Exhibit 10.1
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made this 9 th day of May, 2006
(the "Closing Date"), by and between XXXXXXX.XXX INC., a Delaware corporation
(the "Borrower"), 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. and Xxxxxxx
Investments LLC (each a "Lender" and collectively, the "Lenders").
RECITALS
A. The Borrower has asked the Lenders for a subordinated term loan (the
"Loan") in the principal amount of Four Million Eight Hundred Thirty Eight
Thousand and Seven Hundred Ten Dollars ($4,838,710) to be used by the Borrower
for capital expenditures, general working capital and to pay all costs and
expenses in connection with the Loan. The Loan is evidenced by that certain
Subordinated Promissory Note of even date herewith from the Borrower in favor of
the Lenders (the "Note").
B. The Lenders are willing to make the Loan to the Borrower upon the terms
and subject to the conditions hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Lenders
hereby agree as follows:
I. BORROWING
Section 1.1 The Loan. The Lenders agree to lend to the Borrower and the
Borrower agrees to borrow from the Lenders the principal sum of Four Million
Eight Hundred Thirty Eight Thousand and Seven Hundred Ten Dollars ($4,838,710)
allocated among the Lenders as set forth in Exhibit A. The Loan shall bear
interest and shall be repaid by the Borrower in the manner and at the times set
forth in the Note.
Section 1.2 Use of Proceeds. The proceeds of the Loan shall be used by the
Borrower for the purposes set forth in Recital A above, and, unless prior
written consent of Lenders holding at least a majority in outstanding principal
amount of the Loans (the "Majority Lenders") is obtained, for no other purpose.
Section 1.3 Voluntary Prepayment. Subject to the terms of that certain
Subordination Agreement, dated as of the date hereof (as from time to time
amended in accordance with its terms, the "Subordination Agreement"), among the
Borrower, the guarantors named therein,
Technology Investment Capital Corp. and the Lenders, the Loan may be prepaid at
any time, in whole or in part, on three (3) days prior written notice. If the
Loan is prepaid in full (including all accrued and unpaid interest) in a single
payment at any time within six (6) months of the Closing Date, no prepayment fee
shall be due. If any partial prepayment of the Loan is made at any time within
six (6) months of the Closing Date, each such partial prepayment shall be
subject to a prepayment fee equal to the amount being prepaid multiplied by ten
percent (10%). In the event of any full or partial prepayment of the Loan at any
time on or after the date which is six (6) months after the Closing Date, but
prior to the Maturity Date (as defined in the Note), each such prepayment shall
be subject to a prepayment fee equal to the amount being prepaid multiplied by
fifteen percent (15%).
Section 1.4 Mandatory Prepayment. Subject to the terms of the
Subordination Agreement, upon the occurrence of a Change of Control (as
hereinafter defined, Lenders shall have the right to require Borrower to prepay
the Loan, including, without limitation, (i) the outstanding principal balance,
(ii) all accrued and unpaid interest (if any), and (iii) the corresponding
prepayment fee payable in accordance with Section 1.3 of this Agreement. For
purposes of this Agreement, "Change of Control" means: (i) any "person"
(including any group of persons), as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than any trustee or other fiduciary holding securities under an employee
benefit plan of the Borrower), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, after the date
hereof, of securities of the Borrower representing more than fifty percent (50%)
of the combined voting power of the Borrower's then outstanding securities; (ii)
individuals who at the Closing Date constitute the Board, and any new director
(other than a director (x) designated by a Person who has entered into an
agreement with the Borrower to effect a transaction described in clause (i),
(iii) or (iv) of this subparagraph, or (y) whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a "person" (as hereinabove defined)
other than the Board) whose election by the Board or nomination for election by
the Borrower's shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof; (iii) the
shareholders of the Borrower approve a merger, reorganization or consolidation
of the Borrower, other than a merger, reorganization or consolidation which
would result in (A) the beneficial owners (as hereinabove defined) of the voting
securities of the Borrower outstanding immediately prior thereto continuing to
beneficially own voting securities that represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of the voting securities of
the Borrower or such surviving entity outstanding immediately after such merger,
reorganization or consolidation, and (B) no "person" (as hereinabove defined)
acquiring more than fifty percent (50%) of the combined voting power of the
Borrower's then outstanding securities; (iv) the shareholders of the Borrower
approve an agreement for the sale or disposition by the Borrower of all or
substantially all of the Borrower's assets or business to an unaffiliated third
party; or (v) the shareholders of the Borrower approve a liquidation or
dissolution of the Borrower.
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II. THE FINANCING DOCUMENTS; OBLIGATIONS
This Agreement, the Note, the Guaranty (as hereinafter defined) and any
other instrument, agreement or document previously, simultaneously or hereafter
executed and delivered by the Borrower and/or any other Person, singularly or
jointly with any other Person, evidencing, securing in connection with the
Obligations (as hereinafter defined), this Agreement, the Note and the Guaranty
are sometimes referred to herein collectively as the "Financing Documents".
"Obligations" as used in this Agreement means all of the obligations for payment
evidenced by the Financing Documents and all of the obligations to perform and
comply with all of the terms, covenants, conditions, stipulations and agreements
contained in the Financing Documents and all other obligations of the Borrower
to the Lenders, whether now existing or hereafter created, whether direct or
contingent.
III. UNCONDITIONAL OBLIGATIONS
The payment and performance by the Borrower of the Obligations shall be
absolute and unconditional, irrespective of any defense or any rights of
set-off, recoupment or counterclaim it might otherwise have against the Lenders
and the Borrower shall pay absolutely net all of the Obligations, free of any
deductions and without abatement, diminution or set-off; and until payment in
full of all of the Obligations, the Borrower: (a) will not suspend or
discontinue any payments provided for in the Note and (b) will perform and
observe all of its other agreements contained in this Agreement, including
(without limitation) all payments required to be made to the Lenders.
IV. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to make the Loan, the Borrower represents and
warrants to the Lender that:
Section 4.1 Subsidiaries. The Borrower has only the Subsidiaries listed on
Exhibit A attached hereto.
Section 4.2 Good Standing. Borrower is a corporation, duly organized and
existing under the laws of the State of Delaware and is duly authorized to do
business and in good standing wherever the ownership of its property or the
conduct of its business requires such authorization.
Section 4.3 Due Authority, Compliance with Laws. Borrower has the right
and power and is duly authorized and empowered to enter into, execute, deliver
and perform this Agreement, the Note and the other Financing Documents and this
Agreement and the other Financing Documents are valid and binding upon and
enforceable against Borrower in accordance with their respective terms. Borrower
has taken all action required to authorize the execution, delivery and
performance of this Agreement and the other Financing Documents and the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and the other Financing Documents executed and
delivered by Borrower and the
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consummation of the transactions contemplated by this Agreement will not
conflict with, violate or be prevented by any existing mortgage, indenture,
contract or agreement binding on Borrower or affecting its property or any laws.
Section 4.4 No Default. There is no Event of Default (as hereinafter
defined) and no event has occurred and no condition exists which with the giving
of notice or the passage of time would constitute an Event of Default. The
Borrower is not in default in any material respect under the terms of any other
agreement or instrument to which it may be a party or by which any of its
properties may be bound or subject.
Section 4.5 Capitalization. The authorized capital stock of the Borrower
consists of (i) 20,000,000 shares of Common Stock, (ii) 1,000,000 shares of
Preferred Stock, par value $0.001 per share, of which 5,000 shares are
designated as Series A Preferred Stock, 100,000 shares are designated as shares
of Series B Preferred Stock, 50,000 shares are designated as shares of Series C
Preferred Stock, and 1530 shares are designated as shares of Series D Preferred
Stock. As of the date hereof 14,995,513 shares of Common Stock, no shares of
Series A Preferred Stock, 27,858.9673 shares of Series B Preferred Stock,
8,452.0222 shares of Series C Preferred Stock, and 1,530 shares of Series D
Preferred Stock are issued and outstanding. All shares of the Borrower's issued
and outstanding capital stock have been duly authorized, are validly issued and
outstanding, and are fully paid and nonassessable.
Section 4.6 Title to Properties. Borrower has good and marketable title to
all of its properties.
Section 4.7 Financial Statements. The consolidated financial statements of
Borrower included in its Current Report on Form 8-K/A as filed with the
Securities and Exchange Commission on February 21, 2006 are complete and correct
and fairly present the financial position of Borrower and the results of its
operations as of the dates and for the periods referred to therein and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis during the periods involved. Such financial statements comply
in all material respects with applicable accounting requirements and the rules
and regulations of the Commission with respect thereto as in effect at the time
of filing.
Section 4.8 Disclosure. All disclosure provided to the Lenders regarding
the Borrower and its subsidiaries is true and correct and does not contain any
untrue statement of material fact or state any material fact necessary in order
to make the statements made therein in light of the circumstances under which
they are made, not misleading.
Section 4.9 Bring Down of Representations. Each of the representations and
warranties set forth in Article 3 of that certain Note and Warrant Purchase
Agreement between Technology Investment Capital Corp., Borrower, et al. dated
March 31, 2004, as in effect on the date hereof (as amended from time to time
prior to the date hereof, the "TICC Credit Agreement") are true and correct in
all material respects on and as of the date hereof as though made on and as of
the date hereof (provided, that, for such purpose, (i) the terms Parent,
Co-Borrower and Obligor referred to in the TICC Credit Agreement shall be deemed
to include, in addition to the entities referred to the therein, the Borrower,
and (ii) all references to "the
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Closing" set forth in the representations and warranties set forth in Section
3.9 of the TICC Credit Agreement shall be deemed to refer to the closing of the
transactions contemplated by this Agreement including, without limitation, the
making of the Loans hereunder).
Section 4.10 SEC Reports. The Borrower has filed all reports (the "SEC
Reports") required to be filed by it with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933 (the "Securities Act") and
the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, on a
timely basis or has timely filed a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such extension.
The SEC Reports, along with the Borrower's current registration statement on
file with the Commission on Form S-1 (File No. 333-131254), are herein referred
to as the "SEC Filings." As of their respective dates, the SEC Filings complied
as to form in all material respects with (i) the requirements of the Securities
Act and the Exchange Act and the rules and regulations of the Commission
promulgated thereunder and (ii) any SEC comments received or otherwise conveyed
to the Company with respect to any previously filed SEC Filing except that the
Borrower has not yet responded to the letter received from the SEC on May 2,
2006 commenting on the Form S-1 filed with the SEC. In addition, none of the SEC
Filings, as of their respective dates, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
V. CONDITIONS OF LENDING
The obligation of the Lenders to make the Loan hereunder is subject to the
following conditions precedent:
Section 5.1 Approval of Counsel for the Lenders. All legal matters
incident to the Loan and all documents necessary in the opinion of the Lenders
to make the Loan shall be satisfactory in all material respects to counsel for
the Lenders.
Section 5.2 Supporting Documents. The Lenders shall receive on the date
hereof: (a) a certificate of the Secretary of the Borrower, certifying that
attached thereto is a true, complete and correct copy of resolutions adopted by
the Board of Directors of the Borrower authorizing the execution and delivery of
this Agreement, the Note and the other Financing Documents, and the Obligations
and (b) such other documents as the Lenders may reasonably require the Borrower
to execute, in form and substance acceptable to the Lenders.
Section 5.3 Financing Documents. All of the Financing Documents required
by the Lenders shall be executed, delivered at the sole expense of the Borrower.
Borrower shall pay all reasonable expenses of Lenders including but not limited
to, legal counsel fees and costs, travel expenses, accounting and other due
diligence costs.
Section 5.4 Closing Fee. At the Closing, Lenders shall receive a closing
fee in an amount equal to $338,710 to be allocated among Lenders as set forth on
Exhibit A hereto. The amounts payable to the Lenders pursuant to this Section
5.4 shall be netted from the amounts to be funded by the Lenders to the Borrower
under Section 1.1.
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Section 5.5 Subordination Agreement. Lenders shall have entered into the
Subordination Agreement.
Section 5.6 Guaranty. The Lenders shall have received an unconditional
guaranty in form and substance satisfactory to the Lenders (the "Guaranty") from
each of the Subsidiaries listed on Exhibit A.
VI. COVENANTS OF BORROWER
Until payment in full and the performance of all of the Obligations
hereunder:
Section 6.1 Incorporation of Covenants. All of the affirmative covenants
set forth in Article 5 (other than Section 5.16, Section 5.20 and Section 5.21)
and the negative covenants in Article 6, in each case as set forth in the TICC
Credit Agreement"), are hereby incorporated in this Agreement by reference and
shall be deemed to be covenants made by Borrower (as if the Borrower were the
Parent, a Co-Borrower and a Obligor thereunder) to Lenders as if set forth at
length herein.
Section 6.2 Books and Records. The Borrower shall permit the Lenders, or
any Person authorized by the Lenders, to inspect and examine Borrower's records
and books (regardless of where maintained) and all supporting vouchers and data
and to make copies and extracts therefrom at all reasonable times and as often
as may be requested by the Lenders. In addition, the Borrower will furnish or
cause to be furnished to the Lenders internally prepared financial statements of
the Borrower as of the close of each fiscal quarter and fiscal year, in a form
reasonably acceptable to Lenders.
Section 6.3 Preservation of Corporate Existence. Borrower will preserve
and maintain its corporate existence and good standing in each state where it
conducts business. Borrower shall not merge or consolidate with or into any
other person or entity (a "Person") or liquidate or wind down its business, or
enter into any agreement with respect thereto.
Section 6.4 Payment of Taxes and Claims. Borrower will duly pay and
discharge when due and payable, all taxes, assessments and governmental and
other charges, levies or claims levied or imposed, which are, or which if unpaid
might become, a lien or charge upon the properties, assets, franchises, earnings
or business of Borrower; provided, however, that nothing contained in this
paragraph shall require Borrower to pay and discharge, or cause to be paid and
discharged, any such tax, assessment, charge, levy or claim so long as Borrower
in good faith shall contest the validity thereof by appropriate proceedings and
shall set aside on its books adequate reserves with respect thereto in
accordance with such accounting practices and otherwise satisfactory to Lenders.
Section 6.5 Conduct of Business. Borrower shall conduct and operate its
business in all material respects in accordance with all applicable material
local, state and federal ordinances, resolutions and laws.
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Section 6.6 Insurance. Borrower shall maintain insurance in an amount,
nature and with carriers covering property damage to any of Borrower's
properties, business interruption insurance, public liability insurance
including coverage for contractual liability, product liability and workers'
compensation, and any other insurance which is usual for Borrower's business.
Section 6.7 Additional Subsidiaries. If any additional Subsidiary of the
Borrower is formed or acquired after the Closing Date as permitted pursuant to
the terms hereof, the Borrower will, within three business days after such
formation or acquisition cause such Borrower to execute and deliver to the
Lenders an additional Guaranty in form and substance reasonably acceptable to
the Lenders.
VII. EVENTS OF DEFAULT
The occurrence of one or more of the following events shall be "Events of
Default" under this Agreement, and the terms "Event of Default" or "default"
shall mean, whenever they are used in this Agreement, the events specified in
the definition of "Event of Default" specified in the Note or any one or more of
the following events, provided that no such event (other than the failure of the
Borrower to pay in full on or prior to July 1, 2009 the principal amount of the
Loan, together with all interest accrued thereon and all other amounts then due
hereunder and under the other Financing Documents) shall be deemed to be or to
result in a default or an Event of Default hereunder or under any of the other
Financing Documents at any time prior to the date on which all of the Senior
Indebtedness (as defined in the Subordination Agreement) shall be indefeasibly
paid in full in cash:
Section 7.1 Breach of Representations and Warranties. Any material
representation or warranty made herein or in any report, certificate, opinion
(including any opinion of counsel for the Borrower), financial statement or
other instrument furnished in connection with the Obligations or with the
execution and delivery of any of the Financing Documents, shall prove to have
been false or misleading when made in any material respect.
Section 7.2 Other Defaults. Default shall be made by the Borrower in the
due observance or performance of any other term, covenant or agreement herein
contained, which default shall remain unremedied for ten (10) days after written
notice thereof to the Borrower by the Lenders; unless the nature of the failure
is such that (a) it cannot be cured within the ten (10) day period, (b) the
Borrower institutes corrective action within the ten (10) day period, and (c)
the Borrower completes the cure within a period of an additional thirty (30)
days.
Section 7.3 Default Under Other Financing Documents. An Event of Default
shall occur under any of the other Financing Documents, and such Event of
Default is not cured within any applicable grace period provided therein.
Section 7.4 Bankruptcy. The Borrower or any Guarantor shall voluntarily
commence any proceeding under any reorganization, bankruptcy or similar law or
consent to or fail to contest or have dismissed within 60 days any such
proceeding or apply for a receiver or similar official or make an assignment to
the benefit of creditors or otherwise take any similar action.
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VIII. RIGHTS AND REMEDIES UPON DEFAULT
Section 8.1 Generally. Upon the occurrence of an Event of Default, subject
to the terms of the Subordination Agreement, the Lenders shall have the rights
and remedies set forth in the Note.
IX. MISCELLANEOUS
Section 9.1 Notices. All notices, requests and demands to or upon the
parties to this Agreement shall be in writing and shall be deemed to have been
given or made when delivered by hand on a business day, or two (2) days after
the date when deposited in the mail, postage prepaid by registered or certified
mail, return receipt requested, or when sent by overnight courier, on the
business day next following the day on which the notice is delivered to such
overnight courier, addressed as follows:
Borrower: XXXXXXX.XXX, INC.
000 Xxxxxxx 0, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Lenders: 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.
c/o Pequot Capital Management
Attn: Xxxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
NORTH SOUND LEGACY INSTITUTIONAL FUND LLC c/o
North Sound Capital LLC 00 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
NORTH SOUND LEGACY
INTERNATIONAL LTD.
c/o North Sound Capital LLC
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
XXXXXXX INVESTMENTS LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
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By written notice, each party to this Agreement may change the address to
which notice is given to that party.
Section 9.2 Entire Agreement. The Financing Documents shall completely and
fully supersede all other agreements, both written and oral, between the Lenders
and the Borrower relating to the Obligations. Neither the Lenders nor the
Borrower shall hereafter have any rights under such prior agreements but shall
look solely to the Financing Documents for definition and determination of all
of their respective rights, liabilities and responsibilities relating to the
Obligations.
Section 9.3 Survival of Agreement; Successors and Assigns. All covenants,
agreements, representations and warranties made by the Borrower herein and in
any certificate, in the Financing Documents and in any other instruments or
documents delivered pursuant hereto shall survive the making by the Lenders of
the Loan and the execution and delivery of the Note and are made irrespective of
any due diligence conducted by Lenders, and shall continue in full force and
effect so long as any of the Obligations are outstanding and unpaid. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors of such party; and all covenants, promises and
agreements by or on behalf of the Borrower, which are contained in this
Agreement shall inure to the benefit of the successors of the Lenders, and all
covenants, promises and agreements by or on behalf of the Lenders which are
contained in this Agreement shall inure to the benefit of the permitted
successors of the Borrower. This Agreement may not be assigned by the Borrower.
Section 9.4 Counterparts. This Agreement may be executed in any number of
counterparts all of which together shall constitute a single instrument.
Section 9.5 Modifications. No modification or waiver of any provision of
this Agreement or of any of the other Financing Documents, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing signed by the Majority Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in the same, similar or
other circumstance.
Section 9.6 Headings. The headings in this Agreement are for convenience
only and shall not limit or otherwise affect any of the terms hereof.
Section 9.7 Governing Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
DELIVERED AT AND SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 9.8 Venue. BORROWER IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION OR
PROCEEDING AGAINST IT UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS
AGREEMENT, THE NOTE OR THE OTHER FINANCING DOCUMENTS, MAY BE BROUGHT IN ANY
COURT OF THE STATE OF NEW YORK
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LOCATED IN NEW YORK, NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK. BORROWER, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EXPRESSLY AND IRREVOCABLY ASSENTS AND SUBMITS TO THE PERSONAL
JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING, AND FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER
PROCESS RELATING TO SUCH ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND
OR BY MAIL IN THE MANNER PROVIDED FOR IN THIS AGREEMENT. BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR
PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS OR ANY SIMILAR BASIS. BORROWER SHALL NOT BE ENTITLED IN ANY
SUCH ACTION OR PROCEEDING TO ASSERT ANY DEFENSE GIVEN OR ALLOWED UNDER THE LAWS
OF ANY STATE OTHER THAN THE STATE OF NEW YORK UNLESS SUCH DEFENSE IS ALSO GIVEN
OR ALLOWED BY THE LAWS OF THE STATE OF NEW YORK. NOTHING IN THIS AGREEMENT SHALL
AFFECT OR IMPAIR IN ANY MANNER OR TO ANY EXTENT THE RIGHT OF LENDERS TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY JURISDICTION OR
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
Section 9.9 Waiver of Jury Trial. BORROWER HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY AGREEMENT, INSTRUMENT OR DOCUMENT EXECUTED AND DELIVERED IN
CONNECTION HEREWITH OR THEREWITH, INCLUDING THE FINANCING DOCUMENTS.
Section 9.10 Indemnification. Borrower agrees to indemnify and hold
harmless, Lenders, Lenders' officers, directors, employees and agents (each an
"Indemnified Party," and collectively, the "Indemnified Parties"), from and
against any and all claims, liabilities, losses, damages, costs and expenses
(whether or not such Indemnified Party is a party to any litigation), including
without limitation, reasonable attorney's fees and costs and costs of
investigation, document production, attendance at depositions or other
discovery, incurred by any Indemnified Party with respect to, arising out of or
as a consequence of (a) this Agreement or any of the other Financing Documents,
including without limitation, any failure of Borrower to pay when due (at
maturity, by acceleration or otherwise) any principal, interest, fee or any
other amount due under this Agreement or the other Financing Documents, or any
other Event of Default, or any breach or alleged breach of any representation,
warranty or covenant contained in this Agreement or any other Financing
Document, (b) the use by Borrower of any proceeds advanced hereunder; (c) the
transactions contemplated hereunder; or (d) any claim, demand, action or cause
of action being asserted against (i) Borrower by any other Person, or (ii) any
Indemnified Party by Borrower in connection with the transactions contemplated
hereunder. Notwithstanding anything herein or elsewhere to the contrary,
Borrower shall not be obligated to indemnify or hold harmless any Indemnified
Party from any liability, loss or damage resulting from the gross negligence,
willful misconduct or unlawful actions of such Indemnified Party.
(SIGNATURES ARE ON THE FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written.
Borrower:
XXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer/Chairman
Lenders:
PEQUOT HEALTHCARE FUND, L.P.
By: Pequot Capital Management, Inc.,
Investment Advisor
By: /s/ Xxxxxx Fisbane
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PEQUOT HEALTHCARE OFFSHORE FUND,
INC.
By: Pequot Capital Management, Inc.,
Investment Advisor
By: /s/ Xxxxxx Fisbane
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PEQUOT DIVERSIFIED MASTER FUND, L.P.
By: Pequot Capital Management, Inc.,
Investment Advisor
By: /s/ Xxxxxx Fisbane
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
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PEQUOT HEALTHCARE INSTITUTIONAL
FUND, L.P.
By: Pequot Capital Management, Inc.,
Investment Advisor
By: /s/ Xxxxxx Fisbane
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PREMIUM SERIES PCC LIMITED - CELL 33
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Attorney in fact
NORTH SOUND LEGACY
INSTITUTIONAL FUND LLC
By: /s/ Xxxxxx X. Mlauley
----------------------------------------
Name: Xxxxxx X. Mlauley
Title: Chief Invesment Officer
NORTH SOUND LEGACY
INTERNATIONAL LTD.
By: /s/ Xxxxxx X. Mlauley
----------------------------------------
Name: Xxxxxx X. Mlauley
Title: Chief Invesment Officer
XXXXXXX INVESTMENTS LLC
By: /s/ Xxxxxx X. Mlauley
----------------------------------------
Name: Xxxxxx X. Mlauley
Title: Chief Invesment Officer
12
EXHIBIT A
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Allocation of Loan
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Pequot Healthcare Fund, L.P. $675,077
Pequot Healthcare Offshore Fund, Inc. $628,087
Premium Series PCC Limited - Cell 32 $116,578
Pequot Diversified Master Fund, Ltd. $70,664
Pequot Healthcare Institutional Fund, L.P. $122,497
North Sound Legacy Institutional Fund LLC $602,151
North Sound Legacy $1,548,387
International Ltd.
Xxxxxxx Investments LLC $1,075,269
13
Amount of Closing Fee
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Pequot Healthcare Fund, L.P. $47,255
Pequot Healthcare Offshore Fund, Inc. $43,966
Premium Series PCC Limited - Cell 32 $8,160
Pequot Diversified Master Fund, Ltd. $4,946
Pequot Healthcare Institutional Fund, L.P. $8,575
North Sound Legacy Institutional Fund $42,151
LLC
North Sound Legacy $108,388
International Ltd.
Xxxxxxx Investments LLC $75,269
14
EXHIBIT B
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Subsidiaries
XXXXXXX ADVANCED AESTHETICS, INC.
ADVANCED AESTHETICS SUB, INC.
ADVANCED AESTHETICS, LLC
XXXXXXX ADVANCED AESTHETICS, LLC
ANUSHKA PBG, LLC
ANUSHKA BOCA, LLC
WILD HARE, LLC
XXXXXXXX CORPORATION
ANUSHKA PBG ACQUISITION SUB, LLC
ANUSHKA BOCA ACQUISITION SUB, LLC
WILD HARE ACQUISITION SUB, LLC
