ANY SUCH PURCHASE, AND THE
COMPANY HEREBY AGREES THAT IT SHALL BE REQUIRED TO DELIVER THE FDA CERTIFICATE
TO COMVEST AS A CONDITION TO THE OBLIGATION OF COMVEST TO PURCHASE ANY
ADDITIONAL NOTES.
SECTION 3.
EXPENSES. THE COMPANY SHALL PAY TO COMVEST ALL
REASONABLE COSTS AND EXPENSES OF COMVEST, INCLUDING THE FEES AND DISBURSEMENTS
OF COMVEST'S COUNSEL, ASSOCIATED WITH THIS AMENDMENT, THE AMENDED AND RESTATED
WARRANT TO PURCHASE SHARES OF COMMON STOCK BEING ENTERED INTO BY THE COMPANY ON
THE DATE HEREOF, THE DEPOSIT ACCOUNT CONTROL AGREEMENT ALSO BEING ENTERED ON THE
DATE HEREOF AND ANY RELATED DOCUMENTS AND AGREEMENTS.
SECTION 4.
PARTIES IN INTEREST; SUCCESSORS AND ASSIGNS. THIS
AMENDMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF EACH PARTY HERETO
AND ITS SUCCESSORS AND ASSIGNS, AND NOTHING IN THIS AMENDMENT, EXPRESS OR
IMPLIED, IS INTENDED TO OR SHALL CONFER UPON ANY OTHER PERSON ANY RIGHT ,
BENEFIT OR REMEDY OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AMENDMENT.
EXCEPT IN CONNECTION WITH AN ASSIGNMENT AND TRANSFER OF THE NOTES IN COMPLIANCE
WITH SECTION 5.1 OF THE AGREEMENT AND THE TERMS OF THE NOTES, NEITHER THE
COMPANY NOR COMVEST SHALL ASSIGN THIS AMENDMENT OR ANY RIGHTS OR OBLIGATIONS
HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER. NOTWITHSTANDING THE
FOREGOING, COMVEST MAY ASSIGN ITS RIGHTS HEREUNDER TO ANY OF ITS AFFILIATES TO
WHOM IT ASSIGNS ITS RIGHTS UNDER THE AGREEMENT.
SECTION 5.
ENTIRE AGREEMENT. THIS AMENDMENT CONSTITUTES THE ENTIRE
AGREEMENT OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERTAKINGS, BOTH WRITTEN AND ORAL, BETWEEN
COMVEST AND THE COMPANY WITH RESPECT TO THE SUBJECT MATTER HEREOF. EXCEPT AS
AMENDED BY THIS AMENDMENT, THE AGREEMENT SHALL CONTINUE IN FULL FORCE AND
EFFECT.
SECTION 6.
SEVERABILITY. IF ANY TERM OR OTHER PROVISION OF THIS
AMENDMENT SHALL BE INVALID OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY
OR UNENFORCEABILITY SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE
REMAINDER OF THIS AMENDMENT OR THE VALIDITY OR ENFORCEABILITY OF THIS AMENDMENT
IN ANY OTHER JURISDICTION.
SECTION 7.
COUNTERPARTS. THIS AMENDMENT MAY BE EXECUTED AND
DELIVERED (INCLUDING BY FACSIMILE TRANSMISSION) IN ONE OR MORE COUNTERPARTS, AND
BY THE DIFFERENT PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH WHEN
EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL BUT ALL OF WHICH TAKEN TOGETHER SHALL
CONSTITUTE ONE AND THE SAME AGREEMENT.
SECTION 8.
GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO CONFLICTS OF LAW ISSUES.
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IN WITNESS WHEREOF, THE COMPANY AND COMVEST HAVE CAUSED THIS AMENDMENT TO BE
EXECUTED AS OF THE DATE FIRST WRITTEN ABOVE BY THEIR RESPECTIVE OFFICERS
THEREUNTO DULY AUTHORIZED.
FISCHER IMAGING CORPORATION
By:
/s/ Harris Ravine
Name: Harris Ravine
Title: President and CEO
COMVEST INVESTMENT PARTNERS II LLC
By:
/s/ Larry E. Lenig Jr.
Name: Larry E. Lenig Jr.
Title: Sr. Partner
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