EXHIBIT 10.57
THIRD AMENDMENT TO LOAN DOCUMENTS
This Third Amendment to Loan Documents (this "Amendment") is made and
entered into as of this 31st day of December, 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 and June 30, 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 and June 30, 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 that are outstanding on the date hereof are hereby
amended by changing the references to "December 31, 2009" in (i) the second
paragraph of the preamble thereto and (ii) the definition of "Monthly Payment
Date" in Section 1 thereof to "January 31, 2010".
(b) 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 Section 1.1(a).
(c) The Purchase Agreement is hereby amended by changing the
reference to "December 31, 2009" in the first sentence of Section 2.4 thereof to
"January 31, 2010".
1.2 Effect on Agreements.
(a) Except as expressly set forth in Section 1.1 of this Amendment, the
Loan Documents shall be and remain in full force and effect in accordance with
their terms. The Loan Documents, as amended by Section 1.1 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.
[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 Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
ENCYCLOPEDIA EQUIPMENT LLC
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Member
VMG HOLDINGS II, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Partner
LACUNA VENTURE FUND LLLP
By: Lacuna Hedge GP LLLP, its
general partner
By: Lacuna, LLC, its general
partner
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: Managing Director
LACUNA HEDGE FUND LLLP
By: Lacuna Hedge GP LLLP, its
general partner
By: Lacuna, LLC, its general
partner
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: Managing Director
/s/ Xxxxxxxx Xxxxx
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