Exhibit 10.1
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") dated as of October 31, 2009
(the "Effective Date") between SILICON VALLEY BANK, a California corporation
("Bank"), and NETLIST, INC., a Delaware corporation ("Borrower"), provides the
terms on which Bank shall lend to Borrower and Borrower shall repay Bank.
The
parties agree as follows:
1
ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement shall be construed following
GAAP.
Calculations and determinations must be made following GAAP.
Capitalized
terms not otherwise defined in this Agreement shall have the meanings set forth
in Section 13.
All other terms contained in this Agreement, unless otherwise
indicated, shall have the meaning provided by the Code to the extent such terms
are defined therein.
2
LOAN AND TERMS OF PAYMENT
2.1
PROMISE TO PAY.
BORROWER HEREBY
UNCONDITIONALLY PROMISES TO PAY BANK THE OUTSTANDING PRINCIPAL AMOUNT OF ALL
CREDIT EXTENSIONS AND ACCRUED AND UNPAID INTEREST THEREON AS AND WHEN DUE IN
ACCORDANCE WITH THIS AGREEMENT.
2.1.1
REVOLVING ADVANCES.
(A)
AVAILABILITY.
SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND TO DEDUCTION OF RESERVES (WITHOUT DUPLICATION
OF THE BB BLOCKED AMOUNT COMPONENT OF THE BORROWING BASE), BANK SHALL MAKE
ADVANCES NOT EXCEEDING THE AVAILABILITY AMOUNT.
AMOUNTS BORROWED HEREUNDER MAY
BE REPAID AND, PRIOR TO THE REVOLVING LINE MATURITY DATE, REBORROWED, SUBJECT TO
THE APPLICABLE TERMS AND CONDITIONS PRECEDENT HEREIN.
(B)
STREAMLINE PERIOD.
DURING OR IN RESPECT OF
CERTAIN PERIODS OF TIME AS TO WHICH THE STREAMLINE REQUIREMENTS ARE ALL MET
(EACH SUCH PERIOD, SUBJECT TO THE PROVISIONS OF THIS SECTION 2.1.1(B), A
"STREAMLINE PERIOD"): (I) BORROWER'S REPORTING REQUIREMENTS SHALL BE REDUCED,
(II) CERTAIN PROCEEDS SHALL BE DEPOSITED IN BORROWER'S OPERATING
ACCOUNT(S) INSTEAD OF BEING APPLIED TO THE ADVANCES; (III) THE INTEREST RATE
APPLICABLE TO OUTSTANDING ADVANCES SHALL BE LOWER; AND (IV) NO COLLATERAL
HANDLING FEE SHALL BE PAYABLE; IN EACH CASE, AS SET FORTH IN OTHER PROVISIONS OF
THIS AGREEMENT.
SUCH A STREAMLINE PERIOD SHALL BE DEEMED TO BE IN EFFECT AS OF
THE EFFECTIVE DATE.
IF AT ANY TIME DURING ANY STREAMLINE PERIOD THE STREAMLINE
REQUIREMENTS ARE NOT MET, UPON WRITTEN NOTICE FROM BANK TO BORROWING AGENT THE
STREAMLINE PERIOD SHALL IMMEDIATELY CEASE TO BE EFFECTIVE, AND ANY TERMS OR
CONDITIONS OF THIS AGREEMENT THAT ARE DEPENDENT UPON THE EXISTENCE OF A
STREAMLINE PERIOD WILL IMMEDIATELY REVERT TO THE RESPECTIVE TERMS AND CONDITIONS
THAT ARE TO BE IN FORCE WHEN A STREAMLINE PERIOD IS NOT IN EFFECT, WITHOUT THE
NEED FOR ANY FURTHER ACTION ON THE PART OF BANK OR BORROWER.
FURTHER, IF
FOLLOWING THE CESSATION OF A STREAMLINE PERIOD THE STREAMLINE REQUIREMENTS ARE
THEREAFTER SATISFIED FOR 30 CONSECUTIVE DAYS, BORROWING AGENT MAY ELECT TO AGAIN
PUT A STREAMLINE PERIOD INTO EFFECT (WHICH NEW STREAMLINE PERIOD SHALL COMMENCE
ON THE FIRST DAY OF THE APPLICABLE SUBSEQUENT MONTH) PURSUANT TO THE TERMS
HEREOF BY GIVING BANK AT LEAST 5 BUSINESS DAYS PRIOR WRITTEN NOTICE OF SUCH
ELECTION (INCLUDING THE PROPOSED START DATE OF SUCH NEW STREAMLINE PERIOD).
THUS, IT IS