Exhibit 10.2


 


SECOND LOAN MODIFICATION AGREEMENT


 


(DOMESTIC LINE)


 


This Second Loan
Modification Agreement (this “Loan Modification Agreement’) is entered into as
of November 30, 2004, by and between SILICON VALLEY BANK,
a California-chartered bank, 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, doing business under the name “Silicon
Valley East” (“Bank”) and AMERICAN SCIENCE AND
ENGINEERING, INC, a Massachusetts corporation with its chief
executive office located at 829 Middlesex Turnpike, Billerica, Massachusetts 01821
(“Borrower”).


 


1.             DESCRIPTION OF
EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other indebtedness and
obligations which may be owing by Borrower to Bank, Borrower is indebted to
Bank pursuant to a loan arrangement dated as of August 11, 2003, evidenced
by, among other documents, a certain Loan and Security Agreement dated as of August 11,
2003, between Borrower and Bank, as amended by a certain First Loan
Modification Agreement dated as of June 30, 2004, between Borrower and
Bank (as amended, the “Loan Agreement”). 
Capitalized terms used but not otherwise defined herein shall have the
same meaning as in the Loan Agreement.


 


2.             DESCRIPTION OF
COLLATERAL. 
Repayment of the Obligations is secured by the Collateral as described
in the Loan Agreement (together with any other collateral security granted to
Bank, the “Security Documents”).


 


Hereinafter, the Security
Documents, together with all other documents evidencing or securing the
Obligations shall be referred to as the “Existing Loan Documents”.


 


3.             DESCRIPTION OF
CHANGE IN TERMS.


 


A.            Modifications to Loan
Agreement.


 


1.             The Loan Agreement
shall be amended by deleting the following definition appearing in Section 13.1
thereof:


 


“Prime Rate”
is the greater of (i) 4.00% or (ii) Bank’s most recently announced “prime
rate,” even if it is not Bank’s lowest rate.


 


and inserting in lieu
thereof the following:


 


“Prime Rate”
is Bank’s most recently announced “prime rate,” even if it is not Bank’s lowest
rate.


 


2.             The Loan Agreement
shall be amended by deleting the following definition appearing in Section 13.1
thereof


 


“Revolving Maturity Date” is November 30,
2004.


 


and inserting in lieu thereof the following:


 


“Revolving Maturity Date” is November 29,
2006.


 


4.             FEES.  A fully earned, non-refundable facility fee
of Thirty-Seven Thousand Five Hundred Dollars ($37,500.00)is earned as of the
date hereof and shall be payable as follows: (i) Eighteen Thousand Seven
Hundred Fifty


 

















 


Dollars ($18,750.00) is payable
on November 30, 2004 and (ii) Eighteen Thousand Seven Hundred Fifty
Dollars ($18,750.00) is payable on the sooner to occur of (x) November 30,
2005, (y) the occurrence of an Event of Default, or (z) the early
termination of the Loan Agreement.  The
Borrower shall also reimburse Bank for all legal fees and expenses incurred in
connection with this amendment to the Existing Loan Documents.


 


5.             RATIFICATION OF
INTELLECTUAL PROPERTY SECURITY AGREEMENT. 
Borrower hereby ratifies, confirms and reaffirms, all and singular, the
terms and conditions of a certain Intellectual Property Security Agreement
dated as of August 11, 2003, between Borrower and Bank, as amended by a
certain First Amendment to Intellectual Property Security Agreement dated as of
August 23, 2004, between the Borrower and Bank (as amended, the “Intellectual
Property Security Agreement”) and acknowledges, confirms and agrees that said Intellectual
Property Security Agreement contains an accurate and complete listing of all
Intellectual Property Collateral as defined in said Intellectual Property
Security Agreement, and shall remain in full force and effect.  Notwithstanding the terms and conditions of
the Intellectual Property Security Agreement, the Borrower shall not register
any Copyrights or Mask Works in the United States Copyright Office unless it: (i) has
given at least five (5) days’ prior written notice to Bank of its intent
to register such Copyrights or Mask Works and has provided Bank with a copy of
the application it intends to file with the United States Copyright Office
(excluding exhibits thereto); (ii) executes a security agreement or such
other documents as Bank may reasonably request in order to maintain the
perfection and priority of Bank’s security interest in the Copyrights proposed
to be registered with the United States Copyright Office; and (iii) records
such security documents with the United States Copyright Office
contemporaneously with filing the Copyright application(s) with the United
States Copyright Office.  Borrower shall
promptly provide to Bank a copy of the Copyright application(s) filed with
the United States Copyright Office, together with evidence of the recording of
the security documents necessary for Bank to maintain the perfection and
priority of its security interest in such Copyrights or Mask Works.  In addition, the Borrower shall provide
written notice to Bank, on a quarterly basis, regarding any application filed
by Borrower in the United States Patent Trademark Office for a patent or to
register a trademark or service mark.


 


6.             RATIFICATION OF
PERFECTION CERTIFICATE.  Borrower
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in a certain Perfection Certificate dated as of August 11,
2003, between Borrower and Bank, and acknowledges, confirms and agrees the
disclosures and information above Borrower provided to Bank in the Perfection Certificate
has not changed, as of the date hereof, except to the extent such disclosure is
updated by the information contained in Exhibit A  Supplement
attached hereto.


 


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


 


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


 


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


 


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


 

















 


11.           COUNTERSIGNATURE.  This Loan Modification Agreement shall become
effective only when it shall have been executed by Borrower and Bank (provided,
however, in no event shall this Loan Modification Agreement become effective
until signed by an officer of Bank in California).


 

















 


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


 


	
  BORROWER:

  	
   

  	
  BANK:

  
	
   

  	
   

  	
   

  
	
  AMERICAN
  SCIENCE AND ENGINEERING, INC.

  	
   

  	
  SILICON
  VALLEY BANK, doing business as

  SILICON VALLEY EAST

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Anthony R. Fabiano

  	
   

  	
  By:

  	
  /s/ Mark Gallagher

  
	
   

  	
   

  	
   

  
	
  Name: Anthony R.
  Fabiano

  	
   

  	
  Name: Mark Gallagher

  
	
   

  	
   

  	
   

  
	
  Title: President and
  Chief Executive Officer

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SILICON
  VALLEY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
  (signed in Santa Clara
  County, California)

  
									



 


The undersigned, AS&E GLOBAL, INC., 
a Massachusetts corporation (“Guarantor”) hereby: (i) ratifies,
confirms and reaffirms, all and singular, the terms and conditions of a certain
Unlimited Guaranty dated August 11, 2003 (the “Guaranty”), and (B) a
certain Security Agreement by Guarantor in favor of the Bank dated August 11,
2003 (the “Security Agreement”); and (ii) acknowledges, confirms and agrees
that the Guaranty, and Security Agreement shall remain in full force and effect
and shall in no way be limited by the execution of this Loan Modification
Agreement, or any other documents, instruments and/or agreements executed
and/or delivered in connection herewith; and (iii) acknowledges,
confirms and agrees that the obligations of Borrower to Bank under the Guaranty
include, without limitation, all Obligations of Borrower to Bank under the Loan
Agreement, as amended by this Loan Modification Agreement.


 


	
   

  	
  AS&E
  GLOBAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony R. Fabiano

  
	
   

  	
   

  
	
   

  	
  Name: Anthony R. Fabiano

  
	
   

  	
   

  
	
   

  	
  Title:  President
  and Chief Executive Officer