EXHIBIT 10.1
SECOND AMENDMENT TO AMENDED AND
RESTATED FORBEARANCE
AND MODIFICATION
AGREEMENT
This Second Amendment to Amended and
Restated Forbearance and Modification Agreement (this
“Amendment”) is made as of November 4, 2005 by and
among World Health Alternatives, Inc., a Florida corporation
(“World Health”), Better Solutions, Inc., a
Pennsylvania corporation (“BSI”), JC Nationwide, Inc.
(f/k/a MedTech Medical Staffing of Boca Raton, Inc.), a Delaware
corporation (“JC”), MedTech Medical Staffing of New
England, Inc., a Delaware corporation (“MedTech
Medical”), MedTech Franchising, Inc., a Delaware corporation
(“MedTech Franchising”), World Health Staffing, Inc., a
California corporation (“World Health California”),
World Health Staffing, Inc. (f/k/a MedTech Medical Staffing of
Orlando, Inc.), a Delaware corporation (“World Health
Delaware”; World Health, BSI, JC, MedTech Medical, MedTech
Franchising, World Health California and World Health Delaware are
referred to herein individually and collectively, as
“Borrower”), and CapitalSource Finance LLC, a Delaware
limited liability company (“Lender”).
R E C I T A L S
:
WHEREAS, Borrower and Lender are
parties to that certain Amended and Restated Forbearance and
Modification Agreement, dated as of September 15, 2005 (as amended
and modified from time to time, the “Forbearance
Agreement”); and
WHEREAS, Borrower and Lender desire
to amend the Forbearance Agreement as set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties
hereto agree as follows:
1. Definitions; Recitals
. All capitalized terms used but not elsewhere defined in this
Amendment shall have the respective meanings ascribed to such terms
in the Forbearance Agreement, as amended hereby. The recitals set
forth above are incorporated herein by this reference thereto as
though fully set forth below.
2. Amendment to Section
1.4 . Section 1.4 of the Forbearance Agreement is hereby
amended to delete the date “November 4, 2005” where it
appears therein and insert in substitution therefor the date
“November 18, 2005”.
3. Amendment to Section
2.5 . Section 2.5 of the Forbearance Agreement is hereby
amended in its entirety to read as follows:
“2.5. In response to
Borrower’s request, Lender is willing to forebear until the
Forbearance Termination Date from exercising its rights and
remedies under the Loan Documents and under applicable law as a
result of the existence of the Designated Defaults provided that
such forbearance is on the terms and conditions set forth in this
Agreement (and, for the sake of clarity, in no event shall such
forbearance extend beyond November 18, 2005) and, further provided,
that such forbearance does not waive the Designated Defaults or any
other default or Event of Default that has arisen or may arise in
the future or otherwise prejudice the rights and remedies of
Lender.”
4. Amendment to Section 5(g)
of the Forbearance Agreement . Section 5(g) of Forbearance
Agreement is hereby amended in its entirety to read as
follows:
“g. Borrower shall pay to
Lender a non-refundable forbearance fee (which shall be deemed
fully earned as of the date of this Agreement) in the amount of
$1,750,000 (which shall be in addition to the $450,000 fee payable
under the Forbearance Agreement, which has been fully earned),
$1,000,000 of which has been paid and the balance of which shall be
paid on November 4, 2005. In addition, Borrower shall pay to Lender
on November 4, 2005, the Finance Fee (as defined in the Credit
Agreement).”
5. Amendments to Section 5(i)
of the Forbearance Agreement .
Subsection (iv) of Section 5(i) of
the Forbearance Agreement is hereby amended by deleting the
reference to the date “November 15, 2005” where it
appears therein and inserting in substitution therefore the date
“November 7, 2005.”
6. Amendment to Section 5(k)
of the Forbearance Agreement . Section 5(k) of the
Forbearance Agreement is hereby deleted in its entirety.
7. Amendment to Section 6.8 of
the Forbearance Agreement . Section 6.8 of the Forbearance
Agreement is hereby deleted in its entirety. Borrower agrees to use
its best efforts to obtain prior to November 18, 2005, an executed
agreement with the Internal Revenue Service providing for payment
of all unpaid taxes in installments on terms acceptable to Lender
in its Permitted Discretion.
8. Cash Flow Forecast
. The parties agree that the Cash Flow Forecast attached hereto as
Exhibit A shall be substituted for the existing Cash Flow Forecast
for the period from the date of this Amendment to the Forbearance
Termination Date.
9. Costs and Expenses
. Borrower agrees to reimburse Lender for all out of pocket
costs and expenses incurred in the preparation, negotiation and
execution of this Amendment and the consummation of the
transactions contemplated hereby, including, without limitation,
the expenses and fees of counsel for Lender.
10. Ratification of Existing
Agreements . Borrower reaffirms all of the terms,
conditions, representations and warranties under the Loan Documents
and the Forbearance Agreement (except as expressly set forth in the
Forbearance Agreement and herein) and acknowledges that all of the
Obligations are, by execution of this Amendment, ratified and
confirmed in all respects by Borrower. Borrower further reaffirms
the grant of all liens and security interests under the Loan
Documents and notwithstanding the execution and delivery of this
Amendment, the Loan Documents and the Forbearance Agreement remain
in full force and effect and the rights and remedies of Lender
thereunder and the liens and security interests created and
provided thereunder remain in full force and effect and shall not
be affected or impaired hereby.
11. No Waiver by Lender
. Lender shall not be deemed to have waived any or all of its
rights or remedies with respect to any default or event or
condition which, with notice or the lapse of time, or both, would
become
