EXHIBIT 3
AMENDMENT NO. 1 TO NOTE AND WARRANT PURCHASE AGREEMENT
AMENDMENT No. 1 (this "Amendment"), dated as of March 29,
2005, to the Note and Warrant Purchase Agreement (the "Agreement"), dated as of
February 22, 2005, among Xxxxxxx Imaging Corporation, a Delaware corporation
(the "Company"), and ComVest Investment Partners II LLC, a Delaware limited
liability company ("ComVest"). Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Agreement.
RECITALS:
WHEREAS, the Company and ComVest have entered into the
Agreement;
WHEREAS, pursuant to and in accordance with Section 10.7 of
the Agreement, the parties wish to amend the Agreement as set forth in this
Amendment;
NOW, THEREFORE, in consideration of the rights and obligations
contained herein, and for other good and valuable consideration, the adequacy of
which is hereby acknowledged, the parties agree as follows:
Section 1. Amendments to the Agreement. (a) The third WHEREAS
clause of the Agreement is hereby amended by deleting the parenthetical at the
end thereof and replacing it with the following: "(each, as the same may be
amended or restated from time to time, a "Warrant" and collectively, the
"Warrants")".
(b) Section 5.11(i) of the Agreement is hereby amended by
adding the following after the word "indicated" and before the colon: "(except
to the extent of any changes to EBITDA the may result from charges to EBITDA due
to the implementation or exercise of the Put Option (as defined in the
Warrants)".
(c) Section 5.12(c) of the Agreement is hereby amended by
deleting the word "and" before clause (ii) thereof and adding the following
after the end of clause (ii) thereof and before the first semi-colon: "and (iii)
Indebtedness incurred as a result of the exercise of the Put Option or in order
to fund the payment required to be made by the Company upon exercise of the Put
Option".
(d) Section 5.12(e) of the Agreement is hereby amended by
adding the following at the end thereof: ", except for the purchase of the
Warrants if the Put Option thereunder is exercised".
(e) Section 5.12(f) of the Agreement is hereby amended by
adding the following at the end thereof: ", except payment of the purchase price
for the Warrants if the Put Option thereunder is exercised".
(f) Section 5.12(i) of the Agreement is hereby amended by
deleting the word "and" before clause (iv) thereof and adding the following at
the end thereof: "and (v) the acquisition of Warrants upon exercise of the Put
Option thereunder".
Section 2. Waiver. ComVest hereby waives the requirement
specified in Section 2.3(a) of the Agreement that the Company deliver to ComVest
the FDA Certificate as a condition to the obligation of ComVest to purchase the
Second Note. For the avoidance of doubt, ComVest does not waive the requirement
that the Company deliver to ComVest the FDA Certificate as a condition to the
obligation of ComVest to purchase any Additional Notes under Section 2.3(b) of
the Agreement, or any other conditions precedent to 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.
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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.
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.
XXXXXXX IMAGING CORPORATION
By:
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Name:
Title:
COMVEST INVESTMENT PARTNERS II LLC
By:
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Name:
Title:
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