THE FINANCIAL CONDITION OF
THE COMPANY AND OF ALL OTHER CIRCUMSTANCES BEARING UPON THE RISK OF NON-PAYMENT
OF THE SENIOR DEBT AND/OR THE JUNIOR DEBT THAT DILIGENT INQUIRY WOULD REVEAL,
AND THE JUNIOR CREDITOR HEREBY AGREES THAT THE SENIOR CREDITOR SHALL HAVE NO
DUTY TO ADVISE THE JUNIOR CREDITOR OF INFORMATION KNOWN TO THE SENIOR
9
CREDITOR REGARDING SUCH CONDITION OR ANY SUCH CIRCUMSTANCES. IN THE EVENT THAT
THE SENIOR CREDITOR, IN ITS SOLE DISCRETION, UNDERTAKES, AT ANY TIME OR FROM
TIME TO TIME, TO PROVIDE ANY SUCH INFORMATION TO THE JUNIOR CREDITOR, THE SENIOR
CREDITOR SHALL BE UNDER NO OBLIGATION (A) TO PROVIDE ANY SUCH INFORMATION TO THE
JUNIOR CREDITOR ON ANY SUBSEQUENT OCCASION, OR (B) TO UNDERTAKE ANY
INVESTIGATION NOT A PART OF ITS REGULAR BUSINESS ROUTINE. THE JUNIOR CREDITOR
HEREBY AGREES THAT ALL PAYMENTS RECEIVED BY THE SENIOR CREDITOR MAY BE APPLIED,
REVERSED, AND REAPPLIED, IN WHOLE OR IN PART, TO ANY OF THE SENIOR DEBT, WITHOUT
AFFECTING THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, AND ASSENTS TO ANY
EXTENSION OR POSTPONEMENT OF THE TIME OF PAYMENT OF THE SENIOR DEBT OR TO ANY
OTHER INDULGENCE WITH RESPECT THERETO, TO ANY SUBSTITUTION, EXCHANGE OR RELEASE
OF ALL OR ANY COLLATERAL AND TO THE ADDITION OR RELEASE OF ANY OTHER PARTY OR
PERSON PRIMARILY OR SECONDARILY LIABLE THEREFOR.
13.
NOTICES.
ANY AND ALL NOTICES HEREUNDER SHALL BE IN WRITING AND
ADDRESSED TO THE PARTY TO BE NOTIFIED AS FOLLOWS:
If to the Senior Creditor:
ComVest Investment Partners II LLC
One North Clematis, Suite 300
West Palm Beach, Florida 33401
Attention: Carl Kleidman
with a copy to:
Greenberg Traurig, LLP
200 Park Avenue
New York, New York 10166
Attention: Alan Annex, Esq.
Telecopier: (212) 801-6400
If to the Junior Creditor:
Hologic, Inc.
35 Crosby Drive
Bedford, MA 01730-1401
Attention: Jack Cumming
Telecopier: (781) 276-0580
with a copy to:
Brown Rudnick Berlack Israels LLP
One Financial Center
Boston, MA 02111
Attention: Philip J. Flink, Esq.
Telecopy: (617) 526-5000
10
If to the Company:
Fischer Imaging Corporation
12300 North Grant Street
Denver, Colorado 80241
Attention: Harris Ravine
Telecopier: (303) 450-4335
with a copy to:
Davis Graham & Stubbs LLP
1550 Seventeenth Street
Suite 500
Denver, Colorado 80202
Attention: Ronald R. Levine, II, Esq.
Telecopier: (303) 893-1379
or to such other address as any party may designate for itself by notice.
Notice shall be deemed to have been duly given when (a) delivered personally or
otherwise actually received, (b) sent by overnight delivery service, (c) mailed
by first class United States mail, postage prepaid, registered or certified,
with return receipt requested, or (d) sent by facsimile with facsimile
confirmation of receipt (with duplicate notice sent by United States mail as
provided above).
14.
CONSENT TO JURISDICTION; WAIVERS.
THE JUNIOR CREDITOR AGREES, IN
RESPECT OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, TO THE EXCLUSIVE
JURISDICTION OF ANY AND ALL LOCAL, STATE AND/OR FEDERAL COURTS SITTING IN THE
STATE OF NEW YORK, AND WAIVES ANY OBJECTION WHICH THE JUNIOR CREDITOR