Exhibit 10.1


 


FIRST AMENDMENT


TO


LOAN AND SECURITY AGREEMENT


 


THIS
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT is entered
into as of September 30, 2008 (the “Amendment”), by
and among United Commercial Bank (“Agent”), the
financial institutions named on the signature pages hereto (each, a “Lender”
and collectively, the “Lenders”), and Aviza Technology, Inc., a Delaware
corporation, and Aviza, Inc., a Delaware corporation (each referred to
individually as a “Borrower” and
collectively, as the “Borrowers”).


 


RECITALS


 


Borrowers and
Agent are parties to that certain Loan and Security Agreement dated as of April 13,
2007, as amended from time to time (the “Agreement”).  The parties desire to amend the Agreement in
accordance with the terms of this Amendment.


 


NOW,
THEREFORE, the parties agree as follows:


 


1.                                     The
following defined terms in Section 1.1 of the Agreement are hereby added
or amended to read as follows:


 


“Borrowing Base” means an amount equal
to (i) eighty percent (80%) of Eligible Accounts net of Retention Accounts
plus (ii) the lesser of $5,000,000 or fifty percent (50%) of Retention
Accounts whereby remittances are paid directly to Borrowers’ account(s) maintained
with Agent, plus (iii) twenty-five percent (25%) of Domestic Inventory,
which shall not exceed fifty percent (50%) of the aggregate value of
subsections (i) and (ii) herein.


 


“Eligible
Foreign Accounts” means Accounts with respect to which
the account debtor does not have its principal place of business in the United
States and such Accounts are being paid directly to Borrowers’ accounts with
Agent, and (i) the account debtor is publicly traded in their respective
region and acceptable to Agent, or (ii) the Account is backed by foreign
credit insurance reasonably acceptable to Agent and showing Agent as additional
loss payee, or (iii) the Account is backed by letters of credit advised
through Agent.


 


“Liquidity
Ratio” means (i) the sum of Cash plus (a) eighty
percent (80%) of Eligible Accounts net of Retention Accounts plus (b) the
lesser of $5,000,000 or fifty percent (50%) of Retention Accounts whereby
remittances are paid directly to Borrowers’ account(s) maintained with
Agent, plus (c) twenty-five percent (25%) of Domestic Inventory, which
shall not exceed fifty percent (50%) of the aggregate value of subsections (a) and
(b) herein; divided by (ii) the amount outstanding on the Revolving
Line plus the current portion (within twelve months) of amounts owed (including
principal and interest) under the Equipment Facility and Real Estate Facility.


 


“Revolving
Line” means Credit Extensions of up to Twenty-Nine
Million Dollars ($29,000,000).


 


“UK Subsidiary”  means Borrowers’ Subsidiary registered and
located in the United Kingdom.


 


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2.                                     Subsection
(c) of the defined term Eligible Accounts in Section 1.1 is amended
in its entirety to read as follows:


 


Accounts with respect to an account debtor, including
Subsidiaries and Affiliates, whose total obligations to Borrower exceed 20%
(Concentration Limit) of all Accounts; or, for certain account debtors, whom
the Agent will approve on a case by case basis as agreed in writing by the
Agent;


 


3.                                     The
last sentence of Section 2.1.3(a) is amended in its entirety to read
as follows:


 


Subject to the terms and conditions of this Agreement,
amounts borrowed pursuant to this Section 2.1.3 may be repaid and
reborrowed at any time prior to the Revolving Facility Advance Maturity Date,
at which time all Advances under this Section 2.1.3 shall be immediately
due and payable.


 


4.                                     The
following is hereby added after the first sentence of Section 2.1.3(b):


 


For any Eligible Foreign Accounts, Borrowers shall
provide to Agent original invoices along with (i) proof of credit
insurance acceptable to Agent and showing Agent as additional loss payee, or (ii) the
stock symbol and the name of the stock exchange upon which the Account debtor’s
stock is traded, or (iii) a copy of the letter of credit advised through
Agent.


 


5.                                     Section 2.2(a) is
amended in its entirety to read as follows:


 


(a)                                  Interest
Rates.  Except as set forth in Section 2.2(b),
the outstanding principal balance of each Credit Extension shall bear interest
(computed daily on the basis of a 360 day year and actual days elapsed), at a
floating rate per annum equal to the LIBOR Rate plus 4.00%.


 


6.                                     Section 6.3(a) is
amended in its entirety to read as follows:


 


(a) as soon as available, but in any event within
twenty-five (25) days after the end of each month, Borrowers’ consolidated
financial statements, prepared in accordance with GAAP, consistently applied,
signed by a Responsible Officer in substantially the form of Exhibit C;


 


7.                                     The
following subsection (vi) is added to the end of Section 6.3(c) as
follows:


 


and (vi) a monthly summary report of outstanding
purchase orders, indicating fulfilled and unfulfilled amounts on such purchase
orders.


 


8.                                     The
following subsection (g) is added immediately following the end of
subsection (f) to Section 6.3 as follows:


 


; and (g) as soon as available, but in any event
within forty-five (45) days after the end of each quarter, a Compliance
Certificate signed by a Responsible Officer in substantially the form of Exhibit C.


 


9.                                     Section 6.4
is amended in its entirety to read as follows:


 


6.4                                 Collateral
Audits.  At Borrowers’ expense, Agent
shall have a right to audit Borrowers’ Accounts and appraise Collateral through
Agent’s appointed auditor, provided that such audits will be conducted no more
often than twice every 12 months, 


 

















 


unless an Event of Default has occurred and is continuing.  For the avoidance of doubt, all such audits
shall be conducted at Borrower’s expense.


 


10.                              Section 6.6
is amended in its entirety to read as follows:


 


6.6                                 Debt
to Tangible Net Worth Ratio.  Borrowers
shall maintain as of the last day of each quarter a Debt to Tangible Net Worth
Ratio not greater than 3.75 to 1:00.


 


11.                              The
last sentence of Section 6.9 is amended in its entirety to read as
follows:


 


Borrowers shall
also maintain insurance relating to Borrowers’ ownership and use of their
property, including the Real Estate, in amounts and of a type that are
customary to businesses similar to Borrowers’, provided that such amounts shall
be no less than the replacement cost of such property.


 


12.                              Section 6.10
is amended in its entirety to read as follows:


 


6.10                           Primary
Depository.  Borrowers shall maintain all
of its domestic depository, investment and operating accounts with Agent or
Agent’s Affiliates. The depository, investment and operating accounts of the UK
Subsidiary shall be subject to appropriate security documents for the benefit
of Agent and in form and substance reasonably satisfactory to Agent.


 


13.                              The
following shall be added as Section 6.14 to the Agreement:


 


6.14                           UK
Subsidiary.  In any quarter in which the
UK Subsidiary has Indebtedness outstanding to any Person other than Borrowers,
the Indebtedness of the UK Subsidiary owing to Borrowers shall not exceed
$2,000,000, as measured on an average daily balance.


 


14.                              Exhibits
C and D to the Agreement are replaced by the Exhibits C and D provided to
Borrowers by Agent, forms of which are attached hereto.


 


15.                              Unless
otherwise defined, all initially capitalized terms in this Amendment shall be
as defined in the Agreement.  The
Agreement, as amended hereby, shall be and remain in full force and effect in
accordance with its respective terms and hereby is ratified and confirmed in
all respects.  The execution, delivery,
and performance of this Amendment shall not operate as a waiver of, or as an
amendment of, any right, power, or remedy of Agent under the Agreement, as in
effect prior to the date hereof.  Each
Borrower ratifies and reaffirms the continuing effectiveness of all
applications, instruments, documents and agreements entered into in connection
with the Agreement.


 


16.                              Each
Borrower represents and warrants that the representations and warranties
contained in the Agreement are true and correct as of the date of this
Amendment, and that no Event of Default has occurred and is continuing.


 


17.                              This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one instrument.


 


18.                              As
a condition to the effectiveness of this Amendment, Agent shall have received,
in form and substance satisfactory to Agent, the following:


 


(a)                                  this
Amendment, duly executed by Borrower;


 


(b)                                  an
amendment fee of $20,000, plus all Agent Expenses incurred through the date of
this Amendment; and


 

















 


(c)                                  such
other documents, and completion of such other matters, as Agent may reasonably
deem necessary or appropriate.


 


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IN
WITNESS WHEREOF,
the undersigned have executed this Amendment as of the first date above
written.


 


	
   

  	
  AVIZA TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Patrick C. O’Connor

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Executive VP and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVIZA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Patrick C. O’Connor

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Executive VP and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNITED COMMERCIAL BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Yu Fu Lin

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  FVP & Relationship Manager

  
				



 

















 


IN
WITNESS WHEREOF,
the undersigned have executed this Amendment as of the first date above
written.


 


 


	
   

  	
  EAST WEST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Chan

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  FVP

  
					



 

















 


IN WITNESS
WHEREOF, the undersigned
have executed this Amendment as of the first date above written.


 


 


	
   

  	
  CHINATRUST BANK (USA)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jane Ho

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Jane Ho, SVP & Regional Manager