exv10w3w3






Exhibit 10.3.3




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.



RECITALS:




     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:



 









 





ARTICLE 1




CONSENT




          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.




ARTICLE 2




OMNIBUS AMENDMENT




          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 Restated Purchase
Agreement or any other Purchase Document in a manner that comports with the provisions of this
Section 2.1.




ARTICLE 3




AMENDMENT




          3.1 The Amended and Restated Purchase Agreement is hereby amended as follows:




          (a) Article 7.1(i) is deleted in its entirety and replaced with the following:




          [reserved].




ARTICLE 4




CONDITIONS PRECEDENT




     The provisions set forth in Article 1, Article 2 and Article 3 hereof shall be effective as of
the date on which GMS shall have entered into the Pledge and Security Agreement and Guaranty and
the Agent shall have received this Agreement, executed



2









 




and delivered by each applicable Loan Party, the Agent and each Purchaser (the “Agreement
Effective Date”).




ARTICLE 5




REPRESENTATIONS AND WARRANTIES




     In order to induce the Agent and the Purchasers to enter into this Agreement, each Loan Party
represents and warrants to the Agent and each Purchaser, that:



     1. Corporate Power and Authority. As of the Agreement Effective Date, each Loan Party
has all requisite power and authority to enter into this Agreement, and to carry out the
transactions contemplated hereby. The execution, delivery and performance of this Agreement has
been duly authorized by all necessary action on the part of each Loan Party that is a, party to
this Agreement.



     2. No Conflict; Governmental Consents. The execution and delivery .by each of the
Loan Parties of the Agreement and the consummation of the transactions contemplated hereby, do not
and will not (i) conflict in any material respect with or result in a material breach of the terms,
conditions or provisions of, (ii) constitute a material default under, (iii) except as created
pursuant to the Security Documents, result in the creation of any Lien upon any of the Loan
Parties’ capital stock or assets pursuant to, (iv) give any third party the right to accelerate any
material obligation under, (v) result in a material violation of, or (vi) require any material
authorization, consent, approval, exemption or other action by or notice to any Governmental
Authority or, except as could not reasonably be expected to have a Material Adverse Effect, any
third party which has not been obtained pursuant to, the Charter Documents (as to which no
materiality qualifiers shall apply) of any of the Loan Parties, or any Law to which any of the Loan
Parties is subject, or any Contract, order, judgment or decree to which any of the Loan Parties is
a party or to which they or their assets are subject.



     3. Binding Obligation. This Agreement has been duly executed and delivered by each
Loan Party and is the legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights
generally or by equitable principles relating to enforceability.



     4. Absence of Default. After giving effect to each of the amendments set forth herein
no Default or Event of Default shall have occurred and be continuing.



ARTICLE 6




MISCELLANEOUS




     This Agreement shall be binding upon the parties hereto and their respective successors and
assigns and shall inure to the benefit of the parties hereto and the successors and assigns of
Purchasers. The rights or obligations hereunder or any interest



3









 




therein of any Loan Party may not be assigned or delegated by any Loan Party without the prior
written consent of all Purchasers.




     Except as expressly amended hereby, the Agreement and all other documents, agreements and
instruments relating thereto are and shall remain unmodified and in full force and. effect. On and
after the Agreement Effective Date, each reference in the Agreement to “this Agreement”,
“hereunder”, “hereof’, “herein” or words of like import, and each reference in the Transaction
Documents to the Amended and Restated Purchase Agreement, shall mean and be a reference to the
Agreement as amended hereby, and this Agreement and the Amended and Restated Purchase Agreement
shall be read together and construed as a single instrument. This Agreement will not constitute a
waiver of any provision of the Amended and Restated Purchase Agreement other than a provision
pursuant to which a Default or Event of Default would have occurred but for the effectiveness of
this Agreement.



     In case any provision in or obligation hereunder or any Amended and Restated shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.



     Section. headings herein are included herein for convenience of reference only and shall not
constitute a part hereof for any other purpose or be given any substantive effect.



     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD. TO CONFLICT OF
LAWS PRINCIPLES.



     This Agreement may be executed in any number of counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together shall constitute but
one and the same instrument.



[The remainder of this page is intentionally left blank.]




4









 








     WITNESS WHEREOF, the patties hereto have executed this Agreement as of the day and year first
above written.



	 	 	 	 	 
	 	LOAN PARTIES:




IST ACQUISITIONS, INC.

 	 
	 	By:  	/s/ Donald Hartman 	 
	 	 	Name:  	Donald Hartman 	 
	 	 	Title:  	 	 
	 
	 	IMAGING AND SENSING TECHNOLOGY CORPORATION

 	 
	 	By:  	/s/ Donald Hartman 	 
	 	 	Name:  	Donald Hartman 	 
	 	 	Title:  	 	 
	 
	 	IST CONAX NUCLEAR, INC.

 	 
	 	By:  	/s/ Donald Hartman 	 
	 	 	Name:  	Donald Hartman 	 
	 	 	Title:  	 	 
	 
	 	IST INSTRUMENTS, INC.

 	 
	 	By:  	/s/ Donald Hartman 	 
	 	 	Name:  	Donald Hartman 	 
	 	 	Title:  	 	 
	 
	 	IMAGING AND SENSING TECHNOLOGY INTERNATIONAL
CORP.

 	 
	 	By:  	/s/ Donald Hartman 	 
	 	 	Name:  	Donald Hartman 	 
	 	 	Title:  	 	 
	 



IST — NEPA CONSENT




 









 








	 	 	 	 	 
	 	QUADTEK, INC,

 	 
	 	By:  	/s/ Donald Hartman 	 
	 	 	Name:  	Donald Hartman 	 
	 	 	Title:  	 	 
	 
	 	AGENT:




AMERICAN CAPITAL FINANCIAL SERVICES INC.

 	 
	 	By:  	/s/ Robert  Klein 	 
	 	 	Name:  	Robert J. Klein 	 
	 	 	Title:  	 	 
	 



IST — NEPA CONSENT




 









 








	 	 	 	 	 
	 	PURCHASERS:




ACS FUNDING TRUST I

 	 
	 	By:  	AMERICAN CAPITAL STRATEGIES LTD., as Servicer
 	 
	 	 	 	 
	 	By:  	/s/ Robert J. Klein
 	 
	 	 	Name:  	Robert J. Klein 	 
	 	 	Title:  	 	 
	 
	 	AMERICAN CAPITAL STRATEGIES LTD.

 	 
	 	By:  	/s/ Robert J. Klein	 
	 	 	Name:  	Robert J. Klein 	 
	 	 	Title:  	 	 
	 



IST — NEPA CONSENT