Exhibit 10.10
AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
AMENDED
AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT (this
“Agreement”) dated as of March 27, 2007 by and among
Laurus Master Fund, Ltd., a Cayman Islands corporation
(“Laurus”), North Sound Legacy International Ltd.
(“NS International”), North Sound Legacy Institutional
Fund LLC (“NS Institutional and, together with NS
International, “North Sound”), Andrew D. Lipman
(“Lipman”), and Seapine Investments LLC
(“Seapine”, together with North Sound and Lipman, the
“Investors” and together with Laurus in its individual
capacity, the “Secured Parties”) and Laurus, as
collateral agent (in such capacity, the “Collateral
Agent”).
PRELIMINARY STATEMENTS
Laurus
has purchased a Secured Term Note in the original principal amount
of $25,000,000 (as amended, modified or supplemented, the
“June 2006 Note”) made by TrueYou.Com Inc., a Delaware
corporation (“Issuer”) pursuant to the terms of the
Securities Purchase Agreement, dated as of June 30, 2006 by and
between the Issuer and Laurus (as amended, modified or supplemented
from time to time, the “June SPA” and, together with
the Related Agreements referred to therein, each as amended,
modified or supplemented from time to time, the “June Laurus
Documents”.
On
March 16, 2007, the Investors have purchased Secured Demand Notes
in the aggregate original principal amount of $2,000,000 (as
amended, modified or supplemented, each a “March 16
th Investor Note” and, collectively, the
“March 16 th Investor Notes”) made by
Issuer.
On
March 27, 2007, the Investors have purchased Secured Demand Notes
in the aggregate original principal amount of $2,000,000 (as
amended, modified or supplemented, each a “March 27
th Investor Note” and, collectively, the
“March 27 th Investor Notes” and, together
with the March 16 th Investor Notes, the “March
Investor Notes”, and the March Investor Notes together with
the June Laurus Documents, the “Documents” ) made by
Issuer.
To
secure the complete and prompt payment of all Obligations (as
hereafter defined), (1) Issuer and its Subsidiaries (as defined in
the June Laurus Documents; each Subsidiary shall hereinafter be
referred to as an “Other Party” and, collectively, the
“Other Parties”) has executed Security Documents (as
defined in the June Laurus Documents) in favor of Laurus granting
to Laurus a security interest in all assets of the Issuer and each
Other Party and (2) Issuer has executed the March Investor Notes in
favor of the Investors granting to such Investors a security
interest in all assets of the Issuer and each Other Party (the
collateral referred to in the foregoing clauses (1) and (2) are
hereinafter collectively referred to as the
“Collateral”).
The
Secured Parties desire to appoint Collateral Agent to act as agent
for the Secured Parties and their successors and assigns with
respect to the Collateral and Collateral Agent desires to accept
such appointment.
The
Investors presently contemplate the purchase of further debt of the
Issuer prior to March 31, 2007, on terms substantially in
accordance with the term sheet attached hereto
as Exhibit A, as the same may be
revised by mutual agreement of all Investors (the “March Term
Sheet”). Each Secured Party, the Issuer and each of the Other
Parties contemplates that if, as and when definitive agreements are
executed with respect to any additional loans and so long as the
Secured Parties are party to such definitive agreements (it not
being intended by this Agreement to create any obligation to lend
by any Secured Party) then (i) this Agreement shall be superseded
in all respects by the definitive agreements executed in connection
with such transaction(s); (ii) that all Obligations outstanding
pursuant to the March Investor Notes shall become Obligations
identical to the debt issued in such transaction(s); and (iii) that
definitive documents in respect of such transaction(s) shall
reflect the rights and obligations of each such party as set forth
in the March Term Sheet as the same may be amended as set forth
above.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Collateral Agent
and the Secured Parties agree as follows:
SECTION
1. Definitions .
“
Debtor Party ” shall have the meaning ascribed thereto
in Section 3 of this Agreement.
“
Obligations ” shall mean all obligations and
liabilities of the Issuer and its respective successor and assign
under the June Laurus Documents and the March Investor
Notes.
“
Person ” means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof.
“
Pro Rata Share ” means, when calculating a Secured
Party’s portion of any distribution or amount, on a dollar
for dollar basis in respect of any Obligations at any time, an
amount equal to a fraction, the numerator of which is the then
unpaid principal amount of such Obligations owing to or held by
such Secured Party and the denominator of which is the aggregate
principal amount of all Obligations owing by Issuer to all the
Secured Parties entitled to receive that particular distribution
and amount in accordance with Section 8(a) at such time.
“
Security Interests ” means all security interests,
liens, rights and interests granted by the Issuer and/or any Other
Party for the benefit of any person in the assets of the Issuer
and/or any Other Party.
“
Third Party Priority Security Interests ” means any
Security Interests granted for the benefit of any person (other
than Laurus) that has lien priority over the Security Interests
granted for the benefit of the Investors; provided that
“Third Party Priority Security Interests” shall not
include any Security Interests that have lien priority over those
granted for the benefit of Laurus as senior lender under the June
Laurus Documents.
“ UCC ” means the Uniform Commercial Code as in
effect from time to time.
SECTION
2. Authorization and Action . (a) The Secured Parties hereby
(i) appoint Laurus as the Collateral Agent for purposes of holding,
maintaining and enforcing any and all
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rights and remedies of the
Secured Parties in the Collateral (including, without limitation
(1) the naming of the Collateral Agent, as agent for Secured
Parties, as secured party in all UCC financing statements filed or
to be filed against Issuer and/or any Other Party (“
Financing Statements ”) and (2) the execution of any
and all Financing Statements by the Collateral Agent on behalf and
for the ratable benefit of the Secured Parties) from time to time
granted by Issuer and/or any Other Party to secure the Obligations
and (ii) authorize the Collateral Agent to take such action as
agent on their behalf and to exercise such powers and discretion
under this Agreement and the other Documents as are delegated to
Collateral Agent and/or any Secured Party by the terms hereof and
thereof, together with such other powers and discretion as are
incidental thereto, including, without limitation, acquiring,
holding, and enforcing any and all security interests and liens on
the Collateral granted by the Issuer, any Other Party or any other
Person to secure any Obligations. To secure the payment and
performance of the Obligations, Issuer, Other Parties and Secured
Parties hereby acknowledge, confirm and agree that Collateral Agent
has and shall continue to have for the benefit of the Secured
Parties a continuing security interest in all Collateral heretofore
granted to the Collateral Agent, for the benefit of the Secured
Parties pursuant to the applicable Documents, and, to the extent
not otherwise granted to Collateral Agent, Issuer and Other Parties
hereby assign, pledge and grant to Collateral Agent, for the
ratable benefit of Secured Parties, a continuing security interest
in and to the Collateral.
(b)
The Collateral Agent may from time to time and at its sole
discretion appoint any other Person to act as the Collateral
Agent’s sub-agent for purposes of holding any lien or
security interest granted under the Documents or exercising rights
and remedies thereunder at the direction of the Collateral Agent,
subject to the terms of this Agreement. In this connection, such
sub-agents shall be entitled to the benefits of provisions of this
Agreement as though such sub-agents were the “Collateral
Agent” under this Agreement.
(c)
Notwithstanding any provision to the contrary in the Documents, the
Collateral Agent shall have, with respect to the Issuer and the
Other Parties, the duties and responsibilities expressly set forth
in this Agreement and the other Documents, and no others, and the
Collateral Agent shall not by reason of this Agreement or any other
Document be a trustee for, or have any fiduciary obligations to,
the Issuer or any Other Party, and no implied covenant, functions
or responsibilities shall be read into this Agreement or the other
Documents or otherwise exist against the Collateral
Agent.
(d)
Except as set forth herein, Collateral Agent shall not be required
to exercise any discretion or take any action under any Document.
Following the occurrence and during the continuance of an Event of
Default under and as defined in any applicable Document, Collateral
Agent shall have the exclusive right to declare an Event of Default
under and as defined in the applicable Document following receipt
by Collateral Agent from any Secured Party of a Notice of Default
(as hereinafter defined) and may commence exercising its rights and
remedies under the applicable Documents or under applicable law or
otherwise authorize the requesting Secured Party to take such
action on behalf of Collateral Agent. Notwithstanding anything
contained herein to the contrary, Collateral Agent shall not be
required to take any action which exposes it to personal liability
or that is contrary to any Document or applicable law. For purposes
hereof, the term “Notice of Default” means a notice
delivered by a Secured Party to Collateral Agent stating that an
Event of Default under and as defined in a Document has occurred
and is continuing beyond any applicable cure or grace
period.
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(e)
In performing its functions and duties under this Agreement and the
other Documents, Collateral Agent shall act solely as an agent of
the Secured Parties and does not assume and shall not be deemed to
have assumed any obligation toward or relationship of agency or
trust with or for Issuer, any Other Party or any other Person.
Collateral Agent shall have no duties or responsibilities except
for those expressly set forth in this Agreement. The duties of
Collateral Agent shall be mechanical and administrative in nature
and Collateral Agent shall not have, nor be deemed to have, by
reason of this Agreement, any other Document or otherwise, a
fiduciary relationship in respect of any Secured Party. Except as
expressly set forth in this Agreement, Collateral Agent shall not
have any duty to disclose, and shall not be liable for failure to
disclose, any information relating to Issuer or any Other Party
that is communicated to or obtained by Collateral Agent or any of
its affiliates in any capacity.
(f)
If Collateral Agent shall request instructions from any Secured
Party with respect to any act or action (including failure to act)
in connection with this Agreement or any other Document, Collateral
Agent shall be entitled to refrain from such act or taking such
action unless and until Collateral Agent shall have received
instructions from such Secured Party and Collateral Agent shall not
incur liability to any Person by reason of so refraining.
Collateral Agent shall be fully justified in failing or refusing to
take any action hereunder or under any other Document (i) if such
action would, in the opinion of Collateral Agent, be contrary to
law or the terms of this Agreement or any other Document or (ii) if
Collateral Agent shall not first be indemnified to its reasonable
satisfaction against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such
action. Without limiting the foregoing, no Secured Party shall have
any right of action whatsoever against Collateral Agent as a result
of Collateral Agent’s acting or refraining from acting
hereunder or under any other Document in accordance with the
instructions of the Secured Parties.
(g)
Anything in this Agreement or any other Document to the contrary
notwithstanding, each Secured Party hereby agrees with each other
Secured Party that no Secured Party shall take any action to
protect or enforce its rights arising out of the Documents
(including exercising any rights of setoff) without first obtaining
the prior written consent of Collateral Agent, it being the intent
of
