WAIVER DATED AS OF MAY 24, 2010 IN RESPECT OF AMENDED AND RESTATED LOAN AGREEMENT BY AND AMONG NY HYPERBARIC, LLC, FOREST HILLS HYPERBARIC, LLC, NEWARK BI LLC, PASSAIC HYPERBARIC, LLC, ST JOSEPHS HYPERBARIC LLC, GREATER BRONX HYPERBARIC LLC (f/k/a...
Exhibit
4.1
WAIVER
DATED
AS OF MAY 24, 2010
IN
RESPECT OF
AMENDED
AND RESTATED LOAN AGREEMENT
BY
AND AMONG
NY
HYPERBARIC, LLC, FOREST HILLS HYPERBARIC, LLC, NEWARK BI LLC, PASSAIC
HYPERBARIC, LLC, ST XXXXXXX HYPERBARIC LLC, GREATER BRONX HYPERBARIC LLC (f/k/a
Montefiore Hyperbaric LLC), XXXXX XXXX, LLC, PENNSYLVANIA HYPERBARIC, LLC, NEW
YORK HYPERBARIC AND WOUND CARE CENTERS, L.L.C., VB HYPERBARIC, LLC, EIN
HYPERBARIC LLC, THE SQUARE HYPERBARIC, LLC, THE CENTER FOR WOUND HEALING I, LLC
(f/k/a Modern Medical, LLC), THE CENTER FOR WOUND HEALING II, LLC (f/k/a Modern
Medical Specialties, LLC), CFWH (NEW JERSEY) LLC, FAR ROCKAWAY HYPERBARIC, LLC,
CFWH (NEW YORK) LLC, CFWH (DELAWARE), LLC, CFWH (PENNSYLVANIA), LLC, CFWH
(MASSACHUSETTS), LLC, MEADOWLANDS HYPERBARIC, LLC, BAYONNE HYPERBARIC, LLC,
RARITAN BAY HYPERBARIC, LLC, CFWH MEZZANINE, LLC, and THE CENTER FOR
WOUND HEALING, INC.
AND
SIGNATURE
BANK
THIS
WAIVER (the “Waiver”) made as of the 24th day
of May, 2010 by and among NY HYPERBARIC, LLC, FOREST HILLS HYPERBARIC, LLC,
NEWARK BI LLC, PASSAIC HYPERBARIC, LLC, ST XXXXXXX HYPERBARIC LLC, GREATER BRONX
HYPERBARIC LLC (f/k/a Montefiore Hyperbaric LLC), XXXXX XXXX, LLC, PENNSYLVANIA
HYPERBARIC, LLC, NEW YORK HYPERBARIC AND WOUND CARE CENTERS, L.L.C., VB
HYPERBARIC, LLC, EIN HYPERBARIC LLC, THE SQUARE HYPERBARIC, LLC, THE CENTER FOR
WOUND HEALING I, LLC (f/k/a Modern Medical, LLC), THE CENTER FOR WOUND HEALING
II, LLC (f/k/a Modern Medical Specialties, LLC), CFWH (NEW JERSEY) LLC, FAR
ROCKAWAY HYPERBARIC, LLC, CFWH (NEW YORK) LLC, CFWH (DELAWARE), LLC, CFWH
(PENNSYLVANIA), LLC, CFWH (MASSACHUSETTS), LLC,MEADOWLANDS HYPERBARIC, LLC,
BAYONNE HYPERBARIC, LLC, RARITAN BAY HYPERBARIC, LLC, CFWH MEZZANINE,
LLC, and THE CENTER FOR WOUND HEALING, INC., each with a place of
business at 000 Xxxxx xxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the foregoing
Persons, individually and collectively, the “Borrower”), and SIGNATURE BANK, a
New York bank having an office at 0000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx
00000 (the “Bank”).
WITNESSETH:
WHEREAS,
certain of the entities comprising the Borrower and the Bank entered into a
Amended and Restated Loan Agreement dated as of June 17, 2005 as amended by a
First Amendment dated as of April 7, 2006, a Second Amendment dated as of
February 1, 2007, a Third Amendment and Waiver dated as of May 29, 2007, a
Fourth Amendment and Waiver dated as of July 31, 2007, a Fifth Amendment dated
as of October 11, 2007, a Sixth Amendment dated as of March 19, 2008, a Seventh
Amendment dated as of March 31, 2008 and an Eighth Amendment dated as of
December 18, 2008 (collectively, the “Agreement”), providing for certain
financial accommodations to the Borrower and which Agreement is now in full
force and effect;
WHEREAS, the Borrower has failed to
comply with the provisions of Sections 6.1, 6.3, 6.4 and 7.2 of the Agreement as
described below; and
WHEREAS,
the Borrower and the Bank desire that the Bank waives the Borrowers’
non-compliance with such provisions of the Agreement on the terms and conditions
hereinafter set forth;
NOW,
THEREFORE, in consideration of the premises and the agreements hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. As
used in this Waiver, capitalized terms, unless otherwise defined, shall have the
meaning ascribed thereto in the Agreement.
2. The
Borrowers failed to comply with the provisions of Section 6.1 of the Agreement
for the four fiscal quarter period of the Borrower ended March 31, 2010, as the
ratio which is the subject of such section was 0.30:1.00 for such
period. Such non-compliance is hereby waived, for the four fiscal
quarter period of the Borrower ended March 31, 2010 and for each of the four
fiscal quarter periods ending subsequent to March 31, 2010 through and including
the four fiscal quarter period ending April 1, 2011, provided that (a) such
ratio was not less than 0.30:1.00 for the four fiscal quarter period of the
Borrower ended March 31, 2010, and (b) such ratio will not be, for any of the
four fiscal quarter period ending subsequent to March 31, 2010 through and
including the four fiscal quarter period ending April 1, 2011, less than
0.30:1.00.
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3. The
Borrowers failed to comply with the provisions of Section 6.3 of the Agreement
as of the last day of the fiscal quarter of the Borrower ended March 31, 2010,
as the Effective Tangible Net Worth as the Borrower as of March 31, 2010 was
$12,451,000. Such non-compliance is hereby waived, as of the last day
of the fiscal quarter of the Borrower ended March 31, 2010 and as of the last
day of each fiscal quarter of the Borrower occurring subsequent to March 31,
2010 through and including April 1, 2011, provided that (a) the Effective
Tangible Net Worth of the Borrower as of March 31, 2010 was not less than
$12,451,000, and (b) the Effective Tangible Net Worth of the Borrower will not
be, as of the last day of each fiscal quarter of the Borrower occurring
subsequent to March 31, 2010 through and including April 1, 2011, less than
$12,451,000.
4. The
Borrowers failed to comply with the provisions of Section 6.5 of the Agreement
for the four fiscal quarter period of the Borrower ended March 31, 2010, as the
ratio which is the subject of such section was 7.23:1.00 for such period and as
of such date. Such non-compliance is hereby waived, for the four
fiscal quarter period of the Borrower ended March 31, 2010 (and as of such date)
and for each of the four fiscal quarter periods ending subsequent to March 31,
2010 (and as of such dates) through and including the four fiscal quarter period
ending April 1, 2011 (and as of such date), provided that (a) the ratio which is
the subject of such section was not more than 7.23:1.00 for the four fiscal
quarter period of the Borrower ended March 31, 2010 (and as of such date), and
(b) such ratio will not be, for any of the four fiscal quarter period ending
subsequent to March 31, 2010 (and as of such dates) through and including the
four fiscal quarter period ending April 1, 2011 (and as of such date), less than
7.23:1.00.
5. Notwithstanding
anything contained in this Waiver to the contrary, the Borrowers’ non-compliance
with Section 6, for all fiscal quarters and financial covenant testing dates
ending/occurring subsequent to March 31, 2010 through and including the fiscal
quarter ending and the financial covenant testing date occurring on April 1,
2011, is hereby waived to the extent and solely to the extent resulting from the
required adoption by the Borrower of changes in GAAP from and after June 30,
2009 and through and including April 1, 2011.
6. The
Borrowers failed to comply with the provisions of Section 7.2 of the Agreement
as a result of the mergers and/or name changes which are described on Exhibit I
hereto. Such non-compliance is hereby waived. In
connection with the foregoing, the Borrowers agree to execute and deliver such
documents as the Bank may reasonably request in connection with such mergers and
changes of name.
7. As
an inducement for the Bank to enter into this Waiver, the Borrower hereby
represents and warrants as follows:
3
(A) There
are no defenses or offsets to its obligations under the Agreement, the Note or
any of the other agreements in favor of the Bank referred to in the Agreement,
and if any such defenses or offsets exist without the knowledge of the Borrower,
the same are hereby waived.
(B) All
the representations and warranties made by the Borrower in the Agreement are
true and correct in all material respects as if made on the date
hereof.
8. It
is expressly understood and agreed that all collateral security for the Loans
set forth in the Agreement prior to the waiver provided for herein, is and shall
continue to be collateral security for the Loans and other extensions of credit
provided under the Agreement as herein modified. Without limiting the
generality of the foregoing, the Borrower hereby absolutely and unconditionally
confirms that each document and instrument executed by the Borrower pursuant to
the Agreement continues in full force and effect, is ratified and confirmed and
is and shall continue to be applicable to the Agreement (both before and after
giving effect to this Waiver).
9. By
their execution of this letter in the space provided below, the Guarantors (if
any) hereby consent to this Waiver and reaffirm their continuing liability under
their guarantees in respect of the Agreement, as amended hereby, and all
documents, instruments and agreements executed pursuant thereto or in connection
therewith, without offset, defense or counterclaim (any such offset, defense or
counterclaim as may exist being hereby irrevocably waived by any such
Guarantors).
10. The
Waiver set forth herein is limited precisely as written and shall not be deemed
(except as the Agreement is modified by this Waiver) to (a) be a consent to or a
waiver of any term or condition of the Agreement (i.e., only non-compliance with
the above-referenced sections of the Agreement, but not with any other sections
of the Agreement is waived hereby or any of the documents referred to therein,
or (b) prejudice any right or rights which the Bank may now have or may have in
the future under or in connection with the Agreement or any documents referred
to therein. Whenever the Agreement is referred to in the Agreement or
any of the instruments, agreements or other documents or papers executed and
delivered in connection therewith, it shall be deemed to mean the Agreement as
modified by this Waiver. This Waiver may be signed in one or more
counterparts which, when taken together, shall constitute one and the same
document. The parties to this Waiver agree that, for purposes of the
execution of this Waiver, facsimile signatures and scanned signatures through
email will constitute original signatures.
11. This
Waiver shall become effective on such date as all of the following conditions
have been satisfied:
(A) Waiver
Fee. The Borrower shall have paid to the Bank a waiver fee in
the amount of $10,000.00; and
4
(B) Fees and
Expenses. The Bank shall have received evidence of payment of
the fees and disbursements of the Bank’s counsel (if invoiced by the Bank’s
counsel on or prior to the date hereof).
12. This
Waiver is dated of March 31, 2010 and shall be effective on the date of
execution by the Bank. Except as modified by this Waiver, the
Agreement is in all respects ratified and confirmed.
IN
WITNESS WHEREOF, the parties hereto have caused this Waiver to be executed by
their duly authorized officers as of the date first written above.
|
Borrower:
NY
HYPERBARIC, LLC
FOREST
HILLS HYPERBARIC, LLC
NEWARK
BI LLC
PASSAIC
HYPERBARIC, LLC
ST
XXXXXXX HYPERBARIC LLC
GREATER
BRONX HYPERBARIC LLC
XXXXX
XXXX, LLC
PENNSYLVANIA
HYPERBARIC, LLC
NEW
YORK HYPERBARIC AND WOUND CARE CENTERS, L.L.C.
VB
HYPERBARIC, LLC
EIN
HYPERBARIC LLC
THE
SQUARE HYPERBARIC, LLC
THE
CENTER FOR WOUND HEALING I, LLC THE CENTER FOR WOUND HEALING
II, LLC CFWH (NEW JERSEY) LLC
FAR
ROCKAWAY HYPERBARIC, LLC
CFWH
(NEW YORK) LLC
CFWH
(DELAWARE), LLC
CFWH
(PENNSYLVANIA), LLC
CFWH
(MASSACHUSETTS), LLC
MEADOWLANDS
HYPERBARIC, LLC
BAYONNE
HYPERBARIC, LLC
RARITAN
BAY HYPERBARIC, LLC
CFWH
MEZZANINE, LLC,
By
their managers/members
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By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Xxxxxx X. Xxxxxxx | |||
| Chief Executive Officer | |||
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| THE CENTER FOR WOUND HEALING, INC. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Xxxxxx X. Xxxxxxx | |||
| Chief Executive Officer | |||
|
Bank:
SIGNATURE
BANK
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|
|
By:
|
/s/ Xxxx Xxxxxx | |
| Xxxx Xxxxxx | |||
| Vice President & Senior Lender | |||
6
EXHIBIT
I
AMENDED
AND RESTATED LOAN AGREEMENT WITH SIGNATURE BANK
CHANGES
OF NAME
AND
MERGERS OF BORROWERS
Borrowers
Organized under the laws of the State of Delaware
Borrower
merged into Atlantic Associates LLC:
New York Hyperbaric & Wound Care
Centers LLC
Atlantic
Associates LLC has been renamed CFWH (Delaware), LLC
Borrowers
Organized under the laws of the State of Massachusetts
Borrower
merged into Massachusetts Hyperbaric, LLC:
Lowell Hyperbaric, LLC
Massachusetts
Hyperbaric, LLC has been renamed CFWH (Massachusetts), LLC
Borrowers
Organized under the laws of the State of New Jersey
Borrowers
merged into NJ Hyperbaric LLC:
JFK Hyperbaric LLC
Muhlenberg Hyperbaric LLC
South Ocean County Hyperbaric
LLC
Trenton Hyperbaric LLC
NJ
Hyperbaric LLC has been renamed CFWH (New Jersey) LLC
Borrowers
Organized under the laws of the State of New York
Borrowers
merged into Atlantic Hyperbaric LLC
CEF Products LLC
South Nassau Hyperbaric,
LLC
South N Hyperbaric LLC
Maimonides Hyperbaric LLC
Atlantic
Hyperbaric LLC has been renamed CFWH (New York) LLC
7
Borrowers
Organized under the laws of the State of Pennsylvania
Borrower
merged into CMC Hyperbaric LLC:
Scranton Hyperbaric, LLC
CMC
Hyperbaric LLC has been renamed CFWH (Pennsylvania),
LLC
