EXHBIT 10.41
AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT
AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT, dated as of November
29, 2005 (this " to that certain Note and
Warrant Purchase
Agreement, dated
as
of March 31, 2004 (the " Purchase
Agreement")
as amended by the
amendments and
waivers hereinafter referred to, by and among Advanced Aesthetics, Inc., a
Delaware corporation (the "Parent") and each of Anushka
PBG Acquisition
Sub,
LLC, a Delaware limited liability company ( PBG") Anushka
Boca Acquisition Sub,
LLC, a Delaware limited liability company ( Boca") Wild Hare
Acquisition Sub,
LLC, a Delaware limited liability company ( Hare Acquisition") DiSchino
Corporation, a Florida corporation
("DiSchino"), and Advanced K, LLC, a Delaware
limited liability company ( K, LLC each of
Advanced K, LLC, Anushka PBG, Anushka
Boca, Wild Hare Acquisition and DiSchino being herein called a " the
Co-Borrowers and the Parent being herein
collectively
called the
"Obligors"),
Technology Investment Capital Corp., a
Maryland corporation, as Collateral Agent
and Purchaser (for the purposes of this
Amendment, the "Purchaser").
RECITALS
A. Pursuant to the Original Purchase Agreement, the Purchaser
agreed to
purchase, subject to the satisfaction of certain conditions, senior secured
promissory notes due 2009 of the
Co-Borrowers (the "Note' in a maximum aggregate
principal amount of $10,000,000.
B. Pursuant to amendments dated May 30, 2004, June 29, 2004,
September
30, 2004, March 15, 2005 and July 11, 2005,
a Limited Waiver and Amendment dated
February 23, 2005, a Waiver and Amendment dated as of August 30, 2005 and
a
Limited Waiver and Amendment dated as of
October 26, 2005
(collectively, the
"
certain amendments were made to the Original
Purchase Agreement and certain
obligations under the Original Purchase
Agreement were waived
by the Purchaser.
(The Original Purchase Agreement as amended by the
Amendments is
hereinafter
referred to as the " Purchase Agreement" Capitalized terms used herein
without
definition shall have the respective
meanings ascribed to them in the
Existing
Purchase Agreement.
C. The Obligors have requested, and the Purchaser has agreed,
to make
certain amendments to the Existing Purchase
Agreement, subject to payment by the
Co-Borrowers to the Purchaser of a fully
earned and non-refundable amendment fee
in the amount of $100,000.
NOW, THEREFORE,
in consideration of the foregoing recitals and the
mutual covenants and agreements contained herein, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
1. Amendment
to Section
7.1 Section 7.1 of the Existing Purchase
Agreement is hereby deleted in its entirety
and there is hereby inserted in lieu
thereof the following new Section 7.1:
<PAGE>
7.1 Minimum
Consolidated EBITDA.
The Co-Borrowers shall not,
at the end of any fiscal quarter, permit Consolidated EBITDA for the
four fiscal quarters
ended on such date to be less than the amount set
forth below for such period:
Four Fiscal Quarters Ended
Minimum Consolidated EBITDA
December 31, 2006
$6,000,000
March 31, 2007 and each fiscal $6,500,000
quarter thereafter
2. Amendment to Section 7.2 Section 7.2 of the Existing Purchase
Agreement is hereby deleted in its entirety
and there is hereby inserted in lieu
thereof the following new Section 7.2:
7.2 Consolidated Total
Debt to Consolidated
EBITDA. For each
fiscal quarter,
commencing June 30, 2006, the Co-Borrowers shall not
permit the ratio of Consolidated Total Debt to Consolidated
EBITDA as
of the end of any fiscal quarter set forth below to be greater than
the
ratio set forth below:
Four Fiscal Quarters Ended
Consolidated Total Debt to
Consolidated EBITDA Ratio
December 3l,2006
2.25 to 1.00
March 31, 2007 and each fiscal
2.00 to 1.00
quarter thereafter
3. Amendment
to Section
7.3 Section 7.3 of the Existing Purchase
Agreement is hereby deleted in its entirety
and there is hereby inserted in lieu
thereof the following new Section 7.3:
7.3 Consolidated Senior Debt Ratio. The Co-Borrowers shall not
permit the
Consolidated Senior
Debt ratio as of the end of any fiscal
quarter set forth below to be greater than the ratio set forth
below:
Fiscal Quarter Ended
Minimum Consolidated Senior Debt Ratio
December 31, 2006 and each fiscal
2.00 to
1.00
quarter thereafter
4. Amendment
to Section
7.4 Section 7.4 of the Existing Purchase
Agreement is hereby deleted in its entirety
and there is hereby inserted in lieu
thereof the following new Section 7.4:
-2-
<PAGE>
7.4 Minimum Unit EBITDA. The Co-Borrowers shall not, at the
end of any
fiscal quarter, permit Unit EBITDAR for any fiscal
quarter to be less than the
amount set forth below for such fiscal
quarter:
Fiscal Quarter Ended
Minimum Unit EBITDAR
December 31, 2005
$1,860,000
March 31, 2006
$2,340,000
June 30, 2006
$2,630,000
September 30, 2006
$2,890,000
December 31, 2006 and each fiscal quarter
thereafter
$2,500,000
5. Amendment
to Section
7.5 Section 7.5 of the Existing Purchase
Agreement is hereby deleted in its entirety
and there is hereby inserted in lieu
thereof the following new Section 7.5:
7.5 Minimum Unit Fixed Charge Ratio. The Co-Borrowers shall
not permit the Unit
Fixed Charge
Ratio for any fiscal
quarter to be
less than the amount set forth below for such fiscal quarter:
Fiscal Quarter Ended
Minimum Unit Fixed Charge Coverage Ratio
December 31, 2005
120 to 1.00
March3l, 2006
1.60 to 1.00
June 30, 2006
1.80 to 1.00
September 30, 2006
1.90 to 1.00
December 31,2006 and each
2.50 to 1.00
fiscal quarter thereafter
6. Addition
of Section 7.6 There
is hereby inserted in
the Existing
Purchase Agreement a new Section 7.6
immediately following
Section 7.5 thereof,
as follows:
7.6 Minimum Unrestricted Cash Balance. Commencing on the date
(if any) on which the Subscription Payments (as such term is
defined in
the North Sound Escrow
Agreement referred to belo
