Exhibit 10.18
AMENDED AND RESTATED INVENTORY AND RECEIVABLES PURCHASE AGREEMENT
This Amended and Restated Inventory and Receivables Purchase Agreement (the
"Agreement") is entered into as of April 10, 2006 by and between Intraop Medical
Corporation, a Nevada Corporation ("Company") and E.U. Capital Venture, Inc., a
Nevada Corporation and E.U.C. Holding, a Danish corporation (together, "Buyer").
RECITALS
WHEREAS, Company and Buyer entered into an Inventory and Receivables
Purchase Agreement dated as of August 16, 2005 (the "Original Agreement").
WHEREAS, Company and Buyer desire to amend and restate the Original
Agreement in its entirety as set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, and intending to be
legally bound, the parties hereby agree as follows:
1. Definitions:
1.1. "Inventory" shall mean the various kinds of inventory Company
customarily holds for sale to its end customers, which inventory shall include
among other things, Mobetron systems, surgical tables, accessories, and repair
parts.
1.2. "Factored Inventory" shall mean Inventory and the related Receivable
for that Inventory.
1.3. "Receivable" shall mean a purchase order or other contract for the
sale of Inventory to Company's end-user customer and all monies due thereunder.
2. Terms and Conditions :
2.1. Buyer will purchase up to $3,000,000 of combined Inventory and
Factored Inventory from Company, on a revolving basis, upon the terms and
conditions set forth herein:
2.2. Buyer agrees to purchase, at the request of Company, Inventory as
shown on Exhibit A attached hereto, as such may be updated from time to time.
The purchase price of Inventory purchased hereunder shall be ninety percent
(90%) of the invoice price paid by Company to its vendors for such Inventory.
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2.3. Buyer agrees to purchase, at the request of Company, Factored
Inventory as shown on Exhibit B attached hereto, as such may be updated from
time to time. The purchase price of Factored Inventory shall be eighty percent
(80%) of the face amount of the Receivable relating to such Factored Inventory.
To the extent that Company finds end-user customers for Inventory already sold
to Buyer and Buyer requests that such Inventory be considered Factored
Inventory, Buyer agrees to remit to Company the difference between (a) eighty
percent (80%) of the amount of the Receivable due for such Factored Inventory
and (b) the amount already paid to Company pursuant to the sale of that
Inventory to Buyer.
2.4. Upon the sale of Inventory to Buyer, Company will execute and deliver
to Buyer:
(a) A Xxxx of Sale for such Inventory in substantially the form of Exhibit
C attached hereto;
(b) Copies of all invoices relating to the Inventory; and
(c) Copies of checks or other forms of proof of payment relating to the
Inventory.
2.5. Upon sale of Factored Inventory to Buyer, Company will execute and
deliver to Buyer:
(a) A Xxxx of Sale and Assignment of Receivables in substantially the form
of Exhibit D hereto;
(b) Copies of the purchase order or other contract comprising the
Receivable;
(c) Copies of all invoices relating to the Inventory; and
(d) Copies of checks or other forms of proof of payment relating to the
Inventory.
2.6. Company hereby acknowledges and agrees that Buyer may file one or more
UCC financing statements in appropriate jurisdictions as notice of it ownership
interest in the Inventory and Factored Inventory.
2.7. Inventory and Factored Inventory purchased by Buyer will be stored
free-of-charge to Buyer by Company at such locations as Company customarily
warehouses its own inventory and Company will provide for the same care,
safekeeping, and insurance of Buyer's Inventory as Company customarily keeps for
its own Inventory, provided however, that Company will not be required to insure
or provide any other form of surety for Receivables related to Factored
Inventory.
2.8. Buyer covenants not to sell, dispose of, pledge, grant an interest in,
or otherwise encumber Inventory or Factored Inventory that Buyer purchases from
Company, and agrees to hold such Inventory and Factored Inventory free and clear
of all liens and encumbrances for later repurchase by Company.
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2.9. Company agrees to pay interest to Buyer on the outstanding balance of
Inventory purchased by Buyer at the rate of twelve percent (12%) per annum,
compounded monthly. Interest payments on Inventory shall be due by the 5th day
of each month.
2.10. Company agrees to pay interest to Buyer on the outstanding balance of
Factored Inventory purchased by Buyer at the rate of twenty-four percent (24%)
per annum, compounded monthly, such interest to be paid from the proceeds from
the liquidation of the Receivable as and when paid by the Receivable
counterparty.
2.11. Company agrees to notify and request that all payments received
relating to Factored Inventory be remitted by wire directly to Buyer at the wire
address shown on Exhibit E hereto. To the extent that Company receives any
monies from its customers related to Factored Inventory prior to repurchase or
repayment of all outstanding sums due Buyer for that same Factored Inventory,
Company will immediately remit to Buyer the lesser of the (a) amount received by
Company or (b) the amount required to complete the repurchase of the Factored
Inventory from Buyer, including any interest thereon.
2.12. To the extent Buyer receives payments for Inventory or Factored
Inventory in excess of the amounts required for the Company to repurchase such
Inventory or Factored Inventory, and unless otherwise directed by Company to
apply such sums to the repurchase of other Inventory or Factored Inventory,
Buyer will immediately remit such sums to Company at the wire address set forth
in Exhibit F.
2.13. From time to time, Company may repurchase Inventory and Factored
Inventory from Buyer. The repurchase price of Inventory and Factored Inventory
shall be the same price that Buyer paid to Company for such Inventory or
Factored Inventory, plus any outstanding and unpaid interest thereon net of any
prior payments received by Buyer from Company or otherwise.
2.14. Upon repurchase of Inventory, Buyer will execute a Xxxx of Sale in
substantially the form of Exhibit C hereto and, to the extent applicable, will
also execute UCC termination statements as requested by Company to evidence
Buyer's release of its ownership interest in such Inventory. Upon repurchase of
Factored Inventory, Buyer will execute a Xxxx of Sale and Assignment of
Receivables in substantially the form of Exhibit D hereto and, to the extent
applicable, will also execute UCC termination statements as requested by Company
to evidence Buyer's release of its ownership interest in the Factored Inventory.
2.15. To the extent that orders for its products can be satisfied from
Inventory purchased by Buyer, Company agrees to preferentially fill such orders
through the repurchase of such Inventory from Buyer.
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3. Term; Termination:
3.1. This Agreement will commence as of the date of this Agreement and will
continue for a period of one (i) year thereafter unless terminated earlier in
accordance with this Section 3. This Agreement shall automatically renew for
successive one (1) year terms unless either party gives written notice of
termination to the other party not less than sixty (60) days prior to the end of
any one-year term.
3.2. This Agreement may be terminated immediately upon written notice:
(a) by either party if the other party breaches any other material
provision of this Agreement and fails to cure such breach within thirty (30)
days after receipt of written notice of such breach from the non-breaching
party; or
(b) by either party if the other party (i) becomes insolvent, (ii)
makes an assignment for the benefit of creditors, (iii) files or has filed
against it a petition in bankruptcy or seeking reorganization, (iv) has a
receiver appointed, or (v) institutes any proceedings for the liquidation or
winding up; provided, however, that, in the case any of the foregoing is
involuntary, such party will only be in breach if such petition or proceeding
has not been dismissed within ninety (90) days.
3.3. Should this Agreement not be renewed at the end of its term by Buyer,
Company shall, within one hundred twenty (120) days following the termination of
this Agreement, repurchase all Inventory and Factored Inventory as per the terms
and conditions stated above.
4. General
4.1. Neither party will be liable to the other party for any loss or damage
resulting from any delay or failure to perform all or any part of this
Agreement, except for failure to pay monies due, if such delay or failure is
caused, in whole or in part, by circumstances beyond its control and not as a
result of its own negligence. Such circumstances include, without limitation,
acts of God, strikes, lockouts, riots, acts of war, acts of violence,
earthquakes, floods, fire and explosions.
4.2. All notices and other communications required or permitted hereunder
shall be in writing, shall be effective when given, and shall in any event be
deemed to be given (a) five (5) days after deposit with the U.S. Postal Service
or other applicable postal service, if delivered by first class mail, postage
prepaid, (b) upon delivery, if delivered by hand, (c) one business day after the
business day of deposit with Federal Express or similar overnight courier,
freight prepaid, or (d) one day after the business day of delivery by facsimile
transmission, if deliverable by facsimile transmission, with copy by first class
mail, postage prepaid, and shall be addressed as follows:
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Intraop Medical Corporation
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
Ph: 408-636-1020
If to Buyer:
E.U. Capital Venture
00000 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
4.3. This Agreement shall be governed by and construed in accordance with
the substantive laws of the United States and the State of California, without
regard to or application of California's conflicts of law rules. Any litigation
arising out of or relating to this Agreement shall take place exclusively in the
appropriate state or federal court having jurisdiction in Santa Xxxxx County,
California, and each party hereby irrevocably consents to the jurisdiction of
such courts.
4.4. Failure by either party to enforce any provision of this Agreement
will not be deemed a waiver of future enforcement of that or any other
provision. Any waiver, amendment, supplementation or other modification or
supplementation of any provision of this Agreement will be effective only if in
writing and signed by both parties.
4.5. If for any reason a court of competent jurisdiction finds any
provision or portion of this Agreement to be unenforceable, that provision of
this Agreement will be enforced to the maximum extent permissible so as to
effect the intent of the parties, and the remainder of this Agreement will
continue unmodified except as necessary to avoid unfairness.
4.6. This Agreement will be binding upon and inure to the benefit of the
parties to this Agreement and their respective successors and permitted assigns;
provided, however, that neither party may assign any of its rights, obligations,
or privileges under this Agreement without the prior written consent of the
other party. Notwithstanding the foregoing, however, Company may assign this
Agreement in connection with an asset sale, merger, acquisition, corporate
reorganization or the like. Any attempted assignment in violation of this
Section shall be void.
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4.7. This Agreement represents the entire agreement between the parties
hereto concerning the subject matter hereof and supersedes any and all prior or
contemporaneous correspondence, quotations and negotiations. This Agreement
supersedes and will take precedence over any conflicting terms in any purchase
order invoice, confirmation or other similar document.
4.8. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement may be executed and delivered by
telecopy or facsimile and execution in such manner shall constitute an original.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date first written above.
COMPANY:
Intraop Medical Corporation
By: /s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx
Chief Financial Officer
BUYER:
E.U. Capital Venture, Inc
By: /s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx
Secretary/Treasurer
BUYER
E.U.C. Holding
By: /s/ Xxxxxx Xxxxxxx for Xxxxxx Xxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxx
President
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EXHIBIT A
Inventory
EXHIBIT B
Factored Inventory
EXHIBIT C
Xxxx of Sale
------------
XXXX OF SALE
------------
KNOW ALL MEN BY THESE PRESENTS THAT:
___________________, a ____________ corporation ("Seller"), FOR AND IN
CONSIDERATION of _________________________ Dollars ($________________) and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby grant, bargain, sell, convey, transfer, assign, set
over and deliver unto ____________________ ("Buyer"), its successors and
assigns, the assets listed in Exhibit A attached hereto.
TO HAVE AND TO HOLD all of the properties, assets and rights granted and
transferred hereby, with the appurtenances thereof, unto Buyer, its successors
and assigns forever, to it and their own use and benefit.
Seller for itself and its successors and assigns, does hereby covenant with
Buyer, its successor and assigns, that Seller and its successors and assigns
will do, execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered all such further acts, deeds, bills of sale,
transfers, assignments and conveyances, powers of attorney, conveying and
confirming unto Buyer, its successors and assigns, all and singular, the
properties hereby granted, sold, assigned, transferred, conveyed and delivered
as Buyer, its successors or assigns, shall reasonably require, provided,
however, that Buyer, its successors and assigns shall prepare all necessary
documentation.
IN WITNESS WHEREOF, Seller, has caused this instrument to be signed in its
name by its duly authorized officer to be effective as of the ___ day of
________, 200__.
SELLER:
By:
---------------------------------
Name:
Title:
EXHIBIT D
Xxxx of Sale and Assignment of Receivables
------------------------------------------
XXXX OF SALE AND ASSIGNMENT OF RECEIVABLES
------------------------------------------
KNOW ALL MEN BY THESE PRESENTS THAT:
___________________, a ____________ corporation ("Seller"), FOR AND IN
CONSIDERATION of _________________________ Dollars ($________________) and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby grant, bargain, sell, convey, transfer, assign, set
over and deliver unto ____________________ ("Buyer"), its successors and
assigns, the assets listed in Exhibit A attached hereto.
NOW, THEREFORE, in consideration of the premises and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged:
Seller does hereby convey, grant, bargain, sell, transfer, assign and
deliver unto Buyer, its successors and assigns, and Buyer does hereby purchase
all right, title and interest of Seller in and to the assets specified below:
(a) The assets listed on Exhibit A attached hereto.
(b) The rights of Seller under the contracts, agreements, sales orders,
purchase orders and other commitments relating to the assets
specifically listed on Exhibit A.
TO HAVE AND TO HOLD all of the properties, assets and rights granted and
transferred hereby, with the appurtenances thereof, unto Buyer, its successors
and assigns forever, to it and their own use and benefit.
Seller for itself and its successors and assigns, does hereby covenant with
Buyer, its successor and assigns, that Seller and its successors and assigns
will do, execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered all such further acts, deeds, bills of sale,
transfers, assignments and conveyances, powers of attorney, conveying and
confirming unto Buyer, its successors and assigns, all and singular, the
properties hereby granted, sold, assigned, transferred, conveyed hand delivered
as Buyer, its successors or assigns, shall reasonably require, provided,
however, that the Buyer, its successors and assigns shall prepare all necessary
documentation.
This Xxxx of Sale and Assignment of Receivables may be simultaneously
executed in two or more counterparts, each of which as so executed shall be
deemed to be an original and such counterparts together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, Seller, has caused this instrument to be signed in its
name by its duly authorized officer to be effective as of the ___ day of
________, 200__.
SELLER
By:
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: CFO
BUYER
By:
---------------------------------
Name:
Title:
