Exhibit 10.2


 


U.S. Bank National
Association


 


February 25,
2009


 


Axcelis Technologies, Inc.


108 Cherry Hill Road


Beverly, MA 
01915


Attention: 
Chief Financial Officer


 


	
  Re:

  	
   

  	
  41⁄4% Convertible Senior Subordinated Notes Due 2009 (the “Notes”)

  Issued Pursuant to an Indenture Dated as of May 2, 2006 (the “Indenture”)

  	
   

  



 


Ladies and Gentlemen:


 


Reference is hereby made to the Notes and the
Indenture; capitalized terms used herein and not otherwise defined herein are
used herein as defined in the Indenture.


 


As you are aware, you have defaulted under
your contractual obligation under the Notes and the Indenture to pay amounts of
principal, premium and interest due at the maturity of the Notes, which
defaults are continuing (the “Existing Defaults”).  As you are also aware, the undersigned
Trustee under the Indenture commenced a lawsuit on behalf of the holders of
Notes against you in the United States District Court for the Southern District
of New York (Case Number 09CV657, the “Lawsuit”) to enforce your
obligations under the Notes and the Indenture.


 


You have advised the undersigned Trustee that
you are entering into a Share Purchase Agreement (“Share Purchase Agreement”)
by and among Sumitomo Heavy Industries, Ltd. (“SHI”), you and SEN Corporation,
an SHI and Axcelis Company (“SEN”), pursuant to which SHI would acquire from
you your shareholding in SEN for a cash purchase price of Thirteen Billion Yen
(¥13,000,000,000) on March 31, 2009. 
Among other things, the Share Purchase Agreement provides that SHI shall
transmit to the undersigned Trustee at closing for the benefit of the holders
of the Notes a portion of the purchase price towards the payment in full of all
of your obligations under the Notes and the Indenture in an amount and to an
account designated by the undersigned Trustee.


 


To induce you, SHI and SEN to execute and
deliver the Share Purchase Agreement, and to provide the parties to the Share
Purchase Agreement an opportunity to consummate the transactions contemplated
by the Share Purchase Agreement, the undersigned Trustee hereby confirms the
following:  (a) the Trustee shall
not further pursue the remedies under the Notes or the Indenture, to further
prosecute the Lawsuit or to take any other actions against Axcelis Technologies
(including, without limitation, the filing of any bankruptcy petition or the
initiation of any involuntary bankruptcy action), except that the Trustee
reserves the right to serve and file a motion for summary judgment in the
Lawsuit (the “Motion”); and (b) to the extent the Trustee serves the
Motion on or before March 16, 2009, the Trustee will enter into a
stipulation in which the parties to the Lawsuit agree that any briefing related
to the Motion (or any cross-pleading by you as defendant in the Lawsuit) shall
be completed on or before April 13, 2009 (with your opposition due April 7,
2009 and the Trustee’s reply papers due by April 13, 2009) with no


 

















 


further extensions of the
briefing schedule. The parties also agree  that the motion could not be granted or
judgment entered in the Lawsuit until after April 13, 2009.  With regard to the Lawsuit, the Trustee and
you agree: (1) to forbear from any motion practice (except for the Motion
or any pending pro hac vice applications),
serving any discovery requests or taking any other actions to advance the
Lawsuit before the earlier of (i) April 13, 2009 or (ii) the
termination of the Share Purchase Agreement (the period ending on the earlier
of (i) or (ii) being the “Stand Down Period”) (2)  not to seek
the postponement of the preliminary court conference previously-scheduled for April 3,
2009, and (3) to file a joint request with the Court for an extension
of  time for (x) the submission of a
Civil Case Management Plan and (y) the date for a subsequent pretrial
conference to a date after April 13, 2009. 
In addition, with respect to the Lawsuit, you agree to submit to the
personal jurisdiction of the federal district court for the Southern District
of New York and to waive any objections or defenses that you may now or
hereafter have based on venue, forum non conveniens
and/or claim that the Trustee is not the real party in interest in the Lawsuit.


 


In the meantime, although the Trustee agrees
that, during the Stand Down Period, it shall not exercise and enforce certain
rights and remedies available under the Notes, the Indenture and applicable
law, as described above, including prosecution certain aspects of the Lawsuit
as described above, please be advised that this delay in the exercise and
enforcement of rights and remedies should in no way be construed as a waiver of
any Default or Event of Default (including the Existing Defaults) or any rights
or remedies, and the Trustee expressly, as provided in section 7.06 of the
Indenture, reserves the right to exercise all rights, powers and privileges
provided for in the Indenture and the Notes and under applicable law, including
renewed prosecution of the Lawsuit, after the end of the Stand Down Period.


 


Please feel free to contact me should you
have any questions or concerns.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Diana Jacobs

  
	
   

  	
  Name: 

  	
  Diana Jacobs

  
	
   

  	
  Title:

  	
  Vice President

  



 


	
  AGREED TO:

  
	
   

  
	
  AXCELIS TECHNOLOGIES, INC.

  
	
   

  
	
  By:

  	
  /s/ Lynnette C. Fallon

  	
   

  
	
  Name: 

  	
  Lynnette C. Fallon

  	
   

  
	
  Title:

  	
  EVP HR and Legal, General Counsel

  	
   

  



 


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