Exhibit 10.55
SECOND AMENDMENT TO LOAN DOCUMENTS
THIS SECOND AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is made and
entered into as of this 30th day of June, 2009, by and among INTRAOP MEDICAL
CORPORATION, a Nevada corporation (the "Company"), and the investors of the
Company set forth on the signature pages hereto (the "Investors"). Capitalized
terms used but not defined herein shall have the meanings assigned thereto in
the Loan Documents (as defined below).
RECITALS
WHEREAS, pursuant to that certain Debenture Purchase Agreement, dated
as of September 30, 2008 and amended as of April 9, 2009 (the "Purchase
Agreement"), the Company has issued to the Investors 10% Senior Secured
Debentures (as the same may have been amended and restated, the "Debentures");
WHEREAS, to secure the Company's obligations under the Debentures, the
Company and the Investors have entered into a Security Agreement, dated as of
September 30, 2008 and amended as of April 9, 2009 (the "Security Agreement"
and, together with the Purchase Agreement and the Debentures, the "Loan
Documents"); and
WHEREAS, the Company and the Investors wish to amend certain terms of
the Loan Documents as described below.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENT.
1.1 Amendment to Loan Documents.
(a) The Debentures are hereby amended by changing the
references to "June 30, 2009" in (i) the second paragraph of the preamble
thereto and (ii) the definition of "Monthly Payment Date" in Section 1 thereof
to "December 31, 2009".
(b) The Debentures are hereby amended by amending and
restating in its entirety the definition of "Original Issue Date" set forth in
Section 1 thereof as follows:
""Original Issue Date" shall mean the date on which this Debenture was
originally issued (notwithstanding any subsequent amendment and
restatements hereof)."
(c) The Debentures are hereby amended by amending and
restating in its entirety clause (ii) of the second paragraph of the preamble
thereto as follows:
"(ii) the date the Company closes an issuance, or series of issuances,
of promissory notes convertible into shares of its Common Stock with
gross aggregate proceeds received by the Company of not less than
$6,000,000 (other than pursuant to the Purchase Agreement)"
(d) The Purchase Agreement is hereby amended such
that the form of the Debenture attached thereto as Exhibit A is consistent with
the amendments to the Debentures set forth in Sections 1.1(a), (b) and (c) of
this Amendment.
(e) The Purchase Agreement is hereby amended by
changing the references to "June 30, 2009" and "$2,000,000" in the first
sentence of Section 2.4 thereof to "December 31, 2009" and "$3,500,000",
respectively.
(f) The Security Agreement is hereby amended by
changing the reference to "$3,500,000" in the preamble thereof to "$5,000,000".
1.2 Amendment to Warrants. As further consideration
for the agreements of E.U. Capital Venture Inc. ("E.U. Capital") set forth in
this Amendment, the Company hereby agrees that the "Warrant Price" set forth in
Section 1 of (i) those certain Warrants to Purchase Common Stock of the Company,
issued on or around August 17, 2007, providing for the purchase of up to an
aggregate of 1,083,515 shares of the Company's Common Stock (the "2007
Warrants"), and (ii) that certain Warrant to Purchase Common Stock of the
Company, issued on or around August 1, 2008, providing for the purchase of up to
1,350,000 shares of the Company's Common Stock (the "2008 Warrant" and, together
with the 2007 Warrants, the "Warrants"), is hereby amended to two cents and
eight tenths of a cent ($0.028), subject to adjustment as provided in the
Warrants.
1.3 Effect on Agreements.
(a) Except as expressly set forth in Sections 1.1 and
1.2 of this Amendment, the Loan Documents and the Warrants shall be and remain
in full force and effect in accordance with their terms. The Loan Documents and
the Warrants, as amended by Sections 1.1 and 1.2 of this Amendment, are hereby
ratified and confirmed in all respects.
(b) Nothing contained herein shall in any way impair
the Debentures now held for the Obligations, nor affect or impair any rights,
powers, or remedies under the Loan Documents, it being the intent of the parties
hereto that this Amendment shall not constitute a novation of the Debentures or
an accord and satisfaction of the Obligations. The Company hereby ratifies and
reaffirms the validity and enforceability of all of the liens and security
interests heretofore granted pursuant to the Loan Documents, as collateral
security for the Obligations, and acknowledges that all of such liens and
security interests, and all Collateral heretofore pledged as security for the
Obligations, continues to be and remains Collateral for the Obligations from and
after the date hereof.
2. MISCELLANEOUS.
2.1 Governing Law. This Amendment shall be governed by and
construed under the internal laws of the State of Delaware in all respects,
without giving effect to conflict of law principles thereof.
2.2 Entire Agreement. This Amendment and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof.
2.3 Severability. In the event one or more of the provisions
of this Amendment should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Amendment, and this Amendment
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
2.4 Titles and Subtitles. The titles of the sections and
subsections of this Amendment are for convenience of reference only and are
not to be considered in construing this Amendment.
2.5 Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
2.6 Additional Purchaser. By execution of this Amendment,
each of VMG Holdings II, LLC and Lacuna Hedge Fund LLLP hereby: (a)
acknowledges receipt of a copy of the Purchase Agreement, the Security
Agreement and the other Loan Documents; and (b) agrees to become a party to,
and be bound by, (i) the terms and conditions of the Purchase Agreement, as a
"Purchaser" under the Purchase Agreement as if it were an original "Purchaser"
party thereto, and (ii) the terms and conditions of the Security Agreement, as
a "Secured Party" under the Security Agreement as if it were an original
"Secured Party" party thereto, in each case with respect to all Debentures
previously issued to it or that may be issued to it in the future pursuant to
the terms of the Purchase Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
duly executed as of the day and year first written above.
COMPANY:
INTRAOP MEDICAL CORPORATION
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
INVESTORS:
E.U. CAPITAL VENTURE, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name:
Title:
ENCYCLOPEDIA EQUIPMENT LLC
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name:
Title:
LACUNA VENTURE FUND LLLP
By: Lacuna Hedge GP LLLP, its general
partner
By: Lacuna, LLC, its general partner
By: /s/ Xxxxxxx X'Xxxxx
------------------------------------
Name:
Title:
VMG HOLDINGS II, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Partner
/s/ Xxxxxxxx Xxxxx
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XXXXXXXX XXXXX
LACUNA HEDGE FUND LLLP
By: Lacuna Hedge GP LLLP, its general
partner
By: Lacuna, LLC, its general partner
By: /s/ Xxxxxxx X'Xxxxx
------------------------------------
Name:
Title:
