EXHIBIT 10.1
FIFTH AMENDMENT TO AMENDED AND
RESTATED FORBEARANCE
AND MODIFICATION
AGREEMENT
This Fifth Amendment to Amended and
Restated Forbearance and Modification Agreement (this
“Amendment”) is made as of December 23, 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 “December 23,
2005” where it appears therein and insert in substitution
therefor the date “January 6, 2006”.
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 January 6, 2006) 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.”
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4. IRS, Landlords
Agreements . Borrower agrees to use its best efforts to
obtain, prior to January 6, 2006, 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. Borrower shall obtain prior to
January 6, 2006, executed Landlords Agreements as required
under the Loan Documents from the lessors of the real properties
listed on Exhibit B attached hereto, in form acceptable to
Lender.
5. Cash Flow Forecast
. The parties agree that the Cash Flow Forecast attached hereto
as Exhibit A shall constitute the Cash Flow Forecast for the period
from the date of this Amendment to the Forbearance Termination
Date.
6. Costs and Expenses
. In consideration of the extension of the term of the
forbearance, 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.
7. Ratification of Existing
Agreements . Borrower reaffirms all of the terms,
conditions, representations and warranties under the Loan Documents
and the Forbearance Agreement 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.
8. 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 a default under the Loan Documents and which upon
Borrower’s execution and delivery of this Amendment might
otherwise exist or which might hereafter occur. The failure of
Lender at any time or times hereafter to require strict performance
by Borrower of any of the provisions, warranties, terms and
conditions contained herein, in the Forbearance Agreement or in the
Loan Documents shall not waive, affect or diminish any right of
Lender at any time or times thereafter to demand strict performance
thereof; and, no rights of Lende
