AMENDMENT NO. 3
TO THE
AMENDED AND RESTATED
NOTE AND EQUITY PURCHASE AGREEMENT
This AMENDMENT NO.
3 TO THE AMENDED AND RESTATED NOTE AND EQUITY PURCHASE AGREEMENT,
dated as of September 13, 2006 (this “ Amendment
No. 3 ”), is entered into by and among IST
Acquisitions, LLC a Delaware limited liability company (successor
by conversion to IST Acquisitions, Inc., the “ Parent
”), Imaging and Sensing Technology Corporation, a New York
corporation (the “ Borrower ”), .IST Conax
Nuclear, Inc., a New York corporation, Imaging and Sensing
Technology International Corp., a New York corporation, IST
Instruments, Inc., a New York corporation, Quadtek, Inc., a
Washington corporation (each a “ Subsidiary ”
and collectively the “ Subsidiaries ” and
together with Borrower and Parent, the “ Loan Parties
”), the securities purchasers that are now and hereafter at
any time parties to the Amended and Restated Agreement (as defined
below) and are listed in Annex A thereto (or any amendment or
supplement thereto) (each a “ Purchaser ” and
collectively, the “ Purchasers ”), and American
Capital Financial Services, Inc., a Delaware corporation (“
ACFS ”), as administrative and collateral agent for
the Purchasers (in such capacity, the “ Agent
”). Capitalized terms used and not defined elsewhere in this
Amendment shall have the meanings ascribed to such terms in the
Amended and Restated Agreement.
WHEREAS, the
parties hereto are party to the Amended and Restated Note and
Equity Purchase Agreement, dated as of October 29, 2004, as
amended by Amendment No. 1 on October 21, 2005 and as
further amended by Amendment No. 2 on May 16, 2006 (the
“ Amended and Restated Agreement ”);
WHEREAS, under
Section 14.2 of the Amended and Restated Agreement, any
amendment thereof requires a written instrument executed by each
Loan Party and, to the extent such modification relates to the
Notes, by the Agent on behalf of the Purchasers; and
WHEREAS, the
parties hereto agree and hereby do wish to amend the Amended and
Restated Agreement by making the changes set forth herein in
accordance with Section 14.2 of the Amended and Restated
Agreement.
NOW THEREFORE, in
consideration of the mutual covenants and agreements of the parties
hereto, and of the mutual benefits to be gained by the performance
thereof, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties for
themselves, their heirs, executors, administrators, successors and
assigns, do hereby covenant and agree as follows:
1.
Amendments . The Amended and Restated Agreement is hereby
amended as follows:
(a) The
following definitions set forth in Section 1.1 are hereby
amended and restated in their entirety:
““
LIBOR Period ” means each month commencing on
(i) in the case of the Senior Term B Notes, October 1,
2006 (the “ Term B Payment Date ”), (ii) in
the case of the Senior Term C Notes, October 1, 2006 (the
“ Term C Payment Date ”), and (iii) in the case
of the Senior Term D Notes, November 1, 2006 (the “
Term D Payment Date ”), and ending in each case one
month thereafter; provided, that if the Term B Payment Date, Term C
Payment Date, or Term D Payment Date is not a LIBOR Business Day,
then the LIBOR Period shall commence on the next date that is a
LIBOR Business Day and end one month thereafter; provided, further,
that the foregoing provision relating to LIBOR Periods is subject
to the following:
(a) if any LIBOR
Period would otherwise end on a day that is not a LIBOR Business
Day, such LIBOR Period shall be extended to the next succeeding
LIBOR Business Day unless-the result of such extension would be to
carry such LIBOR Period into another calendar month in which event
such LIBOR Period shall end on the immediately preceding LIBOR
Business Day;
(b) any LIBOR
Period that would otherwise extend beyond the maturity date of the
Notes shall end on such date; and
(c) any LIBOR
Period that begins on the last LIBOR Business Day of a calendar
month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such LIBOR Period) shall
end on the last LIBOR Business Day of a calendar
month.”
““
Revolving Loan Commitment ” shall mean the amount of
$10,250,000.”
(b) The
following definitions are hereby added to
Section 1.1:
““
Additional Revolving Loan Amount ” shall mean an
amount equal to $5,000,000.”
““
Additional Revolving Loan Closing Date ” shall mean
the date on which the Revolving Loan Commitment is increased to
$10,250,000.”
““
Additional Revolving Loan Commitment Fee ” shall mean
an amount equal to 2% of the Additional Revolving Loan Amount (i.e.
an amount equal to $100,000).”
(c) Section 3.1(a)(ii)
is hereby amended and restated in its entirety as set forth
below:
2
“(ii) The
Loan Parties, jointly and severally, covenant and agree to make
payments to the Agent, for the ratable benefit of Purchasers, of
accrued interest on the Senior Term
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