10-Q














Exhibit 10.1  





FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT 



        THIS
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this
“Amendment”), dated as of March 17, 2009, 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 lenders party to the
“Loan Agreement” as defined below (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 Second Amended and Restated Loan and Security
          Agreement dated as of September 19, 2008 (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,
THEREFORE, 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: 



        Amendment
to Loan Agreement.  




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



    “(a)       
          make any payments, in arrears, for (i) bona fide sales, marketing, R&D or
          other personnel services, testing or other operational or fab-related services
          provided to such Credit Party by Foreign Parent Nonguarantor or any of its
          Affiliates that is not a Credit Party, or (ii) assets, including supplies
          and raw materials, sold and delivered to such Credit Party by Foreign Parent
          Nonguarantor or any of its Affiliates that is not a Credit Party, provided that (1)
such services are rendered, or such assets are           sold, pursuant to the reasonable
requirements of such Credit Party’s           business and upon fair and reasonable
terms no less favorable to such Credit           Party than such Credit Party would
obtain in a comparable arms’ length           transaction with an unaffiliated
person, (2) in the case of payments for sold           assets, (A) such assets shall
constitute Collateral, and (B) the maximum           aggregate amount of all such
payments for such assets other than supplies or raw           materials shall not exceed
$2,500,000 during the term of this Agreement, and (3)           in the case of payments
for sales, marketing and other personnel services           (including any payments for
bonuses or incentive compensation made to the           employees providing such
services), in any quarter, the amount of all such           payments (whether to Foreign
Parent Nonguarantor, specific employees of any           Credit Party or otherwise) shall
not exceed an amount equal to the product of           (x) for the immediately preceding
four (4) fiscal quarters, the quotient of           actual sales of the Credit Parties
divided by the total combined actual sales of           Foreign Parent Nonguarantor and
all of its Subsidiaries (including the Credit           Parties) (the “Credit
Parties Sales Percentage”), multiplied by (y) the total combined sales,
marketing and other personnel           expenses (excluding general and administrative
expenses, but including any           expenses related to bonuses or incentive
compensation provided to the employees           providing sales, marketing and other
personnel services) incurred by Foreign           Parent Nonguarantor and all of its
Subsidiaries (including the Credit Parties)           during such quarter;" 



        Notwithstanding
the provisions of Sections 9.12 and 9.24 of the Loan Agreement, it is hereby agreed that
the Credit Parties may make one or more payments to Citibank for investment banking fees
incurred by Foreign Parent Nonguarantor in connection with its acquisition of Parent
Guarantor in an aggregate amount not to exceed $1,915,000, provided that
each such payment is reimbursed in full, in cash, to such Credit Party (by Foreign Parent
Nonguarantor or any of its Affiliates that is not a Credit Party) within ninety (90) days
after such payment is made by such Credit Party and all such payments and reimbursements
are made not later than December 31, 2009. 
















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



             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. 



        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. 



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



        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. 



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



             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. 



             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 obligation 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. 



        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. 



        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. 



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



        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. 



             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. 



        Capitalized
terms not expressly defined elsewhere in this Amendment have meanings as set forth in the
Loan Agreement. 



        Reference
to and Effect on the Financing Agreements. 



        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 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. 



        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. 













        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. 



        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. 



             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. 



             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. 



             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]














        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/ SUSANNA H. BENNETT

Title: Chief Financial Officer



NEWPORT FAB, LLC,

as a Borrower





By: /s/ SUSANNA H. BENNETT

Title: Chief Financial Officer of Jazz Semiconductor, Inc.

 the sole owner of Newport Fab, LLC



JAZZ TECHNOLOGIES, INC.,

as a Guarantor





By: /s/ SUSANNA H. BENNETT

Title: Chief Financial Officer



WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN),

as Agent and a Lender





By: /s/ ROBIN VAN METER

Title: Vice President