AMENDMENT TO LOAN DOCUMENTS
Exhibit 10.52
AMENDMENT TO LOAN DOCUMENTS
This Amendment to Loan Documents (this “Amendment”) is made and entered into as of
this 9th day of April, 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, the Company and the Investors are parties to (i) that certain Debenture
Purchase Agreement, dated as of September 30, 2008 (the “Purchase Agreement”), and (ii) that
certain Security Agreement, dated as of September 30, 2008 (the “Security Agreement”);
Whereas, pursuant to the Purchase Agreement the Company has issued to the Investors
10% Senior Secured Debentures (the “Debentures” and, together with the Purchase Agreement and the
Security Agreement, the “Loan Documents”);
Whereas, the Company and the Investors wish to amend certain terms of the Loan
Documents as described below;
Whereas, pursuant to Section 5.4 of the Purchase Agreement and Section 7(f) of the
Debentures, no provision thereof may be amended except in a written instrument signed by the
Company and the holders of at least 50% of the outstanding and unpaid principal amount owing under
all Debentures then outstanding; and
Whereas, pursuant to Section 19(c) of the Security Agreement, no provision thereof
may be modified or amended except by a written agreement specifically referring thereto and signed
by the Company, the collateral agent named therein and a majority in interest (based on
then-outstanding principal amounts of Debentures at the time of such determination) of the secured
parties thereunder.
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.
(a) The definition of “Debentures” in Section 1.1 of the Purchase Agreement is hereby amended
and restated in its entirety to read as follows:
“Debentures” means the 10% Senior Secured Debentures of the Company, subject
to the terms therein, in substantially the form of Exhibit A, as the same
may be amended or otherwise modified from time to time.”
(b) The definition of “Security Agreement” in Section 1.1 of the Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
“Security Agreement” means the Security Agreement, dated September 30, 2008,
among the Company and the Purchasers, in the form of Exhibit E attached
hereto, as the same may be amended or otherwise modified from time to time.”
(c) Section 2.4 of the Purchase Agreement is hereby amended and restated in its entirety to
read as follows:
“2.4 Subsequent Closings. If, at any time on or prior to June 30, 2009,
Lacuna Venture Fund LLLP (“Lacuna”) so elects, the Company will sell, in one
or more closings, up to an additional $2,000,000 aggregate principal amount of the
Debentures to Lacuna and/or such other persons as may be mutually agreed upon by
Lacuna and the Company (collectively, the “Additional Purchasers”). All
such sales made at any additional closings (each, an “Additional Closing”),
shall be made on the terms and conditions set forth in this Agreement, and (i) the
representations and warranties of the Company set forth in Section 3.1 hereof (and
the Disclosure Schedule) shall speak only as of the Closing and the Company shall
have no obligation to update any such disclosure, and (ii) the representations and
warranties of the Purchasers in Section 3.2 hereof shall speak as of such Additional
Closing. This Agreement may be amended by the Company without the consent of the
Purchasers to reflect the applicable Subscription Amount of any Additional
Purchasers and, to the extent that any Additional Purchaser is not already a party
hereto, to include any Additional Purchasers as parties hereto upon the execution by
such Additional Purchasers of a counterpart signature page hereto. Any Debentures
sold pursuant to this Section 2.4 shall be deemed to be “Debentures” for all
purposes under this Agreement and any Additional Purchasers thereof shall be deemed
to be “Purchasers” for all purposes under this Agreement.”
(d) The first sentence of Section 5.4 of the Purchase Agreement is hereby amended and restated
in its entirety as follows:
“No provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and each of the
Purchasers.”
(e) The Purchase Agreement shall be amended such that the form of Debenture attached thereto
as Exhibit A is amended and restated in its entirety in substantially the form attached
hereto as Exhibit A. Each of the Debentures that is outstanding on the date hereof is
hereby amended and restated in its entirety in substantially the form attached hereto as
Exhibit A.
(f) The preamble to the Security Agreement is hereby amended and restated in its entirety as
follows:
2.
“SECURITY AGREEMENT, dated as of September 30, 2008 (this “Agreement”),
among Intraop Medical Corporation, a Nevada corporation (the “Company”) and
the holder or holders of the Company’s 10% Senior Secured Debentures, in the
original aggregate principal amount of up to $3,500,000 (as the same may be amended
or otherwise modified from time to time, the “Debentures”) and issued
pursuant to that certain Debenture Purchase Agreement (as the same may be amended or
otherwise modified from time to time, the “Purchase Agreement”) of even date
herewith between the Company and each signatory hereto, their endorsees, transferees
and assigns (collectively referred to as, the “Secured Parties”).”
(g) The second sentence of Section 19(c) of the Security Agreement is hereby amended and
restated in its entirety as follows:
“Except as specifically set forth in this Agreement, no provision of this Agreement
may be modified or amended except by a written agreement specifically referring to
this Agreement and signed by the Company, the Agent and each of the Secured
Parties.”
1.2 Effect on Agreement.
(a) Except as expressly set forth in Section 1.1 of this Amendment, each of the Loan Documents
shall be and remain in full force and effect in accordance with its terms. Each of the Loan
Documents, as amended by Section 1.1 of this Amendment, is 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 Debentures or any Loan
Document, 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
3.
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, Xxxxxxxx Xxxxx 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 he 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 he were an original “Secured Party” party
thereto.
[THIS SPACE INTENTIONALLY LEFT BLANK]
4.
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 |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| INVESTORS: E.U. Capital Venture, Inc. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Encyclopedia Equipment LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Lacuna Venture Fund LLLP |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Xxxxxxxx Xxxxx | ||||
[Signature Page to Amendment to Loan Documents]
Exhibit A
Form of Debenture
Form of Debenture
