WAIVER AGREEMENT TO NOTE AND
EQUITY PURCHASE AGREEMENT
THIS WAIVER
AGREEMENT TO NOTE AND EQUITY PURCHASE AGREEMENT (this “
Waiver ”) is made and entered into as of June 15,
2009 by and among IST ACQUISITIONS, LLC, a Delaware limited
liability company (“ Parent ”), MIRION
TECHNOLOGIES (IST) CORPORATION (fka IMAGING AND SENSING
TECHNOLOGY CORPORATION), a New York corporation (“
Borrower ”), MIRION TECHNOLOGIES (CONAX NUCLEAR), INC.
(fka 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, the securities purchasers that are now
and hereafter at any time parties hereto and are listed in Annex
A (or any amendment or supplement thereto) attached hereto
(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 ”).
WHEREAS, the Loan
Parties, Agent and the Purchasers are parties to that certain
Amended and Restated Note and Equity Purchase Agreement, dated as
of October 29, 2004 (as amended from time to time, the “
Purchase Agreement ”), pursuant to which the
Purchasers purchased Notes issued by the Loan Parties;
WHEREAS, as part
of a project to change the corporate names of the operating
companies within the Mirion corporate group, certain of the Loan
Parties or their Affiliates have changed, or are changing, their
corporate names; namely, I&ST Canada Inc. to Mirion
Technologies (IST Canada) Inc.; Imaging and Sensing Technology Ltd.
to Mirion Technologies (IST) Ltd.; IST Auxitrol Nuclear SAS to
Mirion Technologies (IST France) SAS; Imaging and Sensing
Technology Corporation to Mirion Technologies
(IST) Corporation; and, IST Conax Nuclear, Inc. to Mirion
Technologies (Conax Nuclear), Inc. (collectively, the “
Newly Named Parties ”);
WHEREAS, as part
of the broader name change project within the Mirion corporate
group, Mirion Technologies (IST) Ltd. (fka Imaging and Sensing
Technology Ltd.) created a new corporation having neither assets
nor employees (the “ Shell Subsidiary ”), solely
for purposes of protecting the trade name “Imaging and
Sensing Technology Ltd.” in the United Kingdom;
WHEREAS, Quadtek,
Inc., Imaging and Sensing Technology International Corporation and
IST Instruments, Inc. (the “ Dormant Parties ”)
are each dormant entities with no on-going operations and no
employees and Borrower desires to dissolve the Dormant Parties,
pursuant to the laws of the jurisdictions in which they are
domiciled, in order to simplify the corporate structure and reduce
overall administrative costs;
WHEREAS, I.S.
Technology de Puerto Rico, Inc., a Delaware corporation (“
IST PR ”), a Loan Party under the Purchase Agreement,
has been sold by Parent in a transaction and the Loan Parties,
Purchaser and Agent now desire to memorialize the Purchasers’
waiver and consent for such prior sale;
WHEREAS, as part
of efforts to ensure consistency in the financial statements of
Mirion Technologies, Inc. (“ Mirion ”) and the
Loan Parties, each of which is indirectly wholly owned by Mirion,
the Loan Parties have changed, or may change their Fiscal Year to
end on June 30 th of
each year and the Loan Parties, Purchaser and Agent now desire to
memorialize the Purchasers’ waiver and consent for such
changes;
WHEREAS, as part
of an international tax restructuring of the Mirion corporate
group, the Loan Parties, each of which is an indirect wholly owned
subsidiary of Mirion, and IST Acquisitions, LLC (the “
Transferor ”) desire to transfer equity ownership of
its wholly owned subsidiary, Mirion Technologies (IST France) SAS
(fka IST Auxitrol Nuclear SAS) to its Affiliate Dosimetry
Acquisitions (U.S.) LLC;
WHEREAS, the
Purchase Agreement requires the Loan Parties to maintain audit
committees and Mirion has undertaken, by and on behalf of the Loan
Parties, to complete one consolidated audit including the financial
results of the Loan Parties;
WHEREAS, Agent and
Purchasers have agreed to waive sections of the Purchase Agreement
with respect to the above matters, as set forth and subject to the
terms and conditions in this Waiver;
NOW, THEREFORE,
the parties hereto, in consideration of the premises and their
mutual covenants and agreements herein set forth, and intending to
be legally bound hereby, covenant and agree as follow:
WAIVERS TO PURCHASE
AGREEMENT
1.1 Waiver with
Respect to Name Changes .
1.1.1
Waiver of Notice Period for Changed or Additional Business
Names . The Purchasers hereby waive the Loan Parties’
obligations and the Purchasers’ rights, solely with respect
to the Newly Named Parties’ obligations to provide at least
30 days advance written notice of a change to its corporate
name and establishment of additional trade names, under the
Purchase Agreement, including without limitation
Section 7.2(p), and the Purchasers hereby waive any related
rights to the extent such acts have constituted, or will
constitute, an Event of Default.
1.1.2
Waiver of Loan Parties Covenants Prohibiting the Establishment
of Subsidiaries . The Purchasers hereby waive the Loan
Parties’ obligations and the Purchasers’ rights, solely
with respect to formation of the Shell Subsidiary, under the
Purchase Agreement, including without limitation
Section 7.2(l), and the Purchasers hereby waive any related
rights to the extent such acts have constituted, or will
constitute, an Event of Default.
2
1.2 Waiver with
Respect to the Dormant Parties and IST PR .
1.2.1
Waiver of Loan Parties’ Covenants to Preserve Existence
and Property . The Purchasers hereby waive the Loan
Parties’ obligations and Purchasers’ rights, solely
with respect to the dissolution of the Dormant Parties and with
respect to the prior sale by Borrower of IST PR, under the Purchase
Agreement, including without limitation Sections 7.1(a) and
7.1(b), and the Purchasers hereby waive any related rights to the
extent such acts have constituted, or will constitute, an Event of
Default.
1.2.2
Waiver of Loan Parties’ Covenants Not to Merge or Sell
Assets . The Purchasers hereby waive the Loan Parties’
obligations and Purchasers’ rights under the Purchase
Agreement solely with respect to the prior sale of IST PR,
including without limitation Section 7.2(e) of the Purchase
Agreement, and the Purchasers hereby waive any related rights to
the extent such acts have constituted, or will constitute, an Event
of Default.
1.2.3
Waiver of Loan Parties’ Covenants Not to Amend Charter
Documents or Bylaws . The Purchasers hereby waive the Loan
Parties’ obligations and Purchasers’ rights under the
Purchase Agreement solely with respect to amendments,
modifications, termination or waiver of Charter Documents or Bylaws
in connection with the dissolution of the Dormant Parties and the
prior sale of IST PR, including without limitation
Section 7.2(k) of the Purchase Agreement, and the Purchasers
hereby waive any related rights to the extent such acts have
constituted, or will constitute, an Event of Default.
1.2.4
Waiver of Purchasers’ Rights in the Event
of
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