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Execution Version      1  144236444_6  FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT    This FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated  to be effective as of June 28, 2021 (this “Amendment”) is made among SUPER MICRO  COMPUTER, INC., a Delaware corporation (“SMCI”, together with any other party hereto as a  Borrower, individually, a “Borrower” and, collectively, the “Borrowers”), the Lenders (as defined  below) party to this Amendment, and BANK OF AMERICA, N.A., a national banking  association (“Bank of America”), as administrative agent for the Lenders (in such capacity,  “Agent”).   Background  A. WHEREAS, Borrowers, Agent and the financial institutions party thereto from  time to time (the “Lenders”) 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 “Loan Agreement”).  All capitalized terms used and not otherwise defined in this  Amendment are used as defined in the Loan Agreement.  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) New Definitions.  The following definitions are hereby added to Section  1.1 of the Loan Agreement in alphabetical order:  Available Tenor: as of any date of determination and with respect to the  then-current Benchmark, as applicable, (x) if the then-current Benchmark  is a term rate, any tenor for such Benchmark that is or may be used for  determining the length of an Interest Period or (y) otherwise, any payment  period for interest calculated with reference to such Benchmark, as  applicable, pursuant to this Agreement as of such date.  Benchmark: initially, LIBOR; provided that if a replacement of the  Benchmark has occurred pursuant to Section 3.6.2 then “Benchmark”  means the applicable Benchmark Replacement to the extent that such  Benchmark Replacement has replaced such prior benchmark rate. Any  reference to “Benchmark” shall include, as applicable, the published  component used in the calculation thereof.      Exhibit 10.1 





 






 2  144236444_6  Benchmark Replacement:    (1) For purposes of Section 3.6.2(i), the first alternative set forth  below that can be determined by Agent:  (a) the sum of: (i) Term SOFR and (ii) 0.11448%  (11.448 basis points) for an Available Tenor of one-month’s  duration, 0.26161% (26.161 basis points) for an Available  Tenor of three-months’ duration, 0.42826% (42.826 basis  points) for an Available Tenor of six-months’ duration, and  0.71513% (71.513 basis points) for an Available Tenor of  twelve-months’ duration, or  (b) (b) the sum of: (i) Daily Simple SOFR  and (ii) 0.11448% (11.448 basis points);  provided  that, if initially LIBOR is replaced with the rate  contained in clause (b) above (Daily Simple SOFR plus the  applicable spread adjustment) and subsequent to such replacement,  the Agent determines that Term SOFR has become available and is  administratively feasible for the Agent in its sole discretion, and the  Agent notifies the Borrowers and each Lender of such availability,  then from and after the beginning of the Interest Period, relevant  interest payment date or payment period for interest calculated, in  each case, commencing no less than thirty (30) days after the date  of such notice, the Benchmark Replacement shall be as set forth in  clause (a) above; and  (2) For purposes of Section 3.6.2(ii), the sum of (a) the alternate  benchmark rate and (b) an adjustment (which may be a positive or negative  value or zero), in each case, that has been selected by the Agent and the  Borrowers as the replacement Benchmark giving due consideration to any  evolving or then-prevailing market convention, including any applicable  recommendations made by a Relevant Governmental Body, for U.S. dollar- denominated syndicated credit facilities at such time;  provided that, if the Benchmark Replacement as determined  pursuant to clause (1) or (2) above would be less than 0%, the  Benchmark Replacement will be deemed to be 0% for the purposes  of this Agreement and the other Loan Documents.   Any Benchmark Replacement shall be applied in a manner  consistent with market practice; provided that to the extent such market  practice is not administratively feasible for the Agent, such Benchmark  Replacement shall be applied in a manner as otherwise reasonably  determined by the Agent.  





 






 3  144236444_6  Benchmark Replacement Conforming Changes: with respect to any  Benchmark Replacement, any technical, administrative or operational  changes (including changes to the definition of “Base Rate,” the definition  of “Business Day,” the definition of “Interest Period,” timing and frequency  of determining rates and making payments of interest, timing of borrowing  requests or prepayment, conversion or continuation notices, the  applicability and length of lookback periods, the applicability of breakage  provisions, and other technical, administrative or operational matters) that  the Agent decides may be appropriate to reflect the adoption and  implementation of such Benchmark Replacement and to permit the  administration thereof by the Agent in a manner substantially consistent  with market practice (or, if the Agent decides that adoption of any portion  of such market practice is not administratively feasible or if the Agent  determines that no market practice for the administration of such  Benchmark Replacement exists, in such other manner of administration as  the Agent decides is reasonably necessary in connection with the  administration of this Agreement and the other Loan Documents).  Benchmark Transition Event: with respect to any then-current Benchmark  other than LIBOR, the occurrence of a public statement or publication of  information by or on behalf of the administrator of the then-current  Benchmark or a Governmental Authority with jurisdiction over such  administrator announcing or stating that all Available Tenors are or will no  longer be representative, or made available, or used for determining the  interest rate of loans, or shall or will otherwise cease, provided that, at the  time of such statement or publication, there is no successor administrator  that is satisfactory to the Agent, that will continue to provide any  representative tenors of such Benchmark after such specific date.  Daily Simple SOFR: with respect to any applicable determination date  means the secured overnight financing rate (“SOFR”) published on such  date by the Federal Reserve Bank of New York, as the administrator of the  benchmark (or a successor administrator) on the Federal Reserve Bank of  New York’s website (or any successor source).  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) $25,000,000, 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) $25,000,000 and (y) 15% of the Global Borrowing Base.  Early Opt-in Effective Date: with respect to any Early Opt-in Election, the  sixth (6th) Business Day after the date notice of such Early Opt-in Election  is provided to the Lenders, so long as the Agent has not received, by 5:00  p.m. (New York City time) on the fifth (5th) Business Day after the date  notice of such Early Opt-in Election is provided to the Lenders, written  





 






 4  144236444_6  notice of objection to such Early Opt-in Election from Lenders comprising  the Required Lenders.  Early Opt-in Election: the occurrence of:  (1) a determination by the Agent, or a notification by the  Borrowers to the Agent that the Borrower has made a determination, that  U.S. dollar-denominated syndicated credit facilities currently being  executed, or that include language similar to that contained in Section 3.6.2,  are being executed or amended (as applicable) to incorporate or adopt a new  benchmark interest rate to replace LIBOR, and   (2) the joint election by the Agent and the Borrower to replace  LIBOR with a Benchmark Replacement and the provision by the Agent of  written notice of such election to the Lenders.  Fourth Amendment Effective Date:  June 28, 2021.  Other Rate Early Opt-in: the Agent and the Borrowers have elected to  replace LIBOR with a Benchmark Replacement other than a SOFR-based  rate pursuant to (1) an Early Opt-in Election and (2) Section 3.6.2(ii) and  paragraph (2) of the definition of “Benchmark Replacement”.  Rescindable Amount: has the meaning as defined in Section 5.3.  Relevant Governmental Body: the Board of Governors of the Federal  Reserve System or the Federal Reserve Bank of New York, or a committee  officially endorsed or convened by the Board of Governors of the Federal  Reserve System or the Federal Reserve Bank of New York, or any successor  thereto.  SOFR Early Opt-in: the Agent and the Borrowers have elected to replace  LIBOR pursuant to (1) an Early Opt-in Election and (2) Section 3.6.2(i) and  paragraph (1) of the definition of “Benchmark Replacement”.  Term SOFR: for the applicable corresponding tenor (or if any Available  Tenor of a Benchmark does not correspond to an Available Tenor for the  applicable Benchmark Replacement, the closest corresponding Available  Tenor and if such Available Tenor corresponds equally to two Available  Tenors of the applicable Benchmark Replacement, the corresponding tenor  of the shorter duration shall be applied), the forward-looking term rate based  on SOFR that has been selected or recommended by the Relevant  Governmental Body.  (b) Amendment the Definition of “Applicable Margin” in Section 1.1 of the  Loan Agreement.  The definition of “Applicable Margin” in Section 1.1 of the Loan  Agreement is hereby amended and restated in its entirety to read as follows:  





 






 5  144236444_6  Applicable Margin: at any time after the Fourth Amendment Effective Date,  the margin set forth below, as determined by the average daily Global  Availability for the last Fiscal Quarter:     Level    Global Availability  (as % of Revolver  Commitments)  U.S. Revolver   Loans  I < 50% 1.625%  II >50%    1.375%    The margins shall be subject to increase or decrease by Agent on the first  day of the calendar month following each Fiscal Quarter end.  If Agent is  unable to calculate average daily Global Availability for a Fiscal Quarter  due to Borrowers’ failure to deliver any Borrowing Base Report when  required hereunder, then, at the option of Agent or Required Lenders,  margins shall be determined as if Level I were applicable until the first day  of the calendar month following its receipt of such Borrowing Base Report.  (c) Amendment to the Definition of “Due Diligence Trigger Period” in  Section 1.1 of the Loan Agreement.  The definition of “Due Diligence Trigger Period” in  Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety to read  as follows:  Due Diligence Trigger Period: the period (a) Global Availability is less than  the greater of (i) $30,000,000, and (ii) 17.5% 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 (i) $30,000,000 and (y) 17.5% of the Global Borrowing Base.  (d) Amendment to the Definition of “LIBOR” in Section 1.1 of the Loan  Agreement.  The definition of “LIBOR” in Section 1.1 of the Loan Agreement is hereby  amended and restated in its entirety to read as follows:  LIBOR: with respect to Revolver Loans, the per annum rate of interest  (rounded up to the nearest 1/8th of 1%) determined by the Agent on the first  day of each month for a one-month interest period, equal to the London  Interbank Offered Rate, or comparable or successor rate approved by the  Agent, as published on the applicable Reuters screen page (or other  commercially available source designated by the Agent from time to time);  provided, that any comparable or successor rate shall be applied by Agent,  if administratively feasible, in a manner consistent with market practice;  and provided further, that in no event shall LIBOR or any comparable or  successor rate be less than 0%.  (e) Amendment to the Definition of “Non-Obligor Debt” in Section 1.1 of  the Loan Agreement.  The definition of “Non-Obligor Debt” in Section 1.1 of the Loan  Agreement is hereby amended and restated in its entirety to read as follows:  





 






 6  144236444_6  Non-Obligor Debt: Debt for Borrowed Money or committed Debt facility  (a) incurred or obtained by SMCI BV prior to the U.S. Closing Date  pursuant to that certain General Agreement for Omnibus Credit Lines dated  January 17, 2018, by and among  SMCI BV and Super Micro Computer,  Inc. Taiwan, as co-borrowers, and CTBC Bank Co., Ltd., as lender, and (b)  to be incurred or obtained after the U.S. Closing Date by SMCI BV, Super  Micro Computer, Inc. Taiwan, or any other Subsidiary that is not an  Obligor,  extended by a lender or other financial institution, so long as, in  each case, (i) no Obligor’s assets secure the repayment of such Debt, and  (ii) no Obligor has guaranteed or is otherwise obligated on such Debt.  (f) Amendment to the Definition of “Payment Conditions” in Section 1.1  of the Loan Agreement.  The definition of “Payment Conditions” in Section 1.1 of the  Loan Agreement is hereby amended and restated in its entirety to read as follows:  Payment Conditions: both before and after giving effect to any such  payment (whether as a Distribution, Investment or prepayment of Debt) and  giving pro forma effect to the applicable payment:   (i) no Default or Event of Default has occurred and is continuing or would  arise as a result of the applicable payment, and   (ii) either   (a) determined on a pro forma basis (x) Global Availability upon the  making of the payment and for each of the 30 consecutive days immediately  prior thereto shall be greater than the greater of (1) $30,000,000 and (2)  17.5% of the Global Borrowing Base then in effect (provided, that at least  50% of the Global Borrowing Base for the purpose of this sub-clause (x)  shall consist of the U.S. Borrowing Base), and (y) Fixed Charge Coverage  Ratio is equal to or greater than 1.00 to 1.00, or  (b) determined on a pro forma basis, Global Availability upon the  making of the payment and for each of the 30 consecutive dates  immediately prior thereto shall be greater than the greater of (1)  $40,000,000 and (2) 22.5% of the Global Borrowing Base then in effect  (provided, that at least 50% of the Global Borrowing Base for the purpose  of this clause (b) shall consist of the U.S. Borrowing Base).  (g) Amendment to the Definition of “Permitted Real Estate Financing” in  Section 1.1 of the Loan Agreement.  The definition of “Permitted Real Estate Financing”  in Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety to read  as follows:  Permitted Real Estate Financing: any financing obtained by any Obligor or  any of its Subsidiaries that is secured solely by Real Estate and related  property of such Obligor or such Subsidiary, as the case may be.  





 






 7  144236444_6  (h) Amendment to the Definition of “Revolver Termination Date” in  Section 1.1 of the Loan Agreement.  The definition of “Revolver Termination Date” in  Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety to read  as follows:  Revolver Termination Date: June 28, 2026.  (i) Amendment to the Definition of “Trigger Period” in Section 1.1 of the  Loan Agreement.  The definition of “Trigger Period” in Section 1.1 of the Loan  Agreement is hereby amended and restated in its entirety to read as follows:  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)  $20,000,000, and (y) 12.5% 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) $20,000,000 and (y) 12.5% of the Global Borrowing Base.  (j) Amendment to the Definition of “Unused Line Fee Rate” in Section 1.1  of the Loan Agreement.  The definition of “Unused Line Fee Rate” in Section 1.1 of the  Loan Agreement is hereby amended and restated in its entirety to read as follows:  Unused Line Fee Rate: a per annum rate equal to (i) 0.30% if average daily  Global Revolver Usage was less than 33.33% of the aggregate Revolver  Commitments during the applicable month and (ii) 0.20% if average daily  Global Revolver Usage was greater than or equal to 33.33% of the aggregate  Revolver Commitments during such month.  (k) Amendment to Section 2.1.8 of the Loan Agreement.  Section 2.1.8 of  the Loan Agreement is hereby amended and restated in its entirety to read as follows:  2.1.8 Increase in Revolver Commitments.  U.S. Borrowers may request  an increase in U.S. Revolver Commitments from time to time upon not less  than 45 days’ notice to Agent, as long as (a) the requested increase is in a  minimum amount of $10,000,000 and is offered on the same terms as  existing U.S. Revolver Commitments, except for a closing fee specified by  U.S. Borrowers and Agent, and (b) after the Fourth Amendment Effective  Date, the total increases under this Section do not exceed $150,000,000 and  no more than 3 increases are made.  Agent shall promptly notify U.S.  Lenders of the requested increase and, within 10 Business Days thereafter,  each U.S. Lender shall notify Agent if and to what extent such U.S. Lender  commits to increase its U.S. Revolver Commitment.  Any U.S. Lender not  responding within such period shall be deemed to have declined an increase.   If U.S.  Lenders fail to commit to the full requested increase, Eligible  Assignees may issue additional U.S. Revolver Commitments and become  U.S. Lenders hereunder.  Agent may allocate, in its discretion, the increased  U.S. Revolver Commitments among committing U.S. Lenders and, if  





 






 8  144236444_6  necessary, Eligible Assignees.  Total U.S. Revolver Commitments shall be  increased by the requested amount (or such lesser amount committed by  U.S. Lenders and Eligible Assignees) on a date agreed upon by Agent and  Borrower Agent, provided (i) the conditions set forth in Section 6.3 are  satisfied at such time; and (ii) flood insurance diligence and documentation  have been completed as required by all Flood Laws or otherwise in a manner  satisfactory to all Lenders.  Agent, U.S. Borrowers, and the new and existing  U.S. Lenders shall execute and deliver such documents and agreements as  Agent deems appropriate to evidence the increase in and allocations of U.S.  Revolver Commitments.  On the effective date of an increase, the U.S.  Revolver Usage and other exposures under the U.S. Revolver Commitments  shall be reallocated among U.S. Lenders, and settled by Agent as necessary,  in accordance with Lenders’ adjusted shares of such commitments.  (l) Amendment to Section 3.6 of the Loan Agreement.  Section 3.6 of the  Loan Agreement is hereby amended and restated in its entirety to read as follows:  3.6 Inability to Determine Rates.    3.6.1 Agent will promptly notify Borrower Agent and Lenders if, in  connection with any Revolver Loan or request for a Revolver Loan, (a)  Agent determines that (i) the applicable Available Currency deposits are not  being offered to banks in the London interbank Eurodollar market for the  applicable Revolver Loan amount, or (ii) adequate and reasonable means  do not exist for determining LIBOR; or (b) Agent or Required Lenders  determine for any reason that LIBOR does not adequately and fairly reflect  the cost to Lenders of funding the Revolver Loan.  Thereafter, Lenders’  obligations to make or maintain affected Revolver Loans bearing interest  based on LIBOR and utilization of the LIBOR component (if affected) in  determining U.S. Base Rate or Foreign Base Rate shall be suspended until  Agent (upon instruction by Required Lenders) withdraws the notice.  Upon  receipt of such notice, Borrower Agent may revoke any pending request for  a Revolver Loan bearing interest based on LIBOR or, failing that, will be  deemed to have requested a Revolver Loan bearing interest at the U.S. Base  Rate or Foreign Base Rate, as applicable.  3.6.2 Notwithstanding anything to the contrary herein or in any other  Loan Document:  (i) On March 5, 2021 the Financial Conduct Authority (“FCA”),  the regulatory supervisor of LIBOR’s administrator (“IBA”), announced in  a public statement the future cessation or loss of representativeness of  overnight/Spot Next, 1-week, 1-month, 2-month, 3-month, 6-month and 12-  month U.S. dollar LIBOR tenor settings.  On the earliest of (A) the date that  all Available Tenors of U.S dollar LIBOR have permanently or indefinitely  ceased to be provided by IBA or have been announced by the FCA pursuant  to public statement or publication of information to be no longer  





 






 9  144236444_6  representative, (B) June 30, 2023 and (C) the Early Opt-in Effective Date  in respect of a SOFR Early Opt-in, if the then-current Benchmark is LIBOR,  the Benchmark Replacement will replace such Benchmark for all purposes  hereunder and under any Loan Document in respect of any setting of such  Benchmark on such day and all subsequent settings without any amendment  to, or further action or consent of any other party to this Agreement or any  other Loan Document.  If the Benchmark Replacement is Daily Simple  SOFR, all interest payments will be payable on a monthly basis.  (ii) (x)  Upon (A) the occurrence of a Benchmark Transition  Event or (B) a determination by the Administrative Agent that neither of the  alternatives under clause (1) of the definition of Benchmark Replacement  are available, the Benchmark Replacement will replace the then-current  Benchmark for all purposes hereunder and under any Loan Document in  respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th)  Business Day after the date notice of such Benchmark Replacement is  provided to the Lenders without any amendment to, or further action or  consent of any other party to, this Agreement or any other Loan Document  so long as the Administrative Agent has not received, by such time, written  notice of objection to such Benchmark Replacement from Lenders  comprising the Required Lenders (and any such objection shall be  conclusive and binding absent manifest error); provided that solely in the  event that the then-current Benchmark at the time of such Benchmark  Transition Event is not a SOFR-based rate, the Benchmark Replacement  therefor shall be determined in accordance with clause (1) of the definition  of Benchmark Replacement unless the Administrative Agent determines  that neither of such alternative rates is available.  (iii) At any time that the administrator of the then-current  Benchmark has permanently or indefinitely ceased to provide such  Benchmark or such Benchmark has been announced by the regulatory  supervisor for the administrator of such Benchmark pursuant to public  statement or publication of information to be no longer representative of the  underlying market and economic reality that such Benchmark is intended to  measure and that representativeness will not be restored, the Borrower may  revoke any request for a borrowing of, conversion to or continuation of  Loans to be made, converted or continued that would bear interest by  reference to such Benchmark until the Borrower’s receipt of notice from the  Administrative Agent that a Benchmark Replacement has replaced such  Benchmark, and, failing that, the Borrower will be deemed to have  converted any such request into a request for a borrowing of or conversion  to Base Rate Loans. During the period referenced in the foregoing sentence,  the component of Base Rate based upon the Benchmark will not be used in  any determination of Base Rate.  (iv) In connection with the implementation and administration of  a Benchmark Replacement, the Administrative Agent will have the right to  





 






 10  144236444_6  make Benchmark Replacement Conforming Changes from time to time and,  notwithstanding anything to the contrary herein or in any other Loan  Document, any amendments implementing such Benchmark Replacement  Conforming Changes will become effective without any further action or  consent of any other party to this Agreement.  (v) The Administrative Agent will promptly notify the Borrower  and the Lenders of (A) the implementation of any Benchmark Replacement  and (B) the effectiveness of any Benchmark Replacement Conforming  Changes. Any determination, decision or election that may be made by the  Administrative Agent pursuant to this Section 3.6.2, including any  determination with respect to a tenor, rate or adjustment or of the occurrence  or non-occurrence of an event, circumstance or date and any decision to  take or refrain from taking any action, will be conclusive and binding absent  manifest error and may be made in its  sole discretion and without consent  from any other party hereto, except, in each case, as expressly required  pursuant to this Section 3.6.2.  (m) Amendment to Section 5.3 of the Loan Agreement.  Section 5.3 of the  Loan Agreement is hereby amended and restated in its entirety to read as follows:  5.3 Payments by Borrowers; Presumptions by Agent.    (a) Unless the Agent shall have received notice from the  Borrowers prior to the date on which any payment is due to the Agent for  the account of the Lenders or the LC Issuer hereunder that the Borrowers  will not make such payment, the Agent may assume that the Borrowers have  made such payment on such date in accordance herewith and may, in  reliance upon such assumption, distribute to the Lenders or the LC Issuer,  as the case may be, the amount due.  (b) With respect to any payment that the Agent makes for the  account of the Lenders or the LC Issuer hereunder as to which the Agent  determines (which determination shall be conclusive absent manifest error)  that any of the following applies (such payment referred to as the  “Rescindable Amount”): (1) the Borrowers have not in fact made such  payment; (2) the Agent has made a payment in excess of the amount so paid  by the Borrowers (whether or not then owed); or (3) the Agent has for any  reason otherwise erroneously made such payment; then each of the Lenders  or the LC Issuer, as the case may be, severally agrees to repay to the Agent  forthwith on demand the Rescindable Amount so distributed to such Lender  or the LC Issuer, in immediately available funds with interest thereon, for  each day from and including the date such amount is distributed to it to but  excluding the date of payment to the Agent, at the greater of the Federal  Funds Rate and a rate determined by the Agent in accordance with banking  industry rules on interbank compensation.  A notice of the Agent to any  





 






 11  144236444_6  Lender or the Borrowers with respect to any amount owing under this clause  (b) shall be conclusive, absent manifest error.  (n) Amendment to Section 5.7 of the Loan Agreement.  Section 5.7 of the  Loan Agreement is hereby amended and restated in its entirety to read as follows:  5.7 Dominion Account.  The ledger balance in the main Dominion Account  of each Borrower as of the end of a Business Day shall be applied to the  applicable Obligations at the beginning of the next Business Day, during  any Dominion Trigger Period.  Any resulting credit balance shall not accrue  interest in favor of Borrowers and shall be made available to the applicable  Borrowers as long as no Default or Event of Default exists.  (o) Amendment to Section 8.1 of the Loan Agreement.  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 for more than 5  consecutive Business Days during any month during such quarter, by the  20th day of each quarter, Borrowers shall deliver to Agent (and Agent shall  promptly deliver same 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 same 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 second Business Day of each week, Borrowers shall  deliver to Agent (and Agent shall promptly deliver same to Lenders) a  Borrowing Base Report as of the close of business of the previous week.  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’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.  (p) Amendment to Section 8.2.1 of the Loan Agreement.  Section 8.2.1 of  the Loan Agreement is hereby amended and restated in its entirety to read as follows:  8.2.1 Records and Schedules of Accounts.  Each Borrower shall keep  accurate and complete records of its Accounts, including all payments and  collections thereon, and shall submit to Agent sales, collection,  reconciliation and other reports in form satisfactory to Agent, on such  periodic basis as Agent may request.  Each Borrower shall also provide to  





 






 12  144236444_6  Agent, together with each Borrowing Base Report, a detailed aged trial  balance of all Accounts as of the end of the preceding month, which if  requested by Agent shall specify each Account’s Account Debtor name and  address, amount, invoice date and due date, showing any discount,  allowance, credit, authorized return or dispute, and including such proof of  delivery, copies of invoices and invoice registers, copies of related  documents, repayment histories, status reports and other information as  Agent may reasonably request.  If Accounts in an aggregate face amount of  $1,000,000 or more cease to be Eligible Credit Insured Accounts or Eligible  Non-Credit Insured Accounts, Borrowers shall notify Agent of such  occurrence promptly (and in any event within one Business Day) after any  Borrower has knowledge thereof.    (q) Amendment to Section 8.2.4 of the Loan Agreement.  Section 8.2.4 of  the Loan Agreement is hereby amended and restated in its entirety to read as follows:  8.2.4 Maintenance of Dominion Account.  Borrowers shall maintain  Dominion Accounts pursuant to lockbox or other arrangements acceptable  to Agent.  Borrowers shall obtain an agreement (in form and substance  satisfactory to Agent) from each lockbox servicer and Dominion Account  bank, establishing Agent’s control over and Lien in the lockbox or  Dominion Account, which may only be exercised by Agent during any  Dominion Trigger Period, requiring immediate deposit of all remittances  received in the lockbox to a Dominion Account, and waiving offset rights  of such servicer or bank, except for customary administrative charges.   During a Dominion Trigger Period, if a Dominion Account is not  maintained with Bank of America, Agent may require immediate transfer  of all funds in such account to a Dominion Account maintained with Bank  of America.  Agent and Lenders assume no responsibility to Borrowers for  any lockbox arrangement or Dominion Account, including any claim of  accord and satisfaction or release with respect to any Payment Items  accepted by any bank.  (r) Amendment to Section 10.1.1(b) of the Loan Agreement.  Section  10.1.1(b) of the Loan Agreement is hereby amended and restated in its entirety to read as  follows:  (b) Reimburse Agent for all its charges, costs and expenses in  connection with (i) examinations of Obligors’ books and records or any  other financial or Collateral matters as it deems appropriate, up to one time  per Loan Year if Revolver Loans are outstanding for more than 5  consecutive Business Days during such period and up to one time per each  18 month period if no Revolver Loans are outstanding for more than 5  consecutive Business Days during such period; and (ii) appraisals of  Obligors’ Inventory and Equipment up to one appraisal of Inventory and  Equipment per Loan Year if Revolver Loans are outstanding for more than  5 consecutive Business Days during such period and up to one time per each  





 






 13  144236444_6  18 month period if no Revolver Loans are outstanding for more than 5  consecutive Business Days during such period; provided, that if an  examination or appraisal is initiated during a Default or Event of Default or  during a Loan Year in which a Due Diligence Trigger Period exists or  existed, all charges, costs and expenses relating thereto shall be reimbursed  by Borrowers without regard to such limits.  Borrowers shall pay Agent’s  then standard charges for examination activities, including charges for its  internal examination and appraisal groups, as well as the charges of any  third party used for such purposes.  No Dutch Borrowing Base or U.S.  Borrowing Base calculation shall include Collateral acquired in a Permitted  Acquisition or otherwise outside the Ordinary Course of Business until  completion of applicable field examinations and appraisals (which shall not  be included in the limits provided above) satisfactory to Agent.  (s) Amendment to Section 10.2.2 of the Loan Agreement.  Clause (l) of  Section 10.2.2 of the Loan Agreement is hereby amended and restated in its entirety to read  as follows:  (l) Liens on Real Estate and related assets owned by one or more  Obligor or a Subsidiary of an Obligor securing a Permitted Real Estate  Financing;  (t) Amendment to Article XII of the Loan Agreement.  The following is  hereby added to the Loan Agreement as Section 12.17 thereto:  12.17  Recovery of Erroneous Payments.  Without limitation of any other  provision in this Agreement, if at any time the Agent makes a payment  hereunder in error to any Lender or the LC Issuer (the “Credit Party”),  whether or not in respect of an Obligation due and owing by the Borrowers  at such time, where such payment is a Rescindable Amount, then in any  such event, each Credit Party receiving a Rescindable Amount severally  agrees to repay to the Agent forthwith on demand the Rescindable Amount  received by such Credit Party  in immediately available funds in the  currency so received, with interest thereon, for each day from and including  the date such Rescindable Amount is received by it to but excluding the date  of payment to the Agent, at the greater of the Federal Funds Rate and a rate  determined by the Agent in accordance with banking industry rules on  interbank compensation. Each Credit Party irrevocably waives any and all  defenses, including any “discharge for value” (under which a creditor might  otherwise claim a right to retain funds mistakenly paid by a third party in  respect of a debt owed by another) or similar defense to its obligation to  return any Rescindable Amount.  The Agent shall inform each Credit Party  promptly upon determining that any payment made to such Credit Party  comprised, in whole or in part, a Rescindable Amount.  (u) Amended Schedule 1.1 of the Loan Agreement.  Schedule 1.1 of the Loan  Agreement is hereby deleted and replaced with Schedule 1.1 attached hereto.  





 






 14  144236444_6  (v) Amendment to Cover Page of Loan Agreement.  The Loan Agreement is  hereby amended by deleting the cover page thereto and replacing it with the cover page  attached as Exhibit A hereto.  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’ 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.  (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 “this Loan  Agreement” or “hereof”, “hereunder” 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.  





 






 15  144236444_6  (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 “Releasors” and individually as a “Releasor”), hereby absolutely, unconditionally and  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 “Releasees”  and individually as a “Releasee”), 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 “Claim” and collectively, “Claims”) 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 any of 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 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’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  





 






 16  144236444_6  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.    [Signature Page Follows]    





 






 





 






 





 






   FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT  (SMCI)  SCHEDULE 1.1  SCHEDULE 1.1  to  Loan and Security Agreement  REVOLVER COMMITMENTS OF LENDERS    Lender U.S. Revolver  Commitment  Total Revolver  Commitments  Bank of America, N.A. $200,000,000 $200,000,000  TOTAL: $200,000,000 $200,000,000                                                   





 






  FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT  (SMCI)  EXHIBIT A    EXHIBIT A  to    Third Amendment to Loan And Security Agreement        COVER PAGE TO LOAN AND SECURITY AGREEMENT        (see attached)  





 






  144236444_6        ______________________________________________________________________________  LOAN AND SECURITY AGREEMENT  Dated as of April 19, 2018  ______________________________________________________________________________  SUPER MICRO COMPUTER, INC.,    as U.S. Borrower,  SUPER MICRO COMPUTER B.V.,   as Dutch Borrower   ______________________________________________________________________________  BANK OF AMERICA, N.A.,  as Agent  ______________________________________________________________________________  BANK OF AMERICA, N.A.,  as Sole Lead Arranger and Bookrunner  ______________________________________________________________________________