THIRD AMENDMENT TO NOTE AND WARRANT PURCHASE AND SECURITY AGREEMENT
Exhibit 10.1
THIRD AMENDMENT TO NOTE AND WARRANT PURCHASE AND SECURITY AGREEMENT
This Third Amendment to Note and Warrant Purchase and Security Agreement (this “Amendment”) is entered into as of June 30, 2022, by and among NH EXPANSION CREDIT FUND HOLDINGS LP (“North Haven Expansion”), as agent (in such capacity, together with its successors or permitted assigns, “Agent”),
the Holders from time to time signatory to the NPA (as hereinafter defined), including North Haven Expansion (each, a “Holder” and collectively, the “Holders”), and SANUWAVE HEALTH, INC. a Nevada corporation (“Issuer”).
RECITALS
WHEREAS, Issuer, Agent and the Holders are parties to that certain Note and Warrant Purchase and Security Agreement dated as of August 6, 2020 (as
amended, restated, amended and restated, supplemented or otherwise modified from time to time, including but not limited to that certain Second Amendment to Note and Warrant Purchase and Security Agreement dated as of February 25, 2022 (the “Second Amendment”), the “NPA”).
WHEREAS, Issuer is in default of the NPA as described in the Second Amendment;
WHEREAS, Issuer has requested that Agent and the Holders amend the NPA (and the Second Amendment) to (i) cause the Advisor Shares to be registered on
Form S-1, and thereafter freely tradeable, no later than August 30, 2022, and (ii) cause to be filed with the Securities and Exchange Commission (“SEC”) no later than August 30, 2022, a Registration Statement on Form S-1 for the resale of the Advisor
Shares;
WHEREAS, Agent and the Holders have agreed to so amend certain provisions of the NPA and the Second Amendment, and to continue to forbear from
exercising Agent’s and the Holders’ rights and remedies during the Forbearance Period (as defined in the Second Amendment), but only to the extent in accordance with the terms, subject to the conditions and in reliance upon the representations and
warranties set forth therein and below; and
WHEREAS, all terms not otherwise defined herein and defined in the NPA shall have the same meanings herein as in the NPA.
NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:
1. The Existing Defaults, as defined in the Second
Amendment, continue uncured and unwaived. Subject to the terms of the Second Amendment and this Amendment, Agent and the Holders shall forbear from exercising their remedies arising out of the Existing Defaults from the date hereof (including, for
the avoidance of doubt, the collection in cash or payment in kind of the Default Rate on the outstanding Obligations under the NPA and the other Note Documents), until the earlier to occur of (x) the occurrence of an Event of Default after the date
hereof, at which time Agent and the Holders may exercise any and all rights available to them without notice to Issuer; or (y) August 30, 2022. Agent and the Holders do not forbear from exercising their remedies arising out of any other Events of
Default that have occurred, are continuing or may occur on or after the Second Amendment Effective Date. Issuer shall comply with all other provisions of the NPA and the other Note Documents.
2. Section
13.4 of the Second Amendment hereby is amended and restated in its entirety to read as follows:
“13.4. The Advisor Shares, by no later than
March 4, 2022; provided that Issuer shall cause the Advisor Shares to be registered on Form S-1, and thereafter freely tradeable, no later than August 30, 2022, provided that Issuer shall cause to be filed with the Securities and Exchange
Commission (“SEC”) no later than August 30, 2022, a Registration Statement on Form S-1 for the resale of the Advisor Shares, and shall use its best efforts to have the Form S-1 declared effective by the SEC as soon as possible thereafter.”
3. No course of dealing on the part of Agent or the
Holders or their respective officers, nor any failure or delay in the exercise of any right by Agent or the Holders, shall operate as a waiver thereof, and any single or partial exercise of any such right shall not preclude any later
exercise of any such right except as specially waived herein. Except as specifically waived herein, Agent’s or any Holder’s failure at any time to require strict compliance by Issuer of any provision under the NPA, shall not affect any right of Agent
or the Holders under the NPA thereafter to demand strict compliance. Any suspension or waiver of a right must be in writing signed by an officer of Agent or the Holders, as applicable.
4. The NPA, as amended hereby, shall be and remain in
full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver
of, or as an amendment of, any right, power, or remedy of Agent or the Holders under the NPA, as in effect prior to the date hereof.
5. Issuer hereby represents and warrants that (a) the
representations and warranties in the NPA, shall be true, accurate, and complete in all material respects immediately after giving effect to this Amendment; provided,
that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof, which representations and warranties shall be true, accurate and complete
immediately after giving effect to this Amendment in all respects subject to such qualification; and provided, further, that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (b) other than the Existing Defaults, no Default or
Event of Default shall have occurred and be continuing immediately after giving effect to this Amendment, (c) Issuer has the power and authority to execute and deliver this Amendment and to perform its obligations under the NPA, as amended by this
Amendment, (d) the execution and delivery by Issuer of this Amendment and the performance by Issuer of its obligations under the NPA, as amended by this Amendment, have been duly authorized by Issuer, (e) the execution and delivery by Issuer of
this Amendment and the performance by Issuer of its obligations under the NPA, as amended by this Amendment, do not and will not contravene (i) any law or regulation binding on or affecting Issuer, (ii) any contractual restriction with a Person
binding on Issuer, (iii) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Issuer, or (iv) the organizational documents of Issuer, (f) the execution and delivery by
Issuer of this Amendment and the performance by Issuer of its obligations under the NPA, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with,
or exemption by any governmental or public body or authority, or subdivision thereof, binding on Issuer, except as already has been obtained or made, and (g) this Amendment has been duly executed and delivered by Issuer and is the binding
obligation of Issuer, enforceable against Issuer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and
equitable principles relating to or affecting creditors’ rights.
6. Release by Issuer.
A. FOR GOOD AND VALUABLE
CONSIDERATION, Issuer hereby forever relieves, releases, and discharges Agent, the Holders and their respective present or former employees, officers, directors, agents, representatives, attorneys, and each of them, from any and all claims, debts,
liabilities, demands, obligations, promises, acts, agreements, costs and expenses, actions and causes of action, of every type, kind, nature, description or character whatsoever, whether known or unknown, suspected or unsuspected, absolute or
contingent, arising out of or in any manner whatsoever connected with or related to facts, circumstances, issues, controversies or claims existing or arising from the beginning of time through and including the date of execution of this Amendment
(collectively, the “Released Claims”). Without limiting the foregoing, the Released Claims shall include any and all liabilities or claims arising out of or in
any manner whatsoever connected with or related to the Note Documents, the recitals hereto, any instruments, agreements or documents executed in connection with any of the foregoing or the origination, negotiation, administration, servicing and/or
enforcement of any of the foregoing, in each case existing or arising on or prior to the date of this Amendment.
B. In furtherance of this
release, Issuer expressly acknowledges and waives any and all rights under Section 1542 of the California Civil Code (or its equivalent under New York law), which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his
or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
C. By entering into this release,
Issuer recognizes that no facts or representations are ever absolutely certain and it may hereafter discover facts in addition to or different from those which it presently knows or believes to be true, but that it is the intention of Issuer hereby
to fully, finally and forever settle and release all matters, disputes and differences, known or unknown, suspected or unsuspected; accordingly, if Issuer should subsequently discover that any fact that it relied upon in entering into this release
was untrue, or that any understanding of the facts was incorrect, Issuer shall not be entitled to set aside this release by reason thereof, regardless of any claim of mistake of fact or law or any other circumstances whatsoever. Issuer acknowledges
that it is not relying upon and has not relied upon any representation or statement made by Agent or the Holders with respect to the facts underlying this release or with regard to any of such party’s rights or asserted rights.
D. This release may be pleaded as a
full and complete defense and/or as a cross-complaint or counterclaim against any action, suit, or other proceeding that may be instituted, prosecuted or attempted in breach of this release. Issuer acknowledges that the release contained herein
constitutes a material inducement to Agent and the Holders to enter into this Amendment, and that Agent and the Holders would not have done so but for their expectation that such release is valid and enforceable in all events.
E. Issuer hereby represents and
warrants to Agent and the Holders, and Agent and the Holders are relying thereon, as follows:
1. Except as expressly stated in this
Amendment, neither Agent or the Holders nor any agent, employee or representative of Agent or the Holders has made any statement or representation to Issuer regarding any fact relied upon by Issuer in entering into this Amendment.
2. Issuer has made such investigation
of the facts pertaining to this Amendment and all of the matters appertaining thereto, as it deems necessary.
3. The terms of this Amendment are contractual and not a mere recital.
4. This Amendment has been carefully
read by Issuer, the contents hereof are known and understood by Issuer, and this Amendment is signed freely, and without duress, by Issuer.
5. Issuer hereby represents and
warrants that it is the sole and lawful owner of all right, title and interest in and to every claim and every other matter which it releases herein, and that it has not heretofore assigned or transferred, or purported to assign or transfer, to any
person, firm or entity any claims or other matters herein released. Issuer shall indemnify, defend and hold harmless Agent and Holders from and against all claims based upon or arising in connection with prior assignments or purported assignments
or transfers of any claims or matters released herein.
7. As a condition to the effectiveness of this
Amendment, Agent shall have received, in form and substance reasonably satisfactory to Agent, the following:
(a) this Amendment, duly executed by Issuer;
(b) a completed Issuer Resolutions
and Incumbency, with all exhibits, as of the date of this Amendment, in substantially the form attached hereto;
(c) all Holder Expenses incurred
through the date of this Amendment, which shall be wired to Agent’s and Holder’s counsel on the date hereof in accordance with the wire instructions attached hereto as Supplement I; and
(d) such other documents, and
completion of such other matters, as Agent or Holder may reasonably deem necessary or appropriate.
8. Section
10 of the NPA hereby is incorporated herein by this reference as though fully set forth herein.
9. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which, when executed and delivered, are an original, and all taken together, constitute one Amendment.
[Balance of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.
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COMPANY:
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By: /s/ Xxxxx X. Xxxxxxxxxx XX
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Name: Xxxxx X. Xxxxxxxxxx XX
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Title: CEO & Chairman
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[Signature Page to Third Amendment to Note and Warrant Purchase and Security Agreement] [Signatures Continued, Next Page]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.
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AGENT AND HOLDER:
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NH EXPANSION CREDIT FUND HOLDINGS LP
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By: MS Expansion Credit GP, L.P.
Its: General Partner
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By: MS Expansion Credit GP Inc.
Its: General Partner
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By: /s/ Xxxxxxx Xxxxxxx
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| Name: Xxxxxxx Xxxxxxx | |
| Title: Managing Director |
[Signature Page to Third Amendment to Note and Warrant Purchase and Security Agreement]
