Fixed Asset Lien on certain Real Property as approved by Agent in its Permitted Discretion): Discretion (a) reaffirmation by such Real Property, the Guarantors of the Guaranty Agreements (“Guarantors’ Reaffirmation”) listed on Schedule A hereto, with such Guarantors’ Reaffirmation substantially in the form attached hereto as Exhibit A and otherwise in and form and substance satisfactory to Agent; (b) reaffirmation of the Intercompany Subordination Agreement by the parties thereto (“ISA ReaffirmationSpecified Real Property”), (ii) shall deliver appraisals with respect to the Specified Real Property, each performed by an appraiser reasonably acceptable to Agent, to Agent, (iii) shall have paid all Net Cash Proceeds of such ISA Reaffirmation substantially Permitted Fixed Asset Loan, in the form attached hereto as Exhibit B and otherwise minimum amount equal to $9,000,000, to Agent for application to the Obligations in and form and substance satisfactory to Agent; (c) reaffirmation accordance with the terms of the security agreements Credit Agreement, (iv) to cause Ameristate to execute and other documents listed on Schedule B hereto (“Security Documents”) by the parties thereto (“Security Document Reaffirmation”, and collectively with the Guarantors’ Reaffirmation and the ISA Reaffirmation, the “Reaffirmation Documents”), with such Security Document Reaffirmation substantially in the form attached hereto as Exhibit C and otherwise deliver a mortgagee’s waiver in form and substance satisfactory acceptable to Agent; (d) legal opinions or other written confirmation in form and substance satisfactory to Agent relating to the due authorization, execution and delivery of, and the continuing enforceability of the Guaranty Agreements, the Intercompany Subordination Agreement and the Security Documents and the liens and security interests provided by the Security Documents and confirming that each of the foregoing remains unmodified by the terms and provisions of the Amendment; and (ev) (i) a Guaranty Agreement duly authorized, executed and delivered by Smart Modular Technologies (AZ), Inc., an Arizona corporation, in form and substance reasonably satisfactory shall have satisfied all Partial Release Conditions with respect to Agent and (ii) resolutions authorizing Smart Modular Technologies (AZ), Inc. to guaranty the obligations under the Loan and Security Agreement, certified by the Secretary or Assistant Secretary of Smart Modular Technologies (AZ), Inc. Each of the Borrowers acknowledges and agrees that the failure to provide any of the items listed in clauses (a) through (e) above within the timeframe specified above shall constitute an immediate Event of Default under Section 8.2(a) of the Loan and Security Agreementsuch Real Property.

Post Effective Date Covenants. Borrowers hereby agree that they The Loan Parties shall deliver, or cause the following to be delivered delivered, to the Agent not no later than 60 the date occurring ninety (90) days following after the Second Amendment Effective Date (or such other time later date as may be agreed by acceptable to the Agent in its Permitted Discretion):reasonable discretion), to the extent determined by the Agent to be reasonably necessary or desirable, each of the following items: (ai) reaffirmation by to the Guarantors of the Guaranty Agreements extent necessary, fully executed and notarized mortgage modifications (“Guarantors’ Reaffirmation”) listed on Schedule A heretoeach, with such Guarantors’ Reaffirmation substantially a "Mortgage Modification"), in the proper form attached hereto as Exhibit A and otherwise for recording in and form and substance satisfactory to Agentall appropriate places in all applicable jurisdictions, encumbering each applicable Mortgaged Property; (bii) reaffirmation an opinion of counsel (which counsel shall be reasonably satisfactory to the Intercompany Subordination Agreement Agent) in each state in which a Mortgaged Property for which a Mortgage Modification is required, is located with respect to the enforceability of such Mortgage as modified by the parties thereto (“ISA Reaffirmation”)form of Mortgage Modification to be recorded in such state with respect to the Mortgaged Properties located therein and such other matters as the Agent may reasonably request, with such ISA Reaffirmation substantially in the form attached hereto as Exhibit B and otherwise in and form and substance satisfactory to Agent; (c) reaffirmation of the security agreements and other documents listed on Schedule B hereto (“Security Documents”) by the parties thereto (“Security Document Reaffirmation”, and collectively with the Guarantors’ Reaffirmation and the ISA Reaffirmation, the “Reaffirmation Documents”), with such Security Document Reaffirmation substantially in the form attached hereto as Exhibit C and otherwise each case in form and substance reasonably satisfactory to the Agent; (d) legal opinions or other written confirmation in form and substance satisfactory to Agent relating to the due authorization, execution and delivery of, and the continuing enforceability of the Guaranty Agreements, the Intercompany Subordination Agreement and the Security Documents and the liens and security interests provided by the Security Documents and confirming that each of the foregoing remains unmodified by the terms and provisions of the Amendment; and (eiii) In the Agent's sole discretion, either (ia) with respect to the lender's title insurance policy insuring each Mortgaged Property for which a Guaranty Agreement duly authorizedMortgage Modification is required, a mortgage modification endorsement with respect to such Mortgaged Property, executed and delivered by Smart Modular Technologies (AZ), Inc., an Arizona corporationa title company reasonably satisfactory to the Agent, in form and substance reasonably satisfactory to Agent the Agent, insuring that the validity, enforceability and (ii) resolutions authorizing Smart Modular Technologies (AZ), Inc. to guaranty the obligations under the Loan and Security Agreement, certified by the Secretary or Assistant Secretary of Smart Modular Technologies (AZ), Inc. Each priority of the Borrowers acknowledges applicable mortgage, and agrees that the failure to provide any effectiveness of such title policy, shall remain unchanged following recordation of the items listed in clauses related Mortgage Modification or (ab) through (e) above within a title search conducted by a title company reasonably acceptable to the timeframe specified above shall constitute an immediate Event of Default under Section 8.2(a) of the Loan and Security AgreementAgent with respect to each applicable Mortgaged Property.