Exhibit 10.5


 


CONSENT TO STOCK REPURCHASE PROGRAM


 


This
consent to Loan and Security Agreement (this  “Consent”) is entered into this 14th day of November, 2008
by and between Silicon Valley Bank (“Bank”) and American Science and
Engineering, Inc., a Massachusetts corporation (“Borrower”).


 


RECITALS


 


A.            Bank
and Borrower have entered into that certain Loan and Security Agreement dated
as of August 11, 2003, as amended by a certain First Loan Modification
Agreement dated as of June 30, 2004, between Borrower and Bank, as amended
by a certain Second Loan Modification Agreement dated as of November 30,
2004, between Borrower and Bank, as further amended by a certain Third Loan
Modification Agreement dated as of November 16, 2006, between Borrower and
Bank, and as further amended by a certain Fourth Loan Modification Agreement
dated as of November 14, 2008 (as the same may from time to time be
further amended, modified, supplemented or restated, the “Loan Agreement”).  Bank has extended credit to Borrower for the purposes
permitted in the Loan Agreement.


 


B.            Borrower is contemplating: (i) entering
into a capital stock repurchase program, and (ii) making a dividend
payment (collectively, the “Transactions”). 
Borrower has requested that Bank consent to the Transactions.


 


C.            Bank has agreed to so consent to the
Transactions, but only to the extent, in accordance with the terms, subject to
the conditions and in reliance upon the representations and warranties set
forth below.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
foregoing recitals and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:


 


1.             Definitions.  Capitalized terms used but not defined in
this Consent shall have the meanings given to them in the Loan Agreement.


 


2.             Consent.  Pursuant to Section 7.6 of the Loan
Agreement relative to distributions and investments, Bank hereby consents to
the Transactions for fiscal year ending March 31, 2009, provided that the
aggregate amount of Borrower’s cash used to consummate the Transactions do not
exceed Thirty-Five Million Dollars ($35,000,000.00).


 


3.             Representations and Warranties.  To induce Bank to enter into this Consent,
Borrower hereby represents and warrants to Bank as follows:


 


3.1         Immediately after
giving effect to this Consent (a) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material
respects as of the date hereof (except to the extent such 


 

















 


representations and warranties relate to an earlier
date, in which case they are true and correct as of such date), and (b) no
Event of Default has occurred and is continuing;


 


3.2          Borrower has the
power and due authority to execute and deliver this Consent; and


 


3.3          The organizational
documents of Borrower delivered to Bank on November 30, 2004 remain true,
accurate and complete and have not been amended, supplemented or restated and
are and continue to be in full force and effect.


 


4.             Integration.  This Consent 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 Amendment and the Loan Documents merge into
this Consent and the Loan Documents.


 


5.             Prior Agreement.  The Loan Documents are hereby ratified and
reaffirmed and shall remain in full force and effect.  This Consent is not a novation and the terms
and conditions of this Consent shall be in addition to and supplemental to all
terms and conditions set forth in the Loan Documents.  In the event of any conflict or inconsistency
between this Consent and the terms of such documents, the terms of this Consent
shall be controlling, but such document shall not otherwise be affected or the
rights therein impaired.


 


6.             Counterparts.  This Consent may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.


 


7.             Effectiveness.  This Consent shall be deemed effective upon the
due execution and delivery to Bank of this Consent by each party hereto.


 


8.             Governing
Law.  This Amendment and the rights and obligations
of the parties hereto shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.


 


[Signature page follows.]


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Consent to be duly executed and delivered as of
the date first written above.


 


 


	
  BANK

  	
   

  	
  BORROWER

  
	
   

  	
   

  	
   

  
	
  SILICON VALLEY BANK

  	
   

  	
  AMERICAN SCIENCE AND

  ENGINEERING, INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jane A. Braun

  	
   

  	
  By:

  	
  /s/ Kenneth J. Galaznik

  
	
  Name: Jane A. Braun

  	
   

  	
  Name: Kenneth J. Galaznik

  
	
  Title: Senior Vice President

  	
   

  	
  Title: Chief Financial Officer