Exhibit 10.50
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
Original Issue Date: October 3, 2008
$---------------
10% SENIOR SECURED DEBENTURE
DUE DECEMBER 31, 2008
THIS 10% SECURED DEBENTURE is one of a series of duly authorized and
issued 10% Senior Secured Debentures of Intraop Medical Corporation, a Nevada
corporation, having a principal place of business at 000 Xxx Xxx Xxxxxx,
Xxxxxxxxx, XX 00000 (the "Company"), designated as its 10% Senior Secured
Debenture, due December 31, 2008 (the "Debentures").
FOR VALUE RECEIVED, the Company promises to pay to
__________________________ or its registered assigns (the "Holder"), the
principal sum of ___________________________ and 00/100 Dollars ($_________) on
the earlier of (i) the date that the Company has closed an issuance, or series
of issuances, of securities with gross aggregate proceeds received by the
Company of not less than $3,000,000 and (ii) December 31, 2008, or such earlier
date as this Debenture is required or permitted to be repaid as provided
hereunder (the "Maturity Date"), and to pay interest to the Holder on the then
outstanding principal amount of this Debenture in accordance with the provisions
hereof. This Debenture is subject to the following additional provisions:
Section 1. Definitions. For the purposes hereof, in addition to the
terms defined elsewhere in this Debenture: (a) capitalized terms not otherwise
defined herein have the meanings given to such terms in the Purchase Agreement,
and (b) the following terms shall have the following meanings:
"Business Day" means any day except Saturday, Sunday and any
day which shall be a federal legal holiday in the United States or a
day on which banking institutions in the State of New York are
authorized or required by law or other government action to close.
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"California Courts" shall have the meaning set forth in
Section 7(e).
"Change of Control Transaction" means the occurrence after the
date hereof of any of (i) an acquisition after the date hereof by an
individual or legal entity or "group" (as described in Rule 13d-5(b)(1)
promulgated under the Exchange Act), other than pursuant to the
Transaction Documents, of effective control (whether through legal or
beneficial ownership of capital stock of the Company, by contract or
otherwise) of in excess of 40% of the voting securities of the Company,
or (ii) the Company merges into or consolidates with any other Person,
or any Person merges into or consolidates with the Company and, after
giving effect to such transaction, the stockholders of the Company
immediately prior to such transaction own less than 60% of the
aggregate voting power of the Company or the successor entity of such
transaction, or (iii) the Company sells or transfers its assets, as an
entirety or substantially as an entirety, to another Person and the
stockholders of the Company immediately prior to such transaction own
less than 60% of the aggregate voting power of the acquiring entity
immediately after the transaction, (iv) a replacement at one time or
within a three year period of more than one-half of the members of the
Company's board of directors which is not approved by a majority of
those individuals who are members of the board of directors on the date
hereof (or by those individuals who are serving as members of the board
of directors on any date whose nomination to the board of directors was
approved by a majority of the members of the board of directors who are
members on the date hereof), or (v) the execution by the Company of an
agreement to which the Company is a party or by which it is bound,
providing for any of the events set forth above in (i) or (iv).
"Common Stock" means the common stock, par value $0.001 per
share, of the Company and stock of any other class of securities into
which such securities may hereafter have been reclassified or changed
into.
"Debenture Register" shall have the meaning set forth in
Section 2(b).
"Event of Default" shall have the meaning set forth in Section
6.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Fundamental Transaction" shall mean (A) the Company effects
any merger or consolidation of the Company with or into another Person,
(B) the Company effects any sale of all or substantially all of its
assets in one or a series of related transactions, (C) any tender offer
or exchange offer (whether by the Company or another Person) is
completed pursuant to which holders of Common Stock are permitted to
tender or exchange their shares for other securities, cash or property,
or (D) the Company effects any reclassification of the Common Stock or
any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or
property.
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"Late Fees" shall have the meaning set forth in Section 2(c).
"Monthly Payment Amount" shall mean the interest to be paid on
each Monthly Payment Date in accordance with the terms of this
Debenture.
"Monthly Payment Date" means the last day of each month,
commencing on the first such date after the Original Issue Date and
ending upon December 31, 2008.
"Original Issue Date" shall mean the date of the first
issuance of this Debenture regardless of the number of transfers of any
Debenture and regardless of the number of instruments which may be
issued to evidence such Debenture.
"Permitted Indebtedness" shall mean the individual and
collective reference to the following: (a) up to, in the aggregate
during the term of this Debenture, $2,000,000 of new Indebtedness, (b)
Indebtedness incurred in connection with the Purchase Agreement, (c)
Indebtedness existing on the date of the Purchase Agreement, (d) up to
$6,000,000 in connection with the Company's revolving inventory and
sales contract financing agreement with E.U. Capital and (e) up to
$1,040,000 of Indebtedness related to Mobetron S/N 28 to be placed
under lease to a customer in Fort Xxxxxx, Florida.
"Permitted Lien" shall mean the individual and collective
reference to the following: (a) Liens for taxes, assessments and other
governmental charges or levies not yet due or Liens for taxes,
assessments and other governmental charges or levies being contested in
good faith and by appropriate proceedings for which adequate reserves
(in the good faith judgment of the management of the Company) have been
established in accordance with GAAP; (b) Liens imposed by law which
were incurred in the ordinary course of business, such as carriers',
warehousemen's and mechanics' Liens, statutory landlords' Liens, and
other similar Liens arising in the ordinary course of business, and (x)
which do not individually or in the aggregate materially detract from
the value of such property or assets or materially impair the use
thereof in the operation of the business of the Company or (y) which
are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or asset subject to such Lien; and (c) Liens on Receivables
and the Company's "inventory" (as such term is used in the Security
Agreement) incurred solely in connection with a Permitted Indebtedness
under clause (a) and (e) of the definition of Permitted Indebtedness.
"Person" means a corporation, an association, a partnership,
organization, a business, an individual, a government or political
subdivision thereof or a governmental agency.
"Purchase Agreement" means the Debenture Purchase Agreement,
dated as of the date hereof, to which the Company, the original Holder
and other investors signatory thereto are parties, as amended, modified
or supplemented from time to time in accordance with its terms.
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"Trading Day" means a day on which the Common Stock is traded
on a Trading Market.
"Trading Market" means the following markets or exchanges on
which the Common Stock is listed or quoted for trading on the date in
question: the Nasdaq SmallCap Market, the American Stock Exchange, the
New York Stock Exchange, the Nasdaq National Market or the OTC Bulletin
Board.
"Transaction Documents" shall have the meaning set forth in
the Purchase Agreement.
Section 2. Payments.
a) Monthly Payment. On each Monthly Payment Date, the Company
shall pay the Monthly Payment Amount.
b) Balloon Payment. On the Maturity Date, all outstanding
principal, plus accrued but unpaid interest thereon, plus all other
outstanding amounts due to the Holder shall be paid to the Holder
(except that, if such date is not a Business Day, then such payment
shall be due on the next succeeding Business Day).
c) Interest Calculations. Interest on the then outstanding
principal amount of this Debenture shall accrue at the rate of 10% per
annum, payable on the Monthly Payment Date and on the Maturity Date.
Interest shall be calculated on the basis of a 360-day year and shall
accrue daily commencing on the Original Issue Date until payment in
full of the principal sum, together with all accrued and unpaid
interest and other amounts which may become due hereunder, has been
made. Interest hereunder will be paid to the Person in whose name this
Debenture is registered on the records of the Company regarding
registration and transfers of this Debenture (the "Debenture
Register").
d) Late Fee. All overdue accrued and unpaid interest to be
paid hereunder shall entail a late fee at the rate of 18% per annum (or
such lower maximum amount of interest permitted to be charged under
applicable law) ("Late Fees") which will accrue daily, from the date
such interest is due hereunder through and including the date of
payment.
e) Prepayment. The Company may prepay all or any portion of
the principal amount of this Debenture without the prior written
consent of the Holder at any time.
Section 3. Registration of Transfers and Exchanges.
a) Different Denominations. This Debenture is exchangeable for
an equal aggregate principal amount of Debentures of different
authorized denominations, as requested by the Holder surrendering the
same. No service charge will be made for such registration of transfer
or exchange; provided, however, the Company shall not be required to
exchange this Debenture for denominations of less than the greater of
$50,000 and the principal amount of this Debenture then outstanding. No
service charge will be made for such registration of transfer or
exchange.
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b) Investment Representations. This Debenture has been issued
subject to certain investment representations of the original Holder
set forth in the Purchase Agreement and may be transferred or exchanged
only in compliance with the Purchase Agreement and applicable federal
and state securities laws and regulations.
c) Reliance on Debenture Register. Prior to due presentment to
the Company for transfer of this Debenture, the Company and any agent
of the Company may treat the Person in whose name this Debenture is
duly registered on the Debenture Register as the owner hereof for the
purpose of receiving payment as herein provided and for all other
purposes, whether or not this Debenture is overdue, and neither the
Company nor any such agent shall be affected by notice to the contrary.
Section 4. Intentionally Omitted.
Section 5. Negative Covenants. So long as any portion of this Debenture
is outstanding, the Company will not directly or indirectly:
a) other than Permitted Indebtedness, enter into, create,
incur, assume, guarantee or suffer to exist any indebtedness for
borrowed money of any kind, including but not limited to, a guarantee,
on or with respect to any of its property or assets now owned or
hereafter acquired or any interest therein or any income or profits
therefrom;
b) other than Permitted Liens, enter into, create, incur,
assume or suffer to exist any liens of any kind, on or with respect to
any of its property or assets now owned or hereafter acquired or any
interest therein or any income or profits therefrom;
c) amend its certificate of incorporation, bylaws or other
charter documents so as to materially and adversely affect any rights
of the Holder;
d) repay, repurchase or offer to repay, repurchase or
otherwise acquire more than a de minimis number of shares of its Common
Stock or Common Stock Equivalents;
e) enter into any agreement with respect to any of the
foregoing; or
f) pay cash dividends or distributions on any equity
securities of the Company.
Section 6. Events of Default.
a) "Event of Default", wherever used herein, means any one of
the following events (whatever the reason and whether it shall be
voluntary or involuntary or effected by operation of law or pursuant to
any judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental body):
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i. any default in the payment of (A) the principal
amount of any Debenture, or (B) interest (including Late Fees)
on, or liquidated damages in respect of, any Debenture, as and
when the same shall become due and payable (whether on the
Maturity Date or by acceleration or otherwise) which default,
solely in the case of an interest payment or other default
under clause (B) above, is not cured, within 5 Trading Days;
ii. the Company shall fail to observe or perform any
other covenant or agreement contained in (A) this Debenture or
(B) any of the other Transaction Documents, which failure is
not cured, if possible to cure, within the earlier to occur of
(A) 15 Trading Days after notice of such default sent by the
Holder or by any other Holder and (B) 20 Trading Days after
the Company shall become or should have become aware of such
failure;
iii. a default or event of default (subject to any
grace or cure period provided for in the applicable agreement,
document or instrument) shall occur under (A) any of the
Transaction Documents or (B) any other material agreement,
lease, document or instrument to which the Company is bound
and which default or event of default could have a Material
Adverse Effect on the Company;
iv. any representation or warranty made herein, in
any other Transaction Documents shall be untrue or incorrect
in any material respect as of the date when made or deemed
made;
v. (i) the Company shall commence a case, as debtor,
a case under any applicable bankruptcy or insolvency laws as
now or hereafter in effect or any successor thereto, or the
Company commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law
of any jurisdiction whether now or hereafter in effect
relating to the Company thereof or (ii) there is commenced a
case against the Company thereof, under any applicable
bankruptcy or insolvency laws, as now or hereafter in effect
or any successor thereto which remains undismissed for a
period of 60 days; or (iii) the Company is adjudicated by a
court of competent jurisdiction insolvent or bankrupt; or any
order of relief or other order approving any such case or
proceeding is entered; or (iv) the Company thereof suffers any
appointment of any custodian or the like for it or any
substantial part of its property which continues undischarged
or unstayed for a period of 60 days; or (v) the Company
thereof makes a general assignment for the benefit of
creditors; or (vi) the Company shall fail to pay, or shall
state that it is unable to pay, or shall be unable to pay, its
debts generally as they become due; or (vii) the Company
thereof shall call a meeting of its creditors with a view to
arranging a composition, adjustment or restructuring of its
debts; or (viii) the Company thereof shall by any act or
failure to act expressly indicate its consent to, approval of
or acquiescence in any of the foregoing; or (ix) any corporate
or other action is taken by the Company thereof for the
purpose of effecting any of the foregoing;
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vi. the Company shall default in any of its
obligations under any mortgage, credit agreement or other
facility, indenture agreement, factoring agreement or other
instrument under which there may be issued, or by which there
may be secured or evidenced any indebtedness for borrowed
money or money due under any long term leasing or factoring
arrangement of the Company in an amount exceeding $250,000,
whether such indebtedness now exists or shall hereafter be
created and such default shall result in such indebtedness
becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable.
vii. the Company shall be a party to any Change of
Control Transaction or Fundamental Transaction, shall agree to
sell or dispose of all or in excess of 33% of its assets in
one or more transactions (whether or not such sale would
constitute a Change of Control Transaction) or shall redeem or
repurchase more than a de minimis number of its outstanding
shares of Common Stock or other equity securities of the
Company (other than repurchases of shares of Common Stock or
other equity securities of departing officers and directors of
the Company; provided such repurchases shall not exceed
$250,000, in the aggregate, for all officers and directors
during the term of this Debenture);
viii. the Company shall redeem more than a de minimis
number of Common Stock Equivalents; and
ix. other than Permitted Liens, the Company shall
fail, at any time, to have a perfected, first priority
security interest in all Collateral (as defined in the
Security Agreement) and all other assets pledged to Holder as
security for the loan evidenced by this Debenture.
b) Remedies Upon Event of Default. If any Event of Default
occurs, the full principal amount of this Debenture, together with
interest and other amounts owing in respect thereof, to the date of
acceleration shall become, at the Holder's election, immediately due
and payable in cash. Commencing 5 days after the occurrence of any
Event of Default that results in the eventual acceleration of this
Debenture, the interest rate on this Debenture shall accrue at the rate
of 18% per annum, or such lower maximum amount of interest permitted to
be charged under applicable law. Upon the payment in full of all
amounts owing under this Debenture the Holder shall promptly surrender
this Debenture to or as directed by the Company. The Holder need not
provide and the Company hereby waives any presentment, demand, protest
or other notice of any kind, and the Holder may immediately and without
expiration of any grace period enforce any and all of its rights and
remedies hereunder and all other remedies available to it under
applicable law. Such declaration may be rescinded and annulled by
Xxxxxx at any time prior to payment hereunder and the Holder shall have
all rights as a Debenture holder until such time, if any, as the full
payment under this Section shall have been received by it. No such
rescission or annulment shall affect any subsequent Event of Default or
impair any right consequent thereon.
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Section 7. Miscellaneous.
a) Notices. Any and all notices or other communications or
deliveries to be provided by the Holder hereunder, including, without
limitation, any Notice of Conversion, shall be in writing and delivered
personally, by facsimile, sent by a nationally recognized overnight
courier service, addressed to the Company, at the address set forth
above, Attn: Chief Financial Officer or such other address or facsimile
number as the Company may specify for such purposes by notice to the
Holder delivered in accordance with this Section. Any and all notices
or other communications or deliveries to be provided by the Company
hereunder shall be in writing and delivered personally, by facsimile,
sent by a nationally recognized overnight courier service addressed to
each Holder at the facsimile telephone number or address of such Xxxxxx
appearing on the books of the Company, or if no such facsimile
telephone number or address appears, at the principal place of business
of the Holder. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i)
the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile telephone number specified in this
Section prior to 5:30 p.m. (New York City time), (ii) the date after
the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile telephone number specified in this
Section later than 5:30 p.m. (New York City time) on any date and
earlier than 11:59 p.m. (New York City time) on such date, (iii) the
second Business Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given.
b) Absolute Obligation. Except as expressly provided herein,
no provision of this Debenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal
of, interest and liquidated damages (if any) on, this Debenture at the
time, place, and rate, and in the coin or currency, herein prescribed.
This Debenture is a direct debt obligation of the Company. This
Debenture ranks pari passu with all other Debentures now or hereafter
issued under the terms set forth herein.
c) Security Interest. This Debenture is a direct debt
obligation of the Company and, pursuant to the Security Documents, is
secured by a first priority security interest in all of the assets of
the Company and certain other collateral for the benefit of the
Holders.
d) Lost or Mutilated Debenture. If this Debenture shall be
mutilated, lost, stolen or destroyed, the Company shall execute and
deliver, in exchange and substitution for and upon cancellation of a
mutilated Debenture, or in lieu of or in substitution for a lost,
stolen or destroyed Debenture, a new Debenture for the principal amount
of this Debenture so mutilated, lost, stolen or destroyed but only upon
receipt of evidence of such loss, theft or destruction of such
Debenture, and of the ownership hereof, and indemnity, if requested,
all reasonably satisfactory to the Company.
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e) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Debenture shall be
governed by and construed and enforced in accordance with the internal
laws of the State of Delaware, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal proceedings
concerning the interpretations, enforcement and defense of the
transactions contemplated by any of the Transaction Documents (whether
brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the
courts of the State of California located in Santa Xxxxx County and the
United States District Court for the Northern District of California
(the "California Courts"). Each party hereto hereby irrevocably submits
to the exclusive jurisdiction of the California Courts for the
adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with
respect to the enforcement of any of the Transaction Documents), and
hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, or such California Courts are improper
or inconvenient venue for such proceeding. Each party hereby
irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for
notices to it under this Debenture and agrees that such service shall
constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Debenture or the
transactions contemplated hereby. If either party shall commence an
action or proceeding to enforce any provisions of this Debenture, then
the prevailing party in such action or proceeding shall be reimbursed
by the other party for its attorneys fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such
action or proceeding.
f) Modification; Waiver. No modification or waiver of any
provision of this Debenture or consent to departure therefrom shall be
effective without the written consent of (i) the Company and (ii) the
holders of at least 50% of the outstanding and unpaid principal amount
owing under all Debentures then outstanding and then shall be effective
only in the specific instance and for the specific purpose for which it
was given; provided that no such modification or waiver shall change
the Maturity Date on the Debentures or any provision relating to any
scheduled payment on the Debentures without the written consent of 100%
of the outstanding and unpaid principal amount owing under all
Debentures then outstanding. The failure of the Company or the Holder
to insist upon strict adherence to any term of this Debenture on one or
more occasions shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or
any other term of this Debenture. Any waiver must be in writing.
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g) Severability. If any provision of this Debenture is
invalid, illegal or unenforceable, the balance of this Debenture shall
remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other
persons and circumstances. If it shall be found that any interest or
other amount deemed interest due hereunder violates applicable laws
governing usury, the applicable rate of interest due hereunder shall
automatically be lowered to equal the maximum permitted rate of
interest. The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law or other law which would prohibit or forgive the
Company from paying all or any portion of the principal of or interest
on this Debenture as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this indenture, and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefits or advantage of
any such law, and covenants that it will not, by resort to any such
law, hinder, delay or impeded the execution of any power herein granted
to the Holder, but will suffer and permit the execution of every such
as though no such law has been enacted.
h) Next Business Day. Whenever any payment or other obligation
hereunder shall be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.
i) Headings. The headings contained herein are for convenience
only, do not constitute a part of this Debenture and shall not be
deemed to limit or affect any of the provisions hereof.
j) Usury. To the extent it may lawfully do so, the Company
hereby agrees not to insist upon or plead or in any manner whatsoever
claim, and will resist any and all efforts to be compelled to take the
benefit or advantage of, usury laws wherever enacted, now or at any
time hereafter in force, in connection with any claim, action or
proceeding that may be brought by any Purchaser in order to enforce any
right or remedy under any Transaction Document. Notwithstanding any
provision to the contrary contained in any Transaction Document, it is
expressly agreed and provided that the total liability of the Company
under the Transaction Documents for payments in the nature of interest
shall not exceed the Maximum Rate, and, without limiting the foregoing,
in no event shall any rate of interest or default interest, or both of
them, when aggregated with any other sums in the nature of interest
that the Company may be obligated to pay under the Transaction
Documents exceed such Maximum Rate. It is agreed that if the maximum
contract rate of interest allowed by law and applicable to the
Transaction Documents is increased or decreased by statute or any
official governmental action subsequent to the date hereof, the new
maximum contract rate of interest allowed by law will be the Maximum
Rate applicable to the Transaction Documents from the effective date of
such increase or decrease forward, unless such application is precluded
by applicable law. If under any circumstances whatsoever, interest in
excess of the Maximum Rate is paid by the Company to any Purchaser with
respect to indebtedness, if any, evidenced by the Transaction
Documents, such excess shall be applied by such Purchaser to the unpaid
principal balance of any such indebtedness or be refunded to the
Company, the manner of handling such excess to be at such Purchaser's
election in the event any principal amount remains outstanding.
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k) Assumption. Any successor to the Company or surviving
entity in a Fundamental Transaction shall (i) assume in writing all of
the obligations of the Company under this Debenture and the other
Transaction Documents pursuant to written agreements in form and
substance satisfactory to the Holder (such approval not to be
unreasonably withheld or delayed) prior to such Fundamental Transaction
and (ii) to issue to the Holder a new debenture of such successor
entity evidenced by a written instrument substantially similar in form
and substance to this Debenture, including, without limitation, having
a principal amount and interest rate equal to the principal amounts and
the interest rates of the Debentures held by the Holder and having
similar ranking to this Debenture, and satisfactory to the Holder (any
such approval not to be unreasonably withheld or delayed). The
provisions of this Section 7(k) shall apply similarly and equally to
successive Fundamental Transactions and shall be applied without regard
to any limitations of this Debenture.
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IN WITNESS WHEREOF, the Company has caused this Debenture to be duly
executed by a duly authorized officer as of the date first above indicated.
INTRAOP MEDICAL CORPORATION
By:
----------------------------------
Name:
Title:
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