Exhibit
10.3


 


FIRST
AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY

AGREEMENT


THIS FIRST AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this “Amendment”), dated as of September 6, 2007, is entered
into among Jazz Semiconductor, Inc , a
Delaware corporation (“Jazz”), Newport Fab, LLC (d/b/a Jazz Semiconductor Operating Company), a Delaware
limited liability company (“Operating Company”, and Operating
Company together with Jazz, collectively, the “Borrowers” and each of them individually, a “Borrower”), Jazz
Technologies, Inc , formerly known as Acquicor Technology Inc , a Delaware
corporation (“Guarantor), the parties hereto as lenders (each individually, a “Lender” and collectively, “Lenders”),
and Wachovia Capital Finance Corporation (Western), a California corporation,
in its capacity as agent for the Lenders (in such capacity, “Agent”),


RECITALS


A                                             Borrowers, Guarantor,
Agent, Lenders, and Wachovia Capital Markets, LLC, in its capacity as lead
arranger, bookrunner and syndication agent, have previously entered into that certain Amended and Restated Loan and
Security Agreement dated as of February 28, 2007 (the “Loan Agreement”), pursuant to which Agent and Lenders have made
certain loans and financial accommodations
available to Borrowers.. Terms used herein without definition shall have the meanings
ascribed to them in the Loan Agreement.


B.                                            Borrowers and Guarantor have requested
that Agent and the Lenders amend the Loan Agreement, which Agent and the
Lenders are willing to do pursuant to the terms and conditions set forth herein


C                                               Borrowers and Guarantor are entering into
this Amendment with the understanding and agreement that, except as
specifically provided herein, none of Agent’s or any Lender’s rights or
remedies as set forth in the Loan Agreement is being waived or modified by the
terms of this Amendment


AGREEMENT


NOW,
THEREF ORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:


1.                                          Amendment to Loan Agreement.


(a)                                     Section 9.11(g)(D) of the Loan Agreement
is hereby amended and restated in its entirety to read as follows:


“(D)
the aggregate amount of all such dividends, distributions and repurchases
permitted by this Section 9 11(g) shall not exceed $75,000,000 “


 


2.                                          Effectiveness of this Amendment The effectiveness of this Amendment is subject
to the satisfaction of each of the following conditions precedent


(a)                                     Amendment., Agent shall have received this Amendment,
fully executed by Borrowers, Guarantor,
Agent and Required Lenders in a sufficient number of counterparts for distribution
to all parties


 


 


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(b)                                    Accommodation Fee. Agent shall have
received, for the ratable benefit of the Lenders, a non-refundable accommodation fee in the
amount of Five Thousand Dollars ($5,000), which fee is fully earned as of and
due and payable on the date hereof’.


(c)                                     Representations and Warranties The representations and warranties set
forth herein and in the Loan Agreement must be true and correct.


(d)                                    Other Required Documentation. All other documents and legal matters in connection with the transactions contemplated by
this Amendment shall have been delivered or executed or recorded and
shall be in form and substance satisfactory to Agent.


3.                                          Representations and Warranties, Each Borrower and Guarantor each
represents and
warrants as follows:


(a)                                     Authority Each Borrower and
Guarantor have the requisite company power and authority to execute
and deliver this Amendment, and to perform its obligations hereunder and under the Financing
Agreements (as amended or modified hereby) to which it is a party. The
execution, delivery and performance by each Borrower and Guarantor of’ this Amendment have been duly approved by all necessary
company action and no other company proceedings are necessary to
consummate such transactions.


(b)                                    Enforceability. This Amendment has
been duly executed and delivered by each Borrower and Guarantor. This Amendment
and each Financing Agreement (as amended or modified hereby) are the legal,
valid and binding obligations of each Borrower and Guarantor, enforceable against
each Borrower and Guarantor in accordance with their terms, except as such enforceability may
be limited by bankruptcy, insolvency, moratorium or similar laws limiting creditors’ rights generally or by general
equitable principles, and are in full force and effect.


(c)                                    Representations and
Warranties. The representations and warranties contained in each
Financing Agreement (other than any such representations or warranties that, by their terms, are
specifically made as of a date other than the date hereof) are correct on and
as of the date hereof
as though made on and as of the date hereof.


(d)                                   Due Execution. The execution,
delivery and performance of this Amendment are within the power
of each Borrower and Guarantor, have been duly authorized by all necessary
company action, have received all necessary governmental approval, if any, and
do not contravene any law or any contractual restrictions binding on any
Borrower or Guarantor.,


(e)                                     No Default. No event has
occurred and is continuing that constitutes an Event of Default.


4.                                          Choice of Law. The validity of this Amendment, its
construction, interpretation and
enforcement, the rights of the parties hereunder, shall be determined under,
governed by, and construed in
accordance with the internal laws of the State of California governing
contracts only to be performed in that State


5.                                          Counterparts This Amendment may
be executed in any number of counterparts and by different parties and separate
counterparts, each of which when so executed and delivered, shall be deemed an
original, and all of which, when taken together, shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature page to
this Amendment by telefacsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.


6.                                          Reference to and
Effect on the Financing Agreements.


(a)                                     Upon and after the
effectiveness of this Amendment, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof’ or words of like import
referring to the Loan Agreement, and 


 


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each reference in the other Financing Agreements to “the
Loan Agreement”, “thereof’ or words of like
import referring to the Loan Agreement, shall mean and be a reference to
the Loan Agreement as modified and amended hereby


(b)                                   Except as specifically
amended above, the Loan Agreement and all other.  Financing
Agreements, are and shall continue to be in full force and effect and are
hereby in all respects
ratified and confirmed.


(c)                                    The execution,
delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or
remedy of Agent or any Lender under any of the Financing Agreements, nor
constitute a waiver of any provision of any of the Financing Agreements.


(d)                                   To the extent that any terms and
conditions in any of the Financing Agreements
shall contradict or be in conflict with any terms or conditions of the Loan Agreement, after giving effect to this Amendment,
such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of
the Loan Agreement as modified or amended hereby.


7.                                          Estoppel.  To induce Agent and Lenders to enter into
this Amendment and to induce
Agent and Lenders to continue to make advances to Borrowers under the Loan Agreement, each Borrower and Guarantor hereby
acknowledges and agrees that, after giving effect to this Amendment, as of the date hereof, there exists no
Default or Event of Default and no
right of offset, defense, counterclaim or objection in favor of any Borrower or
Guarantor as against Agent or any Lender with respect to the
Obligations.


8.                                          Integration  This Amendment, together with the other Financing
Agreements, incorporates all negotiations
of the parties hereto with respect to the subject matter hereof and is the
final expression and agreement of the parties hereto with respect to the
subject matter hereof.


9.                                          Severability. In case any
provision in this Amendment shall be invalid, illegal or’ unenforceable, such
provision shall be severable from the remainder of this Amendment and the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


[Remainder of Page Left Intentionally Blank]


 


 


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IN
WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.


 


 


	
   

  	
  JAZZ
  SEMICONDUCTOR, INC.,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Paul A.
  Pittman

  
	
   

  	
  Name:

  	
  Paul A. Pittman

  
	
   

  	
  Title:

  	
  Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
  NEWPORT FAB,
  LLC,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Paul A.
  Pittman

  
	
   

  	
  Name:

  	
  Paul A. Pittman

  
	
   

  	
  Title:

  	
  Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
  JAZZ
  TECHNOLOGIES, INC.,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Paul A.
  Pittman

  
	
   

  	
  Name:

  	
  Paul A. Pittman

  
	
   

  	
  Title:

  	
  Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
  WACHOVIA CAPITAL
  FINANCE CORPORATION (WESTERN),

  
	
   

  	
  as Agent and a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robin Van Meter

  
	
   

  	
  Name:  Robin
  Van Meter

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


 


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