Exhibit 10.1


 


AMENDMENT
NO. 4 TO

CREDIT AGREEMENT


 


THIS AMENDMENT NO.
4 TO CREDIT AGREEMENT (“Amendment”) is dated as of December 1, 2005 and
is entered into by and between AVIZA TECHNOLOGY, INC., a Delaware corporation
(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, and that certain Amendment No.
3 to Credit Agreement dated as of September 26, 2005 (collectively referred to
herein as the “Credit Agreement”); and


 


WHEREAS, certain
Events of Default have occurred as a result of the Borrower’s failure (i) to
maintain an Adjusted Tangible Net Worth as set forth in Section 7.24 of the
Credit Agreement (prior to the amendment of such Section pursuant to this
Amendment) for the measurement period ending on September 30, 2005, and (ii) to
extend the maturity date of the VPVP Credit Facility or refinance such facility
prior to 60 days before its maturity as set forth in Section 9.1(r)(ii) of the
Credit Agreement (collectively referred to herein as “Existing Events of
Default”); and


 


WHEREAS, the
Borrower has requested that the Lender amend the Credit Agreement as set forth
herein and waive the Existing Events of Default, 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.                                   Definitions.


 


1.                                       The definition of “Trikon”
is hereby added to Annex A of the Credit Agreement as follows:


 


“Trikon” means Trikon Technologies Inc., a Delaware corporation.
and its Subsidiaries.


 


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2.                                       The definition of “Trikon
Obligors” is hereby added to Annex A of the Credit Agreement as follows:


 


“Trikon Obligors” means Trikon Technologies Inc., a Delaware
corporation, Trikon Equipments Limited, a company created under the laws of the
United Kingdom and E.T. Equipments Limited, a company created under the laws of
the United Kingdom.


 


3.                                       The definition of “Adjusted
Tangible Net Worth” as set forth in Annex A of the Credit Agreement is
hereby amended and restated in its entirety as follows:


 


“Adjusted Tangible Net Worth” means, at any
date:  (a) the book value (after
deducting related depreciation, obsolescence, amortization, valuation, and
other proper reserves as determined in accordance with GAAP) at which the
Adjusted Tangible Assets would be shown on a balance sheet of the Borrower at
such date prepared in accordance with GAAP, less (b) the amount at which
the Borrower’s liabilities would be shown on such balance sheet, including as
liabilities all reserves for contingencies and other potential liabilities
which would be required to be shown on such balance sheet in accordance with
GAAP, but excluding Borrower’s liabilities in the amount of $11,000,000 with
respect to the Series B Preferred Stock and Series B-1 Preferred Stock
investments made in Borrower.


 


4.                                       The definition of “Restricted
Investment” as set forth in Annex A of the Credit Agreement is hereby
amended and restated in its entirety as follows:


 


“Restricted Investment” means, as to the Borrower, any
acquisition of property by the Borrower in exchange for cash or other property,
whether in the form of an acquisition of stock, debt, or other indebtedness or
obligation, or the purchase or acquisition of any other property, or a loan,
advance, capital contribution, or subscription, except the following:  (a) acquisitions of Equipment to be used in
the business of the Borrower so long as the acquisition costs thereof
constitute Capital Expenditures permitted hereunder; (b) acquisitions of
Inventory in the ordinary course of business of the Borrower; (c) acquisitions
of current assets acquired in the ordinary course of business of the Borrower;
(d) direct obligations of the United States of America, or any agency thereof,
or obligations guaranteed by the United States of America, provided that such
obligations mature within one year from the date of acquisition thereof; (e)
acquisitions of certificates of deposit maturing within one year from the date
of acquisition, bankers’ acceptances, Eurodollar bank deposits, or overnight
bank deposits, in each case issued by, created by, or with a bank or trust
company organized under the laws of the United States of America or any state
thereof having capital and surplus aggregating at least $100,000,000; (f)
acquisitions of commercial paper given a rating of “A2”


 


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or better by Standard & Poor’s Corporation or “P2” or better by
Moody’s Investors Service, Inc. and maturing not more than 90 days from the
date of creation thereof; (g) Hedge Agreements; (h) Permitted Acquisitions; (i)
so long as immediately before and after giving effect to such investment no
Event of Default exists, at any time after the Trikon Obligors have granted to
Lender a security interest in their assets satisfactory to Lender in its sole
discretion, cash investments in the Trikon Obligors by Borrower in a net amount
not to exceed $3,000,000 in the aggregate during any Fiscal Year or $5,000,000
in the aggregate at any time.


 


B.                                     EBITDA.  Section 7.23 of the Credit
Agreement is hereby amended and restated in its entirety as follows:


 


“7.23                     EBITDA.  The Borrower and Trikon will
maintain a combined EBITDA as of the last day of each fiscal quarter as set
forth below of not less than the amount set forth opposite each such fiscal
quarter:


 




	
  Measurement Date

  	
   

  	
  Minimum
  EBITDA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending September 30, 2005 (for the fiscal quarter then
  ending)

  	
   

  	
  $

  	
  (2,000,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending December 31, 2005 (for the fiscal quarter then
  ending)

  	
   

  	
  $

  	
  (10,100,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending March 31, 2006 (for the two consecutive fiscal
  quarters then ending)

  	
   

  	
  $

  	
  (18,900,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending June 30, 2006 (for the three consecutive fiscal
  quarters then ending)

  	
   

  	
  $

  	
  (17,700,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending September 30, 2006 (for the four consecutive
  fiscal quarters then ending)

  	
   

  	
  $

  	
  (18,400,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending December 31, 2006 (for the 12 consecutive
  months then ending)

  	
   

  	
  $

  	
  (5,800,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending March 31, 2007 (for the 12 consecutive months
  then ending)

  	
   

  	
  $

  	
  10,100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending June 30, 2007 (for the 12 consecutive months
  then ending)

  	
   

  	
  $

  	
  14,700,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal quarter ending September 30, 2007 (for the 12 consecutive
  months then ending)

  	
   

  	
  $

  	
  22,000,000

  	
  ”

  






 


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C.                                     Adjusted Tangible Net Worth. Section 7.24 of the Credit Agreement is
hereby amended and restated in its entirety as follows:


 


“7.24                     Adjusted Tangible Net Worth.  The
Borrower and Trikon will maintain a combined Adjusted Tangible Net Worth
determined on the last day of each of the months during each period described
below of not less than the amount set forth opposite such period:


 




	
  Period

  	
   

  	
  Minimum

  Adjusted Tangible

  Net Worth

  	
   

  
	
  July 1, 2005
  through September 30, 2005

  	
   

  	
  $

  	
  4,000

  	
   

  
	
  October 1,
  2005 through December 31, 2005

  	
   

  	
  $

  	
  18,100,000

  	
   

  
	
  January 1,
  2006 through March 31, 2006

  	
   

  	
  $

  	
  22,100,000

  	
   

  
	
  April 1,
  2006 through June 30, 2006

  	
   

  	
  $

  	
  20,400,000

  	
   

  
	
  July 1, 2006
  through September 30, 2006

  	
   

  	
  $

  	
  17,300,000

  	
   

  
	
  October 1,
  2006 through December 31, 2006

  	
   

  	
  $

  	
  16,300,000

  	
   

  
	
  January 1,
  2007 through March 31, 2007

  	
   

  	
  $

  	
  23,600,000

  	
   

  
	
  April 1,
  2007 through June 30, 2007

  	
   

  	
  $

  	
  27,300,000

  	
   

  
	
  July 1, 2007
  through September 30, 2007

  	
   

  	
  $

  	
  33,000,000”

  	
   

  






 


D.                                    VPVP Credit Facility. 
Section 9.1(r)  of the Credit
Agreement is hereby amended and restated in its entirety as follows:


 


“(r)                            (i) there shall occur an Event of Default
under the VPVP Credit Facility (as Event of Default is defined therein) or the
Debt thereunder shall be declared due and payable or be required to be prepaid
(other than by a regularly scheduled required prepayment) prior to the stated
maturity thereof; provided that any cure under the VPVP Credit Facility
shall be deemed a cure hereunder, (ii) less than 30 days shall remain until the
VPVP Credit Facility will be terminated (either as a result of the scheduled
maturity thereof or the early termination thereof by the borrowers thereunder);
(iii) or the VPVP Credit Facility shall be refinanced in whole or in part by
any financial institution other than Bank or Fleet National Bank.”


 


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E.                                      General Warranties and Representations. 
Section 6.29 is hereby added to the Credit Agreement as follows:


 


“6.29                     Restricted Investments.  Cash
investments made by Borrower in the Trikon Obligors as permitted in subsection
(i) of the definition of “Restricted Investments” are for the general business
purposes of the Trikon Obligor in which such investment is made and shall not
be invested in, advanced to or otherwise provided by such Trikon Obligor to any
other Trikon entity.”


 


II.                                     Waiver of Existing Event of Default. 
Lender hereby waives the Existing Events of Default.  The waiver of the Existing Events of Default
as set forth herein shall be limited precisely as written and shall not be deemed
to (a) be a waiver or modification of any other term or condition of the
Credit Agreement, or (b) prejudice any right or remedy which Lender may
now have or may have in the future (except to the extent such right or remedy
is based upon the Existing Events of Default) under or in connection with the
Credit Agreement.


 


III.                                 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 or 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.


 


IV.                                 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 confirm its agreements and
covenants contained therein.  The
Borrower hereby confirms that no Event of Default or Default other than the
Existing Events of Default exists.


 


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


 


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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.


 


 


[Remainder
of Page Intentionally Left Blank; Signatures Appear on Following Page]


 


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


 


	
   

  	
  AVIZA TECHNOLOGY, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick C. O’Connor

  	
   

  
	
   

  	
  Name:

  	
   Patrick C. O’Connor

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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 Continuing Guaranty (collectively referred
to herein as the “Continuing Guaranty”) respecting the obligations of
Aviza Technology, Inc., a Delaware corporation (“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:

  	
   Patrick C. O’Connor

  	
   

  
	
   

  	
  Title

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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

  	
   

  
								



 


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