April 23, 2009 Imperium Master Fund, Ltd. c/o Imperium Advisers, LLC 1120 Avenue of the Americas New York, NY 10036 Attention: John Michaelson Dear Mr. Michaelson,
Exhibit 10.1
April 23, 2009
Imperium Master Fund, Ltd.
c/o Imperium Advisers, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
c/o Imperium Advisers, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Dear Xx. Xxxxxxxxxx,
Reference is made to that certain Securities Purchase and Loan Agreement (as amended to date,
the “Loan Agreement”), dated as of March 24, 2008, by and between Echo Therapeutics, Inc.,
a Delaware corporation (the “Company”), and Imperium Master Fund, Ltd., a Cayman Islands
company (“Imperium”). Reference is also made to that certain Original Issue Discount
Senior Secured Note, dated March 24, 2008 (“Senior Secured Note 1”), issued by the Company
to Imperium pursuant to the Loan Agreement, Original Issue Discount Senior Secured Note, dated
April 25, 2008 (“Senior Secured Note 2” and together with Senior Secured Note 1, the “Notes”), and
that certain letter agreement, dated March 23, 2009, by and between the Company and Imperium
extending the Maturity Date of Senior Secured Note 1 (the “Letter Agreement”). Capitalized terms
used herein but not defined shall have the meanings ascribed thereto in the Loan Agreement and/or
the Notes. Pursuant to Section 5(c) of the Notes, the terms of the Notes may be amended or waived
by a written instrument executed by the Company and Imperium.
The Company and Imperium hereby agree that, notwithstanding anything in the Notes, the Loan
Agreement, the Transaction Documents or the Letter Agreement to the contrary, the Maturity Date of
the Notes shall be extended to May 31, 2009. The purpose of the foregoing extensions is to provide
the Company and Imperium sufficient time to amend the Loan Agreement and the senior secured notes
issued by the Company thereunder, to provide for, subject to certain conditions, a one-year
extension of the maturity of such notes.
This letter agreement constitutes the entire agreement between the parties hereto with respect
to the subject matter hereof, superseding all prior and existing written or oral agreements,
negotiations, discussions, undertakings, representations, warranties and understandings. This
letter agreement constitutes a valid and binding obligation of each of the parties hereto,
enforceable against each of them in accordance with law. This letter agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to contracts made and
to be performed entirely within the State of New York. In the event of a conflict between the
provisions of this letter agreement and the terms of the Loan Agreement, the Notes or the Letter
Agreement, this letter agreement shall control.
Sincerely, ECHO THERAPEUTICS, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx, CEO and Chairman | ||||
Acknowledged and agreed to as of the date first written above:
IMPERIUM MASTER FUND, LTD.
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Counsel | |||