Exhibit 10.1
FIRST AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND
SECURITY AGREEMENT is
entered into as of September 30, 2008 (the “
Amendment ”), by and among United Commercial Bank
(“ Agent ”), the financial institutions named on
the signature pages hereto (each, a “Lender” and
collectively, the “Lenders”), and Aviza
Technology, Inc., a Delaware corporation, and
Aviza, Inc., a Delaware corporation (each referred to
individually as a “ Borrower ” and collectively,
as the “ Borrowers ”).
RECITALS
Borrowers and Agent are parties to
that certain Loan and Security Agreement dated as of April 13,
2007, as amended from time to time (the “ Agreement
”). The parties desire to amend the Agreement in
accordance with the terms of this Amendment.
NOW, THEREFORE
, the parties agree as
follows:
1.
The following defined terms in
Section 1.1 of the Agreement are hereby added or amended to
read as follows:
“Borrowing
Base” means an
amount equal to (i) eighty percent (80%) of Eligible Accounts
net of Retention Accounts plus (ii) the lesser of $5,000,000
or fifty percent (50%) of Retention Accounts whereby remittances
are paid directly to Borrowers’ account(s) maintained
with Agent, plus (iii) twenty-five percent (25%) of Domestic
Inventory, which shall not exceed fifty percent (50%) of the
aggregate value of subsections (i) and
(ii) herein.
“Eligible Foreign
Accounts” means
Accounts with respect to which the account debtor does not have its
principal place of business in the United States and such Accounts
are being paid directly to Borrowers’ accounts with Agent,
and (i) the account debtor is publicly traded in their
respective region and acceptable to Agent, or (ii) the Account
is backed by foreign credit insurance reasonably acceptable to
Agent and showing Agent as additional loss payee, or (iii) the
Account is backed by letters of credit advised through
Agent.
“Liquidity
Ratio” means
(i) the sum of Cash plus (a) eighty percent (80%) of
Eligible Accounts net of Retention Accounts plus (b) the
lesser of $5,000,000 or fifty percent (50%) of Retention Accounts
whereby remittances are paid directly to Borrowers’
account(s) maintained with Agent, plus (c) twenty-five
percent (25%) of Domestic Inventory, which shall not exceed fifty
percent (50%) of the aggregate value of subsections (a) and
(b) herein; divided by (ii) the amount outstanding on the
Revolving Line plus the current portion (within twelve months) of
amounts owed (including principal and interest) under the Equipment
Facility and Real Estate Facility.
“Revolving
Line ” means
Credit Extensions of up to Twenty-Nine Million Dollars
($29,000,000).
“ UK Subsidiary
” means Borrowers’ Subsidiary registered and
located in the United Kingdom.
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