WAIVER AGREEMENT TO NOTE AND EQUITY PURCHASE AGREEMENT
Exhibit 10.3.10
THIS WAIVER AGREEMENT TO NOTE AND EQUITY PURCHASE AGREEMENT (this “Waiver”) is made
and entered into as of June 15, 2009 by and among IST ACQUISITIONS, LLC, a Delaware limited
liability company (“Parent”), MIRION TECHNOLOGIES (IST) CORPORATION (fka IMAGING AND
SENSING TECHNOLOGY CORPORATION), a New York corporation (“Borrower”), MIRION TECHNOLOGIES
(CONAX NUCLEAR), INC. (fka IST CONAX NUCLEAR, INC.), a New York corporation, IMAGING AND SENSING
TECHNOLOGY INTERNATIONAL CORP., a New York corporation, 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, the securities
purchasers that are now and hereafter at any time parties hereto and are listed in Annex A
(or any amendment or supplement thereto) attached hereto (each a “Purchaser” and
collectively, “Purchasers”), and AMERICAN CAPITAL FINANCIAL SERVICES, INC., a Delaware
corporation (“ACFS”), as administrative and collateral agent for Purchasers (in such
capacity “Agent”).
RECITALS
WHEREAS, the Loan Parties, Agent and the Purchasers are parties to that certain Amended and
Restated Note and Equity Purchase Agreement, dated as of October 29, 2004 (as amended from time to
time, the “Purchase Agreement”), pursuant to which the Purchasers purchased Notes issued by
the Loan Parties;
WHEREAS, as part of a project to change the corporate names of the operating companies within
the Mirion corporate group, certain of the Loan Parties or their Affiliates have changed, or are
changing, their corporate names; namely, I&ST Canada Inc. to Mirion Technologies (IST Canada) Inc.;
Imaging and Sensing Technology Ltd. to Mirion Technologies (IST) Ltd.; IST Auxitrol Nuclear SAS to
Mirion Technologies (IST France) SAS; Imaging and Sensing Technology Corporation to Mirion
Technologies (IST) Corporation; and, IST Conax Nuclear, Inc. to Mirion Technologies (Conax
Nuclear), Inc. (collectively, the “Newly Named Parties”);
WHEREAS, as part of the broader name change project within the Mirion corporate group, Mirion
Technologies (IST) Ltd. (fka Imaging and Sensing Technology Ltd.) created a new corporation having
neither assets nor employees (the “Shell Subsidiary”), solely for purposes of protecting
the trade name “Imaging and Sensing Technology Ltd.” in the United Kingdom;
WHEREAS, Quadtek, Inc., Imaging and Sensing Technology International Corporation and IST
Instruments, Inc. (the “Dormant Parties”) are each dormant entities with no on-going
operations and no employees and Borrower desires to dissolve the Dormant Parties, pursuant to the
laws of the jurisdictions in which they are domiciled, in order to simplify the corporate structure
and reduce overall administrative costs;
WHEREAS, I.S. Technology de Puerto Rico, Inc., a Delaware corporation (“IST PR”), a
Loan Party under the Purchase Agreement, has been sold by Parent in a transaction and the Loan
Parties, Purchaser and Agent now desire to memorialize the Purchasers’ waiver and consent for such
prior sale;
WHEREAS, as part of efforts to ensure consistency in the financial statements of Mirion
Technologies, Inc. (“Mirion”) and the Loan Parties, each of which is indirectly wholly
owned by Mirion, the Loan Parties have changed, or may change their Fiscal Year to end on June
30th of each year and the Loan Parties, Purchaser and Agent now desire to memorialize
the Purchasers’ waiver and consent for such changes;
WHEREAS, as part of an international tax restructuring of the Mirion corporate group, the Loan
Parties, each of which is an indirect wholly owned subsidiary of Mirion, and IST Acquisitions, LLC
(the “Transferor”) desire to transfer equity ownership of its wholly owned subsidiary,
Mirion Technologies (IST France) SAS (fka IST Auxitrol Nuclear SAS) to its Affiliate Dosimetry
Acquisitions (U.S.) LLC;
WHEREAS, the Purchase Agreement requires the Loan Parties to maintain audit committees and
Mirion has undertaken, by and on behalf of the Loan Parties, to complete one consolidated audit
including the financial results of the Loan Parties;
WHEREAS, Agent and Purchasers have agreed to waive sections of the Purchase Agreement with
respect to the above matters, as set forth and subject to the terms and conditions in this Waiver;
NOW, THEREFORE, the parties hereto, in consideration of the premises and their mutual
covenants and agreements herein set forth, and intending to be legally bound hereby, covenant and
agree as follow:
ARTICLE 1
WAIVERS TO PURCHASE AGREEMENT
1.1 Waiver with Respect to Name Changes.
1.1.1 Waiver of Notice Period for Changed or Additional Business Names. The
Purchasers hereby waive the Loan Parties’ obligations and the Purchasers’ rights, solely with
respect to the Newly Named Parties’ obligations to provide at least 30 days advance written notice
of a change to its corporate name and establishment of additional trade names, under the Purchase
Agreement, including without limitation Section 7.2(p), and the Purchasers hereby waive any related
rights to the extent such acts have constituted, or will constitute, an Event of Default.
1.1.2 Waiver of Loan Parties Covenants Prohibiting the Establishment of Subsidiaries.
The Purchasers hereby waive the Loan Parties’ obligations and the Purchasers’ rights, solely with
respect to formation of the Shell Subsidiary, under the Purchase Agreement, including without
limitation Section 7.2(l), and the Purchasers hereby waive any related rights to the extent such
acts have constituted, or will constitute, an Event of Default.
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1.2 Waiver with Respect to the Dormant Parties and IST PR.
1.2.1 Waiver of Loan Parties’ Covenants to Preserve Existence and Property. The
Purchasers hereby waive the Loan Parties’ obligations and Purchasers’ rights, solely with respect
to the dissolution of the Dormant Parties and with respect to the prior sale by Borrower of IST PR,
under the Purchase Agreement, including without limitation Sections 7.1(a) and 7.1(b), and the
Purchasers hereby waive any related rights to the extent such acts have constituted, or will
constitute, an Event of Default.
1.2.2 Waiver of Loan Parties’ Covenants Not to Merge or Sell Assets. The Purchasers
hereby waive the Loan Parties’ obligations and Purchasers’ rights under the Purchase Agreement
solely with respect to the prior sale of IST PR, including without limitation Section 7.2(e) of the
Purchase Agreement, and the Purchasers hereby waive any related rights to the extent such acts have
constituted, or will constitute, an Event of Default.
1.2.3 Waiver of Loan Parties’ Covenants Not to Amend Charter Documents or Bylaws. The
Purchasers hereby waive the Loan Parties’ obligations and Purchasers’ rights under the Purchase
Agreement solely with respect to amendments, modifications, termination or waiver of Charter
Documents or Bylaws in connection with the dissolution of the Dormant Parties and the prior sale of
IST PR, including without limitation Section 7.2(k) of the Purchase Agreement, and the Purchasers
hereby waive any related rights to the extent such acts have constituted, or will constitute, an
Event of Default.
1.2.4 Waiver of Purchasers’ Rights in the Event of Dissolution of a Loan Party. The
Purchasers hereby waive the Loan Parties’ obligations and Purchasers’ rights, solely with respect
the dissolution of the Dormant Parties and the prior sale of IST PR, under the Purchase Agreement,
including without limitation Section 13.4(b), and the Purchasers hereby waive any related rights to
the extent such acts have constituted, or will constitute, an Event of Default.
1.3 Waiver of Fiscal Year Covenant. The Purchasers hereby waive the Loan Parties’
obligations and Purchasers’ rights, solely with respect to the Loan Parties that have changed, or
may change, their Fiscal Year to end on June 30th of each year, under the Purchase
Agreement, including without limitation Section 7.2(n), and the Purchasers hereby waive any related
rights to the extent such acts have constituted, or will constitute, an Event of Default.
1.4 Waiver with Respect to International Tax Restructuring. The Purchasers hereby
waive the Loan Parties’ obligations and Purchasers’ rights, solely with respect to the Transferor’s
transfer of equity ownership in Mirion Technologies (IST France) SAS to Transferor’s Affiliate,
under the Purchase Agreement, including without limitation Sections 7.2(e) and 7.2(f), and the
Purchasers hereby waive any related rights to the extent such acts have constituted, or will
constitute, an Event of Default.
1.5 Waiver of Audit Committee and Compensation Committee Requirement. The Purchasers
hereby waive the Loan Parties’ obligations and Purchasers’ rights solely with respect to the
requirement that the Loan Parties maintain an audit committee and
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compensation committee, under the Purchase Agreement, including without limitation Sections
7.1(i)(iii) and 7.1(iv) of the Purchase Agreement, and the Purchasers hereby waive any related
rights to the extent such acts have constituted, or will constitute, an Event of Default.
1.6 Waiver of Board of Directors Covenant. The Purchasers hereby waive the Loan
Parties’ obligations and Purchasers’ rights solely with respect to the requirements under Section
7.1(i) of the Purchase Agreement, and the Purchasers hereby waive any related rights to the extent
such acts have constituted, or will constitute, an Event of Default.
ARTICLE 2
AMENDMENTS
2.1 Amendment with Respect to Name Change. All references to the former names of the
Newly Named Parties in the Purchase Agreement (and in all other provisions of the Transaction
Documents) shall be replaced with the new names of the Newly Named Parties upon completion.
2.2 Amendment with Respect to Board of Directors Covenant. Section 7.1(i) is hereby
amended and restated in its entirety to read as follows:
“(i) Governance.
(i) Intentionally Deleted.
(ii) Agent may designate an observer, without voting rights, who will be
entitled to attend all committee and member meetings of Parent. Any observer
designated by Purchasers shall be entitled to notice of all such meetings and
to all information provided to the meeting attendees. Such observer shall
receive the same compensation as other non-employee committee members and, in
any case, receive reimbursement for reasonable out-of-pocket expenses from
Parent incurred in connection with attendance at committee and member meetings.
(iii) Intentionally deleted.
(iv) Intentionally deleted.
(v) All rights of Purchasers under this Section 7.1(i) shall be
exercised by Required Purchasers.
(vi) Parent hereby agrees that, notwithstanding the fiduciary duties a
member may have as a member manager of Parent, any observer described in this
Section 7.1(i) may share with Agent or any Purchaser and such Purchaser’s legal
and financial advisors any confidential information related to the business and
operations of the Loan Parties disclosed to him during his participation as an
observer to
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the meetings, unless the member manager specifically directs that such confidential information not be so disclosed.”
2.3 Amendment with Respect to Fiscal Year Covenant. Section 7.2(n) is hereby amended
by replacing the words “April 30” with “June 30.”
ARTICLE 3
EFFECT OF WAIVER
3.1 No Waiver or Novation. Except for the waivers and amendments contemplated by this
Waiver, the execution, delivery and effectiveness of this Waiver shall not (i) operate as a waiver
of any future Event of Default, right, power or remedy of the Purchasers, whether created by
contract, at law or in equity, (ii) constitute a waiver of, or consent to and departure from, any
provision of the Purchase Agreement or any other documents, instruments and agreements executed
and/or delivered in connection therewith (the “Note Documents”), or (iii) be construed
and/or deemed to be a satisfaction, novation, cure, modification, amendment or release of the
Notes, the Purchase Agreement or the other Note Documents.
3.2 Ratification. Except as expressly modified hereby, the Purchase Agreement and all
other Note Documents, shall remain in full force and effect, and are hereby ratified and confirmed.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. The Loan Parties, jointly and severally,
represent and warrant to Agent and the Purchasers that (a) they have full power and authority to
execute and deliver this Waiver and to perform their obligations hereunder, (b) upon the execution
and delivery hereof, this Waiver will be valid, binding and enforceable against the Loan Parties in
accordance with its terms and (c) such Loan Party has no defense, counterclaim or offset with
respect to the Agreement or the Notes.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 Conditions Precedent. The effectiveness of this Waiver is subject to Agent’s
receipt from the Loan Parties, on or before the date hereof, of an original of this Waiver, duly
executed, and delivered in a manner satisfactory to Agent.
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ARTICLE 6
AGENT FEES
6.1 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 $3,000 in consideration for the negotiation of the
Waiver.
ARTICLE 7
MISCELLANEOUS
7.1 Affirmations. The Loan Parties hereby: (i) affirm all the provisions of the
Purchase Agreement, as modified by this Waiver, and all the provisions of each of the other
Transaction Documents, (ii) agree that the terms and conditions of the Purchase Agreement, as
modified by this Waiver, and all other Transaction Documents, as modified by the Waiver, shall
continue in full force and effect, and (iii) except as specifically referenced herein, the
execution, delivery and effectiveness of this Waiver 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.
7.2 Governing Law. This Waiver 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 New York, without regard to conflict of laws.
7.3 Further Assurances. The parties hereto shall, at any time and from time to time
following the execution of this Waiver, 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 Waiver. The Purchasers shall file all necessary instruments to terminate any
secured interests in IST PR and the Dormant Parties that exist.
7.4 Headings. Section headings in this Waiver are included herein for convenience of
reference only and shall not constitute a part of this Waiver for any other purpose.
7.5 Counterparts. This Waiver 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.
7.6 Severability. Whenever possible, each provision of this Waiver shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Waiver 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 Waiver.
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7.7 Facsimile Signatures. This Waiver may be executed and delivered by facsimile and
upon such delivery the facsimile signature will be deemed to have the same effect as if the
original signature had been delivered to the other party.
7.8 Integration. This Waiver, the Purchase Agreement and the other Transaction
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.
7.9 Defined Terms. Capitalized terms used in this Waiver and not otherwise defined
herein shall have the meaning ascribed to such terms in the Purchase Agreement.
7.10 No Third Party Beneficiaries. The terms and provisions of this Waiver shall be
for the sole benefit of the parties hereto and their respective successors and assigns; no other
person, firm, entity or corporation shall have any right, benefit or interest under this Waiver.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Waiver as of the day and year first
above written.
| LOAN PARTIES: IST ACQUISITIONS, LLC By its sole member Mirion Technologies, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| MIRION TECHNOLOGIES (IST) CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Secretary | |||
| MIRION TECHNOLOGIES (CONAX NUCLEAR), INC. |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Secretary | |||
| IMAGING AND SENSING TECHNOLOGY INTERNATIONAL CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| IST INSTRUMENTS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| QUADTEK, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
[Signature Page 1 of 2 to IST Waiver]
| AGENT: AMERICAN CAPITAL FINANCIAL SERVICES, INC. |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Vice President | |||
| PURCHASERS: AMERICAN CAPITAL, LTD. |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Director | |||
| ACAS BUSINESS LOAN TRUST 2005-1 |
||||
| By: | AMERICAN CAPITAL, LTD., as Servicer | |||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Director | |||
| ACAS BUSINESS LOAN TRUST 2006-1 |
||||
| By: | AMERICAN CAPITAL, LTD., as Servicer | |||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Director | |||
| ACAS BUSINESS LOAN TRUST 2007-1 |
||||
| By: | AMERICAN CAPITAL, LTD., as Servicer | |||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Director | |||
[Signature Page 2 of 2 to IST Waiver]
ANNEX A
INFORMATION RELATING TO PURCHASERS
Name and Address of Purchasers
AMERICAN CAPITAL, LTD.
0 Xxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
0 Xxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
ACAS BUSINESS LOAN TRUST 2005-1
ACAS BUSINESS LOAN TRUST 2006-1
ACAS BUSINESS LOAN TRUST 2007-1
c/o American Capital, Ltd., as Servicer
0 Xxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
ACAS BUSINESS LOAN TRUST 2006-1
ACAS BUSINESS LOAN TRUST 2007-1
c/o American Capital, Ltd., as Servicer
0 Xxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
