**Exhibit10.2**

 

**AMENDMENT TO LOAN DOCUMENTS**

 

THIS**AMENDMENT TO LOAN DOCUMENTS** (this****“Amendment”)is entered into as of June 30, 2010, by and between SILICON VALLEY BANK (“Bank”or “Silicon”) and NETLIST, INC., a Delaware corporation (“Borrower”).  Borrower’s chief executive office is locatedat 51 Discovery, Suite 150, Irvine, CA 92618.

 

**RECITALS**

 

**A.**            Bank andBorrower are parties to that certain Loan and Security Agreement with anEffective Date of October 31, 2009 (as amended, modified, supplemented or restated, the “ Loan Agreement”)in effect between Bank and Borrower.

 

**B.**            Bank hasextended credit to Borrower for the purposes permitted in the Loan Agreement.

 

**C.**            Borrower hasrequested that Bank amend the Loan Agreement to modify the ProfitabilityFinancial Covenant as more fully set forth herein.

 

**D.**            Bank has agreedto so amend the Loan Agreement, but only to the extent, in accordance with theterms, subject to the conditions and in reliance upon the representations andwarranties set forth below.

 

**AGREEMENT**

 

**NOW, THEREFORE,** in consideration of the foregoing recitalsand other good and valuable consideration, the receipt and adequacy of which ishereby acknowledged, and intending to be legally bound, the parties heretoagree as follows:

 

**1.****            ****Definitions.**  Capitalized terms used but not defined inthis Amendment shall have the meanings given to them in the Loan Agreement.

 

**2.****            ****Amendmentsto Loan Documents.**

 

**2.1****         ****ModifiedProfitability Financial Covenant. **Section 6.9(b) ofthe Loan Agreement is hereby amended in its entirety to read as follows:

 

(b)           Profitability.  Measured as of the end of each of thefollowing fiscal quarters, minimum Gross Profit of not less than the following[note — amounts within pointed brackets ( < $ > ) are negative amounts]:

 
| **Fiscal  Quarter ending ...** | ** ** | **Minimum Gross Profit** | ** **     |
|--------------------------------|------------|--------------------------|----------------|
| September 30, 2009        |       | $                        | <415,000.00 | >  |
| December 31, 2009         |       | $                        | 43,000.00      |   |
| March 31, 2010            |       | $                        | 1,429,000.00   |   |
| June 30, 2010             |       | $                        | 1,500,000.00   |   |
| September 30, 2010        |       | $                        | 2,000,000.00   |   |

 

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**3.****            ****Limitationof Amendments.**

 

**3.1****         **The amendmentsset forth in **Section 2**, above, areeffective for the purposes set forth herein and shall be limited precisely aswritten and shall not be deemed to (a) be a consent to any amendment,waiver or modification of any other term or condition of any Loan Document, or(b) otherwise prejudice any right or remedy which Bank may now have or mayhave in the future under or in connection with any Loan Document.

 

**3.2****         **This Amendmentshall be construed in connection with and as part of the Loan Documents and allterms, conditions, representations, warranties, covenants and agreements setforth in the Loan Documents (as amended by this Amendment, as applicable) arehereby ratified and confirmed and shall remain in full force and effect.

 

**4.****            ****Representationsand Warranties.**  To induceBank to enter into this Amendment, Borrower hereby represents and warrants toBank as follows:

 

**4.1****         **Immediatelyafter giving effect to this Amendment, (a) the representations andwarranties contained in the Loan Documents are true, accurate and complete inall material respects as of the date hereof (except to the extent suchrepresentations and warranties relate to an earlier date, in which case theyare true and correct as of such date, or except as otherwise previouslydisclosed in writing by Borrower to Bank), and (b) no Event of Default hasoccurred and is continuing;

 

**4.2****         **Borrower hasthe power and authority to execute and deliver this Amendment and to performits obligations under the Loan Documents, as amended by this Amendment;

 

**4.3****         **Theorganizational documents of Borrower delivered to Bank on the Effective Dateremain true, accurate and complete and have not been otherwise amended,supplemented or restated and are and continue to be in full force and effect;

 

**4.4****         **The executionand delivery by Borrower of this Amendment and the performance by Borrower ofits obligations under the Loan Documents, as amended by this Amendment, havebeen duly authorized;

 

**4.5****         **The executionand delivery by Borrower of this Amendment and the performance by Borrower ofits obligations under the Loan Documents, as amended by this Amendment, do notand will not contravene (a) any law or regulation binding on or affectingBorrower, (b) any contractual restriction with a Person binding onBorrower, (c) any order, judgment or decree of any court or othergovernmental or public body or authority, or subdivision thereof, binding onBorrower, or (d) the organizational documents of Borrower;

 

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**4.6****         **The executionand delivery by Borrower of this Amendment and the performance by Borrower ofits obligations under the Loan Documents, as amended by this Amendment, do notrequire any order, consent, approval, license, authorization or validation of,or filing, recording or registration with, or exemption by any governmental orpublic body or authority, or subdivision thereof, binding on either Borrower,except as already has been obtained or made; and

 

**4.7****         **This Amendmenthas been duly executed and delivered by Borrower and is the binding obligationof Borrower, enforceable against Borrower in accordance with its terms, exceptas such enforceability may be limited by bankruptcy, insolvency,reorganization, liquidation, moratorium or other similar laws of generalapplication and equitable principles relating to or affecting creditors’rights.

 

**5.****            ****Releaseby Borrower and Guarantor**.  Eachof Borrower and Guarantor (individually and collectively, “Obligor”) herebyagree as follows:

 

**5.1****         ****FORGOOD AND VALUABLE CONSIDERATION**, Obligor hereby foreverrelieves, releases, and discharges Bank and its present or former employees,officers, directors, agents, representatives, attorneys, and each of them, fromany and all claims, debts, liabilities, demands, obligations, promises, acts,agreements, costs and expenses, actions and causes of action, of every type,kind, nature, description or character whatsoever, whether known or unknown,suspected or unsuspected, absolute or contingent, arising out of or in anymanner whatsoever connected with or related to facts, circumstances, issues,controversies or claims existing or arising from the beginning of time throughand including the date of execution of this Amendment (collectively “**Released Claims**”). Without limiting the foregoing, the Released Claims shall include anyand all liabilities or claims arising out of or in any manner whatsoeverconnected with or related to the Loan Documents, the Recitals hereto, anyinstruments, agreements or documents executed in connection with any of theforegoing or the origination, negotiation, administration, servicing and/orenforcement of any of the foregoing.

 

**5.2****         **In furtheranceof this release, Obligor expressly acknowledges and waives any and all rightsunder Section 1542 of the California Civil Code, which provides asfollows:

 

**“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOESNOT KNOW OR EXPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THERELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HERSETTLEMENT WITH THE DEBTOR.”** (Emphasis added.)

 

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**5.3****         **By enteringinto this release, Obligor recognizes that no facts or representations are everabsolutely certain and it may hereafter discover facts in addition to ordifferent from those which it presently knows or believes to be true, but thatit is the intention of Obligor hereby to fully, finally and forever settle andrelease all matters, disputes and differences, known or unknown, suspected orunsuspected; accordingly, if Obligor should subsequently discover that any factthat it relied upon in entering into this release was untrue, or that anyunderstanding of the facts was incorrect, Obligor shall not be entitled to setaside this release by reason thereof, regardless of any claim of mistake offact or law or any other circumstances whatsoever.  Obligor acknowledges that it is not relyingupon and has not relied upon any representation or statement made by Bank withrespect to the facts underlying this release or with regard to any of suchparty’s rights or asserted rights.

 

**5.4****         **This releasemay be pleaded as a full and complete defense and/or as a cross-complaint orcounterclaim against any action, suit, or other proceeding that may beinstituted, prosecuted or attempted in breach of this release.  Obligor acknowledges that the releasecontained herein constitutes a material inducement to Bank to enter into thisAmendment, and that Bank would not have done so but for Bank’s expectation thatsuch release is valid and enforceable in all events.

 

**5.5****         **Obligor herebyrepresents and warrants to Bank, and Bank is relying thereon, as follows:

 

**(a)****          **Except asexpressly stated in this Amendment, neither Bank nor any agent, employee orrepresentative of Bank has made any statement or representation to Obligorregarding any fact relied upon by Obligor in entering into this Amendment.

 

**(b)****          **Obligor hasmade such investigation of the facts pertaining to this Amendment and all of thematters appertaining thereto, as it deems necessary.

 

**(c)****          **The terms ofthis Amendment are contractual and not a mere recital.

 

**(d)****          **This Amendmenthas been carefully read by Obligor, the contents hereof are known andunderstood by Obligor, and this Amendment is signed freely, and without duress,by Obligor.

 

**(e)****          **Obligorrepresents and warrants that it is the sole and lawful owner of all right,title and interest in and to every claim and every other matter which itreleases herein, and that it has not heretofore assigned or transferred, orpurported to assign or transfer, to any person, firm or entity any claims orother matters herein released.  Obligorshall indemnify Bank, defend and hold it harmless from and against all claimsbased upon or arising in connection with prior assignments or purportedassignments or transfers of any claims or matters released herein.

 

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**6.****            ****Fee. **In consideration for Bankentering into this Amendment, Borrower shall pay Bank a fee in the mutuallyagreed amount of **$2,500.00**, which fee shall beearned in full and payable concurrently with the execution and delivery of thisAmendment.  Such fee shall benon-refundable and in addition to all interest and other fees payable to Bank underthe Loan Documents.  Bank is authorizedto charge such fee to Borrower’s loan account.

 

**7.****            ****BankExpenses. **Borrower shallpay to Bank, when due, all Bank Expenses (including reasonable attorneys’ feesand expenses), when due, incurred in connection with or pursuant to thisAmendment.

 

**8.****            ****Counterparts.**  This Amendment may be executed in any numberof counterparts and all of such counterparts taken together shall be deemed toconstitute one and the same instrument.

 

**9.****            ****Effectiveness**.  This Amendment shall be deemed effective uponthe due execution and delivery to Bank of this Amendment by each party hereto.

 

[Remainder of page intentionally left blank; signature page immediatelyfollows.]

 

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**INWITNESS WHEREOF,** the parties hereto have caused this Amendment to beduly executed and delivered as of the date first written above.

 
| **BANK**               | ** **           | **BORROWER**                    |
|------------------------|----------------------|---------------------------------|
|                   |                 |                            |
| Silicon  Valley Bank   |                 | NETLIST, INC.              |
|                   |                 |                            |
|                   |                 |                            |
| By:                    | */s/ Kurt Miklinski* |                            | By: | */s/  Gail Sasaki* |
| Name:  Kurt Miklinski  |                 | Name:  Gail Sasaki              |
| Title:  Vice President |                 | Title:  Chief Financial Officer |
|                        |                      |                                 |  |  |

 

**CONSENT**

 

Theundersigned hereby expressly agrees to Section 5 of the foregoingAmendment and acknowledges that its consent to the rest of the foregoingAmendment is not required, but the undersigned nevertheless does hereby agreeand consent to the entire foregoing Amendment and to the documents andagreements referred to therein and to all future modifications and amendmentsthereto, and any termination thereof, and to any and all other present andfuture documents and agreements between or among the foregoing parties.  Nothing herein shall in any way limit any ofthe terms or provisions of the Guaranty, the Guarantor Security Agreement, orany other Loan Documents, executed by the undersigned, all of which are herebyratified and affirmed.

 

 
| **GUARANTOR:**                                                                                     |              |
|----------------------------------------------------------------------------------------------------|-------------------|
| ** **                                                                                         |              |
| NETLIST TECHNOLOGY TEXAS  LP, a Texas limited partnership                                          |              |
| ** **                                                                                         |              |
| By:          NETLIST, INC., its  general partner |              |
|                                                                                               |              |
|                                                                                               |              |
| By:                                                                                                | */s/ Gail Sasaki* |   |
| Name: Gail Sasaki                                                                                  |              |
| Title: Chief Financial  Officer                                                                    |              |
|                                                                                                    |                   |  |

 

Signature Page

 

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