First Amendment to Intercreditor and Subordination Agreement
Exhibit 10.3
First Amendment to Intercreditor and Subordination Agreement
This FIRST AMENDMENT TO INTERCREDITOR AND SUBORDINATION AGREEMENT (“First Amendment”), dated as of October [___], 2016, by and among the holders of the Company’s Series E Preferred Stock (the “Series E Holders”) and the holders of the Company’s Series H Preferred Stock (“Series H Holders”), Amarantus Bioscience Holdings, Inc. (the “Company”), all of the subsidiaries of the Company (such subsidiaries, the “Subsidiaries”, the Company jointly and severally, together with their respective successors and assigns, collectively, the “Debtors”), GEMG LLC (“GEMG”), ANSON INVESTMENTS MASTER FUND LP (“Anson”), DOMINION CAPITAL, LLC, (“Dominion”) and DELAFIELD INVESTMENTS LIMITED (“Delafield”) the holders (collectively, the “April 2016 Holders”) of the Company’s 12% OID Senior Secured Convertible Promissory Notes, in the original aggregate principal amount of $4,000,000 pursuant to the Senior Loan Agreement, Delafield in its capacity as collateral agent (in such capacity, the “Collateral Agent”) and ▇▇▇▇▇▇▇▇ Membership LLC and Xpress Group International Limited.
W I T N E S S E T H:
WHEREAS, Series E Holders, Series H Holders, the Debtors, GEMG, Anson, Dominion, Delafield, the April 2016 Holders and Delafield, in its capacity as collateral agent, are party to that certain Intercreditor and Subordination Agreement dated as of April 14, 2016 (the “April 2016 Intercreditor Agreement”);
WHEREAS, the Company desires to obtain new financing from Xpress Group International Limited (“Xpress”) and ▇▇▇▇▇▇▇▇ Membership LLC (“▇▇▇▇▇▇▇▇”; together with Xpress, collectively, the “October 2016 Holders”) in the aggregate principal amount of $250,000, on the terms set forth in that certain Securities Purchase Agreement dated as of October [___] 2016 by and among the Company and the October 2016 Holders, which financing shall be secured by shares owned by the Company in Avant Diagnostics, Inc. (the “Avant Common Stock”) pursuant to a Pledge Agreement dated October [___] 2016;
WHEREAS, the parties to the April 2016 Intercreditor Agreement wish to amend the April 2016 Inercreditor Agreement to, among other things, add the October ▇▇▇▇ ▇▇▇▇▇▇▇ as parties to the April 2016 Intercreditor Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have them meaning ascribed to them in the April 2016 Intercreditor Agreement.
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2. Amendments. The following specific provisions of the April 2016 Intercreditor Agreement are hereby amended as follows:
(a) The definition of “Senior Loan Agreement” is hereby deleted and restated as follows:
“Senior Loan Agreement” means the Securities Purchase Agreement dated as of July 9, 2015 among the Company, and GEMG, as the same may be amended, modified or supplemented from time to time, including, without limitation, amendments, modifications, supplements and restatements thereof giving effect to increases, renewals, extensions, refundings, deferrals, restructurings, replacements or refinancings of, or additions to, the arrangements provided in such Loan Agreement (whether provided by GEMG or a successor thereto or other lenders).
(b) The definition of “Subordinated Lenders” is hereby amended to include ▇▇▇▇▇▇▇▇, Xpress, Dominion, Anson and Delafield, in addition to the Series H Holders.
(c) The definition of “Senior Lenders” is hereby amended to remove Anson, Dominion and Delafield. For the avoidance of doubt, after giving effect to this First Amendment, the only Senior Lender shall be GEMG.
(d) Section 4(e) of the April 2016 Intercreditor Agreement is deleted and restated as follows:
(e) Any money, property or securities realized upon the sale, disposition or other realization by the Senior Lender upon all or any part of the Collateral, shall be applied by the Senior Lender in the following order:
(i) First, to the payment in full of all costs and expenses (including, without limitation, attorneys’ fees and disbursements) paid or incurred by the Senior Lender in connection with the such realization on the Collateral or the protection of their rights and interests therein;
(ii) Second, to the payment in full of all Senior Obligations in such order as the Senior Lender may elect in its sole discretion;
(iii) Third, , to the payment in full of the notes issued pursuant to the October SPA;
(iv) Fourth, to the payment in full of all Subordinated Obligations in such order as the Subordinated Lenders may elect in its sole discretion which are secured by such Collateral, which shall be paid to the Subordinated Lenders; and
(vi) Fifth, to pay to the Debtors, or its representative or as a court of competent jurisdiction may direct, any surplus then remaining.
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(e) Schedule I attached to the April 2016 Intercreditor Agreement is hereby deleted entirely replaced with the “Amended Schedule I” attached to this First Amendment.1
3. Amendments in Writing; No Waiver; Cumulative Remedies..
(a) None of the terms or provisions of this First Amendment may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the Senior Lender, the Debtors and each of the Subordinated Lenders; provided that any provision of this First Amendment may be waived by the Senior Lender in a letter or agreement executed by the Senior Lender or by telex or facsimile transmission from the Senior Lender.
(b) No failure to exercise, nor any delay in exercising, on the part of either the Senior Lender or the Subordinated Lenders, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
4. Counterparts. This First Amendment may be executed in any number of counterparts, but all of such counterparts shall together constitute but one and the same agreement. In making proof of this First Amendment, it shall not be necessary to produce or account for more than one counterpart thereof signed by each of the parties hereto. Delivery of an executed counterpart of this First Amendment by telecopier or other electronic means shall have the same force and effect as delivery of an original executed counterpart of this First Amendment. Any party delivering an executed counterpart of this First Amendment by telecopier or other electronic means also shall deliver an original executed counterpart of this First Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this First Amendment as to such party or any other party.
5. Successors and Assigns.
(a) This First Amendment shall be binding upon the successors, heirs, administrators, executors and assigns of the Debtors and the Subordinated Lenders and shall inure to the benefit of the Senior Lender and their successors and assigns.
1 NTD: Lenders to complete updated schedule, which calls for listing the Subordinated Debt Documents.
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(b) Upon a successor Senior Lender becoming the Senior Lender under the Senior Loan Agreement, such successor Senior Lender automatically shall become the Senior Lender hereunder with all the rights and powers of the Senior Lender hereunder without the need for any further action on the part of any party hereto.
6. Severability. Any provision of this First Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
7. Integration. This First Amendment represents the agreement of the Senior Lender and the Subordinated Lenders with respect to the subject matter hereof and there are no promises or representations by the Senior Lender or the Subordinated Lenders relative to the subject matter hereof not reflected herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and delivered as of the day and year first above written.
SENIOR LENDERS:
GEMG LLC
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Debt:______________
[SIGNATURE PAGES OF THE SUBORDINATED LENDERS AND DEBTORS FOLLOW]
Signature Page to First Amendment to Intercreditor and Subordination Agreement
[SIGNATURE PAGES OF THE SUBORDINATED LENDERS]
HOLDERS OF SERIES E PREFERRED STOCK:
DOMINION CAPITAL, LLC
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Equity:_____________
[________________________]
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Equity:_____________
[________________________]
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Equity:_____________
HOLDERS OF SERIES H PREFERRED STOCK:
ANSON INVESTMENTS MASTER FUND LP
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Equity:_____________
[________________________]
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Equity:_____________
Signature Page to First Amendment to Intercreditor and Subordination Agreement
[SIGNATURE PAGES OF THE SUBORDINATED LENDERS, CONT’D]
ANSON INVESTMENTS MASTER FUND LP
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Debt:______________
DELAFIELD INVESTMENTS LIMITED, on behalf of itself and as Collateral Agent
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Debt:______________
Amount of Equity:_____________
DOMINION CAPITAL, LLC
| By: | ||
| Title: |
Amount of Preferred Stock:______
Amount of Debt:______________
Amount of Equity:____________
[SIGNATURE PAGES OF THE DEBTORS FOLLOW]
Signature Page to First Amendment to Intercreditor and Subordination Agreement
DEBTORS:
| AMARANTUS BIOSCIENCE HOLDINGS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| AMARANTUS THERAPEUTICS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| AMARANTUS THERAPEUTICS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| AMARANTUS MA, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| CUTANOGEN CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
Signature Page to First Amendment to Intercreditor and Subordination Agreement
AMENDED SCHEDULE I
[TO BE COMPLETED]
Signature Page to First Amendment to Intercreditor and Subordination Agreement