AMENDMENT NO. 5 AND
WAIVER
This
AMENDMENT NO. 5 AND WAIVER (this “ Amendment and
Waiver ”), dated as of December 22, 2006, to the Second
Amended and Restated Note and Equity Purchase Agreement, dated as
of November 10, 2004 and as amended by Amendment No. 1,
dated October 14,2005, Amendment No. 2, dated
February 1, 2006, Amendment No. 3, dated March 28,
2006, Amendment No. 4, dated December 15, 2006
(collectively, the “ Note Purchase Agreement ”),
by and among Global Dosimetry Solutions, a Delaware
corporation’ (the “ Company ”), the
securities purchasers that are now and hereafter at any time
parties thereto (each a “ Purchaser ” and
collectively, “ Purchasers ”), and American
Capital Financial Service, Inc., a Delaware corporation (“
ACFS ”), as agent for Purchasers (“ Agent
”). All capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Note
Purchase Agreement.
WHEREAS,
the Company, Purchasers and ACFS are party to the Note Purchase
Agreement; and
WHEREAS,
pursuant to the transactions contemplated by the Master
Restructuring Agreement and Plan of Merger dated as of
December 22, 2005, to which the Company is a party, Mirion
Technologies, Inc. (formerly known as Global Monitoring Systems,
Inc., “ Mirion ”) became the sole stockholder of
the Company; and
WHEREAS,
the Company no longer prepares financial statements separate from
Mirion and the parties hereto desire to waive prior non-compliance
with existing financial covenants and to amend certain provisions
of the Note Purchase Agreement to provide that financial covenants
be measured based on the consolidated financial reporting of Mirion
and its subsidiaries;
WHEREAS,
under Section 14.2 of the Note Purchase Agreement, any
amendment thereof requires a written instrument executed by the
Company 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 Note
Purchase Agreement by making the changes set forth herein in
accordance with Section 14.2 of the Note Purchase
Agreement;
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION
1. AMENDMENTS TO THE NOTE PURCHASE AGREEMENT
1.1
The following definitions are hereby added to Section 1.1 in
alphabetical order:
““
Interest Coverage Ratio ” means, for a particular
Measurement Period, the ratio of (a) EBITDA to (b) cash
interest expense, in each case of the Loan Parties on a
consolidated basis during such Measurement
Period.”
““
Loan Parties ” shall mean the Company and any
Subsidiary of the Company who becomes a party hereto after
·the date hereof; provided, that for purposes of
Article 7.3 , and any defined terms used therein,
“Loan Parties” shall mean Mirion and all or its
Subsidiaries.”
“
Measurement Date ” has the meaning assigned to such
term in Section 7.3(a).
“
Measurement Period ” means the twelve (12) month
period ending on a Measurement Date.
““
Mirion ” means Mirion Technologies, Inc., a Delaware
corporation.”
“
Total Debt to EBITDA Ratio ” means the ratio of
(a) all Indebtedness of the Loan Parties on a consolidated
basis, as of a particular Measurement Date to (b) the EBITDA
for the Measurement Period ending on such Measurement
Date.
1.2
The following definitions in Section 1.1 are hereby amended
and restated in their entirety:
““
Capital Expenditures ” means for any period of
determination capital expenditures of the Loan Parties for such
period determined and consolidated in accordance with GAAP,
excluding expenditures made in connection with the replacement,
substitution or restoration of assets to the extent financed with
insurance proceeds, cash awards arising from a taking by eminent
domain or condemnation or cash proceeds of asset dispositions
reinvested in replacement assets.”
“
EBITDA ” means for any period, without duplication,
the sum of the following for the Loan Parties on a consolidated
basis, each calculated for such period: (a) Net Income (as
adjusted for by the Board of Directors of Mirion for non-recurring
charges and specifically excluding extraordinary gains or
extraordinary losses and gains or losses from sales of assets,
other than inventory sold in the ordinary course of business),
minus (b) interest income, plus
(c) interest expense, (d) charg
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