Exhibit 10.1


 


Confirmed
Copy


 


EXECUTION VERSION


 


FIRST LOAN MODIFICATION AGREEMENT


 


This First Loan Modification
Agreement (this “Loan Modification Agreement”) is entered into as of May 25,
2010, by and between SILICON VALLEY BANK,
a California corporation, with its principal place of business at 3003 Tasman
Drive, Santa Clara, California 95054 and with a loan production office located
at One Newton Executive Park, Suite 200, 2221 Washington Street, Newton,
Massachusetts 02462 (“Bank”), and AXCELIS TECHNOLOGIES, INC.
(“ATI”) and AXCELIS TECHNOLOGIES CCS CORPORATION,
each a Delaware corporation with offices located at 108 Cherry Hill Drive,
Beverly, Massachusetts 01915 (individually and collectively, jointly and
severally “Borrower”).


 


1.              DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other indebtedness and
obligations which may be owing by Borrower to Bank, Borrower is indebted to
Bank pursuant to a loan arrangement dated as of March 12, 2010, evidenced
by, among other documents, a certain Amended and Restated Loan and Security
Agreement dated as of March 12, 2010, between Borrower and Bank (as
amended, the “Loan Agreement”). 
Capitalized terms used but not otherwise defined herein shall have the
same meaning as in the Loan Agreement.


 


2.              DESCRIPTION OF COLLATERAL. 
Repayment of the Obligations is secured by the Collateral as described
in the Loan Agreement and the intellectual property as described in a certain
Amended and Restated Intellectual Property Security Agreement dated as of March 12,
2010, between ATI and Bank (as amended, the “IP Security Agreement”) (together
with any other documents granting collateral security to Bank, the “Security
Documents”). Hereinafter, the Security Documents, together with all other
documents evidencing or securing the Obligations shall be referred to as the “Existing
Loan Documents”.


 


3.              DESCRIPTION OF CHANGE IN TERMS.


 


A.            Modifications to Loan
Agreement.


 


1.              The Loan Agreement shall
be amended by deleting the following, appearing as Section 6.9(b) thereof,
in its entirety:


 


“(b)         Maximum Quarterly
Net Losses.   Borrower and its
Subsidiaries, on a consolidated basis, shall not suffer any Net Loss in excess
of: (i) $13,000,000 for the fiscal quarter ending March 31, 2010; (ii) $8,500,000
for the fiscal quarter ending June 30, 2010; (iii) $8,500,000 for the
fiscal quarter ending September 30, 2010; and (iv) $5,000,000 for the
fiscal quarter ending December 31, 2010 and each fiscal quarter
thereafter.”


 


and
inserting in lieu thereof the following:


 


“(b)         Maximum Quarterly
Net Losses.   Borrower and its
Subsidiaries, on a consolidated basis, shall not suffer any Net Loss in excess
of: (i) $13,000,000 for the fiscal quarter ending March 31, 2010; (ii) $24,000,000
for the trailing six (6) month period ending on the last day of the fiscal
quarter ending June 30, 2010; (iii) $23,500,000 for the trailing six (6) month
period ending on the last day of the fiscal quarter ending September 30,
2010; (iv) $13,500,000 for the trailing six (6) month period ending
on the last day of the fiscal quarter ending December 31, 2010; and (v) $5,000,000
for the trailing six (6) month period ending on the last day of the fiscal
quarter ending March 31, 2011, and as of the last day of each quarter
thereafter, for the trailing six (6) month period ending on the last day
of the applicable fiscal quarter.”


 


2.              The Compliance
Certificate appearing as Exhibit B to the Loan Agreement is hereby
replaced with the Compliance Certificate attached as Exhibit A
hereto.


 


4.              FEES.  Borrower
shall pay to Bank a modification fee equal to Thirty Five Thousand Dollars
($35,000), which fee shall be due on the date hereof and shall be deemed fully
earned as of the date hereof.  Borrower
shall also reimburse Bank for all legal fees and expenses incurred in
connection with this amendment to the Existing Loan Documents.


 


 

















 


5.              RATIFICATION OF IP SECURITY AGREEMENT. 
ATI hereby ratifies, confirms and reaffirms, all and singular, the terms
and conditions of the IP Security Agreement, and acknowledges, confirms and
agrees that said IP Security Agreement contains an accurate and complete
listing of all registered intellectual property as described in said IP
Security Agreement and shall remain in full force and effect.


 


6.              RATIFICATION OF PERFECTION CERTIFICATE. 
Borrower hereby ratifies, confirms and reaffirms, all and singular, the
terms and disclosures contained in a certain Perfection Certificate dated as of
March 12, 2010 between Borrower and Bank, and acknowledges, confirms and
agrees the disclosures and information Borrower provided to Bank in the
Perfection Certificate have not changed in any material respect, as of the date
hereof.


 


7.              CONSISTENT CHANGES.  The Existing
Loan Documents are hereby amended wherever necessary to reflect the changes
described above.


 


8.              RATIFICATION OF LOAN DOCUMENTS. 
Borrower hereby ratifies, confirms, and reaffirms all terms and
conditions of all security or other collateral granted to the Bank, and
confirms that the indebtedness secured thereby includes, without limitation, the
Obligations.


 


9.              NO DEFENSES OF BORROWER.  Borrower
hereby acknowledges and agrees that Borrower has no offsets, defenses, claims,
or counterclaims against Bank with respect to the Obligations, or otherwise,
and that if Borrower now has, or ever did have, any offsets, defenses, claims,
or counterclaims against Bank, whether known or unknown, at law or in equity,
all of them are hereby expressly WAIVED and Borrower hereby RELEASES Bank from
any liability thereunder.


 


10.       CONTINUING VALIDITY.  Borrower
understands and agrees that in modifying the existing Obligations, Bank is
relying upon Borrower’s representations, warranties, and agreements, as set
forth in the Existing Loan Documents. 
Except as expressly modified pursuant to this Loan Modification
Agreement, the terms of the Existing Loan Documents remain unchanged and in
full force and effect.  Bank’s agreement
to modifications to the existing Obligations pursuant to this Loan Modification
Agreement in no way shall obligate Bank to make any future modifications to the
Obligations.  Nothing in this Loan
Modification Agreement shall constitute a satisfaction of the Obligations.  It is the intention of Bank and Borrower to
retain as liable parties all makers of Existing Loan Documents, unless the
party is expressly released by Bank in writing. 
No maker will be released by virtue of this Loan Modification Agreement.


 


11.       CONFIDENTIALITY.  Bank may use
confidential information for the development of databases, reporting purposes,
and market analysis, so long as such confidential information is aggregated and
anonymized prior to distribution unless otherwise expressly permitted by
Borrower.  The provisions of the
immediately preceding sentence shall survive the termination of the Loan
Agreement.


 


12.       COUNTERSIGNATURE.  This Loan
Modification Agreement shall become effective only when it shall have been
executed by Borrower and Bank.


 


[The
remainder of this page is intentionally left blank]


 


2

















 


This Loan Modification
Agreement is executed as a sealed instrument under the laws of the Commonwealth
of Massachusetts as of the date first written above.


 


	
  BORROWER:

  	
   

  	
  BANK:

  
	
   

  	
   

  	
   

  
	
  AXCELIS TECHNOLOGIES, INC.

  	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Mary G. Puma

  	
   

  	
  By:

  	
  /s/
  Michael Quinn

  
	
   

  	
   

  	
   

  
	
  Name: Mary G. Puma

  	
   

  	
  Name:  Michael Quinn

  
	
   

  	
   

  	
   

  
	
  Title: President

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  	
   

  
	
  AXCELIS TECHNOLOGIES CCS
  CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Mary G. Puma

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name: Mary G. Puma

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title: President

  	
   

  	
   

  
						



 


The undersigned, Fusion
Technology International, Inc., ratifies, confirms and reaffirms, all and
singular, the terms and conditions of a certain Amended and Restated
Unconditional Guaranty dated March 12, 2010 (the “FTI Guaranty”) and
acknowledges, confirms and agrees that the FTI Guaranty shall remain in full
force and effect and shall in no way be limited by the execution of this Loan
Modification Agreement, or any other documents, instruments and/or agreements
executed and/or delivered in connection herewith.


 


	
   

  	
  FUSION
  TECHNOLOGY INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary G. Puma

  
	
   

  	
   

  
	
   

  	
  Name: Mary G. Puma

  
	
   

  	
   

  
	
   

  	
  Title: President

  



 

















 


The undersigned, Fusion
Investments, Inc., ratifies, confirms and reaffirms, all and singular, the
terms and conditions of a certain Amended and Restated Unconditional Guaranty
dated March 12, 2010 (the “FI Guaranty”) and acknowledges, confirms and
agrees that the FI Guaranty shall remain in full force and effect and shall in
no way be limited by the execution of this Loan Modification Agreement, or any
other documents, instruments and/or agreements executed and/or delivered in
connection herewith.


 


	
   

  	
  FUSION
  INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary G. Puma

  
	
   

  	
   

  
	
   

  	
  Name: Mary G. Puma

  
	
   

  	
   

  
	
   

  	
  Title: President

  



 


The undersigned, High
Temperature Engineering Corporation, ratifies, confirms and reaffirms, all and
singular, the terms and conditions of a certain Amended and Restated
Unconditional Guaranty dated March 12, 2010 (the “HTEC Guaranty”) and
acknowledges, confirms and agrees that the HTEC Guaranty shall remain in full
force and effect and shall in no way be limited by the execution of this Loan
Modification Agreement, or any other documents, instruments and/or agreements
executed and/or delivered in connection herewith.


 


	
   

  	
  HIGH
  TEMPERATURE ENGINEERING CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary G. Puma

  
	
   

  	
   

  
	
   

  	
  Name: Mary G. Puma

  
	
   

  	
   

  
	
   

  	
  Title: President

  



 


The undersigned, Axcelis
Technologies (Israel), Inc., ratifies, confirms and reaffirms, all and
singular, the terms and conditions of a certain Amended and Restated
Unconditional Guaranty dated March 12, 2010 (the “ATI Guaranty”) and
acknowledges, confirms and agrees that the ATI Guaranty shall remain in full
force and effect and shall in no way be limited by the execution of this Loan
Modification Agreement, or any other documents, instruments and/or agreements
executed and/or delivered in connection herewith.


 


	
   

  	
  AXCELIS
  TECHNOLOGIES (ISRAEL), INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary G. Puma

  
	
   

  	
   

  
	
   

  	
  Name: Mary G. Puma

  
	
   

  	
   

  
	
   

  	
  Title: President

  



 
















 


EXHIBIT A


EXHIBIT B - COMPLIANCE CERTIFICATE


 


	
  TO:

  	
   

  	
  SILICON VALLEY BANK

  	
   

  	
  Date:

  	
   

  
	
  FROM:

  	
   

  	
  Axcelis
  Technologies, Inc. and Axcelis Technologies CCS Corporation

  	
   

  	
   

  



 


The undersigned authorized officer of Axcelis
Technologies, Inc. and Axcelis Technologies CCS Corporation (“Borrower”)
certifies that under the terms and conditions of the Loan and Security
Agreement between, inter alia, Borrower and Bank (the “Agreement”), (1) Borrower
is in complete compliance for the period ending
                              
with all required covenants except as noted below, (2) there are no Events of
Default, (3) all representations and warranties in the Agreement are true
and correct in all material respects on this date except as noted below;
provided, however, that such materiality qualifier shall not be applicable to
any representations and warranties that already are qualified or modified by
materiality in the text thereof; and provided, further that those
representations and warranties expressly referring to a specific date shall be
true, accurate and complete in all material respects as of such date, (4) Borrower,
and each of its Domestic Subsidiaries, has timely filed all required tax
returns and reports, and Borrower has timely paid all foreign, federal, state
and local taxes, assessments, deposits and contributions owed by Borrower
except as otherwise permitted pursuant to the terms of Section 5.9 of the
Agreement, and (5) no Liens have been levied or claims made against
Borrower or any of its Domestic Subsidiaries relating to unpaid employee
payroll or benefits of which Borrower has not previously provided written
notification to Bank.  Attached are the
required documents supporting the certification.  The undersigned certifies that these are
prepared in accordance with GAAP consistently applied from one period to the
next except as explained in an accompanying letter or footnotes.  The undersigned acknowledges that no
borrowings may be requested at any time or date of determination that Borrower
is not in compliance with any of the terms of the Agreement, and that
compliance is determined not just at the date this certificate is
delivered.  Capitalized terms used but
not otherwise defined herein shall have the meanings given them in the
Agreement.


 


Please indicate compliance status
by circling Yes/No under “Complies” column.


 


	
  Reporting Covenant

  	
   

  	
  Required

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quarterly consolidated
  and consolidating and financial statements with Compliance Certificate

  	
   

  	
  Quarterly within 45
  days

  	
   

  	
  Yes  No

  
	
  Annual financial
  statement (CPA Audited) + CC

  	
   

  	
  FYE within 120 days

  	
   

  	
  Yes  No

  
	
  10-Q, 10-K and 8-K

  	
   

  	
  Within 10 days after
  filing with SEC

  	
   

  	
  Yes  No

  
	
  A/R & A/P
  Agings (including EXIM), Inventory reports

  	
   

  	
  Monthly within 30 days

  	
   

  	
  Yes  No

  
	
  Transaction Report

  	
   

  	
  Monthly within 30 days
  (bi-weekly if borrowing)

  	
   

  	
  Yes  No

  
	
  Monthly consolidated
  financial statements

  	
   

  	
  Monthly within 45 days
  (if borrowing)

  	
   

  	
  Yes  No

  



 


The following
Intellectual Property was registered (or a registration application submitted)
after the Effective Date (if no registrations, state “None”)


 

















 


	
  Financial Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maintain, tested on a
  quarterly (unless otherwise indicated) basis:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Adjusted Quick Ratio,
  at all times (tested quarterly )

  	
   

  	
  1.5:1.0

  	
   

  	
     :1.0

  	
   

  	
  Yes  No

  
	
  Maximum Net Losses

  	
   

  	
  (i) $13,000,000
  for the fiscal quarter ending March 31, 2010; (ii) $24,000,000 for
  the trailing six (6) months ending June 30, 2010; (iii) $23,500,000
  for the trailing six (6) months ending September 30, 2010;
  (iv) $13,500,000 for the trailing six (6) months ending
  December 31, 2010, and (v) $5,000,000 for the trailing six
  (6) months ending March 31, 2011, and as of the last day of each
  quarter thereafter, for the trailing six (6) months ending on the last
  day of the applicable fiscal quarter.

  	
   

  	
  $

  	
   

  	
  Yes  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Liquidity (at all
  times)

  	
   

  	
  $30,000,000

  	
   

  	
  $

  	
   

  	
  Yes  No

  



 


The following financial
covenant analysis and information set forth in Schedule 1 attached hereto are
true and accurate as of the date of this Certificate.


 


Schedule 2 attached
hereto sets forth all applications for any patent or the registration of any
trademark or servicemark made by Borrower since the date of the last Compliance
Certificate delivered to Bank.


 


The following are
the exceptions with respect to the certification above:  (If no exceptions exist, state “No exceptions
to note.”)


 


 


	
  AXCELIS
  TECHNOLOGIES, INC.

  	
   

  	
  BANK
  USE ONLY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Received
  by:

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  AUTHORIZED
  SIGNER

  
	
  Name:

  	
   

  	
   

  	
  Date:

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Verified:

  	
   

  
	
  AXCELIS
  TECHNOLOGIES CCS CORPORATION

  	
   

  	
   

  	
  AUTHORIZED
  SIGNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Compliance
  Status:          Yes  No

  
	
  Title:

  	
   

  	
   

  	
   

  



 

















 


Schedule
1 to Compliance Certificate


 


Financial
Covenants of Borrower


 


In the event of a
conflict between this Schedule and the Loan Agreement, the terms of the Loan
Agreement shall govern.


 


	
  Dated:

  	
   

  	
   

  



 


	
  I.

  	
  Adjusted Quick Ratio (Section 6.9(a))

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Required:

  	
   

  	
  1.5:1.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Actual:

  	
   

  	
        :1.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  A.

  	
  World-wide consolidated
  Unrestricted cash and Cash Equivalents

  	
  $

  
	
   

  	
   

  	
   

  
	
  B.

  	
  Accounts

  	
  $

  
	
   

  	
   

  	
   

  
	
  C.

  	
  Investments at Bank

  	
  $

  
	
  D.

  	
  Quick Assets (line A plus
  line B plus line C)

  	
  $

  
	
   

  	
   

  	
   

  
	
  E.

  	
  Aggregate
  value of Obligations to Bank (other than cash secured obligations)

  	
  $

  
	
  F.

  	
  Aggregate
  value of liabilities of Borrower and its Subsidiaries (including all
  Indebtedness)

  that
  matures within one (1) year

  	
  $

  
	
  G.

  	
  Deferred
  Revenue

  	
  $

  
	
  H.

  	
  Current
  Liabilities (the sum of lines E and F, minus line G)           

  	
  $

  
	
  I.

  	
  Quick
  Ratio (line D divided by line H)

  	
   

  
	
   

  	
   

  	
   

  
	
  Is
  line I equal to or greater than 1.50:1:00?

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  o No, not in compliance

  	
  o Yes, in compliance

  	
   

  
	
   

  	
   

  	
   

  
	
  II.

  	
  Maximum Net Losses (Section 6.9(b))

  	
   

  
	
   

  	
   

  	
   

  
	
  Required:

  	
   

  	
  $13,000,000 for the
  fiscal quarter ending March 31, 2010

  	
   

  
	
   

  	
   

  	
  $24,000,000 for Test
  Period ending June 30, 2010

  	
   

  
	
   

  	
   

  	
  $23,500,000 for the
  Test Period ending September 30, 2010

  	
   

  
	
   

  	
   

  	
  $13,500,000 for the
  Test Period ending December 31, 2010

  	
   

  
	
   

  	
   

  	
  $5,000,000 for the Test
  Period ending March 31, 2011, and as of the last day of each quarter
  thereafter, for the applicable Test Period.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Actual: $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  A.

  	
  Aggregate value of
  Borrower losses

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  Is
  line A less than or equal to $                    ?

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o No, not in compliance

  	
  o Yes, in compliance

  	
   

  
							



 

















 


	
  III.

  	
  Liquidity (Section 6.9(c))

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Required:

  	
   

  	
  $30,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Actual:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  A.

  	
  Aggregate Cash and Cash
  Equivalents at Bank

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Availability Amount

  	
  $

  
	
  C.

  	
  Liquidity (the sum of
  lines A and B)

  	
  $

  
	
   

  	
   

  
	
  Is line C less than or
  equal to $30,000,000?

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o No, not in compliance

  	
  o Yes, in compliance

  	
   

  



 

















 


Schedule
2 to Compliance Certificate


 


IP Applications


 


10