exv10w1



 







Exhibit 10.1




SECOND MODIFICATION TO

LOAN AND SECURITY AGREEMENT




     This Second Modification to Loan and Security Agreement (the “Second Modification”) is
entered into as of July 31, 2006 by and between Therma-Wave, Inc., a California corporation
(“Borrower”) and Silicon Valley Bank, a California-chartered bank (“Bank”).


1.     DESCRIPTION OF EXISTING INDEBTEDNESS. Among other indebtedness which may be owing by
Borrower to Bank, Borrower is indebted to Bank pursuant to that certain Amended and Restated Loan
and Security Agreement dated as of June 10, 2005 (as may be amended from time to time, the “Loan
Agreement”). The Loan Agreement provides for, among other things, loans in the principal amount of
up to Fifteen Million Dollars ($15,000,000.00). Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings accorded to them in the Loan Agreement; provided,
that all indebtedness owing by Borrower to Bank under the Loan Agreement shall be referred to
herein as the “Indebtedness.”



2.     DESCRIPTION OF COLLATERAL. Repayment of the Indebtedness is secured by the Collateral
as described in the Loan Agreement and herein. Hereinafter, all documents securing repayment of
the Indebtedness, together with all other documents evidencing or securing the Indebtedness, shall
be referred to as the “Existing Loan Documents.”



3.     DESCRIPTION OF CHANGES TO THE TERMS OF THE EXISTING LOAN DOCUMENTS.




          3.1     Maturity Date for the Domestic Credit Line and EXIM Credit Line. Section 4 of
Schedule 1 of the Loan Agreement is hereby amended to read in full as follows:




	 	 	 	 	 	 	 
	 

	 	“4.
	 	MATURITY DATE
(Section 6.1):
	 	 June 11,
2008.”






          3.2     Tangible Net Worth. Section 5.2 of Schedule 1 of the Loan Agreement is hereby
amended to read in full as follows:




	 	 	 	 	 	 	 
	 	 	"5.2	 	Minimum Tangible Net Worth:
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Borrower shall maintain a Tangible Net Worth (1) at the end of each
quarter end of not less than $17,500,000 and (2) at the end of each
month which is not a quarter end of not less than $16,000,000, plus
(i) 50% of all consideration received after the date hereof for
equity securities and subordinated debt of the Borrower, plus (ii)
25% of the Borrower’s net income in each fiscal quarter ending after
the date hereof. Increases in the Minimum Tangible Net Worth
covenant based on consideration received for equity securities and
subordinated debt of the Borrower shall be effective as of the end of
the month in which such consideration is received, and shall continue
effective thereafter. Increases in the Minimum Tangible Net Worth
covenant based on net income shall be effective on the last day of
the fiscal






 









 





	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	quarter in which said net income is realized, and shall continue
effective thereafter. In no event shall the Minimum Tangible Net
Worth covenant be decreased.”






          3.3      Minimum Liquidity. Section 5.4 of Schedule 1 of the Loan Agreement is hereby
added to read in full as follows:





5.4 Minimum Liquidity Ratio. Borrower shall maintain a Minimum
Liquidity Ratio of at least 2.0 to 1.0 at all times, tested as of
the last day of each month. Minimum Liquidity Ratio is calculated
as (i) unrestricted cash and cash equivalents held at the Bank plus
availability under the Domestic Credit Line and EXIM Credit Line
divided by (ii) the outstanding amount of the Term
Loan.



     4.     CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever necessary
to reflect the changes described in Section 3 hereof.



     5.     NO DEFENSES OF BORROWER. Borrower agrees that, as of the date hereof, it has no
defenses against the obligations to pay any amounts of the Indebtedness.



     6.     CONTINUING VALIDITY. Borrower understands and agrees that, in modifying the Existing
Loan Documents, Bank is relying upon Borrower’s representations, warranties and agreements, all as
set forth in the Existing Loan Documents. Except as expressly modified pursuant to this Second
Modification, the terms of the Existing Loan Documents remain unchanged and in full force and
effect, and hereafter the Existing Loan Documents shall include the terms of this Second
Modification as if set forth therein in full. Bank’s agreement to modifications to the Existing
Loan Documents pursuant to this Second Modification shall in no way obligate Bank to make any
future modifications to the Existing Loan Documents. Nothing in this Second Modification shall
constitute a satisfaction of the Indebtedness or any portion thereof. It is the intention of Bank
and Borrower to retain Borrower as the liable party under the Existing Loan Documents, and Borrower
is not released by virtue of this Second Modification. The terms of this paragraph apply not only
to this Second Modification, but also to all subsequent loan modification agreements.



     7.     CONDITION PRECEDENT TO EFFECTIVENESS. Before this Second Modification, (and Bank’s and
Borrower’s respective rights and obligations hereunder) shall be effective, Borrower shall have
paid to Bank all Bank Expenses incurred by Bank in connection with its entering into this Second
Modification.



[Signature Page Follows]




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IN WITNESS WHEREOF, each of the parties hereto has caused its duly authorized representative to
execute and deliver this Second Modification as of the date first set forth above.




	 	 	 	 	 	 	 
	BORROWER:	 	BANK:
	THERMA-WAVE, INC.,	 	SILICON VALLEY BANK,
	a Delaware corporation	 	a California-chartered bank
	 
	 	 	 	 	 	 
	By:

	 	/s/ Joseph J. Passarello
	 	By:
	 	/s/ Mark Harris
	 

	 	 
	 	 	 	 
	Name:

	 	Joseph J. Passarello
	 	Name:
	 	Mark Harris
	 

	 	 
	 	 	 	 
	Title:

	 	Senior Vice President and Chief
Financial Officer
	 	Title:
	 	Relationship Manager
	 

	 	 
	 	 	 	 






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