SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT AND WAIVER
Exhibit 10.1
SECOND
AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
AND WAIVER
THIS
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT AND
WAIVER (this “Amendment”), dated
as of July 16,
2009, is entered into among Jazz Semiconductor, Inc., a Delaware corporation
(“Jazz”)
Newport Fab, LLC (d/b/a Jazz Semiconductor Operating Company), a Delaware
limited liability company (“Operating Company”,
and Operating Company together with Jazz, collectively, the “Borrowers” and each
of them individually, a “Borrower”), Jazz
Technologies, Inc, formerly known as Acquicor Technology
Inc., a Delaware corporation (“Parent Guarantor”),
the lenders party to the “Loan Agreement” as defined below (each
individually, a ‘‘Lender” and
collectively, “Lenders”), and
Wachovia Capital Finance Corporation (Western), a California corporation, in its
capacity as agent for the Lenders (in such capacity, “Agent”).
RECITALS
A. Borrowers,
Parent Guarantor, Agent, Lenders, and Wachovia Capital Markets, LLC, in its
capacity as lead arranger, bookrunner and syndication agent, have previously
entered into that certain Second Amended and Restated Loan and Security
Agreement dated as of September 19, 2008, as amended by the First Amendment to
Second Amended and Restated Loan and Security Agreement, dated as of March 17,
2009 (as amended, the “Loan Agreement”),
pursuant to which Agent and Lenders have made certain loans and financial
accommodations available to Borrowers. Terms used herein without
definition shall have the meanings ascribed to them in the Loan
Agreement.
B. The
following Events of Default have occurred and are continuing under Section
9.11(g) of the Loan Agreement:
(1) Parent
Guarantor repurchased Indebtedness arising under the Senior Notes on June 22,
2009. Such repurchase was not permitted pursuant to Section 9.11(g)
of the Loan Agreement as Borrowers’ Excess Availability plus Qualified Cash was
not projected, to the Agent’s reasonable satisfaction, to be $30,000,000 or more
for 60 consecutive days following the consummation of such repurchase;
and
(2) Parent
Guarantor repurchased Indebtedness arising under the Senior Notes on July 1,
2009. Such repurchase was not permitted pursuant to Section 9.11(g)
of the Loan Agreement as (i) an Event of Default had occurred and was
continuing; (ii) Borrowers’ Excess Availability plus Qualified Cash
was less than $30,000,000; and (iii) Borrowers’ Excess Availability plus
Qualified Cash was not projected, to the Agent’s reasonable satisfaction, to be
$30,000,000 or more for 60 consecutive days following the consummation of such
repurchase
The
foregoing Events of Default will be referred to herein as the “Specified Existing
Defaults”.
C. Borrowers
and Guarantor have requested that Agent and the Lenders amend the Loan Agreement
and waive the Specified Existing Defaults, which Agent and the Lenders are
willing to do pursuant to the terms and conditions set forth
herein.
D. Borrowers
and Guarantor are entering into this Amendment with the understanding and
agreement that, except as specifically provided herein, none of Agent’s or
any Lender’s
rights or remedies as set forth in the Loan Agreement is being waived or
modified by the terms of this Amendment.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Amendment to Loan
Agreement.
Section 1
of the Loan Agreement is hereby amended by inserting the following new
Section1.122A:
“1.122A “Second Amendment Effective
Date” shall mean July 16, 2009.
Section
9.11(g) of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
“(g) Parent
Guarantor may repurchase any of its Indebtedness arising under the Senior Notes;
provided, that
at the time of such repurchase and after giving effect thereto, (A) no Default
or Event of Default shall have occurred and be continuing, (B) Borrowers’ Excess
Availability plus Qualified Cash
shall not be less than (i) for the period commencing on the Second Amendment
Effective Date and ending on December 31, 2009, $20,000,000 and (ii) at all
other times, $30,000,000; (C) Borrowers’ Excess Availability plus Qualified Cash
shall be projected, to the Agent’s reasonable satisfaction, to be (i) for the
period commencing on the Second Amendment Effective Date and ending on December
31, 2009, $20,000,000 or more for 90 consecutive days following the consummation
of such repurchase and (ii) at all other times, $30,000,000 or more for 90
consecutive days following the consummation of such repurchase, and (D) the
aggregate amount of all such repurchases made after the Effective Date and
permitted by this Section 9.11(g) shall not exceed $20,000,000.”
Notwithstanding
the provisions of Sections 9.12 and 9.24 of the Loan Agreement, it is hereby
agreed that the Borrowers may purchase from Foreign Parent Nonguarantor the
assets described on Schedule I hereto for
an aggregate amount not to exceed $6,950,000; provided that all
such assets shall constitute Collateral.
Section
9.24(d) of the Loan Agreement is hereby modified and amended to read in its
entirety as follows:
“(d) make
payments to third party vendors for assets purchased by, or services rendered
to, Foreign Parent Nonguarantor or any of its Affiliates that is not a Credit
Party, provided
that (i) no
Default or Event of Default has occurred and is continuing or would occur as a
result of such vendor payment, (ii) the Excess Availability, after giving effect
to such vendor payment, shall be equal to or greater than $10,000,000, (iii) the
maximum aggregate amount of all such vendor payments, at any one time, made by
the Credit Parties net of any cash reimbursements therefor received by the
Credit Parties from Foreign Parent Nonguarantor, or any of its Affiliates that
is not a Credit Party, shall not exceed $2,000,000 during the term of this
Agreement, and (iv) the Credit Parties will invoice Foreign Parent Nonguarantor
or any of its Affiliates that is not a Credit Party once per quarter for all
such assets purchased by, or services rendered, and the Credit Parties shall
receive such cash reimbursements within 45 calendar days of the date of such
invoice, provided that in the event that the quarterly purchases exceed
$250,000, Foreign Parent Nonguarantor will pay for all invoices exceeding said
amount separately; and”
Waiver of Specified Existing
Defaults. Agent and Lenders hereby waive enforcement of their
rights against Borrowers and Guarantors arising from the Specified Existing
Defaults; provided, however, nothing herein shall be deemed a waiver with
respect to any failure of any Borrower or Guarantor to comply fully with Section
9.11 of the Loan Agreement in any other respect. This waiver shall be
effective only for the specific defaults comprising the Specified Existing
Defaults, and in no event shall this waiver be deemed to be a waiver of
enforcement of Agent’s or Lenders’ rights with respect to any other Defaults or
Events of Default now existing or hereafter arising.
Effectiveness of this
Amendment. The effectiveness of this Amendment (and the
waivers contained herein) is subject to the satisfaction of each of the
following conditions precedent:
Amendment. Agent
shall have received this Amendment, fully executed by Borrowers, Guarantor,
Agent and Required Lenders in a sufficient number of counterparts for
distribution to all parties.
Accommodation
Fee. Agent shall have received, for the ratable benefit of the
Lenders, a non-refundable accommodation fee in the amount of Ten Thousand
Dollars ($10,000), which fee is fully earned as of and due and payable on the
date hereof.
Representations and
Warranties. The representations and warranties set forth
herein and in the Loan Agreement must be true and correct.
Other Required
Documentation. All other documents and legal matters in
connection with the transactions contemplated by this Amendment shall have been
delivered or executed or recorded and shall be in form and substance
satisfactory to Agent.
Representations and
Warranties. Each Borrower and Guarantor each represents and
warrants as follows:
Authority. Each
Borrower and Guarantor have the requisite company power and authority to execute
and deliver this Amendment, and to perform its obligations hereunder and under
the Financing Agreements (as amended or modified hereby) to which it is a
party. The execution, delivery and performance by each Borrower and
Guarantor of this Amendment have been duly approved by all necessary company
action and no other company proceedings are necessary to consummate such
transactions.
Enforceability. This
Amendment has been duly executed and delivered by each Borrower and
Guarantor. This Amendment and each Financing Agreement (as amended or
modified hereby) are the legal, valid and binding obligation of each Borrower
and Guarantor, enforceable against each Borrower and Guarantor in accordance
with their terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium or similar laws limiting creditors’ rights generally or
by general equitable principles, and are in full force and effect.
Representations and
Warranties. The representations and warranties contained in
each Financing Agreement (other than any such representations or warranties
that, by their terms, are specifically made as of a date other than the date
hereof) are correct on and as of the date hereof as though made on and as of the
date hereof.
Execution. The
execution, delivery and performance of this Amendment are within the power of
each Borrower and Guarantor, have been duly authorized by all necessary company
action, have received all necessary governmental approval, if any, and do not
contravene any law or any contractual restrictions binding on any Borrower or
Guarantor.
No
Default. Except for the Specified Existing Defaults, no event
has occurred and is continuing that constitutes an Event of
Default.
Choice of
Law. The validity of this Amendment, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the internal
laws of the State of California governing contracts only to be performed in that
State.
Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
and separate counterparts, each of which when so executed and delivered, shall
be deemed an original, and all of which, when taken together, shall constitute
one and the same instrument. Delivery of an executed counterpart of a
signature page to this Amendment by telefacsimile shall be effective as delivery
of a manually executed counterpart of this Amendment.
Reference to and Effect on
the Financing Agreements.
Upon and
after the effectiveness of this Amendment, each reference in the Loan Agreement
to “this Agreement”, “hereunder”, “hereof” or words of like import referring to
the Loan Agreement, and each reference in the other Financing Agreements to “the
Loan Agreement”, “thereof” or words of like import referring to the Loan
Agreement, shall mean and be a reference to the Loan Agreement as modified and amended
hereby.
Except as
specifically amended above, the Loan Agreement and all other Financing
Agreements, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed.
The
execution, delivery and effectiveness of this Amendment shall not, except
as expressly
provided herein, operate as a waiver of any right, power or remedy of Agent or
any Lender under any of the Financing Agreements, nor constitute a waiver of any
provision of any of the Financing Agreements.
To the
extent that any terms and conditions in any of the Financing Agreements shall
contradict or be in conflict with any terms or conditions of the Loan Agreement,
after giving effect to this Amendment, such terms and conditions are hereby
deemed modified or amended accordingly to reflect the terms and conditions of
the Loan Agreement as modified or amended hereby.
Estoppel. To
induce Agent and Lenders to enter into this Amendment and to induce Agent and
Lenders to continue to make advances to Borrowers under the Loan Agreement, each
Borrower and Guarantor hereby acknowledges and agrees that, after giving effect
to this Amendment, as of the date hereof, there exists no Default or Event of
Default and no right of offset, defense, counterclaim or objection in favor of
any Borrower or Guarantor as against Agent or any Lender with respect to the
Obligations.
Integration. This
Amendment, together with the other Financing Agreements, incorporates all
negotiations of the parties hereto with respect to the subject xxxxxx hereof and
is the final expression and agreement of the parties hereto with respect to the
subject matter hereof.
Severability. In
case any provision in this Amendment shall be invalid, illegal or unenforceable,
such provision shall be severable from the remainder of this Amendment and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
[Remainder
of Page Left Intentionally Blank]
IN
WITNESS WHEREOF, the parties have entered into this Amendment as of the date
first above written.
JAZZ
SEMICONDUCTOR, INC.,
as
a Borrower
By:
/s/ XXXXXXX X. XXXXXXX
Title: Chief
Financial Officer
NEWPORT
FAB, LLC,
as
a Borrower
By:
/s/ XXXXXXX X. XXXXXXX
Title: Chief
Financial Officer of Jazz Semiconductor, Inc.
the
sole owner of Newport Fab, LLC
as
a Guarantor
By:
/s/ XXXXXXX X. XXXXXXX
Title: Chief
Financial Officer
WACHOVIA
CAPITAL FINANCE CORPORATION (WESTERN),
as
Agent and a Lender
By: /s/ XXXXX
VAN METER
Title:
Vice President
SCHEDULE
I
|
Asset
|
Estimated
Equipment Cost
|
Estimated
Installation Cost
|
|
Emax
or SuperE oxide etch Platform with 3 chamber
|
$1,250,000
|
$250,000
|
|
1
DUV lithography cell
|
$3,600,000
|
$500,000
|
|
1
Endura metal tool
|
$1,100,000
|
$250,000
|
