exv10w2w2






Exhibit 10.2.2




 

 








AMENDMENT NO. 2

TO

NOTE AND EQUITY PURCHASE AGREEMENT




by and among




MGP INSTRUMENTS, INC.




AS BORROWER,




DOSIMETRY ACQUISITIONS (U.S.), INC.




AS GUARANTOR,




AMERICAN CAPITAL FINANCIAL SERVICES, INC.




AS AGENT




and




THE PURCHASERS IDENTIFIED ON

ANNEX A HERETO




Date of Amendment No. 2: November 1, 2005

Date of Amendment No. 1: October 22, 2004

Original Date: June 23, 2004




 

 








 









 












AMENDMENT NO. 2

TO

NOTE AND EQUITY PURCHASE AGREEMENT




$24,944,400 Aggregate Principal Amount of Senior Term B Notes Due June 23, 2010




$12,168,000 Aggregate Principal Amount of Senior Subordinated Notes Due June 23, 2011




$4,867,200 Aggregate Principal Amount of Junior Subordinated Notes Due June 23, 2011




$8,213,400 Revolving Loan Facility




     THIS AMENDMENT NO. 2 TO THE NOTE AND EQUITY PURCHASE AGREEMENT, dated as of November 1, 2005
(this “Amendment”), is by and among MGP INSTRUMENTS, INC. (“Borrower”), DOSIMETRY
ACQUISITIONS (U.S.), INC. (“Topco”), as Guarantor, AMERICAN CAPITAL STRATEGIES, LTD.
(“ACAS”), ACS FUNDING TRUST I (“AFT,” and together with ACAS, the
“Purchasers”), and AMERICAN CAPITAL FINANCIAL SERVICES, INC., a Delaware corporation
(“ACFS”), as agent for Purchasers (in such capacity “Agent”). Capitalized terms
used and not defined elsewhere in this Amendment have the meanings assigned to such terms in the
Agreement (as defined below).



RECITALS




     A. The Borrower, ACAS, and ACFS are parties to a Note and Equity Purchase Agreement dated as
of June 23, 2004 (as amended to date, the “Agreement”), pursuant to which ACAS purchased
from the Borrower certain Senior Term B Notes; certain Senior Subordinated Notes; and certain
Junior Subordinated Notes.



     B. ACAS has sold or contributed certain of the Notes to AFT.



     C. The parties hereto desire to amend the Agreement as set forth herein.



     D. All capitalized terms used but not defined herein shall have the respective meanings
ascribed in the Agreement.



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



 









 





ARTICLE 1

CONSENT AND AMENDMENT




     1.1 Consent. Pursuant to Section 15.2 of the Agreement, each of the undersigned Agent
and Purchasers hereby consent to this Amendment and agree, subject to the conditions set forth
herein, that upon the execution hereof, the Agreement is hereby amended as follows and shall be
deemed to be amended, effective as of the date set forth above.



     1.2 Amendment to Section 1.1. Section 1.1 of the Agreement is hereby modified and
amended by adding the following definitions in alphabetical order:



     “EURIBOR” shall mean, for each EURIBOR Period, a rate of interest determined by the Agent
equal to the rate of interest that under current practice is listed as the one month Euro Interbank
Offered Rate that appears on Telerate Page 248 at or about 11:00 a.m. (Brussels time) two business
days before the first day of the relevant EURIBOR Period.



     “EURIBOR Period” shall mean the calendar month immediately preceding the month in which the
interest payment date occurs; provided, that if any EURIBOR Period would otherwise extend
beyond the maturity date of the applicable Note for which EURIBOR is being calculated, the EURIBOR
Period shall end on such maturity date.



     1.3 Amendment to Section 3.l.(a). Section 3.1(a) of the Agreement is hereby modified
and amended in its entirety as follows:




     (a) The Loan Parties, jointly and severally, covenant and agree to make payments to
Agent, for the ratable benefit of Purchasers, of accrued interest on the Senior Term Loan B
on the first Business Day of each calendar month, commencing August 1, 2004 through the
date of repayment in full of the Senior Term Loan B. The Senior Term Loan B shall bear
interest on the outstanding principal thereof at a rate equal to EURIBOR, as such rate may
adjust from time to time, plus 300 basis points per annum.



     1.4 Amendment to Section 3.1(b). Section 3.1(b) of the Agreement is hereby modified
and amended in its entirety as follows:




     (b) The Loan Parties, jointly and severally, covenant and agree to make payments to
Agent, for the ratable benefit of Purchasers, of accrued interest on the Senior
Subordinated Notes on the first Business Day of each calendar month, commencing August 1,
2004 through the date of repayment in full of the Senior Subordinated Notes. The Senior
Subordinated Notes will bear interest in two components: (i) interest will be payable in
cash on the outstanding principal amount thereof (as increased by Senior PIK Interest that
is paid-in-kind as described below) at a rate equal to EURIBOR, as such rate may adjust
from time to time, plus 550 basis points per annum (“Senior Cash Interest”); and
(ii) interest



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will be payable in kind on (and thereby increase) the outstanding principal amount of
the Senior Subordinated Notes (as such principal amount is increased from time to time) at
a rate of 5.5% per annum (“Senior PIK Interest”). A late fee of two hundred and
fifty (250) basis points shall be added on any amounts due hereunder which are not paid in
accordance with this Section 3.1(b). Senior PIK Interest shall be payable as an increase
in the principal amount of the Senior Subordinated Notes on the same day as the payment of
the cash interest component without any further action on the part of Agent or the Loan
Parties and such increased principal amount of the Senior Subordinated Notes shall be paid
in full in connection with the repayment of the Senior Subordinated Notes. The Agent’s
determination of the amount of Senior Subordinated Notes outstanding at any time shall be
conclusive and binding, absent manifest error.



     1.5 Amendment to Section 3.l(c). Section 3.1(c) of the Agreement is hereby modified
and amended in its entirety as follows:




     (c) The Loan Parties, jointly and severally, covenant and agree to make payments to
Agent, for the ratable benefit of Purchasers, of accrued interest on the Junior
Subordinated Notes on the first Business Day of each calendar month, commencing August 1,
2004 through the date of repayment in full of the Junior Subordinated Notes. The Junior
Subordinated Notes will bear interest in two components: (i) interest will be payable in
cash on the outstanding principal amount thereof (as increased by Junior PIK Interest that
is paid-in-kind as described below) at a rate equal to EURIBOR, as such rate may adjust
from time to time, plus 500 basis points per annum (“Junior Cash Interest”), and
(ii) interest will be payable in kind on (and thereby increase) the outstanding principal
amount of the Junior Subordinated Notes (as such principal amount is increased from time to
time) at a rate of 7.0% per annum (“Junior PIK Interest”). A late fee of two
hundred and fifty (250) basis points shall be added on any amounts due hereunder which are
not paid in accordance with this Section 3.1 (c). Junior PIK Interest shall be payable as
an increase in the principal amount of the Junior Subordinated Notes on the same day as the
payment of the cash interest component without any further action on the part of Agent or
the Loan Parties and such increased principal amount of the Junior Subordinated Notes shall
be paid in full in connection with the repayment of the Junior Subordinated Notes. The
Agent’s determination of the amount of Junior Subordinated Notes outstanding at any time
shall be conclusive and binding, absent manifest error.



     1.6 Amendment to Section 3.1(e). Section 3.1(e) of the Agreement is hereby modified
and amended in its entirety as follows:




     (e) Revolving Loans. The Loan Parties, jointly and severally, covenant and
agree to make payments to the Agent for the ratable benefit of Purchasers of accrued
interest on the Revolving Notes on the first Business Day or each calendar month,
commencing August 1, 2004, through the date of repayment in full of the Revolving Notes.
The Revolving Notes will bear interest on the



3









 






outstanding principal thereof at a rate per annum equal to EURIBOR, as such rate may
adjust from time to time, plus 200 basis points. Until the Revolving Loan Termination
Date, the Loan Parties agree to pay to Agent an unused line fee on the average daily unused
amount of the Revolving Loan Commitment, at a rate equal to 0.70% per annum (computed for
the actual number of days elapsed on the basis of a year of 360 days). For purposes of
calculating usage under this Section 3.1(e), the Revolving Loan Commitment on any day shall
be deemed used to the extent of the Revolving Notes outstanding at the close of business of
Agent on such day. Such unused line fee shall be payable monthly in arrears on the last
Business Day of each month and on the Revolving Loan Termination Date for any period then
ending for which such unused line fee shall not have previously been paid.



ARTICLE 2

REFERENCE TO AND EFFECT ON THE AGREEMENT




     2.1 References. On and after the date hereof, (i) each reference in the Agreement to
“this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import shall mean and be a
reference to the Agreement as amended hereby, and (ii) each reference to the Agreement in all other
Purchase Documents shall mean and be a reference to the Agreement, as amended hereby.



     2.2 Effects. Except as specifically amended above, the Agreement, and all other
documents, instruments and agreements executed and/or delivered in connection therewith, shall
remain in full force and effect, and are hereby ratified and confirmed. Without limiting the
foregoing, all representations and warranties of the Loan Parties contained in the Purchase
Documents or made in writing in connection therewith and herewith shall survive the execution and
delivery of this Amendment.



     2.3 No Waiver. The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Purchaser, or constitute a waiver of, or
consent to and departure from, any provision of the Agreement, or any other documents, instruments
and agreements executed and/or delivered in connection therewith.



ARTICLE 3

MISCELLANEOUS




     3.1 Ratification. Except as expressly modified hereby, the Agreement remains in full
force and effect.



     3.2 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.



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     3.3 Severability. Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Amendment 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 Amendment.



     3.4 Headings. Article, section and subsection headings in this Amendment are included
for convenience of reference only and shall not constitute part of this Amendment for any other
purpose.



     3.5 Counterparts. This Amendment may be executed in any number of counterparts and by
either party hereto on separate counterparts, each of which, when so executed and delivered, shall
be an original, but all such counterparts shall together constitute one and the same instrument.



     3.6 Integration. This Amendment, the Agreement, as amended, and the other Purchase
Documents set forth the entire understanding of the parties hereto with respect to all matters
contemplated hereby and supersede all previous agreements and understandings among them concerning
such matters. No statements or agreements, oral or written, made prior to or at the signing
hereof, shall vary, waive or modify the written terms hereof.



[Remainder of page intentionally left blank.]




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SIGNATURE PAGE TO

AMENDMENT NO. 2

TO

NOTE AND EQUITY PURCHASE AGREEMENT




     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year
first above written.



	 	 	 	 	 
	 	LOAN PARTIES:

MGP INSTRUMENTS, INC.

 	 
	 	By:  	/s/ Michael S. Wilson	 
	 	 	Name:  	Mike Wilson 	 
	 	 	Title:  	Vice President and CEO 	 
	 
	 	DOSIMETRY ACQUISITIONS (U.S.), INC.

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


AMERICAN CAPITAL STRATEGIES, LTD.

 	 
	 	By:  	/s/ Todd Wilson	 
	 	 	Name:  	Todd Wilson 	 
	 	 	Title:  	Principal 	 
	 
	 	ACS FUNDING TRUST I

 	 
	 	By:  	AMERICAN CAPITAL STRATEGIES, LTD. its Servicer
 	 
	 	 	 	 
	 	By:  	/s/ Todd Wilson	 
	 	 	Name:  	Todd Wilson 	 
	 	 	Title:  	Principal 	 













 






	 	 	 	 	 



	 	 	 	 	 
	 	AGENT:

AMERICAN CAPITAL FINANCIAL SERVICES, INC., as Agent

 	 
	 	By:  	/s/ Todd Wilson	 
	 	 	Name:  	Todd Wilson 	 
	 	 	Title:  	Vice President 	 













 






	 	 	 	 	 



ANNEX A



AMERICAN CAPITAL STRATEGIES, LTD.



ACS FUNDING TRUST I