AMENDMENT TO CONSENT, WAIVER
AND AMENDMENT AGREEMENT
This
Amendment Agreement (this “
Amendment ”)
is entered into as of July 19, 2007, by and between each of the
undersigned purchasers, acting individually (individually a
“
Purchaser ”
and collectively the “
Purchasers ”),
and Viking Systems, Inc., a Delaware corporation (the
“
Company ”)
and amends, that certain Consent, Waiver and Amendment Agreement
entered into by the Purchasers and the Company on February 23, 2007
(the “Original CWA”).
Pursuant
to a securities purchase agreement dated May 22, 2006 among
the Company and the Purchasers (the “Purchase
Agreement”), the Purchasers were issued convertible
preferred stock (the “Preferred Stock”) and
warrants (the “Existing Warrants”) to purchase
shares of Common Stock, par value $.001 per share (the
“Common Stock”) and in the individual amounts set
forth below such Purchaser’s name on the signature pages
to the Purchase Agreement.
The
Company and Purchasers desire to amend certain terms of the
Transaction Documents and waive certain provisions and other
matters contained in the Transaction Document.
In
the Original CWA, the Purchasers consented to, among other
things, the Company raising up to $6,000,000 through the
issuance of Secured Convertible Debentures (the
“Debentures”), of which approximately $5,376,533
has been received by the Company. The $6,000,000 maximum was
established in late November 2006. The $6,000,000 Debenture
maximum, assumed the Debenture would close in early January
2007. In February 2007, discussions were held with a number of
Debenture Purchasers regarding the need to increase the
Debenture maximum to off-set the two month delay in closing
and to address other changes in the business plans of the
Company that were impacted by, and not anticipated in, the
final Debenture agreements. Since the initial close of the
Debenture offering, the Company has been actively seeking
additional funds from other interested investors.
The
Company is in immediate need of additional capital and the
Company believes that the balance of the $6,000,000 is now
available, together with additional funds required by the
Company to fund its operations. The Company desires to obtain
the consent of the Purchasers to increase the maximum
Debenture offering to $8,000,000 from $6,000,000 (an
additional $2,623,467).
The
Company and the Purchasers believes it to be in the best
interests of the Company and the Purchasers to increase the
amount of Debentures to $8,000,000;
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained
in this Agreement, and for good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the
Purchasers and the Company agree as follows:
ARTICLE I
DEFINITIONS
Section
1.
Definitions .
Capitalized terms not defined in this Agreement shall have the
meanings ascribed to such terms in the Purchase
Agreement.
ARTICLE II
AMENDMENTS AND OTHER AGREEMENTS
Section
2.1
Consent to Subsequent Financing .
Each Purchaser, severally and not jointly with the other
Purchasers, hereby consents to the Company issuing up to $8,000,000
principal amount (including $5,376,533 already issued) of the
Debentures on the terms and conditions substantially similar to the
terms and conditions described to Purchasers in the Original CWA
(“Subsequent Financing”). Each Purchaser acknowledges
that the terms and conditions of the Subsequent Financing may
conflict with terms and conditions of the Purchase Agreement and
other Transaction Documents and the Company’s obligations
under the Purchase Agreement and other Transaction documents. Each
Purchaser hereby waives any breach of the Purchase Agreement and
other Transaction Documents that may occur by reason of the terms,
conditions, rights, restrictions and cov
