AMENDMENT NO.4 AND WAIVER
TO THE
AMENDED AND RESTATED
NOTE AND EQUITY PURCHASE AGREEMENT
This AMENDMENT NO.
4 AND WAIVER TO THE AMENDED AND RESTATED NOTE AND EQUITY PURCHASE
AGREEMENT, dated as of December 22, 2006 (this “
Amendment and Waiver ”), 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 Note Purchase 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 and Waiver shall have the meanings ascribed to such terms
in the Note Purchase 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. I on May 24, 2005, Amendment
No. 2 on May 16, 2006 and Amendment No. 3 on
September 13, 2006 (collectively, the “ Note Purchase
Agreement ”);
WHEREAS, pursuant
to the transactions contemplated by the Master Restructuring
Agreement and Plan of Merger dated as of December 22, 2005, to
which the Borrower is a party, Mirion Technologies, Inc. (formerly
known as Global Monitoring Systems, Inc., “ Mirion
”) became the sole member of Borrower; and
WHEREAS, Borrower
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 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 Note Purchase
Agreement by making the changes set forth herein in accordance with
Section 14.2 of the Note Purchase 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:
ARTICLE I —
AMENDMENTS TO THE NOTE PURCHASE AGREEMENT
1.1 The following
definitions are hereby added to Section 1.1:
““
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 set forth 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,
plus (d) charges against income for Taxes, plus
(e) depreciation expenses, plus (f) amortization expenses,
plus (g) all non-cash compensation expenses of the Loan
Parties on a consolidated basis, plus (h) Management
Fees.”
““
Fixed Charges ” means, for any period, and each
calculated for such period (without duplication) on a consolidated
basis, (a) cash interest expense of the Loan Parties; plus (b)
scheduled payment
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