exv10w4w1






Exhibit 10.4.1




 

 






AMENDMENT NO. 1




to the




AMENDED AND RESTATED




NOTE AND EQUITY PURCHASE AGREEMENT




by and among




GLOBAL DOSIMETRY SOLUTIONS, INC.,




AMERICAN CAPITAL FINANCIAL SERVICES, INC.,

AS AGENT




and




PURCHASERS IDENTIFIED ON

ANNEX A HERETO




October 14, 2005




 

 







 









 








AMENDMENT NO. 1

to the

AMENDED AND RESTATED

NOTE AND EQUITY PURCHASE AGREEMENT




     THIS AMENDMENT NO. 1, dated October 14, 2005 (this “Amendment No. 1”), amends THE
AMENDED AND RESTATED NOTE AND EQUITY PURCHASE AGREEMENT, dated November 10, 2004 (the “Amended
and Restated Purchase Agreement”), and is made by and among Global Dosimetry Solutions, Inc., a
Delaware corporation (the “Company”), the securities purchasers that are now and hereafter
at any time parties thereto and are listed in Annex A (or any amendment or supplement
thereto) attached thereto (each a “Purchaser” and collectively, “Purchasers”), and
AMERICAN CAPITAL FINANCIAL SERVICES, INC., a Delaware corporation (“ACFS”), as
administrative agent for Purchasers (in such capacity “Agent”).



RECITALS




     A. The parties hereto were party to a Note and Equity Purchase Agreement, dated as of
September 30, 2003 (the “Original Purchase Agreement”);



     B. The parties hereto are party to the Amended and Restated Purchase Agreement, pursuant to
which the Original Purchase Agreement was amended and restated;



     C. The Company, Purchasers and the Agent have agreed to enter into this Amendment No. 1 to
amend the Amended and Restated Purchase Agreement, in order to (i) issue and sell the Senior Term D
Notes (as defined herein) (ii) establish the Revolving Loan (as defined herein), (iii) issue and
sell shares of the Series B Preferred Stock (as defined herein) and (ix) amend of certain other
terms of the Amended and Restated Purchase Agreement.



     NOW, THEREFORE, the parties hereto, in consideration of the foregoing premises and their
mutual covenants and agreements herein set forth and intending to be legally bound hereby, covenant
and agree as follows:


1. Definitions. Capitalized terms used and not defined elsewhere in this Amendment are as
defined in the Agreement (as amended by this Amendment No. 1).



2. Amendments. The Amended and Restated Purchase Agreement is hereby amended as follows:




     (a) The following definitions set forth in Section 1.1 of the Amended are hereby amended and
restated in their entirety:




“Agreement” shall mean this Agreement, as amended by Amendment No. 1 and as may be
further amended amended, restated, supplemented or otherwise modified from time to time.




“LIBOR Period” means each month commencing on the Closing Date, the Additional
Closing Date, in the case of the Senior Term C Notes, or the Term D Closing Date, in the
case of the Senior Term D Notes (or if the Closing Date, the Additional Closing Date or



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Term Closing Date is not a LIBOR Business Day, the next succeeding LIBOR Business Day) and
ending one month thereafter; provided, that the foregoing provision relating
to LIBOR Periods is subject to the following:




     (a) if any LIBOR Period would otherwise end on a day that is not a LIBOR Business Day,
such LIBOR Period shall be extended to the next succeeding LIBOR Business Day unless the
result of such extension would be to carry such LIBOR Period into another calendar month in
which event such LIBOR Period shall end on the immediately preceding LIBOR Business Day;




     (b) any LIBOR Period that would otherwise extend beyond the maturity date of the Notes
shall end on such date; and




     (c) any LIBOR Period that begins on the last LIBOR Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such LIBOR Period) shall end on the last LIBOR Business Day of a calendar month.




“Notes” shall mean, collectively, the Original Notes, the Senior Term C Notes, the
Senior Term D Notes and the Revolving Notes.”




“Original Securities” shall mean the Original Notes, the Series A Preferred Stock,
the Common Stock, and the Common Stock issuable upon exercise of the Warrants.




“Preferred Stock” shall mean (a) only for the purposes of Section 2.7 hereof, the
Series A Preferred Stock and (b) for all other purposes under this Agreement, the Series A
Preferred Stock and the Series B Preferred Stock.




“Revolving Notes” shall mean those notes issued in connection with the Revolving
Loans.




“Securities” shall mean collectively the Original Securities, the Additional
Securities, the Senior Term D Notes, the Revolving Notes and the Series B Preferred Stock.




“Senior Debt” shall mean the Senior Financing and the Senior Term Loan C.




“Senior Financing” means the indebtedness incurred under the Revolving Loans and the
Senior Term D Loans.




“Senior Term Loans” shall mean the Senior Term C Loans and the Senior Term D Loans.




“Senior Financing Blocking Notice” shall have the meaning assigned to such term in
Section 13.2(b)(i).




“Senior Term Notes” shall mean the Senior Term C Notes and the Senior Term D Notes.




“Subordinated Debt” shall mean and include



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     (a) all obligations, liabilities and indebtedness of the Company now or
hereafter existing, whether for principal, prepayment premium, if any, interest,
fees, expenses or otherwise, under or arising out of or relating to the Subordinated
Notes, and




     (b) any claims arising in respect of any breach of this Agreement (including,
without limitation, the breach of any representation or warranty under this
Agreement), and any claims in respect of indemnification obligations in respect of
or arising out of this Agreement, in each case to the extent related to the
Subordinated Notes, it being understood that no obligations, liabilities,
indebtedness or claims under, arising out of or relating to the Senior Financing
shall be considered Subordinated Debt.




“Total Funded Debt” shall mean, for any date, the sum of the outstanding balance on
such date of (i) the obligations outstanding hereunder and under the Notes and (ii) Capital
Leases.




“Transactions” shall mean the transactions contemplated by this Agreement (as
amended by Amendment No. 1), the Acquisition Agreement, the Proxtronics Acquisition and the
transactions contemplated by the LFA Acquisition Agreement.




(b) The following definitions are hereby inserted in Section 1.1:




“Amendment No. 1” shall mean Amendment No. 1 to this Agreement, dated October 14,
2005.




“LFA Acquisition Agreement” shall mean that certain Asset Purchase Agreement, dated
as of October 14, 2005, by and among the Company, Jon Laeger, Brian Laeger and LFA
Corporation.




“Loan D Rate” shall mean a rate per annum equal to the LIBOR Rate plus 6.5%.




“Notice of Borrowing” shall have the meaning assigned to such term in Section
2.5A(b).




“Revolving Loans” shall have the meaning assigned to such term in Section 2.5A(a)
hereof.




“Revolving Loan Commitment” shall mean the agreement of certain Purchasers to make
Revolving Loans up to the Revolving Loan Commitment Amount outstanding at any time in
accordance with Section 2.5A.




“Revolving Loan Commitment Amount” shall mean $6,000,000.




“Revolving Loan Commitment Fee” shall have the meaning assigned to such term in
Section 3.16 hereof.




“Revolving Loan Origination Fee” shall mean a fee in the amount equal to $180,000.



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“Revolving Loan Rate” shall mean a rate per annum equal to the LIBOR Rate
plus 4.0%.




“Revolving Loan Termination Date” shall have the meaning assigned to such term in
Section 2.5A(a).




“Senior Term Loan D” shall have the meaning assigned to such term in Section 2.3(c).




“Senior Term D Notes” shall have the meaning assigned to such term in Section
2.3(c).




“Senior Term D Origination Fee” shall mean a fee in an amount equal to $810,000.




“Series A Preferred Stock” shall mean the Company’s Series A PIK Redeemable
Preferred Stock, par value $0.001 per share.




“Series B Preferred Origination Fee” shall mean a fee in the amount equal to
$280,000.




“Series B Preferred Stock” shall mean the Company’s Series B PIK Redeemable
Preferred Stock, par value $0.001 per share.




“Term D Closing” shall have the meaning set forth in Section 2.9(c).




“Term D Closing Date” shall have the meaning set forth in Section 2.9(c).




(c) The following definitions are hereby deleted from Section 1.1:




“GMAC”




“Intercreditor Agreement”




“Senior Lender”




“Term Financing”




“Tranche A PIK Condition”




“Tranche B PIK Condition”




“Undrawn Availability”



     (d) The term “Senior Agent” shall be replaced with the term “Agent” wherever in the Amended
and Restated Purchase Agreement it is found.



     (e) Section 2.1 shall become Section 2.1(a) and the following is hereby inserted as a new
Section 2.1(b):




“(b) The Company has duly authorized the issuance and sale, pursuant to the terms and
conditions of this Agreement, of 7,000 shares of the Series B Preferred Stock, having the
rights, preferences, privileges and restrictions set forth in the Charter of the Company
attached hereto as Exhibit A.”



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(f) A new Section 2.3(c) is hereby inserted as set forth below:




“(c) Subject to the terms and conditions set forth in this Agreement, Purchasers agree to
make a loan (“Senior Term Loan D”) to the Company on the Term D Closing Date in the
principal amount of $27,000,000. From and after the Term D Closing, the Senior Term Loan D
shall be evidenced by one or more promissory notes made by the Company in favor of
Purchasers in the form attached hereto as Exhibit B-3 (the “Senior Term D Notes”) to
be issued in tranches of $5,000,000, $5,000,000, $5,000,000, $5,000,000, $5,000,000 and
$2,000,000 and delivered by the company at the Term D Closing.”




(g) A new Section 2.5A is hereby inserted after Section 2.5 as set forth below:




“2.5A. Revolving Loans.




     (a) Subject to the terms and conditions set forth in this Agreement, on or after the
Term D Closing Date and to, but excluding, October 14, 2010, unless terminated earlier
pursuant to the terms hereof (the “Revolving Loan Termination Date”), Purchasers
designated on Annex B shall, severally, on a pro rata basis based on the percentages
specified in Annex B, make loans and advances to the Company 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 Term D Closing, the
Revolving Loans shall be evidenced by promissory notes made by the Company in favor of
Purchasers having Revolving Loan Commitments in the form attached hereto as Exhibit
K (together with any such notes issued in substitution therefore pursuant to Sections
6.3 and 6.4, “Revolving Notes”). The date and amount of each Revolving Loan made by
such 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 record shall not
affect the obligations of the Company to make payments when due of any amounts owing in
respect of the Revolving Loans.




     (b) Purchasers having Revolving Loan Commitments shall make Revolving Loans available
to the Loan Parties up to a maximum of one draw per week, in integral multiples of $100,000,
provided that the conditions set forth in Section 2.5A(a) hereof and this Section
2.5A(b) have been satisfied. Before a Revolving Loan is made (other than any Revolving Loan
requested on the Term D Closing Date), the Loan Parties shall have (i) provided Agent an
irrevocable written notice of borrowing in the form of Exhibit L (a “Notice of
Borrowing”) by facsimile or other means set forth in Section 14.6 so that such notice is
received by Agent not later than five (5) Business Days before the day on which the
Revolving Loan is to be made, and (ii) contacted Agent and received from Agent either oral
or written confirmation of Agent’s receipt of the Notice of Borrowing not later than three
(3) Business Days before the date on which the Revolving Loan is to be made. Agent and
Purchasers having Revolving Loan Commitments shall be entitled to rely conclusively on any
Executive Officer’s authority to deliver a Notice of Borrowing or other writing on behalf of
the Company and neither Agent nor any Purchaser having Revolving Loan Commitments shall have
any duty to verify the identity or signature of any Person identifying himself as an
Executive Officer.”



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(h) A new Section 2.7A is hereby inserted after Section 2.7 as set forth below:




“2.7A Sale and Purchase of Senior Term D Notes and Series B Preferred Stock.
Subject to the terms and conditions and in reliance upon the representations, warranties and
agreements set forth herein, (a) the Company shall sell to Purchasers, and Purchasers shall
purchase from the Company, in an amount equal to the pro rata portion of the Senior Term D
Notes as set forth on Annex B, the Notes in the aggregate principal amounts set forth in
Section 2.3(c) hereof and (b) the Company shall sell to Purchasers, and Purchasers shall
purchase from the Company, in an amount equal to the pro rata portion of the Preferred Stock
as set forth on Annex B, 7,000 shares of Series B Preferred Stock for $7,000,000 in the
aggregate.




(i) A new Section 2.9(c) is hereby inserted as set forth below:




“(c) Delivery of and payment for the Senior Term D Notes, the Series B Preferred Stock and
any Revolving Notes issued in connection with Amendment No. 1 (the “Term D Closing”)
shall be made at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY
10153, commencing at 10:00 a.m., local time, on October 14, 2005 or at such place or on such
other date as may be mutually agreeable to the Company and Purchasers. The date and time of
the Term D Closing as finally determined pursuant to this Section 2.8(c) are referred to
herein as the “Term D Closing Date.” Delivery of the Senior Term D Notes, the
Series B Preferred Stock and any Revolving Notes issued at the Term D Closing shall be made
to Purchasers (or their designees) against payment of the purchase price therefor, less any
unpaid Senior Term D Origination Fee, any unpaid Revolving Loan Origination Fee, any unpaid
Series B Preferred Origination Fee and any other amounts due and payable pursuant to Section
4.1(i) hereof or Section 3(f) of Amendment No. 1, by wire transfer of immediately available
funds in the manner agreed to by the Company and Purchasers. The Senior Term D Notes, the
Series B Preferred Stock and any Revolving Notes issued at the Term D Closing shall be
issued in such name or names and in such permitted denomination or denominations as set
forth in Annex B or as Purchasers may request in writing not less than two (2)
Business Days before the Term D Closing Date.”




(j) Section 3.1(e) shall be amended and restated as follows:




“(e) [Intentionally omitted.]”



     (k) A new Section 3.1(g) and a new Section 3.1(h) is hereby inserted as set forth below:




“(g) Senior Term Loan D. The Company covenants and agrees to make payments to
Agent, for the ratable benefit of Purchasers, of accrued interest on the Senior Term Loan D
on the first Business Day of each month commencing November 1, 2005 through the date of
repayment in full of the Senior Term Loan D. The Senior Term Loan D shall bear interest on
the outstanding principal thereof at the Loan D Rate. Interest shall be computed on the
basis of a year of three hundred sixty (360) days, composed of twelve 30-day months, and the
actual number of days elapsed.”



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“(h) Revolving Loans. The Company covenants and agrees to make payments to Agent,
for the ratable benefit of Purchasers making Revolving Loans, of accrued interest on the
Revolving Loans monthly in arrears on the first LIBOR Business Day of each LIBOR Period,
commencing on the first LIBOR Business Day after completion of the first LIBOR Period after
a Revolving Loan is advanced, through the date of repayment of the Revolving Loans in full.
The Revolving Loans will bear interest on the outstanding principal thereof at the Revolving
Loan Rate.”



     (l) A new Section 3.5A and a new Section 3.5B is hereby inserted after Section 3.5 as set
forth below:




“3.5A Repayment of Senior Term D Notes. The Company covenants and agrees to repay
to Agent, for the ratable benefit of Purchasers holding Senior Term D Notes, the Senior Term
D Notes in accordance with the amortization schedule set forth on Annex C attached hereto.
Notwithstanding the foregoing schedule, the Company covenants and agrees to repay any and
all unpaid principal on the Senior Term D Notes, together with all accrued and unpaid
interest, fees and other amounts due in connection with the Senior Term Loan D Notes upon
maturity of the Senior Term D Notes on October 14, 2011.”




“3.5B Repayment of Revolving Loans; Reduction or Termination of Revolving Loan
Commitment.




     (a) The Company covenants and agrees to pay to Agent, for the ratable benefit of
Purchasers, the Revolving Loans in full together with all accrued and unpaid interest, fees
and other amounts due hereunder in respect thereof on the Revolving Loan Termination Date or
on such earlier date that the Revolving Loan Commitment is terminated pursuant to Section
3.5B(b).




     (b) The Company may, upon notice to Agent, terminate the commitments hereunder to make
Revolving Loans, or from time to time permanently reduce the Revolving Loan Commitment, in
each case without prepayment premium or penalty; provided that (i) any such
notice shall be received by Agent not later than thirty (30) days prior to the date of such
termination or reduction, (ii) any partial reduction shall be in an aggregate amount of
$1,000,000 (or, if less, the then remaining commitments to make Revolving Loans) or any
whole multiple of $100,000 in excess thereof and (iii) the Company shall not terminate or
reduce the Revolving Loan Commitment if, after giving effect thereto and to any concurrent
prepayments hereunder, the aggregate amount of Revolving Loans outstanding would exceed the
then outstanding Revolving Loan Commitment. Agent will promptly notify Purchasers
participating in the Revolving Loan Commitment of any notice of termination or reduction in
the Revolving Loan Commitment, and any such reduction shall be applied to the portion of the
Revolving Loan Commitment of each Purchaser making such commitments on a pro rata basis.”




(m) Section 3.6 is hereby amended and restated as follows:




“3.6 Optional Prepayment of the Notes. Subject to the terms of this Section 3.8,
the Company may prepay to Agent, for the ratable benefit of Purchasers, the outstanding



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principal amount of the Senior Term Notes, the Senior Subordinated Notes and the Junior
Subordinated Notes in whole or in part in multiples of $100,000, or such lesser amount as is
then outstanding on any of such Notes, at any time at a price equal to (i) the accrued
interest on such Note, if any, to the date set for prepayment, plus, (ii) a prepayment fee
representing the amortization of certain of Purchasers’ costs incurred in connection with
the purchase of such Notes, equal to the principal amount prepaid on such Note multiplied by
the following percentage:



	 	 	 
	If Prepaid During	 	 
	the 12-Month Period	 	 
	Ending on September 30	 	 
	of the Following Years:	 	Percentage
	2006
	 	3%
	2007
	 	2%
	2008
	 	1%;







provided, however, that in any case, (a) the Subordinated Notes may not be
prepaid so long as any Senior Term Notes remain outstanding and (b) the Junior Subordinated
Notes may not be prepaid so long as any Senior Subordinated Notes remain outstanding. All
such prepayments (A) shall be applied by Agent to the outstanding principal of the Notes in
order of priority set forth above and in the inverse order of maturity after application of
such prepayment to any accrued interest and prepayment premium payable in connection
therewith, and (B) in connection with the Senior Term Loans, shall be applied first to the
Senior Term Loan D and second, so long as no Senior Term D Notes remain outstanding, to the
Senior Term Loan C.”




(n) Section 3.8(b) is hereby amended and restated as follows:




     “(b) Excess Cash Flow. The Company shall prepay the outstanding amount of the
Senior Term Notes in an amount equal to 75% of Net Cash Flow for each fiscal year commencing
on or after December 31, 2004, payable upon delivery of the financial statements to the
Agent referred to in and required by Section 7.1(e)(i) for such fiscal year but in any event
not later than ninety (90) days after the end of each such subsequent fiscal year. All
such prepayments shall be applied by Agent to the outstanding principal of Senior Term Loan
D, and then to the outstanding principal of Senior Term Loan C, in each case in the inverse
order of maturity after application of such prepayment to any accrued interest payable in
connection therewith.”




(o) A new Section 3.16 is hereby inserted as set forth below:




“3.16 Revolving Loan Commitment Fee. In consideration of the Revolving Loan
Commitment, the Company shall pay to Agent, for the ratable benefit of the Purchasers making
Revolving Loan Commitments, a commitment fee (the “Revolving Loan Commitment Fee”)
in an amount equal to 0.5% per annum on the average daily unused amount of the Revolving
Loan Commitment Amount. The Revolving Loan Commitment Fee shall be payable monthly in
arrears on the first Business Day of each calendar month,



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commencing on November 1, 2004 and ending on the Revolving Loan Termination Date.]”



     (p) The first sentence of Section 5.1(d) is hereby amended and restated as follows:




     “(d) Capitalization and Related Matters. As of the Term D Closing Date, after
giving effect to the transactions contemplated by Amendment No. 1, the authorized capital
stock of the Company will consist of 200,000 shares of Common Stock of which 17,580 shares
of Common Stock are issued and outstanding and of which 88,967 shares of Common Stock of the
Company have been reserved for issuance upon exercise of the Warrants, and 35,000 shares of
Series A Preferred Stock, 20,092 of which are issued and outstanding and 15,000 shares of
Series B Preferred Stock, 7,000 of which are issued and outstanding.”



     (q) Section 7.2(a)(ii) is hereby amended and restated as follows:




     “(ii) [Intentionally omitted.]”



     (r) Section 7.2(b)(v) is hereby amended and restated as follows:




     “(v) [Intentionally omitted.]”



     (s) Section 7.3(c) is hereby amended and restated as follows:




     “(c) Senior Leverage Ratio. Maintain a Senior Leverage Ratio for the Company
on a Consolidated Basis as of the end of each fiscal quarter set forth below for the
respective period set forth below of not greater than the ratio set forth below:




	 	 	 
	Four Fiscal Quarters	 	Senior
	Ending on Fiscal Quarter	 	Leverage Ratio
	December 31, 2005

	 	3.00 to 1.0
	March 31, 2006

	 	3.00 to 1.0
	June 30, 2006

	 	2.75 to 1.0
	September 30, 2006

	 	2.75 to 1.0
	December 31, 2006

	 	2.75 to 1.0
	March 30, 2007

	 	2.50 to 1.0
	June 30, 2007

	 	2.50 to 1.0
	September 30, 2007

	 	  2.50 to 1.0”






     (t) Article 13 is hereby amended and restated as follows:



ARTICLE 13




SUBORDINATION OF NOTES





13.1 General. The Subordinated Debt is subordinate and junior in right of payment
to all Senior Financing and the Senior Term C Loans to the extent provided in this Article



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13. The Junior Subordinated Notes are subordinate and junior in right of payment to the
Senior Subordinated Notes to the extent provided in this Article 13.




13.2 Default in Respect of Senior Financing.




     (a) Senior Financing Payment Default. In the event of a Senior Financing
Payment Default then, unless and until such Senior Financing Payment Default shall have been
cured or waived or shall have ceased to exist, no direct or indirect payment (in cash,
property or by set-off or otherwise, except that payment may be made by delivery of Notes of
the same type) shall be made on account of the principal of, or prepayment premium, if any,
or any other amount in respect of, or interest on, any Subordinated Debt, or as a sinking
fund for any Subordinated Debt, or in respect of any redemption, retirement, purchase or
other acquisition of any Subordinated Debt, during any period:




     (i) commencing on the date such Senior Financing Payment Default shall first
occur and ending on the date on which such Senior Financing Payment Default shall
have been cured or waived or shall have ceased to exist; or




     (ii) in which any judicial proceeding or any other proceeding or action
(whether judicial or otherwise) seeking to foreclose or otherwise realize on any
collateral shall be pending in respect of such Senior Financing Payment Default, or
in which the maturity of such Senior Financing shall have been accelerated in
respect of such Senior Financing Payment Default and such acceleration shall not
have been annulled.




     (b) Senior Financing Covenant Default. In the event of a Senior Financing
Covenant Default, then, unless and until such Senior Financing Covenant Default shall have
been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash,
property or by set-off or otherwise, except that payment may be made by delivery of Notes of
the same type) shall be made on account of the principal of, or prepayment premium, if any,
or any other amount in respect of, or interest on, any Subordinated Debt, or as a sinking
fund for any Subordinated Debt, or in respect of any redemption, retirement, purchase or
other acquisition of any Subordinated Debt, during any period:




     (i) of one hundred eighty (180) days after written notice (a “Senior
Financing Blocking Notice”) of such Senior Financing Covenant Default shall have
been given to the Company and to the Purchasers by the Senior Agent, provided that
only one (1) such Senior Financing Blocking Notice shall be given pursuant to the
terms of this Section 13.2(b)(i) in any three hundred sixty (360) day period; or




     (ii) in which any judicial proceeding or any other proceeding or action
(whether judicial or otherwise) seeking to foreclose or otherwise realize on any
collateral shall be pending in respect of such Senior Financing Covenant Default, or
in which an effective notice of acceleration of the maturity of such Senior
Financing shall have been transmitted to the Company and each of the holders of the
Notes in respect of such Senior Financing Covenant Default and such



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acceleration shall not have been annulled, or in which notice of the failure to pay
such Senior Financing upon its final maturity shall have been transmitted to the
Company and each of the holders of the Notes and such failure shall be continuing;




provided, that no Senior Financing Covenant Default that served as the basis for, or
existed at the time of, a previous Senior Financing Blocking Notice, shall provide the basis
for a subsequent Senior Financing Blocking Notice unless such Senior Financing Covenant
Default has been cured or waived for a period of at least one hundred eighty (180)
consecutive days.




     (c) Notice by the Company. The Company shall give written notice to each
holder of Subordinated Debt of any Senior Financing Payment Default (and any acceleration of
the maturity of any Indebtedness as a result thereof) and the receipt of any notice under
Section 13.2(b)(i) or Section 13.2(b)(ii) immediately upon the occurrence or receipt
thereof, as the case may be.



     13.3 Default in Respect of Senior Term C Loans.




     (a) Senior Term C Loans Payment Default. In the event of a Senior Term C Loans
Payment Default then, unless and until such Senior Term C Loans Payment Default shall have
been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash,
property or by set-off or otherwise, except that payment may be made by delivery of Notes of
the same type) shall be made on account of the principal of, or prepayment premium, if any,
or any other amount in respect of, or interest on, any Subordinated Notes, or as a sinking
fund for any Subordinated Notes, or in respect of any redemption, retirement, purchase or
other acquisition of any Subordinated Notes, during any period:




     (i) commencing on the date such Senior Term C Loans Payment Default shall first
occur and ending on the date on which such Senior Term C Loans Payment Default shall
have been cured or waived or shall have ceased to exist; or




     (ii) in which any judicial proceeding or any other proceeding or action
(whether judicial or otherwise) seeking to foreclose or otherwise realize on any
collateral shall be pending in respect of such Senior Term C Loans Payment Default,
or in which the maturity of such Senior Term Notes shall have been accelerated in
respect of such Senior Term C Loans Payment Default and such acceleration shall not
have been annulled.




     (b) Senior Term C Loans Covenant Default. In the event of a Senior Term C
Loans Covenant Default, then, unless and until such Senior Term C Loans Covenant Default
shall have been cured or waived or shall have ceased to exist, no direct or indirect payment
(in cash, property or by set-off or otherwise, except that payment may be made by delivery
of Subordinated Notes) shall be made on account of the principal of, or prepayment premium,
if any, or any other amount in respect of, or interest on, any



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Subordinated Notes, or as a sinking fund for any Subordinated Notes, or in respect of any
redemption, retirement, purchase or other acquisition of any Subordinated Notes, during any
period:




     (i) of one hundred eighty (180) days after written notice (a “Senior Term C
Loans Blocking Notice”) of such Senior Term C Loans Covenant Default shall have
been given to the Company and to the Purchasers by the Agent, provided that only one
(1) such Senior Term C Loans Blocking Notice shall be given pursuant to the terms of
this Section 13.3(b)(i) in any three hundred sixty (360) day period; or




     (ii) in which any judicial proceeding or any other proceeding or action
(whether judicial or otherwise) seeking to foreclose or otherwise realize on any
collateral shall be pending in respect of such Senior Term C Loans Covenant Default,
or in which an effective notice of acceleration of the maturity of such Senior Term
Notes shall have been transmitted to the Company and each of the holders of the
Subordinated Notes in respect of such Senior Term C Loans Covenant Default and such
acceleration shall not have been annulled, or in which notice of the failure to pay
such Senior Term Notes upon its final maturity shall have been transmitted to the
Company and each of the holders of the Subordinated Notes and such failure shall be
continuing;




provided, that no Senior Term C Loans Covenant Default that served as the basis for,
or existed at the time of, a previous Senior Term C Loans Blocking Notice, shall provide the
basis for a subsequent Senior Term C Loans Blocking Notice unless such Senior Term C Loans
Covenant Default has been cured or waived for a period of at least one hundred eighty (180)
consecutive days.




     (c) Notice by the Company. The Company shall give written notice to each
holder of Subordinated Notes of any Senior Term C Loans Payment Default (and any
acceleration of the maturity of any Indebtedness as a result thereof) and the receipt of any
notice under Section 13.3(b)(i) or Section 13.3(b)(ii) immediately upon the occurrence or
receipt thereof, as the case may be.



     13.4 Default in Respect of Senior Subordinated Notes.




     (a) Senior Subordinated Notes Payment Default. In the event of a Senior
Subordinated Notes Payment Default then, unless and until such Senior Subordinated Notes
Payment Default shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property or by set-off or otherwise, except that payment may be
made be delivery of Junior Subordinated Notes) shall be made on account of the principal of,
or prepayment premium, if any, or any other amount in respect of, or interest on, any Junior
Subordinated Notes, or as a sinking fund for any Junior Subordinated Notes, or in respect of
any redemption, retirement, purchase or other acquisition of any Junior Subordinated Notes,
during any period:



12









 






     (i) commencing on the date such Senior Subordinated Notes Payment Default shall
first occur and ending on the date on which such Senior Subordinated Notes Payment
Default shall have been cured or waived or shall have ceased to exist; or




     (ii) in which any judicial proceeding or any other proceeding or action
(whether judicial or otherwise) seeking to foreclose or otherwise realize on any
collateral shall be pending in respect of such Senior Notes Payment Default, or in
which the maturity of such Senior Subordinated Notes shall have been accelerated in
respect of such Senior Subordinated Notes Payment Default and such acceleration
shall not have been annulled.




     (b) Senior Subordinated Notes Covenant Default. In the event of a Senior
Subordinated Notes Covenant Default, then, unless and until such Senior Subordinated Notes
Covenant Default shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property or by set-off or otherwise, except that payment may be
made be delivery of Junior Subordinated Notes) shall be made on account of the principal of,
or prepayment premium, if any, or any other amount in respect of, or interest on, any Junior
Subordinated Notes, or as a sinking fund for any Junior Subordinated Notes, or in respect of
any redemption, retirement, purchase or other acquisition of any Junior Subordinated Notes,
during any period:




     (i) of one hundred eighty (180) days after written notice (a “Senior
Subordinated Notes Blocking Notice”) of such Senior Subordinated Notes Covenant
Default shall have been given to the Company and to the Purchaser by the Agent,
provided that only one (1) such Senior Subordinated Notes Blocking Notice shall be
given pursuant to the terms of this Section 13.4(b)(i) in any three hundred sixty
(360) day period; or




     (ii) in which any judicial proceeding or any other proceeding or action
(whether judicial or otherwise) seeking to foreclose or otherwise realize on any
collateral shall be pending in respect of such Senior Subordinated Notes Covenant
Default, or in which an effective notice of acceleration of the maturity of such
Senior Subordinated Notes shall have been transmitted to the Company and each of the
holders of the Junior Subordinated Notes in respect of such Senior Subordinated
Notes Covenant Default and such acceleration shall not have been annulled, or in
which notice of the failure to pay such Senior Subordinated Notes upon its final
maturity shall have been transmitted to the Company and each of the holders of the
Junior Subordinated Notes and such failure shall be continuing;




provided, that (A) no Senior Subordinated Notes Covenant Default that served as the
basis for, or existed at the time of, a previous Senior Subordinated Notes Blocking Notice,
shall provide the basis for a subsequent Senior Subordinated Notes Blocking Notice unless
such Senior Subordinated Notes Covenant Default has been cured or waived for a period of at
least one hundred eighty (180) consecutive days, and (B) notwithstanding the foregoing, no
more than four (4) payment blockages may be imposed under any of the provisions of this
Section 13.4(b) while the Junior Subordinated Notes shall remain outstanding.



13









 






     (c) Notice by the Company. The Company shall give written notice to each
holder of Junior Subordinated Notes of any Senior Subordinated Notes Payment Default (and
any acceleration of the maturity of any Indebtedness as a result thereof) and the receipt of
any notice under Section 13.4(b)(i) or Section 13.4(b)(ii) immediately upon the occurrence
or receipt thereof, as the case may be.



     13.5 Insolvency, etc. In the event of:




     (a) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to any Company, its creditors
or its Properties and Facilities;




     (b) any proceeding for the liquidation, dissolution or other winding-up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings;




     (c) any assignment by the Company for the benefit of creditors; or




     (d) any other marshalling of the assets of the Company




first, all Senior Financing shall be paid in full in cash before any payment or
distribution, whether in cash, securities (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment of which is
subordinated, at least to the extent provided in this Article 13 with respect to
Subordinated Debt, to the payment of all Senior Financing and the Senior Term C Loans at the
time outstanding and to any securities issued in respect thereof under any such plan or
reorganization or readjustment (such securities being referred to as “Other Subordinated
Securities”)) or other property shall be made to any holder of any Subordinated Debt or
any Senior Term Notes on account of any Subordinated Debt or the Senior Term Notes;




and second, all Senior Term B Notes shall be paid in full in cash before any payment or
distribution, whether in cash, securities (other than Other Subordinated Securities) or
other property shall be made to any holder of any Senior Term C Notes,




and third, all Senior Term C Notes shall be paid in full in cash before any payment or
distribution, whether in cash, securities (other than Other Subordinated Securities) or
other property shall be made to any holder of any Subordinated Notes,




and fourth, all Senior Subordinated Notes shall be paid in full in cash before any payment
or distribution, whether in cash, securities (other than securities of the Company’s or any
other corporation provided for by a plan of reorganization or readjustment the payment of
which is subordinated, at least to the extent provided in this Article 13 with respect to
Junior Subordinated Notes, to the payment of all Senior Subordinated Notes at the time
outstanding and to any securities issued in respect thereof under any such plan of
reorganization or readjustment (such securities being referred to as “Other Subordinated
Junior Notes”)) or other property shall be made to any holder of any Junior Subordinated
Notes on account of any Junior Subordinated Notes.



14









 






Any payment or distribution, whether made in cash, securities (other than Other Subordinated
Securities or Other Subordinated Junior Notes) or other property, and whether made directly
or indirectly that would otherwise (but for this Section 13.5) be payable or deliverable in
respect of Subordinated Debt shall first be paid or delivered directly to the holders of
Senior Financing in accordance with the priorities then existing among such holders until
all Senior Financing shall have been paid in full in cash and second be paid or delivered
directly to the holders of Senior Term C Loan B in accordance with the priorities then
existing among such holders until all Senior Term B Notes shall have been paid in full in
cash and third be paid or delivered directly to the holders of Senior Term C Loan C in
accordance with the priorities then existing among such holders until all Senior Term C
Notes shall have been paid in full in cash and fourth be paid or delivered directly to the
holders of Senior Subordinated Notes in accordance with the priorities then existing among
such holders until all Senior Subordinated Notes shall have been paid in full in cash.




13.6 Limited Suspension of Remedies of Holders of Subordinated Debt. At any time
during which payment on the Subordinated Debt shall be prohibited pursuant to the terms of
Sections 13.2 or 13.3, no holder of Subordinated Debt may:




     (a) declare or join in the declaration of any Subordinated Debt to be due and payable
or otherwise accelerate the maturity of the principal of the Notes, accrued interest thereon
or prepayment premium or other amounts due thereunder, or




     (b) commence any administrative, legal or equitable action against the Company;




provided, however, that the limitations contained in clauses (a) and (b) above shall
terminate with respect to such period on the earlier of (i) the date on which the Senior
Agent or any Senior Lender accelerates the maturity of the Senior Financing in the case of a
prohibition of payment pursuant to Section 13.2 or the date on which the holders of the
Senior Term C Loans accelerate the maturity of the Senior Term Notes in the case of a
prohibition of payment pursuant to Section 13.3 and (ii) the date that is the one hundred
eightieth (180th) day after the date of delivery of written notice by Agent to Senior Lender
or holders of Senior Term C Loans, as the case may be, of the occurrence and continuance of
a Default or Event of Default under this Agreement.




13.7 Proof of Claim. Each holder of Subordinated Debt irrevocably authorizes and
empowers the holders of Senior Financing and the Senior Term C Loans and each holder of
Junior Subordinated Notes irrevocably authorizes and empowers the holders of Senior
Subordinated Notes in any proceeding under any federal or state bankruptcy or insolvency
law, or any other reorganization, dissolution or liquidation proceedings of the Company to
file a proof of claim on behalf of such holder of Subordinated Debt or Junior Subordinated
Notes, as the case may be, with respect to the Subordinated Debt or the Junior Subordinated
Notes, as the case may be, and the other amounts owing hereunder and the Notes if (and only
if) such holder of Subordinated Debt or Junior Subordinated Notes, as the case may be, fails
to file proof of its claims prior to ten (10) days before the expiration of the time period
during which such proof of claim must be filed. Neither this Section



15









 






13.7, nor any other provisions hereof, shall be construed to give the holders of Senior
Financing or the Senior Term C Loans any right to vote any Subordinated Debt or the holders
of Senior Subordinated Notes any right to vote any Junior Subordinated Notes, or any related
claim, whether in connection with any resolution, arrangement, plan of reorganization,
compromise, settlement, election, or otherwise.




13.8 Acceleration of Subordinated Debt. In the event that any Subordinated Debt
shall be declared due and payable as the result of the occurrence of any one or more Events
of Default in respect thereof, under circumstances when the terms of Section 13.2 or 13.3 do
not prohibit payment on Subordinated Debt, no payment shall be made in respect of any
Subordinated Debt unless and until all Senior Financing and the Senior Term C Loans shall
have been paid in full in cash or such declaration and its consequences shall have been
rescinded and all such Defaults and Events of Default shall have been remedied or waived or
shall have ceased to exist. In the event that any Junior Subordinated Notes shall be
declared due and payable as the result of the occurrence of any one or more Events of
Default in respect thereof, under circumstances when the terms of Section 13.4 do not
prohibit payment on Junior Subordinated Notes, no payment shall be made in respect of any
Junior Subordinated Notes unless and until all Senior Subordinated Notes shall have been
paid in full in cash or such declaration and its consequences shall have been rescinded and
all such Defaults and Events of Default shall have been remedied or waived or shall have
ceased to exist.




13.9 Turnover of Payments.




     (a) If:




     (i) any payment or distribution shall be collected or received by any holders
of Subordinated Debt in contravention of any of the terms of this Article 13 and
prior to the payment in full in cash of the Senior Financing or the Senior Term C
Loans at the time outstanding; and




     (ii) Agent or the Senior Agent shall have notified such holders of Subordinated
Debt, within one hundred eighty (180) days of any such payment or distribution, of
the facts by reason of which such collection or receipt so contravenes this Article
13;




then such holders of Subordinated Debt will deliver such payment or distribution, to the
extent necessary to pay all such Senior Financing or Senior Term C Loans in full in cash, to
the holders of such Senior Financing or Senior Term C Loans and, until so delivered, the
same shall be held in trust by such holders of Subordinated Debt as the property of the
holders of such Senior Financing or Senior Term C Loans. If after any amount is delivered
pursuant to this Section 13.9(a), whether or not such amounts have been applied to the
payment of Senior Financing or the Senior Term C Loans, and the outstanding Senior Financing
or the Senior Term C Loans shall thereafter be paid in full in cash by the Company or
otherwise other than pursuant to this Section 13.9(a), the holders of Senior Financing or
the Senior Term C Loans shall return to such holders of Subordinated Debt an amount equal to
the amount delivered to such holders of Senior Financing or the Senior



16









 







Term C Loans pursuant to this Section 13.9(a). Any optional prepayment made in respect of
the Subordinated Debt that violates this Agreement shall also be subject to this Section
13.9(a).




     (b) If:




     (i) any payment or distribution shall be collected or received by any holders
of Junior Subordinated Notes in contravention of any of the terms of this Article 13
and prior to the payment in full in cash of the Senior Subordinated Notes at the
time outstanding; and




     (ii) the Agent shall have notified such holders of Junior Subordinated Notes,
within one hundred eighty (180) days of any such payment or distribution, of the
facts by reason of which such collection or receipt so contravenes this Article 13;




then such holders of Junior Subordinated Notes will deliver such payment or distribution, to
the extent necessary to pay all such Senior Subordinated Notes in full in cash, to the
holders of such Senior Subordinated Notes and, until so delivered, the same shall be held in
trust by such holders of Junior Subordinated Notes as the property of the holders of such
Senior Subordinated Notes. If after any amount is delivered to the holders of Senior
Subordinated Notes pursuant to this Section 13.9(b), whether or not such amounts have been
applied to the payment of Senior Subordinated Notes, and the outstanding Senior Subordinated
Notes shall thereafter be paid in full in cash by the Company or otherwise other than
pursuant to this Section 13.9(b), the holders of Senior Subordinated Notes shall return to
such holders of Junior Subordinated Notes an amount equal to the amount delivered to such
holders of Senior Subordinated Notes pursuant to this Section 13.9(b).




13.10 Obligations Not Impaired.




     (a) No Impairment of Senior Financing or Senior Term C Loans. No right of any
present or future holder of any Senior Financing or Senior Term C Loans and no right of any
present or future holder of any Senior Subordinated Notes to enforce the subordination as
herein provided shall at any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any non-compliance by the Company with the terms, provisions and
covenants of this Agreement, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.




     (b) No Impairment of Subordinated Debts. Nothing contained in this Section
13.10 shall impair, as between the Company and any holder of Subordinated Debt, the
obligation of the Company to pay to such holder the principal thereof and prepayment
premium, if any, and interest thereon as and when the same shall become due and payable in
accordance with the terms of this Agreement, or prevent any holder of any Subordinated Debt
from exercising all rights, powers and remedies otherwise permitted by applicable law or
under this Agreement or the Stockholders Agreement, all subject to the rights of the holders
of the Senior Financing and the Senior Term C Loans to receive cash,



17









 







Securities or other property otherwise payable or deliverable to the holders of Subordinated
Debt.




13..11 Payment of Debt; Subrogation. Upon the payment in full of all Senior
Financing and Senior Term C Loans in cash, the holders of Subordinated Debt shall be
subrogated to all rights of any holder of Senior Financing or any holder of Senior Term C
Loans to receive any further payments or distributions applicable thereto until the
Subordinated Debt shall have been paid in full, and such payments or distributions received
by the holders of Subordinated Debt by reason of such subrogation, of cash, Securities or
other property which otherwise would be paid or distributed to the holders of Senior
Financing or Senior Term C Loans, shall, as between the Company and its creditors other than
the holders of Senior Financing or Senior Term C Loans, on the one hand, and the holders of
Subordinated Debt, on the other hand, be deemed to be a payment by the Company on account of
Senior Financing or Senior Term C Loans and not on account of Subordinated Debt. Upon the
payment in full of all Senior Subordinated Notes in cash, the holders of Junior Subordinated
Notes shall be subrogated to all rights of any holder of Senior Subordinated Notes to
receive any further payments or distributions applicable to the Senior Subordinated Notes
until the Junior Subordinated Notes shall have been paid in full, and such payments or
distributions received by the holders of Junior Subordinated Notes by reason of such
subrogation, of cash, Securities or other property which otherwise would be paid or
distributed to the holders of Senior Subordinated Notes, shall, as between the Company and
its creditors other than the holders of Senior Subordinated Notes, on the one hand, and the
holders of Junior Subordinated Notes, on the other hand, be deemed to be a payment by the
Company on account of Senior Subordinated Notes and not on account of Junior Subordinated
Notes.




13.12 Reliance of Holders of Senior Financing and Senior Term C Loans; Reliance of
Holders of Senior Subordinated Notes; Amendments.




     (a) Reliance of Holders of Senior Financing. Each holder of Subordinated Debt
by its acceptance thereof shall be deemed to acknowledge and agree that the foregoing
subordination provisions are, and are intended to be, an inducement to and a consideration
of each holder of any Senior Financing and Senior Term C Loans, whether such financing was
created or acquired before or after the creation of Subordinated Debt, to acquire and hold,
or to continue to hold, such Senior Financing or Senior Term C Loans, and such holder of
Senior Financing or Senior Term C Loans shall be deemed conclusively to have relied on such
subordination provisions in acquiring and holding, or in continuing to hold, such Senior
Financing or Senior Term C Loans.




     (b) Reliance of Holders of Senior Subordinated Notes. Each holder of Junior
Subordinated Notes by its acceptance thereof shall be deemed to acknowledge and agree that
the foregoing subordination provisions are, and are intended to be, an inducement to and a
consideration of each holder of any Senior Subordinated Notes, whether such Senior
Subordinated Note was created or acquired before or after the creation of Junior
Subordinated Notes, to acquire and hold, or to continue to hold, such Senior Subordinated
Notes, and such holder of Senior Subordinated Notes shall be deemed conclusively to




18











 






have relied on such subordination provisions in acquiring and holding, or in continuing to
hold, such Senior Subordinated Notes.




     (c) Amendments. Notwithstanding anything to the contrary herein, no amendment,
waiver or other modification of this Article 13 shall be effective unless such amendment,
waiver or other modification shall have been approved in writing by Senior Agent and all of
the holders of Senior Term C Loans and Senior Subordinated Notes outstanding at the time of
such amendment, waiver or other modification.




13.13 Notices. Whenever any notice to holders of Notes shall be required pursuant
to the provisions of this Article 13, the Senior Agent and the other holders of Senior
Financing shall be deemed to have given such notice if such notice shall have been delivered
to




     (a) all holders of Notes identified on Annex A and all holders of Notes
identified in the register of the Company maintained pursuant to Section 6.1 in each case in
the manner specified in Section 14.6, and




     (b) all other holders of Notes that shall have given written notice to the Senior Agent
that such holder holds one or more Notes;




provided, however, that if the Company shall fail to make such register
available to the Senior Agent, then such notice shall be deemed to have been given if such
notice is delivered to (i) all holders of Notes identified on Annex A, in the manner
specified in Section 14.6, and (ii) all other holders of Notes that shall have given written
notice to the Senior Agent that such holder holds one or more Notes. For the purposes of
this Section 13.13, any such written notice to the Senior Agent by any such other holder of
Notes shall be effective if given to the Senior Agent at the address of the Senior Agent
supplied by the Company from time to time.”




(u) Section 14.17 is hereby amended and restated as follows:




“14.17 [Intentionally omitted.]”



     (v) The following Annexes and Exhibits to the Amended and Restated Purchase Agreement are
hereby amended as follows:



          (i) Annex B to the Amended and Restated Purchase Agreement is hereby amended and restated as
set forth in Annex B hereto.




          (ii) A new “Annex C” to the Amended and Restated Purchase Agreement, as set forth on Annex C
hereto, is hereby inserted after Annex B.




          (iii) A new “Exhibit B-3” to the Amended and Restated Purchase Agreement, as set forth on
Exhibit B-3 hereto, is hereby inserted after Exhibit B-2.




          (iv) A new “Exhibit J” to the Amended and Restated Purchase Agreement, as set forth on Exhibit
J hereto, is hereby inserted after Exhibit I.




19









 








          (v) A new “Exhibit K” to the Amended and Restated Purchase Agreement, as set forth on Exhibit
K hereto, is hereby inserted after Exhibit J.



3. Conditions to Effectiveness. The effectiveness of this Amendment No. 1, and therefore
the obligation of the Purchasers to advance the Senior Term Loan D and to purchase and pay for the
Series B Preferred Stock and any Revolving Notes being issued at the Term D Closing is subject to
the satisfaction, prior to or at the Term D Closing of the following conditions:




     (a) Representations and Warranties. All of the representations and warranties
contained in Article 5 of the Amended and Restated Purchase Agreement (as amended by this Amendment
No. 1) shall be true and correct in all material respects at and as of the Term D Closing Date as
though then made, except to the extent of changes caused by the transactions expressly contemplated
herein.



     (b) Conditions. All of the conditions contained in Article 4 of the Amended and
Restated Purchase Agreement shall have been satisfied.



     (c) Redemption of Certain Indebtedness. On the Term D Closing Date, the Company shall
have (i) repaid all Indebtedness incurred under the Senior Credit Agreement and discharged all
obligations outstanding thereunder and (ii) redeemed the Senior Term B Notes, each in form and
substance satisfactory to Purchasers, in their sole discretion, and Purchasers shall have been
provided copies of all agreements, instruments, documents and pay-off letters delivered in
connection therewith.



     (d) Consummation of LFA Acquisition. On or prior to the Term D Closing Date, the
Company shall have consummated the transactions contemplated by the LFA Acquisition Agreement.



     (e) Closing Documents. The Company shall have delivered or caused to be delivered to
Agent all of the following documents in form and substance satisfactory to Agent:



          (i) one or more Senior Term D Notes evidencing the Senior Term D Loan (as designated by Agent
and Purchasers pursuant to Section 2.3(c) of the Amended and Restated Purchase Agreement (as
amended by this Amendment No. 1)) in aggregate original principal amount as set forth therein, duly
completed and executed by the Company;




          (ii) one or more stock certificates representing the Series B Preferred Stock purchased
pursuant to the Amended and Restated Purchase Agreement (as amended by this Amendment No. 1);




          (iii) certificates of good standing dated not more than 10 days prior to the Term D Closing
Date for the Company issued by its jurisdiction of organization and each jurisdiction where it is
qualified to operate as a foreign corporation, or its equivalent;




          (iv) a copy of the Charter of the Company certified by the appropriate governmental official
of the jurisdiction of its organization as of a date not more than 10 days prior to the Term D
Closing Date;




20









 








          (v) a copy of the By-laws of the Company, certified as of the Term D Closing Date and by the
secretary or assistant secretary of the Company;




          (vi) a certificate of the secretary or assistant secretary of the Company, certifying as to
the names and true signatures of the officers or other authorized person of the Company authorized
to sign this Agreement and the other documents to be delivered by the Company hereunder;




          (vii) copies of the resolutions duly adopted by the Company’s board of directors authorizing
the execution, delivery and performance by the Company of this Agreement and each of the other
agreements, instruments and documents contemplated hereby to which the Company is a party, and the
consummation of all of the other transactions contemplated by this Amendment No. 1, certified as of
the Term D Closing Date by the secretary or assistant secretary of the Company; and




          (viii) such other documents relating to the transactions contemplated by this Amendment No. 1
as Agent or its special counsel reasonably may request..




     (f) Purchaser’s Fees and Expenses.



          (i) Senior D Origination Fee. On the Term D Closing Date, the Company shall have paid
the Senior Term D Origination Fee in the amount of $810,000 to ACFS and the Company hereby
authorizes the Agent to deduct from the sale by the Company of the Senior Term D Notes the unpaid
amount of such Senior Term D Origination Fee;




          (ii) Revolving Loan Origination Fee. On the Term D Closing Date, the Company shall
have paid the Revolving Loan Origination Fee in the amount of $180,000 to ACFS and the Company
hereby authorizes the Agent to deduct from the proceeds of any Revolving Loan made at the Term D
Closing, by the Purchasers to the Company, the unpaid amount of such Revolving Loan Origination
Fee;




          (iii) Series B Preferred Stock Origination Fee. On the Term D Closing Date, the
Company shall have paid the Series B Preferred Origination Fee in the amount of $280,000 to ACFS
and the Company hereby authorizes the Agent to deduct from the sale by the Company of the Series B
Preferred Stock the unpaid amount of such Series B Preferred Origination Fee; and




          (iv) Other Fees and Expenses. On the Term D Closing Date, the Company shall have paid
the fees and expenses of Agent and Purchasers, payable by the Company pursuant to Section 14.4 of
the Amended and Restated Purchase Agreement (and the Company hereby authorizes Agent to deduct from
the aggregate proceeds of the sale of the Senior Term D Notes, the Series B Preferred Stock and any
Revolving Notes by the Company, all such amounts).



4. Use of Proceeds. The Company shall use the proceeds from the transactions contemplated
by this Amendment No. 1 to (a) repay all Indebtedness incurred under the Senior Credit Agreement
and discharge all obligations outstanding thereunder, (b) redeem the Senior Term B Notes and (c)
consummate the transactions contemplated by the LFA Acquisition Agreement.




21









 







5. Representations and Warranties. The Company hereby represents and warrants as follows:




     (a) Each of the representations and warranties of the Company set forth in Article 5 of the
Amended and Restated Purchase Agreement (as amended by this Amendment No. 1) is true and correct in
all material respects, except to the extent of changes caused by the transactions expressly
contemplated herein.



     (b) The Company is in satisfaction of all covenants of the Company set forth in Article 7 of
the Amended and Restated Purchase Agreement (as amended by this Amendment No. 1) and no Default or
Event of Default under the Amended and Restated Purchase Agreement is occurring, or will occur upon
the consummation of the transactions contemplated by this Amendment No. 1, except to the extent
waived hereby.


6. Effect on the Amended and Restated Purchase Agreement.




     (a) All references to the Amended and Restated Purchase Agreement in the Amended and Restated
Purchase Agreement and the other documents and instruments delivered pursuant to or in connection
therewith shall mean the Amended and Restated Purchase Agreement as amended hereby and as such may
in the future be amended, restated, supplemented or modified from time to time.



     (b) Except as specifically amended herein, the Amended and Restated Purchase Agreement, and
all other documents and instruments delivered pursuant to or in connection therewith, shall remain
in full force and effect, and are hereby ratified and confirmed.



     (c) Except as specifically referenced herein, the execution, delivery and effectiveness of
this Amendment No. 1 shall not operate as a waiver of any right, power or remedy of ACFS or the
Purchasers, nor constitute a waiver of any provision of the Amended and Restated Purchase Agreement
or any documents and instruments delivered pursuant to or in connection therewith.


7. Governing Law. This Amendment No. 1 shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns and shall be governed by and
construed in accordance with the laws of the State of Maryland.



8. Further Assurances. The parties hereto shall, at any time and from time to time
following the execution of this Amendment No. 1, execute and deliver all such further instruments
and take all such further action as may be reasonably necessary or appropriate in order to carry
out the provisions of this Amendment No. 1.



9. Headings. Section headings in this Amendment No. 1 are included herein for convenience
of reference only and shall not constitute a part of this Amendment No. 1 for any other purpose.



10. Counterparts. This Amendment No. 1 may be executed by the parties hereto in one or
more counterparts, each of which shall be deemed an original and all of which when taken together
shall constitute one and the same agreement.





22









 








     IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 as of the day and
year first above written.



	 	 	 	 	 
	 	COMPANY:



GLOBAL DOSIMETRY SOLUTIONS, INC.

 	 
	 	By:  	/s/ Thomas Logan	 
	 	 	Name:  	 Thomas Logan	 
	 	 	Title:  	CEO	 
	 
	 	AGENT:



AMERICAN CAPITAL FINANCIAL SERVICES, INC.

 	 
	 	By:  	/s/ Todd Wilson	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PURCHASERS:



AMERICAN CAPITAL STRATEGIES, LTD.

 	 
	 	By:  	/s/ Todd Wilson	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ACS FUNDING TRUST I
	 
	 	By:  	AMERICAN CAPITAL STRATEGIES, LTD., its Servicer
 	 
	 	 	 
	 	By:  	/s/ Todd Wilson	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ACAS BUSINESS LOAN TRUST 2003-2
	 	 	 
	 	By:  	AMERICAN CAPITAL STRATEGIES, LTD., its Servicer
 	 
	 	 	 
	 	By:  	/s/ Todd Wilson	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 1 to the

Amended and Restated Note and Equity Purchase Agreement




2









 








ANNEX B




	 	 	 
	Holder	 	 
	 
	 	 
	American Capital Strategies, Ltd.

	 	Revolving Loan, up to $6,000,000
	American Capital Strategies, Ltd.

	 	Senior Term C Note, $4,000,000
	American Capital Strategies, Ltd.

	 	Senior Term D Note-1, $5,000,000
	American Capital Strategies, Ltd.

	 	Senior Term D Note-2, $5,000,000
	American Capital Strategies, Ltd.

	 	Senior Term D Note-3, $5,000,000
	American Capital Strategies, Ltd.

	 	Senior Term D Note-4, $5,000,000
	American Capital Strategies, Ltd.

	 	Senior Term D Note-5, $5,000,000
	American Capital Strategies, Ltd.

	 	Senior Term D Note-6, $2,000,000
	American Capital Strategies, Ltd.

	 	Senior Subordinated Note-1, $4,300,000
	American Capital Strategies, Ltd.

	 	Senior Subordinated Note-2, $4,300,000
	American Capital Strategies, Ltd.

	 	Tranche A Junior Subordinated Note, $4,300,000
	American Capital Strategies, Ltd.

	 	Tranche B Junior Subordinated Note, $4,300,000






	 	 	 
	 	 	Warrants and Number of Shares of Common
	Holder	 	     Stock of the Company
	 
	 	 
	American Capital Strategies, Ltd.

	 	Warrant, 88,560 shares






	 	 	 
	Holder	 	Preferred Stock
	 
	 	 
	American Capital Strategies, Ltd.

	 	20,000 shares of Series A PIK Preferred Stock
	American Capital Strategies, Ltd.

	 	7,000 shares of Series B PIK Preferred Stock






	 	 	 
	Holder	 	Common Stock
	 
	 	 
	American Capital Strategies, Ltd.

	 	17,500 shares of Common Stock






 









 






ANNEX C




Amortization Schedule for Senior Term D Notes




Principal Amount of Senior Term Loan D Notes: $27,000,000



On each date set forth below the Loan Parties shall repay the principal amount of the Senior Term
Loan D Notes set forth opposite each such date.




	 	 	 	 	 	 	 	 
	Date	 	 	Installment Amount
	2005
	 	Q4	 	 	$	67,500	 
	2006
	 	Q1	 	 	$	67,500	 
	 
	 	Q2	 	 	$	67,500	 
	 
	 	Q3	 	 	$	67,500	 
	 
	 	Q4	 	 	$	67,500	 
	2007
	 	Q1	 	 	$	67,500	 
	 
	 	Q2	 	 	$	67,500	 
	 
	 	Q3	 	 	$	67,500	 
	 
	 	Q4	 	 	$	67,500	 
	2008
	 	Q1	 	 	$	67,500	 
	 
	 	Q2	 	 	$	67,500	 
	 
	 	Q3	 	 	$	67,500	 
	 
	 	Q4	 	 	$	67,500	 
	2009
	 	Q1	 	 	$	67,500	 
	 
	 	Q2	 	 	$	67,500	 
	 
	 	Q3	 	 	$	67,500	 
	 
	 	Q4	 	 	$	67,500	 
	2010
	 	Q1	 	 	$	67,500	 
	 
	 	Q2	 	 	$	67,500	 
	 
	 	Q3	 	 	$	67,500	 
	 
	 	Q4	 	 	$	67,500	 
	2011
	 	Q1	 	 	$	67,500	 
	 
	 	Q2	 	 	$	67,500	 
	 
	 	Q3	 	 	$	67,500	 






Notwithstanding the foregoing schedule, to the extent not previously paid, all Senior Term D Notes
and any and all unpaid interest, fees and other amounts due in connection with the Senior Term D
Notes, shall be due and payable on October 14, 2011.





 









 








EXHIBIT A




Amended and Restated Certificate of Incorporation of the Company




 









 





EXHIBIT B-3




[Form of Senior Term D Note]




No. D-[__]                                                                        
                                                 October [__], 2005

$[                    ]




     FOR VALUE RECEIVED, the undersigned, Global Dosimetry Solutions, Inc. a Delaware corporation
(the “Company”), hereby promises to pay to American Capital Strategies, Ltd., a Delaware
corporation (“ACAS”), its successors and assigns (with ACAS, the “Holder”), the
principal sum of [                                        ] DOLLARS ($[                    ]) (the “Principal Amount”), on
the terms and conditions set forth in the Amended and Restated Note and Equity Purchase Agreement,
as amended by Amendment No. 1 dated as of October [___], 2005, between the Company, the Purchasers
identified on Annex A thereto, and American Capital Financial Services, Inc., as Agent for the
benefit of the Purchasers (as amended, modified or restated from time to time, the “Purchase
Agreement”). All terms used herein without definition shall have the meanings ascribed to them
in the Purchase Agreement.



     Payments of principal of, interest on and any premium with respect to this Senior Term D Note
are to be made in lawful money of the United States of America by check mailed and addressed to the
registered Holder hereof at the address shown in the register maintained by the Company for such
purpose or, at the option of the Holder, in such manner and at such other place in the United
States of America as the Holder hereof shall have designated to the Company in writing.



     Notwithstanding any provision to the contrary in this Senior Term D Note, the Purchase
Agreement or any other agreement, the Company shall not be required to pay, and the Holder shall
not be permitted to contract for, take, reserve, charge or receive, any compensation which
constitutes interest under applicable law in excess of the maximum amount of interest permitted by
law.



     This Senior Term D Note is one of a series of Senior Term D Notes Due October [___], 2011
issued pursuant to the Purchase Agreement and is entitled to the benefits thereof. Each Holder of
this Senior Term D Note will be deemed, by its acceptance hereof, to have agreed to the provisions
and to have made the representations and warranties set forth in Article 6 of the Purchase
Agreement.



     This Senior Term D Note is transferable only by surrender hereof in accordance with Article 6
of the Purchase Agreement, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered Holder of this Senior Term D Note.



     This Senior Term D Note is also subject to optional prepayment, in whole or in part, at the
times and on the terms specified in the Purchase Agreement, but not otherwise.



2









 





     If an Event of Default occurs and is continuing, the unpaid principal of this Senior Term D
Note may be declared or otherwise become due and payable in the manner, at the price (including any
applicable premium) and with the effect provided in the Purchase Agreement.



     Payments of principal, interest on and any premium with respect to this Senior Term D Note are
secured pursuant to the terms of the Security Documents.



     Time is of the essence of this Senior Term D Note. To the fullest extent permitted by
applicable Law, the Company, for itself and its legal representatives, successors and assigns,
expressly waive presentment, demand, protest, notice of dishonor, notice of maturity, notice of
non-payment, notice of protest, presentment for the purpose of accelerating maturity, diligence in
collection, and any exemption, each in respect of this Senior Term D Note.



     In no event, whether by reason of acceleration of the maturity of the amounts due under this
Senior Term D Note or otherwise, shall interest and fees contracted for, charged, received, paid or
agreed to be paid to Purchasers exceed the maximum amount permissible under applicable Law. If,
from any circumstance whatsoever, interest and fees would otherwise be payable to Agent or
Purchasers in excess of the maximum amount permissible under applicable Law, the interest and fees
shall be reduced to the maximum amount permitted under such Law. If from any circumstance, Agent
or Purchasers shall have received anything of value deemed interest by applicable Law in excess of
the maximum lawful amount, an amount equal to any excess of interest shall be applied to the
reduction of the principal amount of the Senior Term D Notes, in such manner as may be determined
by the Agent, and not to the payment of fees or interest, or if such excess interest exceeds the
unpaid balance of the principal amount of the Senior Term D Notes, such excess shall be refunded to
the Company.



     Whenever possible, each provision of this Senior Term D Note shall be interpreted in such
manner as to be effective and valid under applicable Law, but if any provision of this Senior Term
D Note is held to be prohibited by or invalid under applicable Law in any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating any other provision of this Senior Term D Note.



     This Senior Term D Note and the rights and obligations of the parties hereto shall be deemed
to be contracts under the laws of the State of New York and for all purposes shall be governed by
and construed and enforced in accordance with the laws of said State, except for its rules relating
to the conflict of laws.



* * *




3









 








     IN WITNESS WHEREOF, the Company caused this Senior Term D Note to be executed and delivered by
its respective duly authorized officer as of the day and year and at the place set forth above.



	 	 	 	 	 
	 	GLOBAL DOSIMETRY SOLUTIONS, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



1









 






	 	 	 	 	 



EXHIBIT K




[Form of Revolving Note]




No. [___]                                                                         
                                                October [_], 2005

$[                    ]





     FOR VALUE RECEIVED, the undersigned, Global Dosimetry Solutions, Inc., a Delaware corporation
(the “Company”), hereby promises to pay to American Capital Strategies, Ltd., a Delaware
corporation (“ACAS”), its successors and assigns (with ACAS, the “Holder”), the
aggregate unpaid principal amount of all Revolving Loans made to the Company by Holders (the
“Principal Amount”), on the terms and conditions set forth in the Amended and Restated Note
and Equity Purchase Agreement, as amended by Amendment No. 1, dated as of October [___], 2005,
between the Company, the Purchasers identified on Annex A thereto, and American Capital Financial
Services, Inc., as Agent for the benefit of the Purchasers (the “Purchase Agreement”). All
terms used herein without definition shall have the meanings ascribed to them in the Purchase
Agreement.



     Payments of principal of, interest on and any premium with respect to this Revolving Note are
to be made in lawful money of the United States of America by check mailed and addressed to the
registered Holder hereof at the address shown in the register maintained by the Company for such
purpose or, at the option of the Holder, in such manner and at such other place in the United
States of America as the Holder hereof shall have designated to the Company in writing.



     Notwithstanding any provision to the contrary in this Revolving Note, the Purchase Agreement
or any other agreement, the Company shall not be required to pay, and the Holder shall not be
permitted to contract for, take, reserve, charge or receive, any compensation which constitutes
interest under applicable law in excess of the maximum amount of interest permitted by law.



     This Revolving Note is one of a series of Revolving Notes issued pursuant to the Purchase
Agreement (herein called the “Revolving Notes”) and is entitled to the benefits thereof.
Each Holder of this Revolving Note will be deemed, by its acceptance hereof, to have agreed to the
provisions and to have made the representations and warranties set forth in Article 6 of the
Purchase Agreement.



     This Revolving Note is transferable only by surrender hereof in accordance with Article 6 of
the Purchase Agreement, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered Holder of this Revolving Note.



     This Revolving Note is also subject to optional prepayment, in whole or in part at the times
and on the terms specified in the Purchase Agreement, but not otherwise.



 









 





     If an Event of Default occurs and is continuing, the unpaid principal of this Revolving Note
may be declared or otherwise become due and payable in the manner, at the price (including any
applicable premium) and with the effect provided in the Purchase Agreement.



     Payments of principal, interest on and any premium with respect to this Revolving Note are
secured pursuant to the terms of the Security Documents.



     Time is of the essence of this Revolving Note. To the fullest extent permitted by applicable
Law, the Company, for itself and its legal representatives, successors and assigns, expressly
waives presentment, demand, protest, notice of dishonor, notice of maturity, notice of non-payment,
notice of protest, presentment for the purpose of accelerating maturity, diligence in collection,
and any exemption, each in respect of this Revolving Note.



     In no event, whether by reason of acceleration of the maturity of the amounts due under this
Revolving Note or otherwise, shall interest and fees contracted for, charged, received, paid or
agreed to be paid to Purchasers exceed the maximum amount permissible under applicable Law. If,
from any circumstance whatsoever, interest and fees would otherwise be payable to Agent or
Purchasers in excess of the maximum amount permissible under applicable Law, the interest and fees
shall be reduced to the maximum amount permitted under such Law. If from any circumstance, Agent
or Purchasers shall have received anything of value deemed interest by applicable Law in excess of
the maximum lawful amount, an amount equal to any excess of interest shall be applied to the
reduction of the principal amount of the Revolving Notes, in such manner as may be determined by
the Agent, and not to the payment of fees or interest, or if such excess interest exceeds the
unpaid balance of the principal amount of the Revolving Notes, such excess shall be refunded to the
Company.



     Whenever possible, each provision of this Revolving Note shall be interpreted in such manner
as to be effective and valid under applicable Law, but if any provision of this Revolving Note is
held to be prohibited by or invalid under applicable Law in any jurisdiction, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without invalidating any other
provision of this Revolving Note.



     This Revolving Note and the rights and obligations of the parties hereto shall be deemed to be
contracts under the laws of the State of New York and for all purposes shall be governed by and
construed and enforced in accordance with the laws of said State, except for its rules relating to
the conflict of laws.



* * *





3









 








     IN WITNESS WHEREOF, the Company has caused this Revolving Note to be executed and delivered by
its respective duly authorized officer as of the day and year and at the place set forth above.



	 	 	 	 	 
	 	GLOBAL DOSIMETRY SOLUTIONS, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT L




[Form of Notice of Borrowing]




[                    ], 200[__]




American Capital Financial Services, Inc.,
   as
Agent under the Purchase
   Agreement
referred to below

2 Bethesda Metro Center, 14th Floor

Bethesda, Maryland 20814

Facsimile: 301-654-6714




Attention:





	 	 	 	Re: Global Dosimetry Solutions, Inc. (the “Borrower”)




Reference is made to the Amended and Restated Note and Equity Purchase Agreement, dated November
10, 2004, as amended by Amendment No. 1, dated October 14, 2005 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”),
among the Borrower, the Purchasers party thereto and American Capital Financial Services, Inc., as
Agent for the Purchasers. Capitalized terms used herein and not otherwise defined herein are used
herein as defined in the Purchase Agreement.



The Borrower hereby gives you notice, irrevocably, pursuant to Section 2.5A of the Purchase
Agreement that the undersigned hereby requests to borrow such amount pursuant to the Revolving
Loans under the Purchase Agreement as set forth below (the “Proposed Borrowing”) as
required by Section 2.5A of the Purchase Agreement:





     (i) The date of the Proposed Borrowing is [                    ], 200[___] (the “Funding
Date”).




     (ii) The aggregate amount of the Revolving Loans as of the date hereof is
$[                    ].


The undersigned hereby certifies that the following statements are true on the date hereof and
shall be true on the Funding Date both before and after giving effect thereto and to the
application of the proceeds therefrom:





     (i) the representations and warranties set forth in Article 5 of the Purchase
Agreement are true and correct in all material respects on and as of the Funding Date with
the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date;



 









 






     (ii) no Default or Event of Default has occurred and is continuing on the Funding Date; and




     (iii) no repayment of the Revolving Notes or any of the Notes has been accelerated in
accordance with the Purchase Agreement.



	 	 	 	 	 
	 	GLOBAL DOSIMETRY SOLUTIONS, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




2