THIRD AMENDMENT TO WAIVER AND FORBEARANCE AGREEMENT
Exhibit
4.2
THIRD
AMENDMENT TO WAIVER AND FORBEARANCE AGREEMENT
THIS
THIRD AMENDMENT TO WAIVER AND FORBEARANCE AGREEMENT is made on November 12, 2010
(this “Agreement”),
by and between Bison Capital Equity Partners II-A, L.P., a Delaware limited
partnership, and Bison Capital Equity Partners II-B, L.P., a Delaware limited
partnership (collectively, “Purchaser”),
on the one hand, and The Center for Wound Healing, Inc., a Nevada corporation
(the “Company”),
on the other hand. Any capitalized term used but not otherwise
defined herein shall have the same meaning as set forth in either the Waiver and
Forbearance Agreement dated as of May 24, 2010 by and between Purchaser and the
Company, as amended by that First Amendment to Waiver and Forbearance Agreement
dated September 17, 2010 and Second Amendment to Waiver and Forbearance
Agreement dated October 13, 2010 (as amended from time to time, the “Forbearance
Agreement”) or the Securities Purchase Agreement dated as of March 31,
2008 by and between Purchaser and the Company, as amended by the First Amendment
to Securities Purchase Agreement dated as of April 16, 2009, the Second
Amendment to Securities Purchase Agreement dated February 12, 2010, the Third
Amendment to Securities Purchase Agreement dated May 24, 2010, the Fourth
Amendment to Securities Purchase Agreement dated September 17, 2010, the Fifth
Amendment to Securities Purchase Agreement dated October 13, 2010 and the Sixth
Amendment to Securities Purchase Agreement dated as of even date herewith (as
otherwise amended, the “Securities
Purchase Agreement”).
WHEREAS,
Purchaser and the Company entered into the Forbearance Agreement whereby, among
other things, Purchaser agreed to forbear from accelerating the Obligations as a
result of a breach of the EBITDA Covenant and Consolidated Leverage Ratio
Covenant during the Forbearance Period; and
WHEREAS,
the parties now desire to amend the Forbearance Agreement on the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Section 2
of the Forbearance Agreement is hereby amended so that "September 30, 2010" is
inserted in lieu of "June 30, 2010".
2. Subsection
(a) of Section 3 of the Forbearance Agreement is hereby amended so that "October
1, 2011" is inserted in lieu of " July 1, 2011".
3. In
partial consideration of Purchaser’s agreement to enter into this Agreement, the
Company shall pay to Purchaser, prior to the effectiveness of this Agreement,
all attorneys’ fees and other Purchaser's Expenses incurred by or on behalf of
Purchaser pursuant to, in respect of or otherwise in connection with this
Agreement.
4. Each of
the Company, its subsidiaries, affiliates, officers, directors and
representatives (together, the “Releasing
Parties” it being understood that none of the Purchaser or its current or
former agents, employees, officers, directors, owners, limited partners or
general partners is a Releasing Party) fully releases and discharges forever
Purchaser and its current and former agents, employees, officers, directors,
owners, limited partners, general partners, representatives, attorneys, assigns,
successors, and affiliated organizations (hereafter referred to collectively as
the “Released
Parties”, it being understood that none of the Company or its
subsidiaries is a Released Party), and each and all of them, from any and all
liabilities, claims, causes of action, charges, complaints, obligations, costs,
losses, damages, injuries, attorneys’ fees, and other legal responsibilities, of
any form whatsoever, whether known or unknown, unforeseen, unanticipated,
unsuspected or latent, which the Releasing Parties have incurred or expect to
incur, or now own or hold, or have at any time heretofore owned or held, or may
at any time own, hold, or claim to hold by reason of any matter or thing arising
from any cause whatsoever prior to the date of this Agreement. This
Agreement does not purport to release claims that cannot be released as a matter
of law.
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Each
Releasing Party acknowledges and intends that the Released Parties are being
released from unknown and unforeseen claims to the fullest extent permitted by
law and each Releasing Party waives any defenses based thereon. Each
Releasing Party expressly waives and relinquishes all rights and benefits that
the Releasing Party may have under any statute or other applicable law
comparable to Section 1542 of the California Civil Code, which Section 1542 is
intended to protect against an inadvertent release of unknown or unsuspected
claims, and reads as follows:
“Section
1542. [General Release; extent.] A general release does not extend to claims
which the creditor does not know or suspect to exist in his or her favor at the
time of executing the release, which if known by him or her must have materially
affected his or her settlement with the debtor.”
Each
Releasing Party, being aware of said Section 1542, hereby expressly waives any
rights the Releasing Party may have under any statutes, other applicable law or
common law principles of similar effect, with respect to the claims purported to
be released hereby.
Each
Releasing Party covenants and agrees never to commence, prosecute or assist in
any way, or cause, permit or advise to be commenced or prosecuted, any action,
proceeding, or discovery against any Released Party based on any released
claim.
Each
Releasing Party agrees to indemnify and hold Purchaser and the other persons and
entities released by this Agreement harmless from and against any and all claims
arising from or in connection with any action or proceeding brought by it or for
its benefit or on its initiative contrary to the provisions of this
Agreement. This Agreement shall be deemed breached and a cause of
action shall accrue immediately upon the commencement of any action or
proceeding contrary to this Agreement, and in any such action or proceeding this
Agreement may be pleaded as a defense by any person or entity released by this
Agreement, or may be asserted by way of cross-complaint, counterclaim or
cross-claim in any such action or proceeding.
5. This
Agreement shall not be effective until the date upon which Purchaser receives
each of the following (in each case in form and substance satisfactory
to Purchaser):
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(a) counterparts
of this Agreement, duly executed by the Company;
(b) the
Consent of Guarantors, in the form attached hereto as Exhibit A, duly
executed by each of Guarantor listed on the signature pages
thereto;
(c) a
consent, in the form attached hereto as Exhibit B, with
respect to the execution, delivery and performance of this Agreement, duly
executed by Senior Lender; and
(d) all
attorneys’ fees and other Purchaser's Expenses incurred by or on behalf of
Purchaser pursuant to, in respect of or otherwise in connection with this
Agreement.
6. This
Agreement amends the Forbearance Agreement and all references to the Forbearance
Agreement shall be deemed to incorporate this Agreement. Except as
specifically set forth herein, all other terms and conditions of the Forbearance
Agreement and other Transaction Documents shall remain in full force and effect
and shall not be affected by this Agreement.
7. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original as against any party whose signature appears hereon,
and all of which shall together constitute one and the same
instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories.
8. Sections 14.5, 14.6, 14.7 and 14.8 of the
Securities Purchase Agreement are hereby incorporated by reference and made a
part of this Agreement mutatis
mutandis, except that the references therein to “this Agreement” shall
include this Agreement.
9. The
Company confirms and agrees that this Agreement shall constitute a Transaction
Document under the Securities Purchase Agreement. Accordingly, it
shall be an Event of Default under the Securities Purchase Agreement if any
representation or warranty made or deemed made by the Company under or in
connection with this Agreement shall have been incorrect in any material respect
when made or deemed made or if the Company fails to perform or comply with any
covenant or agreement contained herein.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have each caused this Agreement to be duly
signed as of the date first above written.
| BISON CAPITAL EQUITY PARTNERS II-A, L.P. | |||
| By: BISON CAPITAL PARTNERS II, LLC, its general partner | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxxx | |||
| Title: Managing Member | |||
| BISON CAPITAL EQUITY PARTNERS II-B, L.P. | |||
| By: BISON CAPITAL PARTNERS II, LLC, its general partner | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | |||
| Title: Managing Member | |||
| THE CENTER FOR WOUND HEALING, INC. | |||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | ||
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Chief Executive Officer | |||
Signature
Page to Third Amendment To Waiver and Forbearance Agreement
Exhibit
A
Consent of
Guarantors
This
Consent of Guarantors (this “Consent”)
is delivered to Bison Capital Equity Partners II-A, L.P., a Delaware limited
partnership and Bison Capital Equity Partners II-B, L.P., a Delaware limited
partnership (collectively, “Purchaser”)
with reference to that certain Securities Purchase Agreement dated as of March
31, 2008 by and between Purchaser and the Company, as amended by the First
Amendment to Securities Purchase Agreement dated as of April 16, 2009, the
Second Amendment to Securities Purchase Agreement dated February 12, 2010, the
Third Amendment to Securities Purchase Agreement dated May 24, 2010, the Fourth
Amendment to Securities Purchase Agreement dated September 17, 2010, the Fifth
Amendment to Securities Purchase Agreement dated October 13, 2010 and the Sixth
Amendment to Securities Purchase Agreement dated as of even date herewith (as
otherwise amended, the “Securities
Purchase Agreement”) among Subordinated Lender and The Center for Wound
Healing, Inc., a Nevada corporation (the “Company”). Capitalized
terms used in this Consent, and not otherwise defined, are used with the
meanings set forth for those terms in the Securities Purchase
Agreement.
Each of
the undersigned hereby (a) ratifies and reaffirms all of its obligations to
Purchaser under the Transaction Documents to which it is a party, (b) consents
to the execution and delivery by the Company of the Third Amendment To Waiver
and Forbearance Agreement dated as of November 12, 2010 (the “Agreement”),
between Purchaser and the Company, and (c) confirms that each of the Transaction
Documents to which it is a party remains in full force and
effect. Each of the undersigned agrees that the execution of this
Consent is not necessary for the continued validity and enforceability of the
Transaction Documents, but is executed in order to induce Purchaser to enter
into the Agreement.
[signature
page follows]
Exhibit A
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IN
WITNESS WHEREOF, each of the undersigned, intending to be legally bound hereby,
has caused this Consent of Guarantors to be executed as of the date of the
Agreement.
|
NEW
YORK HYPERBARIC AND WOUND CARE CENTERS, L.L.C.
CFWH
(NEW JERSEY) LLC
CFWH
(NEW YORK) LLC
CFWH
(DELAWARE), LLC
CFWH
(PENNSYLVANIA), LLC
CFWH
(MASSACHUSETTS), LLC
THE
SQUARE HYPERBARIC, LLC
|
|||
| By their managers/members | |||
| THE CENTER FOR WOUND HEALING, INC. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Xxxxxx X. Xxxxxxx | |||
| Chief Executive Officer | |||
| THE CENTER FOR WOUND HEALING, INC. | |||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | ||
| Xxxxxx X. Xxxxxxx | |||
| Chief Executive Officer | |||
Exhibit A
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Exhibit
B
Consent of Senior
Lender
CONSENT
OF SENIOR LENDER
This
Consent of Senior Lender (this “Consent”)
is delivered to Bison Capital Equity Partners II-A, L.P., a Delaware limited
partnership and Bison Capital Equity Partners II-B, L.P., a Delaware limited
partnership (collectively, “Subordinated
Lender”) and The Center for Wound Healing, Inc., a Nevada corporation
(the “Company”)
with reference to that certain Subordination and Intercreditor Agreement dated
of as March 31, 2008 (as amended or otherwise modified, the “Subordination
Agreement”), among Subordinated Lender, the Company, and Signature Bank
(“Senior
Lender”). Senior Lender has been provided with a copy of that
certain Third Amendment To Waiver and Forbearance Agreement dated as of November
2, 2010 (the “Agreement”),
among Subordinated Lender and the Company. Capitalized terms used in
this Consent, and not otherwise defined, are used with the meanings set forth
for those terms in the Agreement and/or the Waiver and Forbearance Agreement
dated as of May 24, 2010 by and between Purchaser and the Company, as amended by
that First Amendment to Waiver and Forbearance Agreement dated September 17,
2010, Second Amendment to Waiver and Forbearance Agreement dated October 13,
2010 and the Agreement (as amended from time to time, the “Forbearance
Agreement”).
Notwithstanding
any contrary terms contained in the Subordination Agreement, Senior Lender
hereby consents to the Agreement.
[signature
page follows]
Exhibit B
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IN WITNESS WHEREOF, the undersigned,
intending to be legally bound hereby, has caused this Consent of Senior Lender
to be executed as of the date of the Agreement.
| SIGNATURE BANK | |||||
| By: |
/s/
Xxxx Xxxxxx
|
||||
|
Name:
Xxxx Xxxxxx
|
|
||||
|
Title:
Vice President and Senior Lender
|
|
||||
Exhibit B
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