Super Micro Computer, Inc.
EX-10.2
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<DIV><FONT size="1" style="font-size:1pt;color:white">Execution Version      1  233447437_4  SIXTH AMENDMENT  TO LOAN AND SECURITY AGREEMENT    This SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated to  be effective as of November 28, 2023 (this &#8220;Amendment&#8221;) is made among SUPER MICRO  COMPUTER, INC., a Delaware corporation (&#8220;SMCI&#8221;, together with any other party hereto as a  Borrower, individually, a &#8220;Borrower&#8221; and, collectively, the &#8220;Borrowers&#8221;), the Lenders (as defined  below) party to this Amendment, and BANK OF AMERICA, N.A., a national banking  association (&#8220;Bank of America&#8221;), as administrative agent for the Lenders (in such capacity,  &#8220;Agent&#8221;).   Background  A. WHEREAS, Borrowers, Agent and the financial institutions party thereto from  time to time (the &#8220;Lenders&#8221;) have entered into that certain Loan and Security Agreement, dated as  of April 19, 2018, (as amended, restated, amended and restated, modified or supplemented from  time to time, the &#8220;Loan Agreement&#8221;).  All capitalized terms used and not otherwise defined in this  Amendment are used as defined in the Loan Agreement, as amended hereby.  B. WHEREAS, Agent and Lenders have agreed to amend certain terms of the Loan  Agreement subject to the terms and conditions set forth herein.  NOW THEREFORE, in consideration of the premises and the mutual agreements,  representations and warranties herein set forth and for other good and valuable consideration,  Borrowers, Agent and Lenders hereby agree as follows:  Agreement  1. Amendments to the Loan Agreement.    (a) Amendment to Section 1.1.   (i) The definition of &#8220;Dominion Trigger Period&#8221; Set forth in Section  1.1 of the Loan Agreement is hereby amended and restated in its entirety to read as  follows:  Dominion Trigger Period: the period (a) commencing on any day  that (i) an Event of Default occurs, or (ii) Global Availability is less  than the greater of (x) $35,000,000 and (y) 15% of the Global  Borrowing Base; and (b) continuing until, during each of the  preceding 60 consecutive days, no Event of Default has existed and  Global Availability has been more than the greater of (x)  $35,000,000 and (y) 15% of the Global Borrowing Base; provided  that during the Cash Dominion Waiver Period, solely with respect  to Sections 5.7 and 8.2.4, no Dominion Trigger Period shall be  deemed to have occurred.  (ii)  The following definitions are added to Section 1.1 of the Loan  Agreement in alphabetical order to read as follows:  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">2  233447437_4  Cash Dominion Waiver Period: the period commencing on October  17, 2023 and ending on December 31, 2023.  (b) Amendment to Section 8.1.  Section 8.1 of the Loan Agreement is hereby  amended and restated in its entirety to read as follows:  8.1 Borrowing Base Reports.  (i) So long as no Dominion  Trigger Period exists and no Revolver Loans were outstanding  during such quarter, by the 20th day of each quarter, Borrowers shall  deliver to Agent (and Agent shall promptly deliver to Lenders) a  Borrowing Base Report as of the close of business of the previous  month, (ii) so long as no Dominion Trigger Period exists but  Revolver Loans are outstanding for more than 5 consecutive  Business Days during the previous month, by the 20th day of each  month, Borrowers shall deliver to Agent (and Agent shall promptly  deliver to Lenders) a Borrowing Base Report as of the close of  business of the previous month and (iii) during the existence of a  Dominion Trigger Period, by the third Business Day of each week,   Borrowers shall deliver to Agent (and Agent shall promptly deliver  to Lenders) a Borrowing Base Report as of the close of business of  the previous week; provided, that with respect to such weekly  reporting in clause (iii) above, during the Cash Dominion Waiver  Period or at any other times as approved by Agent, each Borrowing  Base Report delivered under clause (iii) shall only be required to  update Accounts and Inventory which are ineligible as of the last  day of the previous month.  All information (including calculation  of Global Availability) in a Borrowing Base Report shall be certified  by Borrowers.  Agent may from time to time adjust such report (a)  to reflect Agent&#8217;s reasonable estimate of declines in Value of  Collateral, due to collections received in the applicable Dominion  Account or otherwise; (b) to adjust advance rates to reflect changes  in dilution, quality, mix and other factors affecting Collateral; and  (c) to the extent any information or calculation does not comply with  this Agreement.   2. Representations and Warranties.  In order to induce Agent and each Lender to  enter into this Amendment, each Borrower represents and warrants to Agent and each Lender that  the following statements are true, correct and complete on and as of the date hereof:  (a) Representations and Warranties.  The execution, delivery and performance  of this Amendment has been duly authorized and this Amendment constitutes the legal, valid and  binding obligation of each Borrower enforceable in accordance with its terms, except as such  enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar  laws affecting creditors&#8217; rights generally.  Each Borrower hereby represents and warrants to Agent  and each Lender as of the date hereof no Default or Event of Default shall have occurred and be  continuing.  The information included in any Beneficial Ownership Certification is true and correct  in all respects.    </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">3  233447437_4  (b) Incorporation of Representations and Warranties from Loan Agreement.   After giving effect to this Amendment, the representations and warranties contained in Section 9  of the Loan Agreement are true, correct and complete in all material respects on and as of the date  hereof to the same extent as though made on and as of that date, except to the extent such  representations and warranties specifically relate to an earlier date, in which case they were true,  correct and complete in all material respects on and as of such earlier date.  3. Effectiveness.  This Amendment shall become effective, as of the date first set forth  above upon receipt by the Agent of the executed counterparts of this Amendment from the  Borrowers and each of the Lenders.    4. Binding Effect; Ratification.  (a) Upon the effectiveness of this Amendment and thereafter this Amendment  shall be binding on the Agent, Borrowers and Lenders and their respective successors and assigns.  (b) On and after the execution and delivery hereof, this Amendment shall be a  part of the Loan Agreement and each reference in the Loan Agreement to &#8220;this Loan Agreement&#8221;  or &#8220;hereof&#8221;, &#8220;hereunder&#8221; or words of like import, and each reference in any other Loan Document  to the Loan Agreement shall mean and be a reference to such Loan Agreement as amended hereby.  (c) Except as expressly amended hereby, the Loan Agreement shall remain in  full force and effect and is hereby ratified and confirmed by the parties hereto.        5. Miscellaneous.   (a) THIS AMENDMENT SHALL BE SUBJECT TO SECTIONS 14.15, 14.16  AND 14.17 OF THE LOAN AGREEMENT, WHICH ARE INCORPORATED HEREIN BY  REFERENCE.  (b) Borrowers agree to pay on demand all reasonable and documented out of  pocket costs and expenses incurred by Agent in connection with the preparation, negotiation and  execution of this Amendment and the other Loan Documents executed pursuant hereto.  (c) Headings used herein are for convenience of reference only and shall not  affect the meaning of this Amendment.  (d) This Amendment may be executed in any number of counterparts, and by  the parties hereto on separate counterparts, each of which shall be an original and all of which  taken together shall constitute one and the same agreement.  6. Release.  (a) In consideration of the agreements of Agent and Lenders contained herein  and for other good and valuable consideration, the receipt and sufficiency of which is hereby  acknowledged, each Borrower, on behalf of itself and its successors, assigns and other legal  representatives (each Borrower and all such other persons being hereinafter referred to collectively  as &#8220;Releasors&#8221; and individually as a &#8220;Releasor&#8221;), hereby absolutely, unconditionally and  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">4  233447437_4  irrevocably releases, remises and forever discharges Agent and each Lender, and their successors  and assigns, and their present and former shareholders, affiliates, subsidiaries, divisions,  predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent  and each Lender and all such other persons being hereinafter referred to collectively as &#8220;Releasees&#8221;  and individually as a &#8220;Releasee&#8221;), of and from all demands, actions, causes of action, suits,  covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills,  reckonings, damages and any and all other claims, counterclaims, defenses, rights of set off,  demands and liabilities whatsoever (individually, a &#8220;Claim&#8221; and collectively, &#8220;Claims&#8221;) of every  name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which  Releasors may now or hereafter own, hold, have or claim to have against Releasees or any of them  for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any  time on or prior to the day and date of this Amendment, for or on account of, or in relation to, or  in any way in connection with the Loan Agreement or any of the other Loan Documents or  transactions thereunder or related thereto.  (b) It is the intention of Borrowers that this Amendment and the release set forth  above shall constitute a full and final accord and satisfaction of all Claims that they may have or  hereafter be deemed to have against Releasees as set forth herein.  In furtherance of this intention,  each Borrower, on behalf of itself and each other Releasor, expressly waives any statutory or  common law provision that would otherwise prevent the release set forth above from extending to  Claims that are not currently known or suspected to exist in any Releasor&#8217;s favor at the time of  executing this Amendment and which, if known by Releasors, might have materially affected the  agreement as provided for hereunder.  Each Borrower, on behalf of itself and each other Releasor,  acknowledges that it is familiar with Section 1542 of California Civil Code:  A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE  CREDITOR OR RELEASING PARTY DOES NOT KNOW OR  SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF  EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR  HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER  SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.  (c) Each Borrower, on behalf of itself and each other Releasor, waives and  releases any rights or benefits that it may have under Section 1542 to the full extent that it may  lawfully waive such rights and benefits, and each Borrower, on behalf of itself and each other  Releasor, acknowledges that it understands the significance and consequences of the waiver of the  provisions of Section 1542 and that it has been advised by its attorney as to the significance and  consequences of this waiver.    (d) Each Borrower understands, acknowledges and agrees that the release set  forth above may be pleaded as a full and complete defense and may be used as a basis for an  injunction against any action, suit or other proceeding which may be instituted, prosecuted or  attempted in breach of the provisions of such release.  (e) Each Borrower agrees that no fact, event, circumstance, evidence or  transaction which could now be asserted or which may hereafter be discovered shall affect in any  manner the final, absolute and unconditional nature of the release set forth above.  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their  respective officers thereunto duly authorized, as of the date first above written.  BORROWER:  SUPER MICRO COMPUTER, INC.,  a Delaware corporation  By: ___ f---'C&#65533;--+c-------- Name:  Title:  SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT  (SMC!)  SIGNATURE PAGE  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">  SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT  (SMCI)  SIGNATURE PAGE  ING CAPITAL LLC,  as a Lender      By:        Name:  Jean Grasso  Title:  Managing Director      By:        Name:  Jeff Chu                   Title:  Director     </FONT></DIV>
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