exv10w3w8






Exhibit 10.3.8




 

 






AMENDMENT NO. 5




to the




AMENDED AND RESTATED




NOTE AND EQUITY PURCHASE AGREEMENT




by and among




IST ACQUISITIONS, LLC.




IMAGING AND SENSING TECHNOLOGY CORPORATION AND

CERTAIN OF THE SUBSIDIARIES OF

IMAGING AND SENSING TECHNOLOGY CORPORATION




AS LOAN PARTIES




AND




AMERICAN CAPITAL FINANCIAL SERVICES, INC.




AS AGENT




and




THE PURCHASERS IDENTIFIED ON

ANNEX A HERETO




Date of Amendment No. 5: May 14,2008

Date of Amendment No. 4: September 13, 2006

Date of Amendment No. 3: May 16,2006

Date of Amendment No. 2: December 22, 2005

Date of Amendment No. 1: May 24, 2005

Original Date: October 29, 2004



 

 


 









 






AMENDMENT NO. 5

to the

AMENDED AND RESTATED

NOTE AND EQUITY PURCHASE AGREEMENT




     THIS AMENDMENT NO. 5, dated May 14, 2008 (this “Amendment”), amends THE AMENDED AND
RESTATED NOTE AND EQUITY PURCHASE AGREEMENT (as amended to date, the “Agreement”), dated as
of October 29, 2004, and is by and among IST ACQUISITIONS, LLC, a Delaware limited liability
company (“Patent”), IMAGING AND SENSING TECHNOLOGY CORPORATION, a New York corporation
(“Borrower”), IST CONAX NUCLEAR, INC., a New York corporation, IMAGING AND SENSING
TECHNOLOGY INTERNATIONAL CORP., a New York corporation, IST INSTRUMENTS, INC., a New York
corporation, QUADTEK, INC., a Washington corporation (each a “Subsidiary” and collectively
the “Subsidiaries” and together with Borrower and Parent, the “Loan Parties”), the
securities purchasers that are now and hereafter at any time parties thereto (each a
“Purchaser” and collectively, “Purchasers”), and AMERICAN CAPITAL FINANCIAL
SERVICES, INC., a Delaware corporation (“ACFS”), as administrative and collateral agent for
Purchasers (in such capacity “Agent”).



RECITALS




     A. The parties hereto were party to a Note and Equity Purchase Agreement, dated as of October
29, 2004 (the “Original Purchase Agreement”);



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



     C. The Loan Parties, Purchasers and the Agent have agreed to enter into this Amendment to
amend the Agreement, in order to amend of certain terms of the 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.



2. Amendment. Section 2.3(a) of the Agreement is hereby amended and restated in its
entirety as follows:





“(a) Subject to the terms and conditions set forth in this Agreement, on or after the
Closing Date and to, but excluding, October 14, 2010 (the “Revolving Loan Termination
Date”), Purchasers shall, severally, on a pro rata basis based on the percentages
specified to Agent, make loans and advances to the Loan Parties on a revolving credit basis
(collectively, the “Revolving Loans” in an aggregate amount outstanding at any time
up to the Revolving Loan Commitment Amount.



1









 






From and after the a Closing, the Revolving Loans shall be evidenced by a promissory note
made by the Loan Parties in favor of Purchasers (the “Revolving Notes”) in the.
form attached hereto as Exhibit A-4 to be delivered by the Loan parties at the
Closing. The date and amount of each Revolving Loan made by Purchasers and each payment on
account of principal thereof shall be recorded by Agent on its books; provided that, the
failure of Agent to make any such recordation shall not affect the obligations of the Loan
Parties to make payments when due of any amounts owing in respect of the Revolving Loans.”


3. Representations and Warranties. Each Loan Party hereby represents and warrants as
follows:




     (a) This Amendment constitutes a legal, valid and binding obligation of such Loan Party and is
enforceable against such Loan Party in accordance with its terms.



     (b) Such Loan Party has no defense, counterclaim or offset with respect to the Agreement or
the Notes.


4. Agent’s Fees and Expenses. The Loan Parties shall pay or cause to be paid to Agent or
its designee a fee in the amount of $1,000 in consideration for the preparation and negotiation of
the Amendment



5. Effect on the Agreement.




     (a) All references to the Amended and Restated Purchase Agreement in the Agreement and the
other documents and instruments delivered pursuant to or in connection therewith shall mean the
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 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 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 Agreement or any documents and
instruments delivered pursuant to or in connection therewith.


6. Governing Law. This Amendment 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.



7. Further Assurances. The parties hereto shall, at anytime and from time to time
following the execution of this Amendment, 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.




2









 







8. Headings. Section headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other purpose.



9. Counterparts. This Amendment 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




[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK]




3









 





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



	 	 	 	 	 
	 	LOAN PARTIES:




IST ACQUISITIONS, LLC.

By its sole member




Mirion Technologies, Inc

 	 
	 	By:  	/s/ Thomas  Logan 	 
	 	 	Name:  	Thomas D. Logan 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	IMAGING AND SENSING TECHNOLOGY CORPORATION

 	 
	 	By:  	/s/ Mohammed Sadki 	 
	 	 	Name:  	Mohammed Sadki 	 
	 	 	Title:  	Treasurer 	 
	 
	 	IST CONAX NUCLEAR, INC.

 	 
	 	By:  	/s/ Mohammed Sadki 	 
	 	 	Name:  	Mohammed Sadki 	 
	 	 	Title:  	Treasurer 	 
	 
	 	IST INSTRUMENTS, INC.

 	 
	 	By:  	/s/ Mohammed Sadki 	 
	 	 	Name:  	Mohammed Sadki 	 
	 	 	Title:  	Treasurer 	 
	 
	 	IMAGING AND SENSING TECHNOLOGY
INTERNATIONAL
CORP.

 	 
	 	By:  	/s/ Mohammed Sadki 	 
	 	 	Name:  	Mohammed Sadki 	 
	 	 	Title:  	Treasurer 	 
	 



SIGNATURE PAGE: IST NEPA AMENDMENT NO. 5




 









 








	 	 	 	 	 
	 	AGENT:




AMERICAN CAPITAL FINANCIAL SERVICES INC.

 	 
	 	By:  	/s/ Robert J. Klein 	 
	 	 	Name:  	Robert J. Klein 	 
	 	 	Title:  	Vice President 	 
	 
	 	PURCHASERS:




AMERICAN CAPITAL STRATEGIES, LTD.

 	 
	 	By:  	/s/ Robert J. Klein 	 
	 	 	Name:  	Robert J. Klein 	 
	 	 	Title:  	Managing Director 	 
	 
	 	ACS FUNDING TRUST I

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



SIGNATURE PAGE: IST NEPA AMENDMENT NO. 5




 









 








	 	 	 	 	 
	 	QUADTEK, INC.

 	 
	 	By:  	/s/ Thomas  Logan 	 
	 	 	Name:  	Thomas D. Logan 	 
	 	 	Title:  	Director 	 
	 



SIGNATURE PAGE: IST NEPA AMENDMENT NO. 5