LAURUS MASTER FUND, LTD. c/o Laurus Capital Management, LLC 825 Third Avenue 14th Floor New York, New York 10022 June 30, 2006
Exhibit 10.6
LAURUS MASTER FUND, LTD.
c/o Laurus Capital
Management, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
June 30, 2006
XxxxXxx.Xxx, Inc. and each of its
subsidiaries
0 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Chief
Financial Officer
Re: Post-Closing Items
Ladies and Gentlemen:
Reference is made to (a) the Securities Purchase Agreement, dated as of the date hereof (as the same may be amended, supplemented, restated or modified from time to time, the “Securities Purchase Agreement”) by and between XxxxXxx.Xxx, Inc.., a Delaware corporation (the “Parent”), Xxxxxxx Advanced Aesthetic, Inc., an Delaware corporation (“Xxxxxxx Inc.”), Advanced Aesthetics Sub, Inc., a Delaware corporation (“Advanced Sub”), Advanced Aesthetics, Inc., a Delaware corporation (“Advanced”), Xxxxxxx Advanced Aesthetics, LLC, a Delaware limited liability company (“Xxxxxxx LLC”), Anushka PBG, LLC, a Delaware limited liability company (“Anushka PBG”), Anushka Boca, LLC, a Delaware limited liability company (“Anushka Boca”), Wild Hare, LLC, a Delaware limited liability company (“Wild Hare”), Xxxxxxxx Corporation, a Florida corporation (“Xxxxxxxx”), Anushka PBG Acquisition Sub, LLC, a Delaware limited liability company (“Anushka PBG Sub”), Anushka Boca Acquisition Sub, LLC, a Delaware limited liability company (“Anushka Boca Sub”), and Wild Hare Acquisition Sub, LLC, a Delaware limited liability company (“Wild Hare Sub” and, together with the parent, Xxxxxxx Inc., Advanced Sub, Advanced, Xxxxxxx LLC, Anushka PBG, Anushka Boca, Wild Hare, Dischino, Anuska PBG Sub, and Anushka Boca Sub, the “Companies” and, each a “Company) and Laurus Master Fund, Ltd. (“Laurus”), and the Related Agreements referred to in the Securities Purchase Agreement, and (b) all documents, instruments and agreements executed in connection with the agreements referenced in the foregoing clause (a) (all documents referred to in the foregoing clauses (a) and (b), collectively, the “Documents”)
In order to facilitate the closing of the transactions contemplated by the Documents within the time constraints of the Companies, Laurus has agreed that certain closing requirements may be waived, in whole or in part, as conditions to the initial disbursements under the Documents. In consideration thereof, the Companies have each agreed that each condition set forth on the attached schedule (“Schedule A”) shall be satisfied within the time periods and under the conditions, all in a manner (and when applicable, evidenced by agreements, instruments and documents) satisfactory in form and substance to Laurus.
Furthermore, Laurus has agreed to deposit $21,556,000 (the “Funding Amount”) into a restricted account pending the satisfaction of the conditions set forth on Schedule B hereto (the “Funding Amount Conditions”) by July 11, 2006. In consideration thereof, the Companies have
agreed that the Funding Amount Conditions shall have been satisfied by July 11, 2006 under the conditions (and when applicable, evidenced by agreements, instruments and documents) satisfactory in form and substance to Laurus.
Each Company acknowledges and agrees that its failure to satisfy the requirements set forth on Schedule A and Schedule B within the applicable time limits set forth thereon with respect thereto shall, in each event, constitute an “Event of Default” under, and as defined in, the Security Agreement. No waiver, modification or amendment of any provision of this agreement shall be effective unless specifically made in writing and duly signed by the party to be bound thereby.
-2-
Except as expressly provided herein, nothing contained herein shall act as a waiver or excuse of performance of any obligations contained in the Documents.
| Very truly yours, LAURUS MASTER FUND, LTD. By:________________________________ Name: Title |
The foregoing is hereby accepted and agreed to as of the date set forth above:
XXXXXXX.XXX, INC.
a
Delaware corporation
By:___________________________
Name:
Title:
XXXXXXX ADVANCED AESTHETICS, INC., a Delaware corporation
By:___________________________
Name:
Title:
ADVANCED AESTHETIC SUB, INC., a Delaware corporation
By:___________________________
Name:
Title:
ADVANCED AESTHETIC, LLC, a Delaware limited liability company
By:___________________________
Name:
Title:
XXXXXXX ADVANCED AESTHETICS, LLC, a Delaware limited liability company
By:___________________________
Name:
Title:
-3-
ANUSHKA PBG, LLC, a Delaware limited liability company
By:___________________________
Name:
Title:
ANUSHKA BOCA, LLC, a Delaware limited liability company
By:___________________________
Name:
Title:
WILD HARE, LLC, a Delaware limited liability company
By:___________________________
Name:
Title:
XXXXXXXX CORPORATION, a Florida corporation
By:___________________________
Name:
Title:
ANUSHKA PBG ACQUISITION SUB, LLC, a Delaware limited liability company
By:___________________________
Name:
Title:
ANUSHKA BOCA ACQUISITION SUB, LLC, a Delaware limited liability company
By:___________________________
Name:
Title:
WILD HARE ACQUISITION SUB, LLC, a Delaware limited liability company
By:___________________________
Name:
Title:
-4-
Schedule A
| 1. | No later than 30 days following the date hereof, the Companies shall deliver (or cause to be delivered) stock certificates and powers, pursuant to the Stock Pledge Agreement dated as of the date hereof, to Laurus’ custodial agent at the Bank of New York, for each of the parties listed on Schedule A of the Stock Plege Agreement. |
| 2. | No later than 30 days following the date hereof, the Companies shall certified certificates of incorporation of a recent date from each of the Companies. |
| 3. | No later than 30 days following the date hereof, the Companies shall deliver good standing certificates of a recent date from each of the Companies. |
| 4. | No later than 30 days following the date hereof, the Companies shall deliver (or cause to be delivered) executed waivers from landlords for all inventory locations, to the satisfaction of Laurus. |
| 5. | No later than 30 days following the date hereof, the Companies shall deliver any other outstanding deliverables as listed on the closing checklist previously provided by Laurus to the Companies. |
A-1
Schedule B
Funding Amount Conditions
The following conditions (the “Funding Amount Conditions”) shall be satisfied by July 11, 2006:
| A. | The Companies shall deliver to Laurus evidence that $5,000,000 in additional capital has been raised. |
| B. | The Companies shall deliver (or cause to be delivered) a Subordination Agreement(s) executed by each of the Parent and any lender reasonably acceptable to Laurus. |
| C. | Laurus shall have received an executed payoff letter from Technology Investments Capital Corporation, in form and substance satisfactory to Laurus in its sole discretion; |
B-1
