**Exhibit 10(d)(ix)**

 

**AMENDMENT NO. 4 TO EXPORT CREDIT AND SECURITY AGREEMENT**

 

Amendment No. 4(“Amendment”) dated as of May 31, 2003 to Export Credit and SecurityAgreement dated as of November 30, 2000 between AMERICAN SCIENCE ANDENGINEERING, INC., a Massachusetts corporation (“Borrower”) and HSBC BANK USA,a bank organized under the laws of the State of New York (“Bank”).

 

**WITNESSETH:**

 

WHEREAS, Borrower hasheretofore entered into financing arrangements with Bank pursuant to the termsand conditions of an Export Credit and Security Agreement dated as ofNovember 30, 2000 between Bank and Borrower as amended by an AmendmentNo. 1 to Export Credit Security Agreement dated as of February 14,2002 between Bank and Borrower, an Amendment No. 2 to Export Credit andSecurity Agreement dated November 27, 2002 between Bank and Borrower andan Amendment No. 3 to Export Credit and Security Agreement datedFebruary 28, 2003 between Bank and Borrower (collectively, the “CreditAgreement”) and the Financing Agreements (as defined in the Credit Agreement);

 

WHEREAS, Borrower hasrequested and Bank is willing, subject to the terms and conditions hereof, toamend the Credit Agreement to extend the termination date therein.

 

NOW, THEREFORE, inconsideration of the foregoing premises, the mutual covenants and agreementscontained herein and other good and valuable consideration, the receipt andsufficiency of which is acknowledged, Borrower and Bank mutually covenant,warrant and agree as follows:

 

SECTION1. DEFINITIONS.

 

SECTION 1.1         Interpretation. For purposes ofthis Amendment, unless otherwise defined herein, all capitalized terms usedherein including, but not limited to, those capitalized terms used and/ordefined in the recitals hereto, shall have the respective meanings assigned tosuch terms in the Credit Agreement.

 

SECTION2. AMENDMENT.

 

SECTION 2.1         Amendments to Section 1.1

 

(a)           The definition of “Termination Date” contained in theCredit Agreement is amended by deleting the reference to “May 31, 2003”and replacing it with “July 31, 2003”.

 

SECTION 2.2.        Amendment to Section 7.2.Section 7.2 of the Credit Agreement is amended so that the period at theend of subclause (iii) is replaced with a semi-colon and the word “and” isadded at the end thereof and a new Section 7.2(iv) shall be added toSection 7.2 as follows:

 

“(iv)  Cash Collateral. From June 1,2003 through July 31, 2003, prior to the issuance of any Standby Letter ofCredit or the making of any Export Working Capital Advance, the Bank shall havereceived cash collateral equal to one hundred percent (100%) of any suchStandby Letter of Credit or Export Working Capital Advance.”

 

 

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SECTION 3.CONDITIONS PRECEDENT.

 

SECTION 3.1         This Amendment shall only becomeeffective upon the fulfillment, prior to or contemporaneously with theexecution hereof, of the following conditions precedent:

 

(a)           Execution of Amendment. The execution and deliveryby Borrower and Bank of an original of this Amendment;

 

(b)           Payment of Fees. (a) The payment by Borrower of:(i) a single amendment fee to the Bank in the amount of $4,166.67 inconnection with this Amendment and the Amendment No. 4 to Revolving Loanand Security Agreement dated the date hereof between the Bank and the Borrower;and (ii) legal fees and expenses of the Bank in the amount of $8,750.00incurred in connection with the preparation of this Amendment, and any otherdocuments, instruments or agreements executed in connection herewith ortherewith, including, without limitation, an Amendment No. 4 to Revolving Loanand Security Agreement, and (b) evidence in form and substancesatisfactory to the Bank that the fees of the Export-Import Bank of the UnitedStates (“Eximbank”) required in connection with the extension of the EximbankDocuments have been paid in full no later than May 31, 2003;

 

(c)           Eximbank Acknowledgment. Receipt by the Bank of awritten consent and acknowledgment of the extension of the Termination Date bythe Eximbank and such other matters as the Bank may deem appropriate; and

 

(d)           Execution of Related Documents and Additional Matters.The execution and delivery by Borrower of an Amendment No. 4 to RevolvingLoan and Security Agreement and a Waiver with respect to the EBIT covenant andall other documents and legal matters, as may be necessary, in connection withthis Amendment and the transactions contemplated by the Credit Agreement asamended by this Amendment which shall be reasonably satisfactory in form andsubstance to Bank.

 

SECTION4. MISCELLANEOUS.

 

SECTION 4.1         Representations and Warranties.(a) All terms, conditions, covenants, representations and warranties (otherthan any such representation and warranty that, by its terms, refers to aspecific date other than the date hereof) of Borrower contained in the CreditAgreement, except as expressly modified hereby, are ratified, confirmed andreaffirmed by Borrower as of the date hereof, remain in full force and effectas of the date hereof, and are incorporated herein by reference as if fully setforth herein.

 

(b)           All terms, conditions, covenants, representations andwarranties (other than any such representation and warranty that, by its terms,refers to a specific date other than the date hereof; provided, however, thatthe Schedules to the Credit Agreement are deemed updated by the information containedin the Schedules attached hereto) of Borrower contained in all of the otherFinancing Agreements, except as expressly modified hereby, are ratified,confirmed and reaffirmed by Borrower as of the date hereof, remain in fullforce and effect as of the date hereof, and are subject to the terms of thisAmendment.

 

 

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(c)           The Borrower represents and warrants to Bank that it hasthe necessary power and has taken all necessary action to make this Amendmentthe valid and enforceable obligation it purports to be, and that this Amendmentconstitutes the legal, valid and binding obligation of Borrower, enforceableagainst Borrower in accordance with its terms, except as enforcement may belimited by principles of equity, bankruptcy, insolvency, or other lawsaffecting the enforcement of creditors’ rights generally.

 

SECTION 4.2         GOVERNING LAW. THIS AMENDMENTAND THE OTHER FINANCING AGREEMENTS, AND ALL TRANSACTIONS HEREUNDER, AND ALL THERIGHTS OF THE PARTIES, SHALL BE GOVERNED AS TO VALIDITY, CONSTRUCTION,ENFORCEMENT AND IN ALL OTHER RESPECTS BY THE LAWS OF THE STATE OF NEW YORK. THEBORROWER AGREES THAT THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATESDISTRICT COURT FOR THE UNITED STATES IN THE SOUTHERN DISTRICT OF NEW YORK SHALLHAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES PERTAINING TOTHE FINANCING TRANSACTIONS OF WHICH THIS AMENDMENT IS A PART AND/OR TO ANYMATTER ARISING OR IN ANY WAY RELATED TO THIS AMENDMENT OR ANY OTHER AGREEMENTBETWEEN THE BANK AND THE BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TOSUCH JURISDICTION IN ANY ACTION OR PROCEEDING AND BORROWER WAIVES PERSONALSERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTIONOR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFERPERSONAL JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL TO BORROWER, ORAS OTHERWISE PROVIDED BY THE LAWS OF NEW YORK STATE OR THE UNITED STATES.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF BANKTO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER EITHERIN ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY OTHER JURISDICTION OR TOSERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

SECTION 4.3.        WAIVERS.

 

(a)           Prejudgment Remedy, Etc. THE BORROWER ACKNOWLEDGESTHAT THE ADVANCES ARE COMMERCIAL TRANSACTIONS AND WAIVES ITS RIGHT TO NOTICEAND HEARING ALLOWED BY ANY STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENTREMEDY, AND FURTHER WAIVES ALL RIGHTS TO REQUEST THE POSTING OF A BOND, WITH ORWITHOUT SURETY, TO PROTECT THE BORROWER OR ANY ENDORSER, GUARANTOR OR SURETY OFANY OF THE OBLIGATIONS AGAINST DAMAGES THAT MAY BE CAUSED BY ANY PREJUDGMENTREMEDY. THE BORROWER FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT,NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF NYA RENEWALS OR EXTENSIONS.

 

(b)           Jury Waiver. THE BORROWER HEREBY WAIVES TRIAL BYJURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING INCONNECTION WITH OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICHTHIS AMENDMENT IS A PART AND/OR THE ENFORCEMENT OF ANY OF THE BANK’S RIGHTS,INCLUDING WITHOUT LIMITATION, TORT CLAIMS.

 

 

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(c)           Voluntary Nature of Waivers. THE BORROWER ACKNOWLEDGESTHAT IT MAKES THE FOREGOING WAIVERS IN SUBSECTIONS (a) AND (b) ABOVE,KNOWINGLY, WILLINGLY, WITHOUT DURESS AND VOLUNTARILY AND ONLY AFTERCONSIDERATION OF THE RAMIFICATIONS OF SUCH WAIVERS WITH ITS ATTORNEYS.

 

SECTION 4.4         Events of Default or Event ofDefault. No events of Default or Event of Default has occurred and iscontinuing on the date hereof or shall be continuing after giving effect to, orresult from, the execution and delivery of this Amendment and Borrower has nopresent reason to believe any Events of Default might or would occur after thedate hereof.

 

SECTION 4.5         Survival of Representations andWarranties. All representations and warranties made in this Amendment orany other documents furnished in connection with this Amendment shall survivethe execution and delivery of this Amendment and no investigation by the Bankor any closing shall affect the representations and warranties or the right ofthe Bank to rely upon them.

 

SECTION 4.6         Reference to Credit Agreement.The Credit Agreement, the Financing Agreements and any and all otheragreements, documents, or instruments heretofore, now or hereafter executed anddelivered pursuant to the terms hereof or pursuant to the terms of the CreditAgreement, as amended hereby, are hereby amended so that any reference in theCredit Agreement, the Financing Agreements or such other agreements, documentsor instruments to the Credit Agreement shall mean a reference to the CreditAgreement as amended hereby.

 

SECTION 4.7         Further Assurances. The partieshereto shall execute and deliver such additional documents and take suchadditional action as may be necessary or desirable to effectuate the provisionsand purposes of this Amendment.

 

SECTION 4.8         Successors and Assigns. Borrowerand Bank as such terms are used herein shall include the legal representatives,successors and assigns of those parties.

 

SECTION 4.9         Counterparts. This Amendment maybe executed in any number of counterparts and by the Bank and Borrower onseparate counterparts, each of which when so executed and delivered shall be anoriginal, but all such counterparts shall together constitute one and the sameAmendment.

 

SECTION 4.10       Severability. Any provision ofthis Amendment held by a court of competent jurisdiction to be invalid or unenforceableshall not impair or invalidate the remainder of this Amendment and the effectthereof shall be confined to the provision so held to be invalid orunenforceable.

 

SECTION 4.11       Conflicting Provisions. In theevent of any conflict in the terms and provisions of this Amendment and theterms and provisions of the Credit Agreement, the terms and provisions of thisAmendment shall govern.

 

SECTION 4.12       Entire Agreement. This Amendmentconstitutes the entire agreement and understanding between the parties heretowith respect to the transactions contemplated hereby and supersedes all priornegotiations, understandings, and agreements between such parties with respectto such transaction.

 

 

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IN WITNESS WHEREOF, thisAmendment has been duly executed by the parties hereto as of the day and yearfirst above written.

 
| AMERICAN SCIENCE AND  ENGINEERING, INC. |
|-----------------------------------------|
|                                    |   |
|                                    |   |
| By                                      | /s/ Paul Theodore Owens |
|                                    | CFO, VP FINANCE | (title) |
|                                    |   |
| HSBC BANK USA                           |
|                                    |   |
| By                                      | /s/ William Meli |
|                                    | (title) |

 

 

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