WAIVER AND AMENDMENT AGREEMENT
TO
NOTE AND EQUITY PURCHASE AGREEMENT
THIS WAIVER AND
AMENDMENT AGREEMENT TO NOTE AND EQUITY PURCHASE AGREEMENT (this
“ Waiver and Amendment ”) is made and entered
into as of August 4, 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, and IST INSTRUMENTS, INC., a New York
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, Agent and
the Purchasers have agreed to waive the Loan Parties’
obligations and covenants contained in the Purchase Agreement for
the period commencing on June 30, 2006 and ending upon
July 1, 2009;
WHEREAS, Agent and
the Purchasers have agreed to amend the Purchase Agreement to
update the principal amounts of the Senior Term Loan B and to
extend the maturity date of the Senior Term B Notes and Senior
Subordinated Notes and the Revolving Loan Termination Date;
and
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 and Amendment.
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 of
Covenants . The Purchasers hereby waive the Loan Parties’
obligations and Purchasers’ rights with respect to all
covenants under the Purchase Agreement, including without
limitation the provisions contained in Article 7, for the
period commencing on June 30, 2006 and ending upon
July 1, 2009, and the Purchasers hereby waive any related
rights to the extent such acts have constituted, or will
constitute, an Event of Default.
2.1 Amendment
with Respect to Revolving Loans . Section 2.3(a) of the
Purchase Agreement is hereby amended and restated in its entirety
as follows:
“(a) Subject
to the terms and conditions set forth in this Agreement, on or
after the Closing Date and to, but excluding July 1, 2011 (the
“ Revolving Loan Termination Date ”), Purchasers
shall, severally, on a pro rata basis based on the percentages
specified to Agent, make loans and advances to the Loan Parties on
a revolving credit basis (collectively, the “ Revolving
Loans ”) in an aggregate amount outstanding at any time
up to the Revolving Loan Commitment Amount. From and after the
Closing, the Revolving Loans shall be evidenced by a promissory
note made by the Loan Parties in favor of the Purchasers (the
“ Revolving Notes ”) in the form attached hereto
as Exhibit A-4 to be delivered by the Loan Parties at
the Closing. The date and amount of each Revolving Loan made by
Purchasers and each payment on account of principal thereof shall
be recorded by Agent on its books; provided that, the failure of
Agent to make any such recordation shall not affect the obligations
of the Loan Parties to make payments when due of any amounts owing
in respect of the Revolving Loans.”
2.2 Amendment
with Respect to Repayment of Certain Notes .
2.2.1
Section 2.1(b) is hereby amended and restated in its entirety
to read as follows:
“(a) Subject
to the terms and conditions set forth in this Agreement, Purchasers
agree to make a loan (“ Senior Term Loan B ”) to
the Loan Parties on the Closing Date in the principal amount of
$7,500,000 and on the Additional Closing Date of March 12,
2007 in the principal amount of $2,000,000. From and after Closing,
the Senior Term Loan B shall be evidenced by one or more promissory
notes made by the Loan Parties in favor of Purchasers in the form
attached hereto as Exhibit A-1.2 (together with any
promissory notes issued in substitution therefor pursuant to
Sections 6.3 and 6.4, the “ Senior Term B Notes
”, and together with the Senior Term A Notes, the “
Original Senior Term Notes ”) to be delivered by the
Loan Parties at the Closing.”
2.2.2
Section 2.2(a) is hereby amended and restated in its entirety
to read as follows:
2
“(a)
Senior Subordinated Notes . The Loan Parties have duly
authorized the issuance and sale to Purchasers of $7,500,000 in
aggregate principal amount of the Loan Parties’ Senior
Subordinated Notes due July 1, 2011 (together with any Notes
issued in substitution therefor pursuant to Section 6.3 and
6.4 and any Notes issued in exchange for Put Shares pursuant to
Section 10.5, the “ Senior Subordinated Notes
”), to be substantially in the form of the Senior
Subordinated Note attached hereto as Exhibit A-2
.”
2.2.3
Section 3.3(a) is hereby amended and restated in its entirety
to read as follows:
“(a)
Senior Subordinated Note
|
