AMENDMENT NUMBER 2 AND
CONSENT
TO
NOTE AND EQUITY PURCHASE AGREEMENT
SECOND AMENDMENT
AND CONSENT, dated as of December 22, 2005 (this “
Agreement ”), to the Amended and Restated Note and
Equity Purchase Agreement, dated as of October 29, 2004, as
amended (as the same may be amended, supplemented or modified from
time to time in accordance with its terms, the “ Amended
and Restated Purchase Agreement ”), by and among IST
ACQUISITIONS, INC., a Delaware corporation (“ Parent
”), IMAGING AND SENSING TECHNOLOGY CORPORATION, a New York
corporation (“ 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 thereto (each a
“ Purchaser ” and collectively, “
Purchasers ”), and AMERICAN CAPITAL FINANCIAL
SERVICES, INC., a Delaware corporation (“ ACFS
”), as administrative and collateral agent for Purchasers (in
such capacity “ Agent ”). All capitalized terms
used herein and not otherwise defined shall have the meanings
assigned to. such terms in the Amended and Restated Purchase
Agreement.
WHEREAS, the
Parent wishes to enter into the Master Restructuring Agreement and
Plan of Merger (“ Restructuring Agreement ”), by
and among Parent, Global Monitoring Systems, Inc. (“
GMS ”) and the other parties listed therein, in the
manner set forth in the Restructuring Agreement, in the form
attached hereto as Exhibit A, in order to effect a
reorganization of the overall corporate structure of the Loan
Parties; and
WHEREAS, the Loan
Parties have requested that the Purchasers consent to the
transactions involving Parent under the Restructuring Agreement and
waive breach of any covenants violated thereby; and
WHEREAS, following
the completion of the transactions contemplated by the
Restructuring Agreement, the Loan Parties have requested that the
Purchasers consent to the conversion of Parent to a limited
liability company pursuant to Section 18-214 of the Limited
Liability Company Law of Delaware.
WHEREAS, it is a
condition to the Agreement by the Agent that GMS enter into the
Guaranty in the form attached hereto as Exhibit B , and
that GMS enter into a Pledge and Security Agreement in the form
attached hereto as Exhibit C ,.
NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and
covenants herein contained, each Loan Party, each Purchaser and the
Agent agrees as follows:
1.1
The Purchasers hereby consent to the transactions involving Parent
under the Restructuring Agreement and hereby waive breach of any
covenant in the Amended and Restated Purchase Agreement violated as
a result of such transaction.
2.1
Pursuant to Section 18-214 of the Limited Liability Company
Law of Delaware, Parent will convert into a limited liability
company (the “ Conversion ”). As a result,
references in the Amended and Restated Purchase Agreement to Parent
that assume or treat it as a corporation and references -to its
officers, directors and stockholders shall cease to be correct
after completion of the Conversion. Accordingly, the Agent,
Purchaser and the Loan Parties intend that all such references in
the Amended and Restated Purchase Agreement and the other Purchase
Documents shall instead be deemed to be references to the Parent as
a IST Acquisitions, LLC and that all descriptions, requirements and
obligations in the Amended and Restated Purchase Agreement of
Parent, its officers, directors and stockholders, shall be
construed so as to give the Agent and the Purchasers the same
rights and benefits under the Amended and Restated Purchase
Agreement as they currently have with respect to Parent. The Loan
Parties agree that, at any time, promptly upon request of the
Agent, they shall enter into any amendment requested by the Agent
to clarify the applicability, scope and operations of any
provisions of the Amended and Restat
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