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, Ban
