Exhibit 10.2


 


Conformed Copy


 


EXPORT-IMPORT
BANK LOAN AND SECURITY AGREEMENT


 


THIS EXPORT-IMPORT LOAN AND SECURITY AGREEMENT
(this “EXIM  Agreement”)
dated as of the Effective Date 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. 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”),
provides the terms on which Bank shall lend to Borrower and Borrower shall
repay Bank.  The parties agree as
follows:


 


1              ACCOUNTING
AND OTHER TERMS


 


(a)           Borrower and Bank are
parties to that certain Amended and Restated Loan and Security Agreement dated
as of the date hereof (as may be amended from time to time, the “Domestic Agreement”), together with related documents
executed in conjunction therewith, (as may be amended from time to time, the “Domestic Loan Documents”).


 


(b)           Borrower and Bank
desire in this EXIM Agreement to set forth their agreement with respect to a
working capital facility to be guaranteed by the EXIM Bank.


 


(c)           Accounting terms not
defined in this EXIM Agreement shall be construed following GAAP.  Calculations and determinations must be made
following GAAP.  Capitalized terms not
otherwise defined in Section 13 of this EXIM Agreement shall have the
meanings set forth in Section 13 of the Domestic Agreement.   All other terms contained in this EXIM
Agreement, unless otherwise indicated, shall have the meaning provided by the
Code to the extent such terms are defined therein.


 


2              LOAN
AND TERMS OF PAYMENT


 


2.1          Promise to Pay.  Borrower hereby unconditionally promises to
pay Bank the outstanding principal amount of all Credit Extensions and accrued
and unpaid interest thereon as and when due in accordance with this EXIM
Agreement.


 


2.1.1       Revolving Advances.


 


(a)           Availability.  Subject to the terms and conditions of this
EXIM Agreement and to deduction of Reserves, Bank shall make EXIM Advances not
exceeding the Availability Amount.  Amounts borrowed under the Revolving
Line may be repaid and, prior to the Revolving Line Maturity Date, reborrowed,
subject to the applicable terms and conditions precedent herein.


 


(b)           Termination;
Repayment.  The Revolving Line
terminates on the earlier of (i) the Revolving Line Maturity Date or (ii) the
termination of the Domestic Agreement, when the principal amount of all EXIM
Advances, the unpaid interest thereon, and all other Obligations relating to
the Revolving Line shall be immediately due and payable.


 


2.2          Overadvances. If at any time or for
any reason the total of all outstanding Credit Extensions (other than Credit
Extension made pursuant to the Domestic Agreement) exceeds the Availability
Amount (such excess amount being an “Overadvance”),
Borrower shall immediately pay the amount of the excess to Bank, without notice
or demand.  Without limiting Borrower’s
obligation to repay to Bank the amount of any Overadvance, Borrower agrees to
pay Bank interest on the outstanding amount of any Overadvance, on demand, at
the Default Rate.


 

















 


2.3          Payment of Interest on
the Credit Extensions.


 


(a)           Interest Rate; EXIM
Advances.  Subject to Section 2.3(b),
the principal amount of all EXIM Advances outstanding under the Revolving Line
shall accrue interest at floating per annum rate equal to the Prime Rate plus
two percent (2.00%), which interest shall be payable monthly, in arrears,  in accordance with Section 2.3(f).


 


(b)           Default Rate.  Immediately upon the occurrence and during
the continuance of an Event of Default, Obligations shall bear interest at a
rate per annum which is three and one-half of one percent (3.50%) above the
rate that is otherwise applicable thereto (the “Default Rate”).  Fees and expenses which are required to be
paid by Borrower pursuant to the Loan Documents (including, without limitation,
Bank Expenses) but are not paid when due shall bear interest until paid at a
rate equal to the highest rate applicable to the Obligations; provided,
however, no interest shall accrue on such fees and expenses to the extent funds
are available to be deducted by the Bank from Borrower’s accounts if such
deduction is not timely made by Bank at no fault of Borrower.  Payment or acceptance of the increased
interest rate provided in this Section 2.3(b) is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Bank.


 


(c)           Adjustments to
Interest Rate.  Changes to the
interest rate of any Credit Extension based on changes to the Prime Rate shall
be effective on the effective date of any change to the Prime Rate and to the
extent of any such change.  Bank shall
use its best efforts to give Borrower prompt notice of any such change in the
Prime Rate; provided, however, that any failure by Bank to provide Borrower
with notice hereunder shall not affect Bank’s right to make changes in the
interest rate based on changes in the Prime Rate.


 


(d)           Computation of
Interest.  Interest on the Credit
Extensions and all fees payable hereunder shall be computed on the basis of a
360-day year and the actual number of days elapsed in the period during which
such interest accrues.  In computing
interest on any Credit Extension, the date of the making of such Credit
Extension shall be included and the date of payment shall be excluded;
provided, however, that if any Credit Extension is repaid on the same day on
which it is made, such day shall be included in computing interest on such
Credit Extension.


 


(e)           Debit of Accounts.  Bank may debit any of Borrower’s deposit
accounts, including the Designated Deposit Account, for principal and interest
payments or any other amounts Borrower owes Bank when due.  These debits shall not constitute a set-off.
The provisions of the previous sentence shall not apply to deposit accounts
designated as, and exclusively used for, payroll, payroll taxes and other
employee wage and benefit payments to or for the benefit of Borrower’s
employees.


 


(f)            Interest Payment
Date.  Interest is payable monthly,
in arrears, on the last calendar day of each month.  All accrued but unpaid interest on the
Advances shall be due and payable on the Revolving Line Maturity Date.


 


(g)           Payments. All
payments (including prepayments) to be made by Borrower under any Loan Document
shall be made in immediately available funds in U.S. Dollars, without setoff or
counterclaim, before 12:00 p.m. Eastern time on the date when due.  Payments of principal and/or interest
received after 12:00 p.m. Eastern time are considered received at the
opening of business on the next Business Day. 
When a payment is due on a day that is not a Business Day, the payment
shall be due the next Business Day, and additional fees or interest, as
applicable, shall continue to accrue until paid.


 


2.4          Fees.  Borrower shall pay to Bank:


 


(a)           Commitment Fee.  A fully earned, non-refundable commitment
fee, payable in accordance with the terms and conditions of the Domestic
Agreement; and


 


(b)           Bank Expenses.  All Bank Expenses (including reasonable
attorneys’ fees and expenses, plus expenses, for documentation and negotiation
of this EXIM Agreement) incurred through and after the Effective Date, when
due.


 


2.5          Use of Proceeds.  Borrower will use the proceeds of the EXIM
Advances only for the purposes specified in the EXIM Borrower Agreement.  Borrower will not use the proceeds of the
EXIM Advances for any purpose prohibited by the EXIM Borrower Agreement.


 


2

















 


2.6          EXIM Guaranty.  To facilitate the financing of Eligible EXIM
Accounts, the EXIM Bank has agreed to guarantee the EXIM Loans made under this
EXIM Agreement, pursuant to a Master Guarantee Agreement, Loan Authorization
Agreement and (to the extent applicable) Delegated Authority Letter Agreement
(collectively, the “EXIM Guaranty”).  If, at any time after the EXIM Guaranty has
been entered into by Bank, for any reason other than due to any action or
inaction of Borrower under the EXIM Guaranty, (a) the EXIM Guaranty shall
cease to be in full force and effect, or (b) the EXIM Bank declares the
EXIM Guaranty void or revokes any obligations thereunder or denies liability
thereunder, Borrower shall immediately repay all outstanding EXIM Advances
hereunder, and Borrower shall cash collateralize all issued and undrawn letters
of credit issued by Bank, if any.  If, at
any time after the EXIM Guaranty has been entered into by Bank, for any reason
other than as described in the foregoing sentence, (x) the EXIM Guaranty
shall cease to be in full force and effect, or (y) the EXIM Bank declares
the EXIM Guaranty void or revokes any obligations thereunder or denies
liability thereunder, any such event shall constitute an Event of Default under
this EXIM Agreement.  Nothing in any
confidentiality agreement, in this EXIM Agreement or in any other agreement,
shall restrict Bank’s right to make disclosures and provide information to the
EXIM Bank in connection with the EXIM Guaranty.


 


2.7          EXIM Borrower Agreement. 
Borrower shall execute and deliver a Borrower Agreement, in the form
specified by the EXIM Bank (attached hereto as Annex A), in favor of Bank and the EXIM Bank, together with an
amendment thereto approved by the EXIM Bank to conform certain terms of such
Borrower Agreement to the terms of this EXIM Agreement (as amended, the “EXIM Borrower Agreement”). 
When the EXIM Borrower Agreement is entered into by Borrower and the
EXIM Bank and delivered to Bank, this EXIM Agreement shall be subject to all of
the terms and conditions of the EXIM Borrower Agreement, all of which are
hereby incorporated herein by this reference. 
From and after the time Borrower and the EXIM Bank have entered into the
EXIM Borrower Agreement and delivered the same to Bank, Borrower expressly
agrees to perform all of the obligations and comply with all of the affirmative
and negative covenants and all other terms and conditions set forth in the EXIM
Borrower Agreement as though the same were expressly set forth herein.  In the event of any conflict between the
terms of the EXIM Borrower Agreement (if then in effect) and the other terms of
this EXIM Agreement, whichever terms are more restrictive shall apply.  Borrower acknowledges and agrees that it has
received a copy of the Loan Authorization Agreement which is referred to in the
EXIM Borrower Agreement.  If the EXIM
Borrower Agreement is entered into by Borrower and the EXIM Bank and delivered
to Bank, Borrower agrees to be bound by the terms of the Loan Authorization
Agreement, including, without limitation, by any additions or revisions made
prior to its execution on behalf of EXIM Bank. 
Upon the execution of the Loan Authorization Agreement by EXIM Bank and
Bank, it shall become an attachment to the EXIM Borrower Agreement.  Borrower shall reimburse Bank for all fees
and all out of pocket costs and expenses incurred by Bank with respect to the
EXIM Guaranty and the EXIM Borrower Agreement, including, without limitation,
all facility fees and usage fees, and Bank is authorized to debit any of
Borrower’s deposit accounts with Bank for such fees, costs and expenses when
paid by Bank.


 


2.8          Withholding.  Payments received by Bank from Borrower
hereunder will be made free and clear of any withholding taxes.  Specifically, however, if at any time any
governmental authority, applicable law, regulation or international agreement
requires Borrower to make any such withholding or deduction from any such
payment or other sum payment hereunder to Bank, Borrower hereby covenants and
agrees that the amount due from Borrower with respect to such payment or other
sum payable hereunder will be increased to the extent necessary to ensure that,
after the making of such required withholding or deduction, Bank receives a net
sum equal to the sum which it would have received had no withholding or
deduction been required and Borrower shall pay the full amount withheld or
deducted to the relevant governmental authority.  Borrower will, upon request, furnish Bank
with proof satisfactory to Bank indicating that Borrower has made such
withholding payment provided, however, that Borrower need not make any
withholding payment if the amount or validity of such withholding payment is
contested in good faith by appropriate and timely proceedings and as to which
payment in full is bonded or reserved against by Borrower.  The agreements and obligations of Borrower
contained in this Section 2.8 shall survive the termination of this
Agreement.


 


3              CONDITIONS
OF LOANS


 


3.1          Conditions Precedent to
Initial Credit Extension.  Bank’s
obligation to make the initial Credit Extension is subject to the condition precedent
that Borrower shall consent to or have delivered, in form and substance
satisfactory to Bank, such documents, and completion of such other matters, as
Bank may reasonably deem necessary or appropriate, including, without
limitation:


 


3

















 


(a)         duly executed original
signatures to the Loan Documents to which it is a party;


 


(b)        the Economic Impact
Certification, Loan Authorization Notice and EXIM Bank Application Form, in
each case duly executed and together with original signatures, as applicable;


 


(c)           duly executed original
signatures to the completed Borrowing Resolutions for Borrower;


 


(d)           a legal opinion of
Borrower’s counsel dated as of the Effective Date together with the duly
executed original signatures thereto;


 


(e)           payment of the fees and
Bank Expenses then due as specified in Section 2.4 hereof;


 


(f)            duly executed original
signatures to the Domestic Loan Documents to which it is a party; and


 


(g)           delivery of all such
other documents as Bank reasonably deems necessary or appropriate.


 


3.2          Conditions Precedent to
all Credit Extensions.  Bank’s
obligations to make each Credit Extension, including the initial Credit
Extension, is subject to the following:


 


(a)           timely receipt of any
export purchase order and an EXIM Borrowing Base Certificate relating to the
request;


 


(b)           except as otherwise
provided in Section 3.4, timely receipt of an executed Transaction Report;


 


(c)           the representations and
warranties in Section 5 shall be true, accurate and complete in all
material respects on the date of the Transaction Report and on the Funding Date
of each Credit Extension; 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, and no Default or Event of Default shall have occurred and be continuing
or result from the Credit Extension. 
Each Credit Extension is Borrower’s representation and warranty on that
date that the representations and warranties in Section 5 remain true,
accurate and complete in all material respects; 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;


 


(d)           as determined in Bank’s
reasonable business judgment, there has not been a Material Adverse Change; and


 


(e)           the EXIM Guaranty shall
be in full force and effect.


 


3.3          Covenant to Deliver.  Borrower agrees to deliver to Bank each item
required to be delivered to Bank under this EXIM Agreement as a condition to
any Credit Extension.  Borrower expressly
agrees that a Credit Extension made prior to the receipt by Bank of any such
item shall not constitute a waiver by Bank of Borrower’s obligation to deliver
such item, and any such Credit Extension in the absence of a required item
shall be made in Bank’s sole discretion.


 


3.4          Procedures for Borrowing.  Subject to the prior satisfaction of all
other applicable conditions to the making of an Advance set forth in this EXIM
Agreement, to obtain an EXIM Advance, Borrower shall notify Bank (which notice
shall be irrevocable) by electronic mail, facsimile, or telephone by 12:00 p.m.
Pacific time on the Funding Date of the EXIM Advance.  Together with such notification, Borrower
must promptly deliver to Bank by electronic mail or facsimile a completed
Transaction Report executed by a Responsible Officer or his or her
designee.  Bank shall credit EXIM
Advances to the Designated Deposit Account. 
Bank may make EXIM Advances under this Agreement based on instructions
from a Responsible Officer or his or her designee or without instructions


 


4

















 


if the Advances are necessary to meet Obligations
which have become due.  Bank may rely on
any telephone notice given by a person whom Bank believes is a Responsible
Officer or designee.


 


4              CREATION
OF SECURITY INTEREST


 


4.1          Grant of Security
Interest.  Borrower hereby grants
Bank, to secure the payment and performance in full of all of the Obligations,
a continuing security interest in, and pledges to Bank, the Collateral,
wherever located, whether now owned or hereafter acquired or arising, and all
proceeds and products thereof.  Borrower
represents, warrants, and covenants that the security interest granted herein
is and shall at all times continue to be a first priority perfected security
interest in the Collateral (subject only to Permitted Liens that may have
superior priority to Bank’s Lien under this EXIM Agreement).  If Borrower shall acquire a commercial tort
claim, Borrower shall promptly notify Bank in a writing signed by Borrower of
the general details thereof and upon request of Bank grant to Bank in such
writing a security interest therein and in the proceeds thereof, all upon the
terms of this EXIM Agreement, with such writing to be in form and substance
reasonably satisfactory to Bank.


 


Bank’s lien and
security interest in the Collateral shall continue until Borrower fully
satisfies its Obligations in cash.  Upon
payment in full in cash of the Obligations (except for contingent
indemnification obligations for which no claim has been made) and at such time as Bank’s obligation to make Credit Extensions
has terminated, Bank shall, at Borrower’s sole cost and expense, release its
Liens in the Collateral and all rights therein shall revert to Borrower.


 


Notwithstanding the foregoing, it is expressly acknowledged
and agreed that the security interest created in this EXIM Agreement in all of
the Collateral (with the exception of Export-Related Accounts Receivable,
Export-Related Inventory and Export-Related General Intangibles) is subject to
and subordinate to the security interest granted to Bank in the Domestic
Agreement and the security interest created in the Domestic Agreement with
respect to such Export-Related Accounts Receivable, Export-Related Inventory
and Export-Related General Intangibles is subject to and subordinate to the
security interest granted to Bank in this EXIM Agreement with respect to such
Export-Related Accounts Receivable, Export-Related Inventory and any
Export-Related General Intangibles.


 


4.2          Authorization to File
Financing Statements.  Borrower
hereby authorizes Bank to file financing statements, without notice to
Borrower, with all appropriate jurisdictions to perfect or protect Bank’s
interest or rights hereunder, including a notice that any disposition of the
Collateral except as permitted by the terms of this Agreement, by either
Borrower or any other Person, shall be deemed to violate the rights of Bank
under the Code.  Such financing
statements may indicate the Collateral as “all assets of the Debtor” or words
of similar effect, or as being of an equal or lesser scope, or with greater
detail, all in Bank’s discretion, provided that such financing statements shall
acknowledge the rights of SEN under the SEN License.


 


5              REPRESENTATIONS
AND WARRANTIES


 


Borrower
represents and warrants as follows:


 


5.1          Domestic Loan Documents.  The representations and warranties contained
in the Domestic Loan Documents, which are incorporated into this EXIM Agreement
by reference, are true, accurate and complete in all material respects, and shall
survive the termination of the Domestic Agreement.


 


5.2          EXIM Borrower Agreement.  The representations and warranties contained
in the EXIM Borrower Agreement, which are incorporated by reference into this
EXIM Agreement, are true and correct in all material respects.


 


5.3          Accounts Receivable;
Inventory.


 


(a)           For each
Account with respect to which EXIM Advances are requested, on the date each
EXIM Advance is requested and made, such Account shall meet the Minimum EXIM
Eligibility Requirements set forth in Section 13 below.


 


5

















 


(b)           All
statements made and all unpaid balances appearing in all invoices, instruments
and other documents evidencing the Accounts are and shall be true, accurate and
complete in all material respects and all such invoices, instruments and other
documents, and all of Borrower’s Books are genuine and in all respects what
they purport to be.  Whether or not an
Event of Default has occurred and is continuing, Bank may notify any Account Debtor
owing Borrower money of Bank’s security interest in such funds. All sales and
other transactions underlying or giving rise to each Account shall comply in
all material respects with all applicable laws and governmental rules and
regulations.  Borrower has no knowledge
of any actual or imminent Insolvency Proceeding of any Account Debtor whose
accounts are an Eligible EXIM Account in any EXIM Borrowing Base
Certificate.  To Borrower’s knowledge,
all signatures and endorsements on all documents, instruments, and agreements
relating to all Accounts are genuine, and all such documents, instruments and
agreements are legally enforceable in accordance with their terms.


 


(c)           For any item
of Inventory consisting of Eligible Inventory in any Transaction Report, such
Inventory (i) consists either of raw materials, or of finished goods, in
good, new, and salable condition, which is not perishable, returned, consigned,
obsolete, not sellable, damaged, or defective, and is not comprised of
demonstrative or custom inventory, works in progress, packaging or shipping
materials, or supplies; (ii) meets all applicable governmental standards; (iii) has
been manufactured in compliance with the Fair Labor Standards Act; (iv) is
not subject to any Liens, except the first priority Liens granted in favor of
Bank under this Agreement or any of the other Loan Documents or Permitted
Liens; and (v) is located at (A) the Headquarters Location which is (1) prior
to the Real Estate Financing, owned by Borrower or (2) after the Real Estate
Financing, either owned by Borrower or owned by the Special Subsidiary provided
that Bank has received a landlord’s waiver in form and substance reasonably
satisfactory to Bank or (B) at Borrower’s 33 Cherry Hill Drive, Beverly,
Massachusetts or 54 Cherry Hill Drive, Beverly, Massachusetts locations
provided that Bank has received a landlord waiver for the respective location
in form and substance reasonably satisfactory to Bank.


 


6              AFFIRMATIVE
COVENANTS


 


Borrower shall do all of
the following:


 


6.1          Domestic Loan Documents.  Borrower shall comply in all material
respects with the terms and provisions of the Domestic Loan Documents, which
terms and provisions are incorporated into this EXIM Agreement and shall
survive the termination of the Domestic Agreement, which shall include, without
limitation, compliance with the financial reporting requirements set forth in
the Domestic Agreement and the financial covenants set forth in the Domestic
Agreement.


 


6.2          EXIM Borrower Agreement.  Borrower shall comply with all of the terms
of the EXIM Borrower Agreement, including without limitation, the delivery of
an EXIM Borrowing Base Certificate within thirty (30) days after the end of
each month, and with each request for a Credit Extension, any and all notices
required pursuant to the EXIM Borrower Agreement.  In the event of any conflict or inconsistency
between any provision contained in the EXIM Borrower Agreement with any
provision contained in this EXIM Agreement, the more strict provision, with
respect to Borrower, shall control.


 


6.3          Terms of
Sale.  Borrower will, if required by EXIM Bank or Bank, cause all sales of
products on which Credit Extensions are based to be (i) supported by one
or more irrevocable letters of credit in an amount and of a matter, naming a
beneficiary and issued by a financial institution acceptable to Bank and
negotiated by Bank.


 


6.4          Reporting Requirements.  Borrower shall deliver all reports,
certificates and other documents to Bank as provided in the EXIM Borrower
Agreement, including, without limitation, an EXIM Borrowing Base Certificate on
a monthly basis, purchase orders and any other information that Bank and EXIM
Bank may reasonably request.  In
addition, Borrower shall comply with the reporting requirements set forth in
the Domestic Loan Documents.


 


6.5          EXIM Insurance.  If required by Bank, Borrower will obtain,
and pay when due all premiums with respect to, and maintain uninterrupted
foreign credit insurance.  In addition,
if requested by Bank, Borrower will execute in favor of Bank an assignment of
proceeds of any insurance policy obtained by Borrower and issued by EXIM Bank
insuring against comprehensive commercial and political risk (the “EXIM Bank Policy”). 
The


 


6

















 


insurance proceeds from the EXIM Bank Policy assigned
or paid to Bank will be applied to the balance outstanding under this EXIM
Agreement.  Borrower will immediately
notify Bank and EXIM Bank in writing upon submission of any claim under the
EXIM Bank Policy.


 


6.6          Further Assurances.  Execute any further instruments and take
further action as Bank reasonably requests to perfect or continue Bank’s Lien
in the Collateral or to effect the purposes of this EXIM Agreement.


 


7              NEGATIVE
COVENANTS


 


Borrower shall not do any
of the following without Bank’s prior written consent:


 


7.1          Domestic Loan Documents.  Violate or otherwise fail to comply with any
provisions of the Domestic Loan Documents, which provisions are incorporated
into this EXIM Agreement by reference, and shall survive the termination of
Domestic Agreement.


 


7.2          EXIM Borrower Agreement.  Violate or otherwise fail to comply with any
provision of the EXIM Borrower Agreement, including, without limitation, the
negative covenants set forth therein.


 


7.3          EXIM Guaranty.  Take any action, or permit any action to be
taken, that causes or, with the passage of time, could cause, the EXIM Guaranty
to cease to be in full force and effect.


 


8              EVENTS
OF DEFAULT


 


Any one of the following
shall constitute an event of default (an “Event of Default”)
under this EXIM Agreement:


 


8.1          Payment Default.  Borrower fails to (a) make any payment
of principal or interest on any Credit Extension on its due date, or (b) pay
any other Obligations within three (3) Business Days after such Obligations
are due and payable (which three (3) day grace period shall not apply to
payments due on the Revolving Line Maturity Date).  During the cure period, the failure to cure
the payment default is not an Event of Default (but no Credit Extension will be
made during the cure period);


 


8.2          Covenant Default.


 


(a) Borrower fails
or neglects to perform any obligation in Section 6 or violates any
covenant in Section 7; or


 


(b) Borrower fails or neglects to perform, keep,
or observe any other term, provision, condition, covenant or agreement
contained in this EXIM Agreement or any Loan Documents, and as to any default
(other than those specified in this Section 8) under such other term,
provision, condition, covenant or agreement that can be cured, has failed to cure
the default within ten (10) days after the occurrence thereof; provided,
however, that if the default cannot by its nature be cured within the ten (10) day
period or cannot after diligent attempts by Borrower be cured within such ten (10) day
period, and such default is likely to be cured within a reasonable time, then
Borrower shall have an additional period (which shall not in any case exceed
thirty (30) days) to attempt to cure such default, and within such reasonable
time period the failure to cure the default shall not be deemed an Event of
Default (but no Credit Extensions shall be made during such cure period).  Grace periods provided under this section
shall not apply, among other things, to financial covenants or any other
covenants set forth in subsection (a) above;


 


8.3          Insolvency.  (a) Borrower is unable to pay its debts
(including trade debts) as they become due or otherwise becomes insolvent; (b) Borrower
begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is begun
against Borrower and not dismissed or stayed within forty-five (45) days (but
no Credit Extensions shall be made while of any of the conditions described in
clause (a) exist and/or until any Insolvency Proceeding is dismissed);


 


7

















 


8.4          Domestic Default.  The
occurrence of an Event of Default under the Domestic Loan Documents.  The terms and provisions of the Domestic
Agreement are hereby incorporated by reference and shall survive the
termination of the Domestic Agreement.


 


8.5          EXIM
Guaranty.  If the EXIM Guaranty
ceases for any reason to be in full force and effect, or if the EXIM Bank
declares the EXIM Guaranty void or revokes any obligations under the EXIM
Guaranty.


 


9              BANK’S
RIGHTS AND REMEDIES


 


9.1          Rights and Remedies.  While an Event of Default occurs and
continues Bank may, without notice or demand, do any or all of the following:


 


(a)           declare all Obligations
immediately due and payable (but if an Event of Default described in Section 8.3
occurs all Obligations are immediately due and payable without any action by
Bank);


 


(b)           stop advancing money or
extending credit for Borrower’s benefit under this EXIM Agreement or under any
other agreement between Borrower and Bank;


 


(c)           settle or adjust
disputes and claims directly with Account Debtors for amounts on terms and in
any order that Bank considers advisable, notify any Person owing Borrower money
of Bank’s security interest in such funds, and verify the amount of such
account;


 


(d)           make any payments and
do any acts it considers necessary or reasonable to protect the Collateral
and/or its security interest in the Collateral. 
Borrower shall assemble the Collateral if Bank requests and make it
available as Bank designates.  Bank may
enter premises where the Collateral is located, take and maintain possession of
any part of the Collateral, and pay, purchase, contest, or compromise any Lien
which appears to be prior or superior to its security interest and pay all
expenses incurred. Borrower grants Bank a license to enter and occupy any of
its premises, without charge, to exercise any of Bank’s rights or remedies;


 


(e)           apply to the
Obligations any (i) balances and deposits of Borrower it holds, or (ii) any
amount held by Bank owing to or for the credit or the account of Borrower;


 


(f)            ship, reclaim,
recover, store, finish, maintain, repair, prepare for sale, advertise for sale,
and sell the Collateral.  Bank is hereby
granted a non-exclusive, royalty-free license or other right to use, without
charge, Borrower’s labels, patents, copyrights, mask works, rights of use of
any name, trade secrets, trade names, trademarks, service marks, and
advertising matter, or any similar property as it pertains to the Collateral,
in completing production of, advertising for sale, and selling any Collateral
and, in connection with Bank’s exercise of its rights under this Section,
Borrower’s rights under all licenses and all franchise agreements inure to Bank’s
benefit;


 


(g)           place a “hold” on any
account maintained with Bank and/or deliver a notice of exclusive control, any
entitlement order, or other directions or instructions pursuant to any Control
Agreement or similar agreements providing control of any Collateral;


 


(h)           demand and receive
possession of Borrower’s Books; and


 


(i)            exercise all rights
and remedies available to Bank under the Loan Documents or at law or equity,
including all remedies provided under the Code (including disposal of the
Collateral pursuant to the terms thereof).


 


9.2          Power of Attorney.  Borrower hereby irrevocably appoints Bank as
its lawful attorney-in-fact, exercisable upon the occurrence and during the
continuance of an Event of Default, to:  (a) endorse
Borrower’s name on any checks or other forms of payment or security; (b) sign
Borrower’s name on any invoice or bill of lading for any Account or drafts
against Account Debtors; (c) settle and adjust disputes and claims about
the Accounts directly with Account Debtors, for amounts and on terms Bank
determines reasonable; (d) make, settle, and adjust all claims under Borrower’s
insurance policies; (e) pay, contest or settle any Lien, charge,
encumbrance, security interest, and adverse claim in or to the Collateral, or
any judgment based thereon, or otherwise take any action to terminate or
discharge the same; and (f) transfer the Collateral into the name of Bank
or a third party as the Code 


 


8

















 


permits. 
Borrower hereby appoints Bank as its lawful attorney-in-fact to sign
Borrower’s name on any documents necessary to perfect or continue the
perfection of Bank’s security interest in the Collateral regardless of whether
an Event of Default has occurred until all Obligations have been satisfied in
full (except for contingent indemnification obligations for which no claim has
been made) and Bank is under no further obligation to make Credit Extensions
hereunder.  Bank’s foregoing appointment
as Borrower’s attorney in fact, and all of Bank’s rights and powers, coupled
with an interest, are irrevocable until all Obligations have been fully repaid
and performed and Bank’s obligation to provide Credit Extensions terminates.


 


9.3          Accounts Collection.  When an Event of Default occurs and
continues, Bank may notify any Person owing Borrower money of Bank’s security
interest in the funds and verify the amount of the Account.  Borrower must collect all payments in trust
for Bank and, if requested by Bank, immediately deliver the payments to Bank in
the form received from the account debtor, with proper endorsements for
deposit.


 


9.4          Protective Payments.  If Borrower fails to obtain the insurance
called for by Section 6.7 or fails to pay any premium thereon or fails to
pay any other amount which Borrower is obligated to pay under this EXIM
Agreement or any other Loan Document, Bank may obtain such insurance or make
such payment, and all amounts so paid by Bank are Bank Expenses and immediately
due and payable, bearing interest at the then highest applicable rate, and
secured by the Collateral.  Bank will make
reasonable efforts to provide Borrower with notice of Bank obtaining such
insurance at the time it is obtained or within a reasonable time
thereafter.  No payments by Bank are
deemed an agreement to make similar payments in the future or Bank’s waiver of
any Event of Default.


 


9.5          Application of Payments
and Proceeds.  Borrower shall have no
right to specify the order or the accounts to which Bank shall allocate or
apply any payments required to be made by Borrower to Bank or otherwise
received by Bank under this EXIM Agreement when any such allocation or
application is not specified elsewhere in this EXIM Agreement.  If an Event of Default has occurred and is
continuing, Bank may apply any funds in its possession, whether from Borrower
account balances, payments, proceeds realized as the result of any collection
of Accounts or other disposition of the Collateral, or otherwise, to the
Obligations in such order as Bank shall determine in its sole discretion.  Any surplus shall be paid to Borrower by
credit to the Designated Deposit Account or to other Persons legally entitled
thereto; Borrower shall remain liable to Bank for any deficiency.  If Bank, in its good faith business judgment,
directly or indirectly enters into a deferred payment or other credit transaction
with any purchaser at any sale of Collateral, Bank shall have the option,
exercisable at any time, of either reducing the Obligations by the principal
amount of the purchase price or deferring the reduction of the Obligations
until the actual receipt by Bank of cash therefor.


 


9.6          Bank’s Liability for
Collateral.  So long as Bank complies
with reasonable banking practices regarding the safekeeping of the Collateral
in the possession or under the control of Bank, Bank shall not be liable or
responsible for: (a) the safekeeping of the Collateral; (b) any loss
or damage to the Collateral; (c) any diminution in the value of the
Collateral; or (d) any act or default of any carrier, warehouseman,
bailee, or other Person.  Borrower bears
all risk of loss, damage or destruction of the Collateral.


 


9.7          No Waiver; Remedies
Cumulative.  Bank’s failure, at any
time or times, to require strict performance by Borrower of any provision of
this EXIM Agreement or any other Loan Document shall not waive, affect, or
diminish any right of Bank thereafter to demand strict performance and
compliance herewith or therewith.  No
waiver hereunder shall be effective unless signed by Bank and then is only
effective for the specific instance and purpose for which it is given.  Bank’s rights and remedies under this EXIM
Agreement and the other Loan Documents are cumulative.  Bank has all rights and remedies provided
under the Code, by law, or in equity. 
Bank’s exercise of one right or remedy is not an election, and Bank’s
waiver of any Event of Default is not a continuing waiver.  Bank’s delay in exercising any remedy is not
a waiver, election, or acquiescence.


 


9.8          Demand Waiver.  Borrower waives demand, notice of default or
dishonor, notice of payment and nonpayment, notice of any default, nonpayment
at maturity, release, compromise, settlement, extension, or renewal of
accounts, documents, instruments, chattel paper, and guarantees held by Bank on
which Borrower is liable.


 


9.9          EXIM Direction. Upon
the occurrence of an Event of Default, EXIM Bank shall have right to (i) direct
Bank to exercise the remedies specified in Section 9.1 hereof and (ii) request
that Bank accelerate the maturity of any other loans to Borrower.


 


9

















 


9.10        EXIM Notification.  Bank has the right to immediately notify EXIM
Bank in writing if it has knowledge of any of the following events: (1) any
failure to pay any amount due under this EXIM Agreement; (2) the EXIM
Borrowing Base is less than the sum of the outstanding Credit Extensions; (3) any
failure to pay when due any amount payable to Bank under any Loan Documents
owing by Borrower to Bank; (4) the filing of an action for debtor’s relief
by, against or on behalf of Borrower; or (5) any threatened or pending
material litigation against Borrower, or any material dispute involving
Borrower.


 


If Bank sends a
notice to EXIM Bank, Bank has the right to send EXIM Bank a written report on
the status of events covered by the notice every thirty (30) days after the
date of the original notification, until Bank files a claim with EXIM Bank or
the defaults have been cured (but no EXIM Advances may be required during the
cure period unless EXIM Bank gives its written approval).  If directed by EXIM Bank, Bank will have the
right to exercise any rights it may have against the Borrower to demand the
immediate repayment of all amount outstanding under the EXIM Loan Documents.


 


9.11        Borrower Liability.  Either Borrower may, acting singly, request
Credit Extensions hereunder.  Each
Borrower hereby appoints the other as agent for the other for all purposes
hereunder, including with respect to requesting Credit Extensions
hereunder.  Each Borrower hereunder shall
be jointly and severally obligated to repay all Credit Extensions made
hereunder, regardless of which Borrower actually receives said Credit
Extension, as if each Borrower hereunder directly received all Credit
Extensions.  Each Borrower waives (a) any
suretyship defenses available to it under the Code or any other applicable law,
and (b) any right to require Bank to: (i) proceed against any
Borrower or any other person; (ii) proceed against or exhaust any
security; or (iii) pursue any other remedy.  Bank may exercise or not exercise any right
or remedy it has against any Borrower or any security it holds (including the
right to foreclose by judicial or non-judicial sale) without affecting any
Borrower’s liability.  Notwithstanding
any other provision of this EXIM Agreement or other related document, each
Borrower irrevocably waives all rights that it may have at law or in equity
(including, without limitation, any law subrogating Borrower to the rights of
Bank under this EXIM Agreement) to seek contribution, indemnification or any
other form of reimbursement from any other Borrower, or any other Person now or
hereafter primarily or secondarily liable for any of the Obligations, for any
payment made by Borrower with respect to the Obligations in connection with
this EXIM Agreement or otherwise and all rights that it might have to benefit
from, or to participate in, any security for the Obligations as a result of any
payment made by Borrower with respect to the Obligations in connection with
this EXIM Agreement or otherwise.  Any
agreement providing for indemnification, reimbursement or any other arrangement
prohibited under this Section shall be null and void.  If any payment is made to a Borrower in
contravention of this Section, such Borrower shall hold such payment in trust
for Bank and such payment shall be promptly delivered to Bank for application
to the Obligations, whether matured or unmatured.


 


10           NOTICES


 


All notices, consents,
requests, approvals, demands, or other communication (collectively, “Communication”)
by any party to this EXIM Agreement or any other Loan Document must be in
writing and be delivered or sent by facsimile at the addresses or facsimile
numbers listed below.  Bank or Borrower
may change its notice address by giving the other party written notice
thereof.  Each such Communication shall
be deemed to have been validly served, given, or delivered: (a) upon the
earlier of actual receipt and three (3) Business Days after deposit in the
U.S. mail, registered or certified mail, return receipt requested, with proper
postage prepaid; (b) upon transmission, when sent by facsimile
transmission (with such facsimile promptly confirmed by delivery of a copy by
personal delivery or United States mail as otherwise provided in this Section 10);
(c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid; or (d) when delivered, if hand-delivered
by messenger, all of which shall be addressed to the party to be notified and
sent to the address or facsimile number indicated below.  EXIM Advance requests made pursuant to Section 3.4
must be in writing and may be in the form of electronic mail, delivered to Bank
by Borrower at the e-mail address of Bank provided below and shall be deemed to
have been validly served, given, or delivered when sent (with such electronic
mail promptly confirmed by delivery of a copy by personal delivery or United
States mail as otherwise provided in this Section 10).  Bank or Borrower may change its address,
facsimile number, or electronic mail address by giving the other party written
notice thereof in accordance with the terms of this Section 10.


 


10

















 


	
  If to Borrower:

  	
  Axcelis Technologies, Inc.

  108 Cherry Hill Drive

  Beverly, Massachusetts 01915

  Attn: Stephen G. Bassett, Chief Financial Officer
  and Executive Vice President

  Fax: 978-787-4090

  Email: Stephen.bassett@axcelis.com

  
	
   

  	
   

  
	
  If to Borrower:

  	
  Axcelis Technologies, Inc.

  108 Cherry Hill Drive

  Beverly, Massachusetts 01915

  Attn: Lynnette C. Fallon, Executive Vice President HR/Legal, General Counsel
  and Secretary

  Fax: 978-787-4090

  Email: lynnette.fallon@axcelis.com

  
	
   

  	
   

  
	
  With a copy to:

  	
  Edward Angell Palmer and Dodge LLP

  111 Huntington Avenue

  Boston, Massachusetts 02199

  Attn: James I. Rubens, Esquire

  Fax: 888-325-9130

  Email: jrubens@eapdlaw.com

  
	
   

  	
   

  
	
  If to Bank:

  	
  Silicon Valley Bank

  One Newton Executive Park, Suite 200

  2221 Washington Street

  Newton, Massachusetts 02462

  Attn: Mark Sperling

  Fax: 617.969.5478

  Email: msperling@svbank.com

  
	
   

  	
   

  
	
  with a copy to:

  	
  Riemer & Braunstein LLP

  Three Center Plaza

  Boston, Massachusetts 02108

  Attn: Charles W. Stavros, Esquire

  Fax: 617.880.3456

  Email: CStavros@riemerlaw.com

  



 


11           CHOICE
OF LAW, VENUE, JURY TRIAL WAIVER AND JUDICIAL REFERENCE


 


Massachusetts law governs the Loan Documents (except
as otherwise indicated therein) without regard to principles of conflicts of
law.  Borrower and Bank each submit to
the exclusive jurisdiction of the State and Federal courts in Massachusetts; provided,
however, that nothing in this EXIM Agreement shall be deemed to operate
to preclude Bank from bringing suit or taking other legal action in any other
jurisdiction to realize on the Collateral or any other security for the
Obligations, or to enforce a judgment or other court order in favor of
Bank.  Borrower expressly submits and
consents in advance to such jurisdiction in any action or suit commenced in any
such court, and Borrower hereby waives any objection that it may have based
upon lack of personal jurisdiction, improper venue, or forum non conveniens and
hereby consents to the granting of such legal or equitable relief as is deemed
appropriate by such court.  Borrower
hereby waives personal service of the summons, complaints, and other process
issued in such action or suit and agrees that service of such summons,
complaints, and other process may be made by registered or certified mail
addressed to Borrower at the address set forth in Section 10 of this EXIM
Agreement and that service so made shall be deemed completed upon the earlier
to occur of Borrower’s actual receipt thereof or three (3) days after
deposit in the U.S. mails, proper postage prepaid. NOTWITHSTANDING ANYTHING TO
THE CONTRARY SET FORTH HEREINABOVE, BANK SHALL SPECIFICALLY HAVE THE RIGHT TO
BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR ITS PROPERTY IN THE COURTS
OF


 


11
















 


ANY OTHER JURISDICTION
WHICH BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL
OR TO OTHERWISE ENFORCE BANK’S RIGHTS AGAINST BORROWER OR ITS PROPERTY.


 


TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS EXIM AGREEMENT,
THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT,
BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR
BOTH PARTIES TO ENTER INTO THIS EXIM AGREEMENT. 
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.


 


12           GENERAL PROVISIONS


 


12.1        Right of Set-Off.  Borrower hereby grants to Bank a Lien and a
right of setoff as security for all Obligations to Bank, whether now existing
or hereafter arising upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control
of Bank or any entity under the control of Bank (including a subsidiary of
Bank) or in transit to any of them.  At
any time after the occurrence and during the continuance of an Event of
Default, without demand or notice, Bank may setoff the same or any part thereof
and apply the same to any liability or Obligation of Borrower even though
unmatured and regardless of the adequacy of any other collateral securing the
Obligations.  ANY AND ALL RIGHTS TO
REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER,
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.


 


12.2        Successors and Assigns.  This EXIM Agreement binds and is for the
benefit of the successors and permitted assigns of each party.  Borrower may not assign this EXIM Agreement
or any rights or obligations under it without Bank’s prior written consent
(which may be granted or withheld in Bank’s discretion).  Bank has the right, without the consent of or
notice to Borrower, to sell, transfer, assign, negotiate, or grant
participation in all or any part of, or any interest in, Bank’s obligations,
rights, and benefits under this EXIM Agreement and the other Loan Documents;
provided, however, that prior to the occurrence of an Event of Default, any
such assignment or participation may only be made to an Eligible Assignee.


 


12.3        Indemnification.  Borrower agrees to indemnify, defend and hold
Bank and its directors, officers, employees, agents, attorneys, or any other
Person affiliated with or representing Bank (each, an “Indemnified
Person”) harmless against:  (a) all
obligations, demands, claims, and liabilities (collectively, “Claims”) claimed or asserted by any other party in
connection with the transactions contemplated by the Loan Documents; and (b) all
losses or expenses (including Bank Expenses) in any way suffered, incurred, or
paid by such Indemnified Person as a result of, following from, consequential
to, or arising from transactions between Bank and Borrower (including
reasonable attorneys’ fees and expenses), except for Claims and/or losses
directly caused by such Indemnified Person’s gross negligence or willful
misconduct.


 


12.4        Time of Essence.  Time is of the essence for the performance of
all Obligations in this EXIM Agreement.


 


12.5        Severability of Provisions.  Each provision of this EXIM Agreement is
severable from every other provision in determining the enforceability of any
provision.


 


12.6        Correction of Loan Documents.  Bank may correct patent errors and fill in
any blanks in this EXIM Agreement and the other Loan Documents consistent with
the agreement of the parties.


 


12.7        Amendments in Writing; Integration.  All amendments to this EXIM Agreement must be
in writing signed by both Bank and Borrower. 
This EXIM Agreement and the Loan Documents represent the entire
agreement about this subject matter and supersede prior negotiations or
agreements.  All prior agreements,
understandings, representations, warranties, and negotiations between the parties
about the subject matter of this EXIM Agreement and the Loan Documents merge
into this EXIM Agreement and the Loan Documents.


 


12

















 


12.8        Counterparts.  This EXIM Agreement may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which, when executed and delivered, is an original, and all taken together,
constitute one EXIM Agreement.


 


12.9        Survival. 
All covenants, representations and warranties made in this EXIM
Agreement continue in full force until this EXIM Agreement has terminated
pursuant to its terms and all Obligations (other than inchoate indemnity
obligations and any other obligations which, by their terms, are to survive the
termination of this EXIM Agreement) have been satisfied.  The obligation of Borrower in Section 12.3
to indemnify Bank shall survive until the statute of limitations with respect
to such claim or cause of action shall have run.


 


12.10      Confidentiality.  In handling any confidential information,
Bank shall exercise the same degree of care that it exercises for its own
proprietary information, but disclosure of information may be made: (a) to
Bank’s Subsidiaries or Affiliates; (b) to prospective transferees or
purchasers of any interest in the Credit Extensions (provided, however, Bank
shall use commercially reasonable efforts to obtain such prospective transferee’s
or purchaser’s agreement to the terms of this provision); (c) as required
by law, regulation, subpoena, or other order; (d) to Bank’s regulators or
as otherwise required in connection with Bank’s examination or audit; (e) as
Bank considers appropriate in exercising remedies under the Loan Documents; and
(f) to third-party service providers of Bank so long as such service
providers have executed a confidentiality agreement with Bank with terms no
less restrictive than those contained herein. 
Confidential information does not include information that either: (i) is
in the public domain or in Bank’s possession when disclosed to Bank, or becomes
part of the public domain after disclosure to Bank; or (ii) is disclosed
to Bank by a third party, if Bank does not know that the third party is
prohibited from disclosing the information.


 


Bank may use confidential
information for any purpose, including, without limitation, for the development
of client databases, reporting purposes, and market analysis, so long as Bank
does not disclose Borrower’s identity or the identity of any person associated
with Borrower unless otherwise expressly permitted by this EXIM Agreement.  The provisions of the immediately preceding
sentence shall survive the termination of this EXIM Agreement.


 


12.11      Electronic Execution of Documents.  The words “execution,” “signed,” “signature”
and words of like import in any Loan Document shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity and enforceability as a
manually executed signature or the use of a paper-based recordkeeping systems,
as the case may be, to the extent and as provided for in any applicable law,
including, without limitation, any state law based on the Uniform Electronic
Transactions Act.


 


12.12      Captions. 
The headings used in this EXIM Agreement are for convenience only and
shall not affect the interpretation of this EXIM Agreement.


 


12.13      Construction of EXIM Agreement.  The parties mutually acknowledge that they and
their attorneys have participated in the preparation and negotiation of this EXIM
Agreement.  In cases of uncertainty this
EXIM Agreement shall be construed without regard to which of the parties caused
the uncertainty to exist.


 


12.14      Relationship. 
The relationship of the parties to this EXIM Agreement is determined
solely by the provisions of this EXIM Agreement.  The parties do not intend to create any
agency, partnership, joint venture, trust, fiduciary or other relationship with
duties or incidents different from those of parties to an arm’s-length
contract.


 


12.15      Third Parties.  Nothing in this EXIM Agreement, whether
express or implied, is intended to: (a) confer any benefits, rights or
remedies under or by reason of this EXIM Agreement on any persons other than
the express parties to it and their respective permitted successors and
assigns; (b) relieve or discharge the obligation or liability of any
person not an express party to this EXIM Agreement; or (c) give any person
not an express party to this EXIM Agreement any right of subrogation or action
against any party to this EXIM Agreement.


 


12.16      EXIM Borrower Agreement; Cross-Collateralization;
Cross-Default; Conflicts.  Both
this EXIM Agreement and the EXIM Borrower Agreement shall continue in full
force and effect, and all rights and remedies under this EXIM Agreement and the
EXIM Borrower Agreement are cumulative. 
The term “Obligations” as used in this EXIM Agreement and in the EXIM
Borrower Agreement shall include without limitation the obligation to pay when
due all loans made pursuant to the EXIM Borrower Agreement and the
Export-Import 


 


13

















 


Agreement (the “EXIM Loans”)
and all interest thereon and the obligation to pay when due all Advances made
pursuant to the terms of this EXIM Agreement and all interest thereon.  Without limiting the generality of the
foregoing, the security interest granted herein covering all “Collateral” as
defined in this EXIM Agreement and as defined in the EXIM Borrower Agreement
shall secure all EXIM Loans and all Advances and all interest thereon, and all
other Obligations.  Any Event of Default
under this EXIM Agreement shall also constitute a default under the EXIM
Borrower Agreement, and any default under the EXIM Borrower Agreement shall
also constitute an Event of Default under this EXIM Agreement.  In the event Bank assigns its rights under
this EXIM Agreement and/or under any note evidencing EXIM Loans and/or its
rights under the EXIM Borrower Agreement and/or under any note evidencing
Advances, to any third party, including, without limitation, the EXIM Bank,
whether before or after the occurrence of any Event of Default, Bank shall have
the right (but not any obligation), in its sole discretion, to allocate and
apportion Collateral to the EXIM Borrower Agreement and/or note assigned and to
specify the priorities of the respective security interests in such Collateral
between itself and the assignee, all without notice to or consent of the
Borrowers.  Should any term of this EXIM
Agreement conflict with any term of the EXIM Borrower Agreement, the more
restrictive term in either agreement shall govern Borrower.


 


13           DEFINITIONS


 


13.1        Definitions.  As used in the Loan Documents, the word “shall”
is mandatory, the word “may” is permissive, the word “or” is not exclusive, the
words “includes” and “including” are not limiting, the singular includes the
plural, and numbers denoting amounts that are set off in brackets are negative.
Except as otherwise defined, terms that are capitalized in this EXIM Agreement
shall have the meaning assigned in the Domestic Agreement.  As used in this EXIM Agreement, the following
terms have the following meanings:


 


“Availability
Amount” is (a) the lesser of (i) the Revolving Line or (ii) the
EXIM Borrowing Base minus (b) the outstanding principal balance of
any EXIM Advances.  In no event shall the
aggregate amount of all Credit Extensions under this EXIM Agreement outstanding
at any time together with all other Credit Extensions (as defined in the
Domestic Agreement) under the Domestic Agreement exceed Twenty Million Dollars
($20,000,000).


 


“Bank”
is defined in the preamble hereof.


 


“Borrower” is
defined in the preamble hereof.


 


“Country Limitation
Schedule” is defined in the EXIM Borrower Agreement.


 


“Collateral” is
any and all properties, rights and assets of Borrower described on Exhibit A.


 


“Credit
Extension” is any EXIM Advance or any other extension of credit
hereunder by Bank for Borrower’s benefit.


 


“Default Rate”
is defined in Section 2.3(b).


 


“Domestic Agreement”
is defined in Section 1(a).


 


“Domestic Loan Documents”
is defined in Section 1(a).


 


“Domestic Revolving Line”
means the Revolving Line, as such term is defined in the Domestic Agreement.


 


“Effective Date”
is the date Bank executes this EXIM Agreement and as indicated on the signature
page hereof.


 


“Eligible EXIM Accounts”
means Accounts arising in the ordinary course of Borrower’s business from
Non-U.S. Account Debtors and that meet all Borrower’s representations and
warranties in Section 5.3, conform in all respects to the EXIM Borrower
Agreement, and which Bank, in its good faith business judgment, shall deem 


 


14

















 


eligible for
borrowing.  Without limiting the fact
that the determination of which Accounts are eligible for borrowing is a matter
of Bank’s good faith business judgment, the following (the “Minimum EXIM Eligibility Requirements”) are
the minimum requirements for an Account to be an Eligible EXIM Account.  In no event shall Export-Related Accounts
Receivable or Export-Related Overseas Accounts Receivable include any Account:


 


(a) that does not arise from the sale of Items in
the ordinary course of the Borrower’s business;


 


(b) that is not subject to a valid, perfected, and enforceable
first priority security interest in favor of the Bank;


 


(c) as to which any covenant, representation or
warranty contained in the Loan Documents relating to such Account has been
breached;


 


(d) that is not owned by the Borrower or is
subject to any right, claim, or interest of any other party other than the Lien
in favor of the Bank;


 


(e) with respect to which an invoice has not been
sent;


 


(f) generated by the sale or provision of defense
articles or services, subject to exceptions approved in writing by EXIM Bank;


 


(g) that is due and payable from a military buyer,
subject to exceptions approved in writing by EXIM Bank;


 


(h) that is due and payable from a foreign Buyer
located in a country with which EXIM Bank is legally prohibited from doing
business as set forth in the current Country Limitation Schedule.  (Note: If the Borrower has knowledge that an
export to a country in which EXIM Bank may do business, as set forth in the
current Country Limitation Schedule, will be re-exported to a country with
which EXIM Bank is legally prohibited from doing business, the corresponding
receivables (or a pro-rata portion thereof) are not eligible for inclusion in
the EXIM Borrowing Base);


 


(i) that does not comply with the requirements of
the Country Limitation Schedule;


 


(j) that by its original terms is due and payable
more than one-hundred-twenty (120) days from the date of invoice;


 


(k) that is not paid within sixty (60) calendar
days from its original due date unless insured through EXIM Bank (or other
acceptable) export credit insurance for comprehensive commercial and political
risk, in which case ninety (90) calendar days shall apply;


 


(l) that arises from a sale of goods to or
performance of services for an employee, stockholder, or subsidiary of the
Borrower, intra-company receivables or any receivable from a stockholder, any
person or entity with a controlling interest in the Borrower or which shares
common controlling ownership with the Borrower;


 


(m) that is backed by a letter of credit where
the Items covered by the subject letter of credit have not yet been shipped, or
where the covered services have not yet been provided;


 


(n) that the Bank or EXIM Bank, in its reasonable
judgment, deem uncollectible or unacceptable; this category includes, but is
not limited to, finance charges or late charges imposed on the foreign buyer by
the Borrower as a result of the foreign buyer’s past due status;


 


(o) that is denominated in non-U.S. currency,
unless (i) such Accounts are subject to a Foreign Currency Hedge Agreement
or (ii) such Accounts are pre-approved in writing by EXIM Bank;


 


(p) that does not comply with the terms of sale
as set forth by EXIM Bank;


 


15

















 


(q) that is due and payable from a Buyer who
becomes unable to pay its debts or whose ability to pay its debts becomes questionable;


 


(r) that arises from a bill-and-hold, guaranteed
sale, sale-and-return, sale on approval, consignment, or any other repurchase
or return basis or is evidenced by chattel paper;


 


(s) for which the Items giving rise to such
accounts receivable have not been shipped to the Buyer or when the Items are
services, such services have not been performed or when the export order
specifies a timing for invoicing the Items other than shipment or performance
and the Items have not been invoiced in accordance with such terms of the
export order, or the accounts receivable do not otherwise represent a final
sale;


 


(t) that is subject to any offset, deduction,
defense, dispute, or counterclaim, or the buyer is also a creditor or supplier
of the Borrower, or the Account Receivable is contingent in any respect or for
any reason;


 


(u) for which the Borrower has made any agreement
with the buyer for any deduction therefrom, except for discounts or allowances
made in the ordinary course of business for prompt payment;


 


(v) for which any of the Items giving rise to
such Account have been returned, rejected, or repossessed;


 


(w) that arises from the sale of Items that do
not meet 50% U.S. Content requirements;


 


(x)  that arises from or relates to DRAM (Devices
for Random Access Memory) Inventory, services or Accounts; or


 


(y) that is deemed to be ineligible by EXIM Bank.


 


Bank reserves the right at any time after the
Effective Date to adjust the Minimum EXIM Foreign Eligibility Requirements in
its good faith business judgment and establish new criteria to determine the
foregoing.


 


“Eligible
EXIM Inventory” means, at any time, the aggregate of Borrower’s
Inventory, located in the United States and valued at the lower of actual cost
or market value, determined in accordance with GAAP (or such other valuation
method as Bank and EXIM Bank shall approve, in their sole discretion), which
may include raw materials, works in progress, and finished goods accompanied by
a purchase order, that is intended for export, and does not include Inventory
that:


 


(a) is not subject
to a valid, perfected and enforceable first priority Lien in favor of Bank;


 


(b) is located at and address that has not been
disclosed to the Bank;


 


(c) is not located in the United States, unless
pre-approved in writing by Bank and EXIM Bank, in their sole discretion;


 


(d) is placed by the Borrower on consignment or
held by the Borrower on consignment;


 


(e) is in the possession of a processor or
bailee, or located on premises leased or subleased to the Borrower, or on
premises subject to a mortgage in favor of a party other than Bank, unless such
processor or bailor or lessor or sublessor or mortgagee (as applicable) of such
premises has executed and delivered all documentation which Bank and/or EXIM
Bank shall require to evidence its priority with respect to such Inventory as
well as their right to gain access to such Inventory;


 


(f) is produced in violation of the Fair Labor
Standards Act or subject to the “hot goods” provisions contained in 29 U.S.C.
215 or any successor statute or section;


 


16

















 


(g) any covenant, representation or warranty with
respect to such Inventory contained in the Loan Documents has been breached or
is otherwise in violation thereof;


 


(h) is an Item or is to be incorporated into an
Item that does not meet the 50% U.S. Content requirements;


 


(i) is demonstration Inventory;


 


(j) consists of proprietary software (i.e.
software designed solely for the Borrower’s internal use and is not intended
for resale);


 


(k) is damaged, obsolete, returned, defective,
recalled or otherwise unfit for further processing;


 


(l) that has previously been exported from the
United States;


 


(m) constitutes or will be incorporated into
items that constitute, defense articles or services;


 


(n) is an Item or will be incorporated into Items
that will be used in the construction, alteration, operation or maintenance of
nuclear power, enrichment, reprocessing, research or heavy water production
facilities, unless pre-approved in writing by Bank and EXIM Bank, in their sole
discretion;


 


(o) is an Item or will be incorporated into Items
destined for shipment to a country with which EXIM Bank is legally prohibited
from doing business as designated in the current Country Limitation Schedule,
or that Borrower has knowledge will be re-exported by a foreign buyer to a
country in which EXIM Bank is legally prohibited from doing business;


 


(p) is an Item or will be incorporated into Items
destined for shipment to a buyer in a country in which EXIM Bank coverage is
not available for commercial reasons as designated in the current Country
Limitation Schedule, unless and only to the extent that such Inventory is sold
to such foreign buyer on terms of an irrevocable letter of credit, in form and
substance acceptable to EXIM Bank, in its sole discretion, and is confirmed by
a bank acceptable to EXIM Bank, it its sole discretion;


 


(q) constitutes or is to be incorporated into
Items whose sale would result in an account receivable that would not be an
Eligible Export-Related Account Receivable;


 


(r) is included as eligible inventory under any
other credit facility to which Borrower is a party;


 


(s) is, or is to be incorporated into, an Item
that is a Capital Good unless the transaction is in accordance with Section 2.14
“Economic Impact Approval” of the EXIM Borrower Agreement;


 


(t) that is or relates to DRAM (Devices for
Random Access Memory) Inventory, services or Accounts; or


 


(u) is deemed to be ineligible by EXIM Bank.


 


Bank reserves the right at any time after the
Effective Date to adjust the Eligible EXIM Inventory requirements in its good
faith business judgment and establish new criteria to determine the foregoing.


 


“Eligible Export-Related Accounts Receivable”
is defined in the EXIM Borrower Agreement.


 


“Event of
Default” is defined in Section 8.


 


“EXIM Advance”
or “EXIM Advances” means an advance (or
advances) under the Revolving Line.


 


“EXIM Bank”
means Export-Import Bank of the United States.


 


“EXIM Borrower Agreement”
is defined in Section 2.7.


 


17

















 


“EXIM Borrowing Base”
is (a) ninety percent (90%) of Hedged Eligible EXIM Accounts; plus (b) sixty
percent (60%) of all other Eligible EXIM Accounts billed in a Foreign Currency
and not subject to a Foreign Currency Hedge Agreement; plus (c) sixty
percent (60%) of Eligible Export Inventory; provided, however,
that in any event the amount in clause (c) shall not at any time exceed (i) sixty
percent (60%) of the total amounts outstanding and/or requested under any EXIM
Borrowing Base and the Domestic Loan Agreement, 
or (ii)(A) exceed $7,500,000 at any time for the five Business Days
before and after end of each of Borrower’s fiscal quarters or (B) exceed
$5,000,000 at any other time; provided, however, that Bank may
decrease the foregoing percentage in its good faith business judgment based on
events, conditions, contingencies, or risks which, as determined by Bank, may
adversely affect the Collateral.


 


“EXIM  Borrowing Base Certificate” is that certain certificate
describing the calculation of the EXIM Borrowing Base, provided to Borrower by
Bank.


 


“EXIM Guaranty”
is defined in Section 2.6.


 


“EXIM Loans” is
defined in Section 12.16.


 


“EXIM Note” is a
certain Promissory Note of even date executed by Borrower in connection with
this EXIM Agreement.


 


“Export Orders”
are valid written export orders, evidenced by purchase contracts, for the
purchase by a buyer from the Borrower for any Inventory intended for export
outside the United States.


 


“Export-Related Accounts
Receivable” is defined in the EXIM Borrower Agreement.


 


“Export-Related General
Intangibles” is defined in the EXIM Borrower Agreement.


 


“Export-Related Inventory”
is defined in the EXIM Borrower Agreement.


 


“Export-Related Overseas
Accounts Receivable” is defined in the EXIM Borrower Agreement.


 


“Export-Related
Overseas Accounts Inventory” is defined in the EXIM Borrower
Agreement.


 


“Foreign
Currency Hedge Agreement” means any agreement with respect to any
swap, hedge, forward, future or derivative transaction or option or similar
other similar agreement or arrangement, each of which is (i) for the
purpose of hedging the foreign currency fluctuation exposure associated with
Borrower’s operations and Accounts, (ii) acceptable to Bank, in its
reasonable discretion, and (iii) not for speculative purposes.


 


“Hedged Eligible EXIM
Accounts” are Eligible EXIM Accounts in which (i) all invoices
are denominated in Dollars, or (ii) all invoices are in foreign currencies
that are subject to a Foreign Currency Hedge Agreement.


 


“Item” and “Items” is defined in the EXIM Borrower Agreement.


 


“Loan Documents”
are, collectively, this EXIM Agreement, the Perfection Certificate, any
subordination agreement,  the Domestic
Agreement, the Domestic Loan Documents, the EXIM Borrower Agreement, the EXIM
Guaranty, the EXIM Note, any note, or notes or guaranties executed by Borrower
or any Guarantor, and any other present or future agreement between Borrower
any Guarantor and/or for the benefit of Bank in connection with this EXIM
Agreement, all as amended, restated, or otherwise modified.


 


“Minimum EXIM Eligibility
Requirements” is defined in the defined term “Eligible EXIM Accounts”.


 


“Obligations”
are Borrower’s obligation to pay when due any debts, principal, interest, Bank
Expenses and other amounts Borrower owes Bank now or later, whether under this
EXIM Agreement, the Domestic Agreement, the other Loan Documents, or otherwise,
including, without limitation, all obligations relating to letters of credit,
cash management services, if any, and foreign exchange contracts, if any, and
including interest accruing after 


 


18

















 


Insolvency Proceedings
begin and debts, liabilities, or obligations of Borrower assigned to Bank, and
the performance of Borrower’s duties under the Loan Documents.


 


“Revolving Line”
is an EXIM Advance or EXIM Advances (including, without limitation, Advances
made pursuant to the Export-Import Agreement) in an amount equal to Twenty
Million Dollars ($20,000,000.00).


 


“Revolving Line Maturity Date”
is March 11, 2011.


 


[Signature page follows.]


 


19

















 


IN WITNESS WHEREOF, the parties
hereto have caused this EXIM Agreement to be executed as a sealed instrument
under the laws of the Commonwealth of Massachusetts as of the Effective Date.


 


	
  BORROWER:

  	
   

  
	
   

  	
   

  
	
  AXCELIS
  TECHNOLOGIES, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Mary G. Puma

  	
   

  
	
   

  	
  Mary G. Puma, President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AXCELIS
  TECHNOLOGIES CCS CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Mary G. Puma

  	
   

  
	
   

  	
  Mary G. Puma, President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BANK:

  	
   

  
	
   

  	
   

  
	
  SILICON
  VALLEY BANK

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/
  Mark Sperling

  	
   

  
	
  Name:

  	
  Mark
  Sperling

  	
   

  
	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Effective Date:
  March 12, 2010

  	
   

  



 


1

















 


EXHIBIT A — COLLATERAL DESCRIPTION


 


The Collateral consists
of all of Borrower’s right, title and interest in and to the following personal
property:


 


All goods, Accounts, Equipment, Inventory, contract
rights or rights to payment of money, leases, license agreements, franchise
agreements, General Intangibles, commercial tort claims, documents, instruments
(including any promissory notes), chattel paper (whether tangible or
electronic), cash, deposit accounts, letters of credit rights (whether or not
the letter of credit is evidenced by a writing), securities, and all other
investment property, supporting obligations, and financial assets, whether now
owned or hereafter acquired, wherever located; and


 


all Borrower’s Books relating to the foregoing, and
any and all claims, rights and interests in any of the above and all
substitutions for, additions, attachments, accessories, accessions and
improvements to and replacements, products, proceeds and insurance proceeds of
any or all of the foregoing.


 


Notwithstanding the foregoing,
the “Collateral” does not include more than 66% of the presently existing and
hereafter arising issued and outstanding shares of capital stock owned by
Borrower of any Foreign Subsidiary which shares entitle the holder thereof to
vote for directors or any other matter.


 


1

















 


ANNEX A


 


BORROWER AGREEMENT


 


2