Exhibit 10.1


 


AMENDMENT NO. 6 TO

CREDIT AGREEMENT


 


THIS
AMENDMENT NO. 6 TO CREDIT AGREEMENT (“Amendment”) is dated as of May 1,
2006  and is entered into by and between
AVIZA, INC., a Delaware corporation, formerly known as Aviza Technology, Inc.
(the “Borrower”) and BANK OF AMERICA, N.A. (the “Lender”). All
capitalized terms used herein but not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement (as hereinafter defined).


 


WITNESSETH


 


WHEREAS,
the Borrower and the Lender have entered into that certain Credit Agreement
dated as of August 6, 2004, as amended by that certain Amendment No. 1
to Credit Agreement dated as of September 23, 2004, that certain Amendment
No. 2 to Credit Agreement dated as of February 23, 2005, that certain
Amendment No. 3 to Credit Agreement dated as of September 26, 2005,
that certain Amendment No. 4 to Credit Agreement dated as of December 1,
2005, and that certain Amendment No. 5 to Credit Agreement dated as of March 31,
2006 (collectively referred to herein as the “Credit Agreement”); and


 


WHEREAS,
the Borrower has requested that the Lender amend the Credit Agreement as set
forth herein, and the Lender is willing to do so subject to the terms and
conditions stated herein;


 


NOW,
THEREFORE, in consideration of the premises herein contained and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Lender and the Borrower hereby agree as follows:


 


I.                                         Amendments
to the Agreement. The Lender and Borrower agree that the Credit Agreement
shall be amended as follows:


 


A.                                   Interest Rate.
Section 2.1(a) of the Credit Agreement is hereby amended in its
entirety as follows:


 


“(a)                            Interest Rates. All outstanding Obligations shall bear interest on the unpaid
principal amount thereof (including, to the extent permitted by law, on
interest thereon not paid when due) from the date made until paid in full in
cash at a rate equal to the Base Rate plus 0%, but not to exceed the Maximum
Rate. Each change in the Base Rate shall be reflected in the interest rate
applicable to Revolving Loans as of the effective date of such change. All
interest charges shall be computed on the basis of a year of 360 days and
actual days elapsed (which results in more interest being paid than if computed
on the basis of a 365-day year). The Borrower shall pay to the Lender interest
accrued on all Revolving Loans in arrears on the first day of each month
hereafter and on the Termination Date.”


 


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B.                                     Eligible
Domestic Accounts.


 


1.                                       Subsection (s) of the definition of “Eligible
Domestic Accounts” as set forth in Annex A to the Credit Agreement is hereby
amended in its entirety as follows:


 


“(s)                            owed by an Account Debtor which is obligated to the
Borrower respecting Accounts the aggregate unpaid balance of which exceeds 10%
(or 60% in the case of Account Debtors identified by the Lender in its sole
discretion from time to time) of the aggregate unpaid balance of all Accounts
owed to the Borrower at such time by all of the Borrower’s Account Debtors, but
only to the extent of such excess; provided, that; any Accounts backed
by letters of credit acceptable to Lender shall not be deemed ineligible
pursuant to this subsection (s);”


 


2.                                       Subsection (t) of the definition of “Eligible
Domestic Accounts” as set forth in Annex A to the Credit Agreement is hereby
amended in its entirety as follows:


 


“(t)                              which represents the sale of demo machines; and”


 


II.                                     Conditions.
The effectiveness of this Amendment is subject to the satisfaction of the
following conditions precedent:


 


A.                                   Amendment. Fully
executed copies of this Amendment and the consent attached hereto signed by the
Borrower and the Guarantors as necessary, and delivered to Lender.


 


B.                                     Other Documents.
Borrower shall have executed and delivered to Lender such other documents and
instruments as Lender may reasonably require.


 


III.                                 Miscellaneous.


 


A.                                   Survival of
Representations and Warranties. All representations and warranties made in
the Credit Agreement or any other document or documents relating thereto,
including, without limitation, any Loan Document furnished in connection with
this Amendment, shall survive the execution and delivery of this Amendment and
the other Loan Documents, and no investigation by Lender shall affect the
representations and warranties or the right of Lender to rely thereon.


 


B.                                     Reference to
Credit Agreement. The Credit Agreement, each of the Loan Documents, and any
and all other agreements, documents or instruments now or hereafter executed
and delivered pursuant to the terms hereof, or pursuant to the terms of the
Credit Agreement as amended hereby, are hereby amended so that any reference
therein to the Credit Agreement shall mean a reference to the Credit Agreement
as amended hereby.


 


C.                                     Credit
Agreement Remains in Effect. The Credit Agreement and the Loan Documents,
as amended hereby, remain in full force and effect and the Borrower ratify and


 


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confirm its agreements and covenants contained therein. The Borrower
hereby confirms that no Event of Default or Default.


 


D.                                    Severability.
Any provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this Amendment
and the effect thereof shall be confined to the provision so held to be invalid
or unenforceable.


 


E.                                      APPLICABLE LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF CALIFORNIA.


 


F.                                      Successors and
Assigns. This Amendment is binding upon and shall inure to the benefit of
the Lender and Borrower and their respective successors and assigns; provided,
however, that Borrower may not assign or transfer any of their rights or
obligations hereunder without the prior written consent of the Lender.


 


G.                                     Counterparts.
This Amendment may be executed in one or more counterparts, each of which
when so executed shall be deemed to be an original, but all of which when taken
together shall constitute one and the same instrument.


 


H.                                    Headings. The
headings, captions and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.


 


I.                                         NO ORAL
AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN,
REPRESENTS THE FINAL AGREEMENT BETWEEN THE LENDER AND THE BORROWER AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
LENDER AND BORROWER.


 


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IN WITNESS WHEREOF, the parties have executed this Amendment under seal
on the date first written above.


 


	
   

  	
  AVIZA, INC.,

  
	
   

  	
  a Delaware corporation, formerly

  
	
   

  	
  known as Aviza Technology, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick C. O’Connor

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen King

  	
   

  
	
   

  	
  Name:

  	
   Stephen King

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
									



 


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Each
of the undersigned has executed a separate guaranty (collectively referred to
herein as the “Continuing Guaranty”) respecting the obligations of Aviza, Inc.,
a Delaware corporation, formerly known as Aviza Technology, Inc. (“Borrower”)
owing to Bank of America, N.A. (“Lender”), as set forth in that certain
Credit Agreement dated as of August 6, 2004. Each of the undersigned
acknowledges the terms of the above Amendment and reaffirms and agrees that:
its respective Continuing Guaranty remains in full force and effect; nothing in
any Continuing Guaranty obligates Lender to notify the undersigned of any
changes in the financial accommodations made available to Borrower or to seek
reaffirmations of any Continuing Guaranty; and no requirement to so notify the
undersigned or to seek reaffirmations in the future shall be implied by the
execution of this reaffirmation.


 


	
   

  	
  AVIZA TECHNOLOGY INTERNATIONAL, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Patrick C. O’Connor

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VANTAGEPOINT VENTURE PARTNERS IV, L.P.,

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Alan E. Salzman

  	
   

  
	
   

  	
  Name:

  	
   Alan E. Salzman

  	
   

  
	
   

  	
  Title

  	
   Managing Member

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VANTAGEPOINT VENTURE PARTNERS IV (Q),

  
	
   

  	
  L.P., a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Alan E. Salzman

  	
   

  
	
   

  	
  Name:

  	
   Alan E. Salzman

  	
   

  
	
   

  	
  Title

  	
   Managing Member

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVIZA TECHNOLOGY LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Patrick C. O’Connor

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  	
   

  
										



 


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