EXECUTION
SUBORDINATION AGREEMENT
This Subordination Agreement (as amended, modified restated and/or
supplemented from time to time in the manner provided herein, this "Agreement")
is entered into as of the day of December, 2006, by and among Xxxxxxx
Investments LLC, Pequot Healthcare Fund, L.P., Pequot Healthcare Offshore Fund,
Inc., Premium Series PCC Limited - Cell 32, Pequot Diversified Master Fund,
Ltd., Pequot Healthcare Institutional Fund, L.P., North Sound Legacy
Institutional Fund LLC, North Sound Legacy International Ltd., Technology
Investment Capital Corp., Xxxxxx X. Xxxxxx and Xxx Xxxxx who have advanced
monies to XxxxXxx.Xxx Inc. ("Company") in accordance with the documents
described in Schedule A hereto (the "Subordinated Lenders" and each, a
"Subordinated Lender" and the monies advanced pursuant to such documents being
the "Subordinated Liabilities"), and Laurus Master Fund Ltd., Vicis Capital
Master Fund LLC, Xxxxxxx Investments LLC, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx XxXxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxxxxxx, Xxxx Xxxxxx, CSFN I LLC and Xxxx
Xxxxxxxx who are advancing monies to the Company in accordance with the
documents described in Schedule B hereto (the "Senior Subordinated Lenders" and
each a "Senior Subordinated Lender" and the monies advanced pursuant to such
documents (not to exceed $4 Million in aggregate principal amount) being the
"Senior Subordinated Liabilities") and Laurus Master Fund, Ltd. (the "Senior
Lender"). Unless otherwise defined herein, capitalized terms used herein shall
have the meaning provided such terms in the Purchase Agreement referred to
below.
BACKGROUND
WHEREAS, it is a condition to the Senior Lender's continuing its senior
secured loan to the Company, pursuant to, and in accordance with, (i) that
certain Securities Purchase Agreement dated July 11, 2006 by and between the
Company and Laurus (as amended, restated, modified or supplemented from time to
time, the "Purchase Agreement") and (ii) the Related Agreements referred to (and
as defined) in the Purchase Agreement (collectively, the "Senior Documents").
WHEREAS, the Subordinated Lenders have made loans to the Company
pursuant to the Subordinated Documents (as hereinafter defined).
WHEREAS, the Senior Subordinated Lenders have agreed to make loans to
the Company pursuant to the Senior Subordinated Documents (as hereinafter
defined).
NOW, THEREFORE, each Subordinated Lender, each Senior Subordinated
Lender and the Senior Lender agree as follows:
TERMS
1. All obligations of each of the Company and/or any of its
Subsidiaries to the Senior Lender pursuant to the Senior Documents or other
written agreements relating to indebtedness, howsoever created, arising or
evidenced by such Senior Documents or other written agreements relating to
indebtedness, whether direct or indirect, absolute or contingent or now or
hereafter existing, or due or to become due are referred to as "Senior
Liabilities". It is expressly understood and agreed that the term "Senior
Liabilities", as used in this Agreement, shall include, without limitation, any
and all prepayment charges in the Senior Documents, any interest and fees
payable under the Senior Documents, including, without limitation, interest,
fees and penalties accruing on any of the Senior Liabilities after the
commencement of any proceedings referred to in paragraph 4 of this Agreement,
notwithstanding any provision or rule of law which might restrict the rights of
the Senior Lender, as against the Company, its Subsidiaries or anyone else, to
collect such interest, fees or penalties, as the case may be and all costs,
expenses (including, without limitation, attorneys' fees and disbursements),
charges, indemnities and other amounts now or hereafter payable under any of the
Senior Documents as in effect on the date hereof. "Senior Liens" shall mean the
security interests and liens granted to the Senior Lender to secure the Senior
Liabilities under the Senior Documents and any other security given to the
Senior Lender by the Company.
Any and all loans made by the Subordinated Lenders to the Company
and/or any of its Subsidiaries pursuant to the Subordinated Documents, and all
loans by the Senior Subordinated Lenders to the Company and/or any of its
Subsidiaries pursuant to the Senior Subordinated Documents together with all
other obligations of the Company and/or any of its Subsidiaries to any
Subordinated Lender under the Subordinated Documents or any Senior Subordinated
Lender under the Senior Subordinated Documents (in each case, including any
interest, fees or penalties related thereto), howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent or now or
hereafter existing, or due or to become due are referred to as "Junior
Liabilities". For purposes of this Agreement, "Subordinated Documents" shall
mean the instruments, agreements and documents listed in Schedule A hereto, and
all waivers, consents, agreements, reports, statements, certificates, schedules
and other documents executed by the requisite person(s) pursuant to or in
connection with any of those listed items, IN EACH CASE if, as and to the extent
each may have been and hereafter may be executed, supplemented, renewed,
extended, modified, amended, restated or replaced from time to time in the
manner provided therein, whether before, on, as of or after the date of this
Agreement and "Senior Subordinated Documents" shall mean the instruments,
agreements and documents listed in Schedule B hereto, and all waivers, consents,
agreements, reports, statements, certificates, schedules and other documents
executed by the requisite person(s) pursuant to or in connection with any of
those listed items, IN EACH CASE if, as and to the extent each may have been and
hereafter may be executed, supplemented, renewed, extended, modified, amended,
restated or replaced from time to time in the manner provided for therein,
whether before, on, as of or after the date of this Agreement.
Notwithstanding the foregoing, in no event will Senior Liabilities
include any:
(i) increases in the aggregate principal amount of all such Senior
Liabilities in excess of 115% of the maximum amount provided for in the Senior
Documents as of the date hereof;
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(ii) increases aggregating more than 2% per annum in the applicable
interest rate that accrues with respect to any Senior Liabilities in excess of
the rate provided for in the Senior Documents (but nothing herein shall be
construed to prevent the accrual of interest at a greater rate per annum upon
the occurrence and during the continuance of a default under the Senior
Documents as now provided therein).
Nothing herein shall be construed to prevent the Senior Lender from
charging additional fees in connection with any amendment, modification or
supplement to or restatement of any of the Senior Documents, any waiver or
consent given in respect of any provisions thereof, or any workout or
restructuring of the Senior Liabilities.
2. Except as expressly otherwise provided in this Agreement, or
as the Senior Lender may otherwise expressly consent in writing, the payment of
the Subordinated Liabilities and Senior Subordinated Liabilities shall be
postponed and subordinated in right of payment and priority to the payment in
full of all Senior Liabilities. Furthermore, except as expressly otherwise
provided in this Agreement, from the date hereof until the payment in full of
all Senior Liabilities or defeasance under the Purchase Agreement, whichever
occurs first (the "Subordination Period"), whether directly or indirectly, no
payments or other distributions whatsoever in respect of any Junior Liabilities
shall be made (whether at stated maturity, by acceleration or otherwise), nor
shall any property or assets of the Company or any of its Subsidiaries be
applied to the purchase or other acquisition or retirement of any Junior
Liability. Except as expressly otherwise provided in this Agreement, or as the
Senior Subordinated Lenders may otherwise expressly consent in writing, the
payment of the Subordinated Liabilities shall be postponed and subordinated in
right of payment and priority to the payment in full of all Senior Subordinated
Liabilities. Furthermore, except as expressly otherwise provided in this
Agreement, from the date hereof until the payment in full of all Senior
Subordinated Liabilities or defeasance in a manner acceptable to the Senior
Subordinated Lenders, whichever occurs first (the "Senior Subordinated
Subordination Period"), whether directly or indirectly, no payments or other
distributions whatsoever in respect of any Subordinated Liabilities shall be
made (whether at stated maturity, by acceleration or otherwise), nor shall any
property or assets of the Company or any of its Subsidiaries be applied to the
purchase or other acquisition or retirement of any Subordinated Liabilities.
3. Each Subordinated Lender and Senior Subordinated Lender hereby
subordinates, during the Subordination Period, all claims and security interests
it may have against, or with respect to, any of the assets of the Company and/or
any of its Subsidiaries, to the Senior Liens and each Subordinated Lender hereby
subordinates, during the Senior Subordinated Subordination Period, all claims
and security interests it may have against, or with respect to, any of the
assets of the Company and/or any of its Subsidiaries, to the Senior Subordinated
Liens.
4. In the event during the Subordination Period of any
dissolution, winding up, liquidation, readjustment, reorganization or other
similar proceedings relating to the Company and/or any of its Subsidiaries or to
its creditors, as such, or to its property (whether voluntary or involuntary,
partial or complete, and whether in bankruptcy, insolvency or receivership, or
upon an assignment for the benefit of creditors, or any other marshalling of the
assets and liabilities of the Company and/or any of its Subsidiaries, or any
sale of all or substantially all of the assets of the Company and/or any of its
Subsidiaries, or otherwise):
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(i) the Senior Liabilities shall first be paid in full before any
Subordinated Lender or Senior Subordinated Lender shall be entitled to receive
and to retain any payment or distribution in respect of any Junior Liability;
(ii) Thereafter and before the Subordinated Lenders shall be
entitled to receive and retain any payment or distribution in respect of any
Subordinated Liability, each Senior Subordinated Lender shall be paid, pro rata
in accordance with amounts originally incurred under the Senior Subordinated
Liabilities due and owing to each of the Senior Subordinated Lenders;
(iii) Thereafter, the Subordinated Lenders shall be entitled to
receive and to retain, pro rata in accordance with the amounts originally
incurred under the Subordinated Liabilities, any payment or distribution in
respect of any Subordinated Liability.
5. Each Subordinated Lender and Senior Subordinated Lender will
xxxx his and its books and records so as to clearly indicate that their
respective Junior Liabilities are subordinated in accordance with the terms of
this Agreement. Each Subordinated Lender and Senior Subordinated Lender will
execute such further documents or instruments and take such further action as
the Senior Lender and Senior Subordinated Lenders may reasonably request from
time to time request to carry out the express intent of this Agreement.
6. Each Subordinated Lender hereby waives all diligence in
collection or protection of or realization upon the Senior Subordinated
Liabilities and the Senior Liabilities or any security for the Senior
Subordinated Liabilities and the Senior Liabilities and each Subordinated Lender
hereby waives all diligence in collection or protection of or realization upon
the Senior Subordinated Liabilities and the Senior Liabilities or any security
for the Senior Subordinated Liabilities and the Senior Liabilities. Each Senior
Subordinated Lender hereby waives all diligence in collection or protection of
or realization upon the Senior Liabilities or any security for the Senior
Liabilities and each Senior Subordinated Lender hereby waives all diligence in
collection or protection of or realization upon the Senior Liabilities or any
security for the Senior Liabilities.
7. Except as otherwise permitted pursuant to this Agreement and
prior to July 1, 2010, the due date of the obligations to the Subordinated
Lenders, no Subordinated Lender or Senior Subordinated Lender will without the
prior written consent of the Senior Lender: (a) attempt to enforce or collect
any Junior Liability or any rights in respect of any Junior Liability; or (b)
commence, or join with any other creditor in commencing, any bankruptcy,
reorganization or insolvency proceedings with respect to the Company and/or any
of its Subsidiaries. However, notwithstanding anything to the contrary in this
Agreement or in any subordinate document, the Subordinated Lenders and/or Senior
Subordinated Lenders may (i) renew or extend their respective Subordinated
Documents or Senior Subordinated Documents or waive any Event of Default defined
in such Subordinated Documents or Senior Subordinated Documents (which may take
the form of an amendment, consent or waiver to or restatement or replacement of
such Subordinated Documents or Senior Subordinated Documents by the Company or
its Subsidiaries), (ii) declare an Event of Default under the Subordinated
Documents or Senior Subordinated Documents and give notice thereof, (iii) accrue
interest at the default rate, and (iv) accelerate the obligations of the Company
or its Subsidiaries under the Subordinated Documents and/or Senior Subordinated
Documents and give notice thereof, except that in no event may the
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Subordinated Lenders or Senior Subordinated Lender challenge the Senior
Liabilities, the Senior Liens or the priority of any thereof or accept any
payment of any kind inconsistent with this subordination and until all of the
Senior Liabilities have been paid. For the avoidance of doubt prior to July 1,
2010, the due date of the obligations to the Subordinated Lenders, nothing
herein shall enable any Subordinated Lender or Senior Subordinated Lender to
take any action set forth in clause (a) and (b) of this Section 7 unless and
until all Senior Liabilities have been paid in full or with the prior written
consent of the Senior Lender and nothing herein shall enable any Subordinated
Lender to take any action set forth in clause (a) and (b) of this Section 7
unless and until all Senior Subordinated Liabilities have been paid in full or
with the prior written consent of the Senior Subordinated Lenders.
8. The Senior Lender may, from time to time, at its sole
discretion and without notice to any Subordinated Lender or Senior Subordinated
Lender, take any or all of the following actions: (a) retain or obtain a
security interest in any property to secure any of the Senior Liabilities; (b)
retain or obtain the primary or secondary obligation of any other obligor or
obligors with respect to any of the Senior Liabilities; (c) extend or renew for
one or more periods (whether or not longer than the original period), alter,
increase or exchange any of the Senior Liabilities, or release or compromise any
obligation of any nature of any obligor with respect to any of the Senior
Liabilities; and (d) release their security interest in, or surrender, release
or permit any substitution or exchange for, all or any part of any property
securing any of the Senior Liabilities, or extend or renew for one or more
periods (whether or not longer than the original period) or release, compromise,
alter or exchange any obligations of any nature of any obligor with respect to
any such property. The Senior Subordinated Lenders may, from time to time, with
notice to and consent of the Senior Lender, at their sole discretion and without
notice to any Subordinated Lender, take any or all of the following actions: (a)
retain or obtain a security interest in any property to secure any of the Senior
Subordinated Liabilities; (b) retain or obtain the primary or secondary
obligation of any other obligor or obligors with respect to any of the Senior
Subordinated Liabilities; (c) extend or renew for one or more periods (whether
or not longer than the original period), alter, increase or exchange any of the
Senior Subordinated Liabilities, or release or compromise any obligation of any
nature of any obligor with respect to any of the Senior Subordinated
Liabilities; and (d) release their security interest in, or surrender, release
or permit any substitution or exchange for, all or any part of any property
securing any of the Senior Subordinated Liabilities, or extend or renew for one
or more periods (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any obligor with
respect to any such property.
9. The Senior Lender may, from time to time, whether before or
after any discontinuance of this Agreement, without notice to any Subordinated
Lender or Senior Subordinated Lender, assign or transfer any or all of the
Senior Liabilities or any interest in the Senior Liabilities; and,
notwithstanding any such assignment or transfer or any subsequent assignment or
transfer of the Senior Liabilities, such Senior Liabilities shall be and remain
Senior Liabilities for the purposes of this Agreement, and every immediate and
successive assignee or transferee of any of the Senior Liabilities or of any
interest in the Senior Liabilities shall, to the extent of the interest of such
assignee or transferee in the Senior Liabilities, be entitled to the benefits of
this Agreement to the same extent as if such assignee or transferee were the
Senior Lender, as applicable; provided, however, that, unless the Senior Lender
shall otherwise consent in writing, the Senior Lender shall have an unimpaired
right, prior and
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superior to that of any such assignee or transferee, to enforce this Agreement,
for the benefit of the Senior Lender, as to those of the Senior Liabilities
which the Senior Lender has not assigned or transferred. The Senior Subordinated
Lenders may, from time to time, whether before or after any discontinuance of
this Agreement, with notice to and consent of the Senior Lender, without notice
to any Subordinated Lender, assign or transfer any or all of the Senior
Subordinated Liabilities or any interest in the Senior Subordinated Liabilities;
and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer of the Senior Subordinated Liabilities, such Senior
Subordinated Liabilities shall be and remain Senior Subordinated Liabilities for
the purposes of this Agreement, and every immediate and successive assignee or
transferee of any of the Senior Subordinated Liabilities or of any interest in
the Senior Subordinated Liabilities shall, to the extent of the interest of such
assignee or transferee in the Senior Subordinated Liabilities, be entitled to
the benefits of this Agreement to the same extent as if such assignee or
transferee were the Senior Subordinated Lenders, as applicable; provided,
however, that, unless the Senior Subordinated Lenders shall otherwise consent in
writing, the Senior Subordinated Lenders shall have an unimpaired right, prior
and superior to that of any such assignee or transferee, other than the Senior
Lender, to enforce this Agreement, for the benefit of the Senior Subordinated
Lenders, as to those of the Senior Subordinated Liabilities which the Senior
Subordinated Lenders have not assigned or transferred.
10. The Senior Lender shall not be prejudiced in its rights under
this Agreement by any act or failure to act of any Subordinated Lender or Senior
Subordinated Lender, or any noncompliance of any Subordinated Lender or Senior
Subordinated Lender with any agreement or obligation, regardless of any
knowledge thereof which the Senior Lender may have or with which the Senior
Lender may be charged; and no action of the Senior Lender permitted under this
Agreement shall in any way affect or impair the rights of the Senior Lender and
the obligations of any Subordinated Lender or Senior Subordinated Lender under
this Agreement. The Senior Subordinated Lenders shall not be prejudiced in their
rights under this Agreement by any act or failure to act of any Subordinated
Lender, or any noncompliance of any Subordinated Lender with any agreement or
obligation, regardless of any knowledge thereof which the Senior Subordinated
Lenders may have or with which the Senior Subordinated Lenders may be charged;
and no action of the Senior Subordinated Lenders permitted under this Agreement
shall in any way affect or impair the rights of the Senior Subordinated Lenders
and the obligations of any Subordinated Lender under this Agreement.
11. No delay on the part of the Senior Lender in the exercise of
any right or remedy shall operate as a waiver of such right or remedy, and no
single or partial exercise by the Senior Lender of any right or remedy shall
preclude other or further exercise of such right or remedy or the exercise of
any other right or remedy; nor shall any modification or waiver of any of the
provisions of this Agreement be binding upon the Senior Lender except as
expressly set forth in a writing duly signed and delivered on behalf of the
Senior Lender. For the purposes of this Agreement, Senior Liabilities shall have
the meaning set forth in Section 1 above, notwithstanding any right or power of
any Subordinated Lender or Senior Subordinated Lender or anyone else to assert
any claim or defense as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair the agreements
and obligations of any Subordinated Lender or Senior Subordinated Lender under
this Agreement. No delay on the part of the Senior Subordinated Lenders in the
exercise of any right or remedy shall operate as a waiver of such right or
remedy, and no single or partial exercise by the Senior Subordinated
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Lenders of any right or remedy shall preclude other or further exercise of such
right or remedy or the exercise of any other right or remedy; nor shall any
modification or waiver of any of the provisions of this Agreement be binding
upon the Senior Subordinated Lenders except as expressly set forth in a writing
duly signed and delivered on behalf of the Senior Subordinated Lenders. For the
purposes of this Agreement, Senior Subordinated Liabilities shall have the
meaning set forth in Section 1 above, notwithstanding any right or power of any
Subordinated Lender or anyone else to assert any claim or defense as to the
invalidity or unenforceability of any such obligation, and no such claim or
defense shall affect or impair the agreements and obligations of any
Subordinated Lender under this Agreement.
12. This Agreement shall be binding upon each Senior Lender,
Subordinated Lender and Senior Subordinated Lender and upon their respective
heirs, legal representatives, successors and assigns.
13. This Agreement may not be supplemented, modified, amended,
restated, waived, extended, discharged or terminated orally. This Agreement may
only be (i) supplemented, modified, amended or restated in a writing signed by
the parties hereto, and (ii) waived, extended, discharged or terminated in a
writing signed by the , as the case may be, as the party against whom
enforcement of any such waiver, extension, discharge or termination is sought.
14. All notices, requests and demands to or upon the undersigned,
shall be in writing and shall be deemed to have been duly given or made (a) when
delivered, if by hand, (b) four (4) days after being sent, postage prepaid, if
by registered or certified mail, (c) when confirmed electronically, if sent by
facsimile during normal business hours of the recipient, and if not, then on the
next business day, or (d) when delivered, if by a recognized overnight delivery
service in each event, to the numbers and/or address set forth beneath the
signature of the undersigned.
15. This Agreement shall be construed in accordance with and
governed by the laws of New York without regard to conflict of laws provisions.
Wherever possible each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
16. This Agreement may be executed in one or more counterparts of
the entire document or of the signature pages hereto, each of which shall be
deemed an original and all of which when taken together shall constitute one and
the same agreement. Any signature delivered by a party by facsimile transmission
shall be deemed an original signature hereto.
17. This Agreement and the exhibits and schedules hereto and
thereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof, and supersede and
completely replace any and all (and no party shall be liable or bound to any
other in any manner by any) prior or other representations, warranties,
covenants, promises, assurances or other agreements or understandings (whether
written, oral, express, implied or otherwise) including, without limitation, the
Subordination Agreement entered into by the Senior Lender and Subordinated
Lenders dated July 11, 2006, Section 7(b) of the $5,200,000 Subordinated
Promissory Note of the Debtor dated July 11, 2006 and Section 7(b) of the
$4,838,710 Amended and Restated Subordinated Promissory Note of the Debtor dated
July 11, 2006.
[signature pages follow]
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IN WITNESS WHEREOF, this Agreement has been made and delivered this
day of December, 2006.
SUBORDINATED LENDERS:
---------------------
XXXXXXX INVESTMENTS LLC
By:
-----------------------------------------
Name:
Title:
PEQUOT HEALTHCARE FUND, L.P.
By: Pequot Capital Management, Inc.
Investment Advisor
By:
---------------------------------------
Name:
Title:
PEQUOT HEALTHCARE OFFSHORE FUND, INC.
By: Pequot Capital Management, Inc.
Investment Advisor
By:
---------------------------------------
Name:
Title:
PEQUOT DIVERSIFIED MASTER FUND, L.P.
By: Pequot Capital Management, Inc.
Investment Advisor
By:
---------------------------------------
Name:
Title:
PEQUOT HEALTHCARE INSTITUTIONAL FUND, L.P.
By: Pequot Capital Management, Inc.
Investment Advisor
By:
---------------------------------------
Name:
Title:
8
PREMIUM SERIES PCC LIMITED - CELL 32
By: Pequot Capital Management, Inc.
Investment Advisor
By:
---------------------------------------
Name:
Title:
NORTH SOUND LEGACY INSTITUTIONAL FUND LLC
By: North Sound Capital LLC; Manager
By:
---------------------------------------
Name:
Title:
NORTH SOUND LEGACY INTERNATIONAL LTD.
By: North Sound Capital LLC;
Investment Advisor
By:
---------------------------------------
Name:
Title:
TECHNOLOGY INVESTMENT CAPITAL CORP.
By:
---------------------------------------
Name:
Title:
-----------------------------------------
XXXXXX X. XXXXXX
-----------------------------------------
XXX XXXXX
LAURUS MASTER FUND, LTD.
By:
---------------------------------------
Name:
Title:
9
SENIOR SUBORDINATED LENDERS
---------------------------
LAURUS MASTER FUND, LTD.
By:
---------------------------------------
XXXXXXX INVESTMENTS LLC
By:
---------------------------------------
Name:
Title:
VICIS CAPITAL MASTER FUND LLC
By:
---------------------------------------
--------------------------------------------
Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxx XxXxxxx
--------------------------------------------
Xxxxx Xxxxxxxx
--------------------------------------------
Xxx Xxxxxxxxxx
--------------------------------------------
Xxxx Xxxxxx
--------------------------------------------
Xxxx Xxxxxxxx
CSFN I LLC
By
------------------------------------------
10
Acknowledged and Agreed to by:
XXXXXXX.XXX INC.
By:
-----------------------------
Name:
Title:
Address: 000 Xxxxxxx 0, 0xx Xxxxx
Xxxxxxx, XX 00000
11
SCHEDULE A
1. $4,838,710 Amended and Restated Subordinated Note dated July
11, 2006 of XxxxXxx.Xxx Inc. to the Subordinated Lenders a party thereto.
2. $4,838,710 Amended and Restated Subordinated Loan Agreement of
XxxxXxx.Xxx Inc. dated July 11, 2006 to the Subordinated Lenders a party
thereto.
3. $5,200,000 Subordinated Note dated July 11, 2006 of
XxxxXxx.Xxx Inc. to the Subordinated Lenders a party thereto.
4. $5,200,000 Subordinated Loan Agreement dated July 11, 2006 of
XxxxXxx.Xxx Inc. to the Subordinated Lenders a party thereto.
5. Unconditional Guaranty dated July 11, 2006 for each of Anushka
Boca Acquisition Sub, LLC, Anushka PBG Acquisition Sub, LLC, Xxxxxxxx
Corporation, Wild Hare, LLC, Anushka Boca, LLC, Wild Hare Acquisition Sub, LLC,
Anushka PBG, LLC, Xxxxxxx Advanced Aesthetics, Inc., Advanced Aesthetics Sub,
Inc., Advanced Aesthetics, LLC and Xxxxxxx Advanced Aesthetics, LLC under $5.2
Million Subordinated Note.
6. Amended and Restated Unconditional Guaranty dated July 11,
2006 for each of Anushka Boca Acquisition Sub, LLC, Anushka PBG Acquisition Sub,
LLC, Xxxxxxxx Corporation, Wild Hare, LLC, Anushka Boca, LLC, Wild Hare
Acquisition Sub, LLC, Anushka PBG, LLC, Xxxxxxx Advanced Aesthetics, Inc.,
Advanced Aesthetics Sub, Inc., Advanced Aesthetics, LLC and Xxxxxxx Advanced
Aesthetics, LLC under $4,838,710 Subordinated Note.
SCHEDULE B
1. One or more Senior Subordinated Notes each dated December ,
2006 of XxxxXxx.Xxx Inc. to the Senior Subordinated Lenders a party thereto.
2. $4 Million Senior Subordinated Loan Agreements of XxxxXxx.Xxx
Inc. dated December , 2006 to the Senior Subordinated Lenders a party thereto.
3. Unconditional Guaranty dated December , 2006 for each of
Anushka Boca Acquisition Sub, LLC, Anushka PBG Acquisition Sub, LLC, Xxxxxxxx
Corporation, Wild Hare, LLC, Anushka Boca, LLC, Wild Hare Acquisition Sub, LLC,
Anushka PBG, LLC, Xxxxxxx Advanced Aesthetics, Inc., Advanced Aesthetics Sub,
Inc., Advanced Aesthetics, LLC and Xxxxxxx Advanced Aesthetics, LLC under $4
Million Senior Subordinated Notes.
