February 16, 2007
Exhibit
10.35
February
16, 2007
Jazz
Semiconductor, Inc.
0000
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Ladies
and Gentlemen:
Reference
is made to that certain Loan and Security Agreement, dated as of January 6,
2006
(the “Loan
Agreement”),
by
and among Wachovia Capital Finance Corporation (Western) (“Lender”),
Jazz
Semiconductor, Inc., a Delaware corporation (“Parent”),
and
Newport Fab, LLC, a Delaware limited liability company (“Operating
Company”,
Operating Company and Parent, collectively, the “Borrowers”,
and
each a “Borrower”).
Unless otherwise defined in this letter, any capitalized terms that are defined
in the Loan Agreement shall have the same meanings as used herein.
Pursuant
to the terms of Section 9.7(a) of the Loan Agreement (and subject to certain
exceptions), no Borrower shall permit any Person to merge into or with or
consolidate with it. Borrowers wish to have Joy Acquisition Corp., a Delaware
corporation (“Merger
Sub”),
merge
with and into Parent (with Parent as the surviving corporation) in accordance
with the terms of that certain Agreement and Plan of Merger dated as of
September 26, 2006, by and among Acquicor Technology Inc., a Delaware
corporation (“Acquicor”),
Merger Sub, Parent, and TC
Group,
L.L.C (the “Proposed
Merger”).
The
terms
of Section 9.7(a) of the Loan Agreement prohibit such an action by the Borrowers
and therefore the Borrowers have requested that the Lender consent to such
action.
Lender
hereby consents to the Borrowers consummating the Proposed Merger; provided
that (i)
within ten (10) Business Days of the date hereof Borrowers and Lender, in its
capacity as agent for certain financial institutions, have amended and restated
the Loan Agreement consistent with the terms of that certain Commitment Letter
dated September 26, 2006, issued by Lender and Wachovia Capital Markets, LLC
to
Acquicor; and (ii) from the date hereof no additional Loans or Letters of Credit
shall be available to Borrowers under the Loan Agreement (it being understood
that loans and letters and credit would be made available to Borrowers under
the
terms and subject to the conditions contained in such amended and restated
loan
agreement).
Except
as
expressly provided herein, nothing contained herein shall (i) amend, modify
or
alter any term or condition of the Loan Agreement or any other Financing
Agreement or (ii) diminish, prejudice or waive any of the Lender’s rights and
remedies under the Loan Agreement (including the right to require strict
compliance with the terms of Section 9.7(a) of the Loan Agreement at any time
hereafter), any other Financing Agreement or applicable law, and the Lender
hereby reserves all of such rights and remedies.
This
letter agreement shall be construed under and governed by the internal laws
of
the State of California, and may be executed in any number of counterparts
and
by different parties on separate counterparts. Each of such counterparts
shall
be deemed to be an original, and all of such counterparts, taken together,
shall
constitute but one and the same agreement. Delivery of an executed counterpart
of this letter agreement by telefacsimile or electronic transmission of a
“pdf”
(or other such viewable, printable data file) shall be equally effective
as
delivery of a manually executed original counterpart.
Very
truly yours,
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WACHOVIA
CAPITAL FINANCE CORPORATION (WESTERN),
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a
California corporation
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By: | /s/ Xxxxx X. Van Meter | |
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Name: | Xxxxx X. Van Meter | |
Title: | Vice President | |
Accepted and agreed: | ||||
JAZZ SEMICONDUCTOR, INC., | ||||
a Delaware corporation | ||||
By: |
/s/
Xxxxxx
Tank
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Name: |
Xxxxxx
Tank
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Title: |
Interim
CFO and
Secretary
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NEWPORT FAB, LLC, | ||||
a Delaware limited liability company | ||||
By: |
/s/
Xxx
Xx
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Name: |
Xxx
Xx
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Title: |
President
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