Exhibit
10.18.1


 


FIRST AMENDMENT TO LOAN AND SECURITY
AGREEMENT, PROMISSORY NOTE SECURED BY DEED OF TRUST (MORTGAGE LOAN), AND
PROMISSORY NOTE SECURED BY DEED OF TRUST (TERM LOAN)


 


This First Amendment to Loan and Security Agreement, Promissory Note
Secured By Deed of Trust (Mortgage Loan), and Promissory Note Secured By Deed
of Trust (Term Loan)(“Amendment”), dated as of October 31, 2008, by and
between CITIBANK, N.A. (“Lender”), and OMNIVISION
TECHNOLOGIES, INC. (“Borrower”) is made with reference
to the following facts:


 


RECITALS


 


A.          Lender
and Borrower entered into a Loan and Security Agreement, dated as of March 16,
2007 (as amended or modified from time to time, the “Loan Agreement”), pursuant to
which Lender made (i) a Mortgage Loan (as such term is defined in the Loan
Agreement) to Borrower in an initial principal amount not to exceed
Twenty-Seven Million Nine Hundred Twenty-Seven Thousand Forty-Five and No/100
Dollars ($27,927,045.00), and (ii) a Term Loan (as such term is defined in
the Loan Agreement) to Borrower in a total aggregate amount not to exceed
Twelve Million Dollars ($12,000,000), in each case, on the terms and conditions
contained in the Loan Agreement.


 


B.           The
Mortgage Loan is evidenced by that certain Promissory Note Secured by Deed of
Trust (Mortgage Loan), dated March 16, 2007, in the initial principal
amount of Twenty-Seven Million Nine Hundred Twenty-Seven Thousand Forty-Five
and No/100 Dollars ($27,927,045.00) (as amended, modified, renewed or extended,
the “Mortgage
Loan Note”).


 


C.           The
Term Loan is evidenced by that certain Promissory Note Secured by Deed of Trust
(Term Loan), dated March 16, 2007, in the initial principal amount of
Twelve Million and No/100 Dollars ($12,000,000.00) (as amended, modified,
renewed or extended, the “Term Loan Note”).


 


D.          The
parties hereto desire to amend the Loan Agreement, the Mortgage Loan Note and
the Term Loan Note as set forth in this Amendment.


 


E.           Except
as may be otherwise expressly defined in this Amendment, all capitalized terms
used in this Agreement shall have the meanings ascribed to them in the Loan
Agreement.


 


NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 


AGREEMENT


 


1.           Recitals.
The Recitals set forth above are incorporated into this Amendment by this
reference.


 

















 


2.           Modification of Loan
Agreement.


 


2.1           The
definition of Interest Period set forth in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and replaced with the following:


 


“`Interest Period’ means for (a) for the first
Interest Period hereunder, from the date of initial funding of either of the
Loans through and including March 31, 2007, and (b) for each Interest
Period thereafter commencing April 1, 2007, one calendar month (i.e.,
periods ending on the last day of each calendar month).”


 


2.2           The
definition of LIBOR Rate (Term Loan) set forth in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and replaced with the following:


 


“`LIBOR Rate (Term Loan)’ means, for each Interest
Period, the rate per annum determined by Lender as the sum of (a) the
quotient of (i) the LIBOR Base Rate (Term Loan) for such Interest Period, divided
by (ii) 100% minus the
Reserve Percentage, plus (b) one and one-quarter percent (1.25%). The
LIBOR Rate shall be adjusted on and as of the effective day of any change in
the Reserve Percentage.”


 


2.3           The
definition of LIBOR Rate (Mortgage Loan) set forth in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and replaced with the
following:


 


“`LIBOR Rate (Mortgage Loan)’ means, for each
Interest Period, the rate per annum determined by Lender as the sum of (a) the
quotient of (i) the LIBOR Base Rate (Mortgage Loan) for such Interest
Period, divided by (ii) 100% minus
the Reserve Percentage, plus (b) nine-tenths percent (0.90%). The LIBOR
Rate (Mortgage Loan) shall be adjusted on and as of the effective day of any
change in the Reserve Percentage.”


 


2.4           Section 3.2(a)(ii) of
the Loan Agreement is hereby deleted in its entirety and replaced with the
following:


 


“(ii)         Commencing
on May 1, 2007, and continuing on the first day of each calendar month
thereafter to and including October 1, 2008, Borrower shall make monthly
payments to Lender of principal and interest (in arrears) in an amount
necessary to fully amortize the Mortgage Loan over an amortization period
ending on April 30, 2032.”


 


2.5           Section 3.2(a)(iii) of
the Loan Agreement is hereby deleted in its entirety and replaced with the
following:


 


“(iii)        On
November 1, 2008, Borrower shall make a monthly principal payment in an
amount equal to Seventy-Six Thousand Five Hundred Fourteen and 54/100 Dollars
($76,514.54), plus interest in arrears at the LIBOR Rate (Mortgage Loan). Commencing
on December 1, 2008, and continuing on the first day of each calendar
month thereafter, Borrower shall make one hundred and one (101) monthly
principal payments in an amount equal to Forty-Six Thousand One Hundred
Thirty-Eight and 27/100 Dollars ($46,138.27), plus interest in arrears at the
LIBOR Rate (Mortgage Loan).”


 


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2.6           The
following Section 3.2(a)(iv) is added to the Loan Agreement:


 


“(iv)        The
entire balance of principal and accrued interest and other amounts then outstanding
on the Mortgage Loan are due and payable on the Maturity Date (Mortgage Loan).
Borrower acknowledges that such balance will not equal the monthly payments
specified in Section 3.2(a)(i),  Section 3.2(a)(ii) and
Section 3.2(a)(iii).”


 


3.           Modification
of the Mortgage Loan Note. The Mortgage Loan Note is hereby modified as
follows:


 


3.1           The
provision in Section 6 of the Mortgage Loan Note is hereby deleted in its
entirety and replaced with the words, “INTENTIONALLY OMITTED.”


 


3.2           The
first sentence in Section 7 of the Mortgage Loan Note is hereby deleted in
its entirety and replaced with the following:


 


“Each payment hereunder shall be applied when received, first, to
accrued unpaid interest; then, to principal; and then to any unpaid Past Due
Charge (as defined in the Loan Agreement) and other unpaid fees and charges,
unless another order of payment is selected by Lender or is otherwise required
by applicable law.”


 


4.           Modification
of the Term Loan Note. The Term Loan Note is hereby modified as follows:


 


4.1           The
provision in Section 6 of the Term Loan Note is hereby deleted in its
entirety and replaced with the words, “INTENTIONALLY OMITTED.”


 


5.           Representations
and Warranties of Borrower. Borrower hereby represents and warrants to
Lender as follows:


 


5.1           No
Event of Default specified in the Loan Agreement and no event, which with
notice or lapse of time or both would become such an Event of Default, has
occurred and is continuing.


 


5.2           The
representations and warranties of Borrower pursuant to the Loan Agreement are
true on and as of the date hereof as if made on and as of said date.


 


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5.3           The
making and performance by Borrower of this Amendment have been duly authorized
by all necessary action.


 


5.4           No
consent, approval, authorization, permit or license is required solely on
account of Borrower in connection with the making or performance of the Loan
Agreement, as amended hereby.


 


6.           Conditions
Precedent. The effectiveness of this Amendment is expressly conditioned
upon receipt by Lender of a counterpart original of this Amendment duly
executed by each of the parties hereto.


 


7.           Miscellaneous


 


7.1           No
failure on Lender’s part at any time to require the performance by Borrower of
any term of the Loan Agreement, as amended hereby, or any other Loan Document
shall in any way affect Lender’s rights to enforce such term, nor shall any
waiver by Lender of any term thereof be taken or held to be a waiver of any
other term thereof or of any breach or subsequent breach thereof.


 


7.2           Borrower
acknowledges and confirms its liability for all Indebtedness and Obligations
under the Loan Agreement, as amended hereby, and the other Loan Documents.


 


7.3           This
Amendment is made exclusively for the benefit of and solely for the protection
of Lender, on the one hand, and Borrower, on the other hand, and no other
person or persons shall have the right to enforce the provisions hereof by
action or legal proceedings or otherwise.


 


7.4           Whenever
the context so requires, all words used in the singular will be construed to
have been used in the plural, and vice versa, and each gender will include any
other gender. The headings used in this Amendment are inserted solely for the
convenience of reference and are not part of, nor intended to govern, limit or
aid in the construction of, any term or provision hereof.


 


7.5           At
no time shall the prior or subsequent course of conduct between Lender and
Borrower directly or indirectly limit, impair, or otherwise adversely affect
either party’s rights or remedies in connection with the Loan Agreement, this
Amendment or the other Loan Documents, or detract from or otherwise affect the
literal interpretation and effect of such documents.


 


7.6           This
Amendment represents the entire understanding and agreement of the parties with
respect to the subject matter hereof, except to the extent that the Loan
Agreement, the Mortgage Loan Note and the other Loan Documents still remain in
effect as described herein, and the same may not be altered or amended, except
by subsequent written agreement executed by the parties hereto. The parties
hereto acknowledge receipt of a copy of this Amendment.


 


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7.7           In
the event of a conflict between the terms and provisions of this Amendment and
the terms and provisions of the Loan Agreement or the Mortgage Loan Note, the
terms and provisions of this Amendment shall govern. In all other respects, the
Loan Agreement and the Mortgage Loan Note, each as amended and supplemented
hereby, shall remain in full force and effect.


 


7.8           This
Amendment may be executed in any number of counterparts and by different
parties on separate counterparts, each of which when so executed and delivered
shall be deemed to be an original. All such counterparts, taken together, shall
constitute but one and the same Amendment.


 


7.9           This
Amendment will be governed by federal law applicable to Lender and, to the
extent not preempted by federal law, the laws of the State of California
without regard to its conflicts of law provisions.


 


7.10         TO THE FULLEST EXTENT
PERMITTED BY LAW, BORROWER AND LENDER EACH HEREBY WAIVE THE RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO, THIS AMENDMENT, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
NOTWITHSTANDING THE FOREGOING, ANY CONTROVERSY HEREUNDER SHALL BE GOVERNED BY
THE TERMS AND CONDITIONS OF THAT CERTAIN ALTERNATIVE DISPUTE RESOLUTION
AGREEMENT, DATED AS OF MARCH 16, 2007 BY AND BETWEEN BORROWER AND LENDER


 


IN WITNESS WHEREOF, this Amendment has been executed by the parties
hereto as of the date first above written.


 


OMNIVISION TECHNOLOGIES, INC.,

a Delaware corporation


 


	
  By: 

  	
  /s/ Anson Chan

  	
   

  
	
  Name: 

  	
  Anson Chan

  	
   

  
	
  Title: 

  	
  Chief Financial Officer

  	
   

  
					



 


 


CITIBANK, N.A.


 


	
  By:

  	
  /s/ Robert J. Hurley

  	
   

  
	
   

  	
  Robert J. Hurley

  
	
   

  	
  Vice President

  



 


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