WAIVER DATED AS OF NOVEMBER 10, 2010 IN RESPECT OF AMENDED AND RESTATED LOAN AGREEMENT BY AND AMONG CFWH (Delaware), LLC, CFWH (Massachusetts), LLC, CFWH (New Jersey) LLC, CFWH (New York) LLC, New York Hyperbaric And Wound Care Centers, L.L.C., The...
Exhibit
4.1
WAIVER
DATED
AS OF NOVEMBER 10, 2010
IN
RESPECT OF
AMENDED
AND RESTATED LOAN AGREEMENT
BY
AND AMONG
CFWH
(Delaware), LLC, CFWH (Massachusetts), LLC, CFWH (New Jersey) LLC,
CFWH
(New York) LLC, New York Hyperbaric And Wound Care Centers, L.L.C.,
The
Square Hyperbaric LLC, CFWH (Pennsylvania), LLC, and
AND
SIGNATURE
BANK
THIS
WAIVER (the “Waiver”) made as of the 10th day of November, 2010 by and among
CFWH (Delaware), LLC, CFWH (Massachusetts), LLC, CFWH (New Jersey) LLC, CFWH
(New York) LLC, New York Hyperbaric And Wound Care Centers, L.L.C., The Square
Hyperbaric LLC, CFWH (Pennsylvania), 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”).
W
I T N E S S E T H:
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 September 30, 2008, an Eighth Amendment dated as of
December 18, 2008 and a Waiver and Ninth Amendment dated as of October 13, 2010
(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 and 6.5 of the Agreement, and
the Borrower has informed the Bank that it will in the future fail to comply
with the provisions of Section 6.4 of the Agreement, all 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 receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
1. As
used in this Waiver, capitalized terms, unless otherwise defined, shall have the
meanings ascribed thereto in the Agreement.
1
2. The
Borrower failed to comply with the provisions of Section 6.1 of the Agreement
for the four fiscal quarter period of the Borrower ended September 30, 2010, as
the ratio which is the subject of such section was 0.60:1.00 for such
period. Such non-compliance is hereby waived, for the four fiscal
quarter period of the Borrower ended September 30, 2010, for each of the four
fiscal quarter periods ending subsequent to September 30, 2010 through and
including the four fiscal quarter period ending September 30, 2011, and for
October 1, 2011, provided that (a) such ratio was not less than 0.60:1.00 for
the four fiscal quarter period of the Borrower ended September 30, 2010, and (b)
such ratio will not be, for the four fiscal quarter period ending: (i) December
31, 2010, less than 0.20:1.00; (ii) March 31, 2011, less than 0.35:1.00; or
(iii) June 30, 2011, less than 0.50:1.00; or (iv) September 30, 2011, or for
October 1, 2011, less than 0.60:1.00. Notwithstanding anything
contained in this Waiver or in the Agreement to the contrary, solely for
purposes of determining the Borrower’s compliance with the provisions of the
section of the Agreement which is the subject of this paragraph, and solely for
the periods or date(s) which are the subject of this paragraph, there shall be
added to EBITDA of the Borrower, without duplication, the following items for
the periods or date(s) to which such items relate (as determined in accordance
with GAAP): (1) $276,000 relating solely to and comprised solely of
litigation expenses of the Borrower, 2009 10-K restatement expenses of the
Borrower and expenses of the Borrower relating solely and directly to the sale
of the Borrower incurred during the fiscal quarter ended December 31, 2009; (2)
$2,131,000 relating solely to and comprised solely of bad debt write-offs taken
during the fiscal quarter ended March 31, 2010, litigation expenses of the
Borrower and expenses of the Borrower relating solely and directly to the sale
of the Borrower incurred during the fiscal quarter ended March 31, 2010, and the
Borrower’s correction of the Apligraph billing error by refunding the applicable
amount during the fiscal quarter ended March 31, 2010; (3) $132,000 relating
solely to litigation expenses of the Borrower and expenses of the Borrower
relating solely and directly to the sale of the Borrower incurred during the
fiscal quarter ended June 30, 2010; and (4) $336,000 of expenses of the Borrower
relating solely and directly to the sale of the Borrower and $92,000 of expenses
of the Borrower relating solely to founder’s salary expenses incurred during the
fiscal quarter ended September 30, 2010.
3. The
Borrower 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 September 30, 2010,
as the Effective Tangible Net Worth as the Borrower as of September 30, 2010 was
$11,485,567. Such non-compliance is hereby waived, as of the last day
of the fiscal quarter of the Borrower ended September 30, 2010, as of the last
day of each fiscal quarter of the Borrower occurring subsequent to September 30,
2010 through and including September 30, 2011, and as of October 1, 2011,
provided that (a) the Effective Tangible Net Worth of the Borrower as of
September 30, 2010 was not less than $11,485,567, and (b) the Effective Tangible
Net Worth of the Borrower will not be, as of: (i) December 31, 2010, less than
$10,500,000; (ii) March 31, 2011, less than $7,500,000; (iii) June 30, 2011,
less than $7,500,000; or (iv) September 30, 2011 or October 1, 2011, less than
$7,000,000.
4. The
Borrower has informed the Bank that it is in compliance with the provisions of
Section 6.4 of the Agreement for the four fiscal quarter period of the Borrower
ended September 30, 2010, as the ratio which is the subject of such section was
0.39:1.00 for such period and as of such date, but that the Borrower will fail
to be in compliance with the provisions of such section for the four fiscal
quarter periods ending March 31, 2011 and September 30, 2011 (and as of such
dates). Such non-compliance is hereby waived, provided that such
ratio will not be, for the four fiscal quarter period ending: (i) March 31, 2011
(or as of such date), more than 1.50:1.00; (ii) June 30, 2011 (or as of such
date), more than 1.25:1.00; or (iii) September 30, 2011 (or as of such date), or
for October 1, 2011 (or as of such date), more than
1.15:1.00. Notwithstanding anything contained in this Waiver or in
the Agreement to the contrary, solely for purposes of determining the Borrower’s
compliance with the provisions of the section of the Agreement which is the
subject of this paragraph, and solely for the periods or date(s) which are the
subject of this paragraph, there shall be added to EBITDA of the Borrower,
without duplication, the following items for the periods or date(s) to which
such items relate (as determined in accordance with GAAP): (1)
$276,000 relating solely to and comprised solely of litigation expenses of the
Borrower, 2009 10-K restatement expenses of the Borrower and expenses of the
Borrower relating solely and directly to the sale of the Borrower incurred
during the fiscal quarter ended December 31, 2009; (2) $2,131,000 relating
solely to and comprised solely of bad debt write-offs taken during the fiscal
quarter ended March 31, 2010, litigation expenses of the Borrower and expenses
of the Borrower relating solely and directly to the sale of the Borrower
incurred during the fiscal quarter ended March 31, 2010, and the Borrower’s
correction of the Apligraph billing error by refunding the applicable amount
during the fiscal quarter ended March 31, 2010; (3) $132,000 relating solely to
litigation expenses of the Borrower and expenses of the Borrower relating solely
and directly to the sale of the Borrower incurred during the fiscal quarter
ended June 30, 2010; and (4) $336,000 of expenses of the Borrower relating
solely and directly to the sale of the Borrower and $92,000 of expenses of the
Borrower relating solely to founder’s salary expenses incurred during the fiscal
quarter ended September 30, 2010.
2
5. The
Borrower failed to comply with the provisions of Section 6.5 of the Agreement
for the four fiscal quarter period of the Borrower ended September 30, 2010, as
the ratio which is the subject of such section was 3.75:1.00 for such period and
as of such date. Such non-compliance is hereby waived, for the four
fiscal quarter period of the Borrower ended September 30, 2010 (and as of such
date), for each of the four fiscal quarter periods ending subsequent to
September 30, 2010 (and as of such dates) through and including the four fiscal
quarter period ending September 30, 2011 (and as of such date), and for October
1, 2011 (and as of such date), provided that (a) the ratio which is the subject
of such section was not more than 3.75:1.00 for the four fiscal quarter period
of the Borrower ended September 30, 2010 (or as of such date), and (b) such
ratio will not be, for the four fiscal quarter period ending: (i) December 31,
2010 (or as of such date), more than 5.25:1.00; (ii) March 31, 2011 (or as of
such date), more than 4.50:1.00; (iii) June 30, 2011 (or as of such date), more
than 4.00:1.00; or (iv) September 30, 2011 (or as of such date), or for October
1, 2011 (or as of such date), more than 4.00:1.00. Notwithstanding
anything contained in this Waiver or in the Agreement to the contrary, solely
for purposes of determining the Borrower’s compliance with the provisions of the
section of the Agreement which is the subject of this paragraph, and solely for
the periods or date(s) which are the subject of this paragraph, there shall be
added to EBITDA of the Borrower, without duplication, the following items for
the periods or date(s) to which such items relate (as determined in accordance
with GAAP): (1) $276,000 relating solely to and comprised solely of
litigation expenses of the Borrower, 2009 10-K restatement expenses of the
Borrower and expenses of the Borrower relating solely and directly to the sale
of the Borrower incurred during the fiscal quarter ended December 31, 2009; (2)
$2,131,000 relating solely to and comprised solely of bad debt write-offs taken
during the fiscal quarter ended March 31, 2010, litigation expenses of the
Borrower and expenses of the Borrower relating solely and directly to the sale
of the Borrower incurred during the fiscal quarter ended March 31, 2010, and the
Borrower’s correction of the Apligraph billing error by refunding the applicable
amount during the fiscal quarter ended March 31, 2010; (3) $132,000 relating
solely to litigation expenses of the Borrower and expenses of the Borrower
relating solely and directly to the sale of the Borrower incurred during the
fiscal quarter ended June 30, 2010; and (4) $336,000 of expenses of the Borrower
relating solely and directly to the sale of the Borrower and $92,000 of expenses
of the Borrower relating solely to founder’s salary expenses incurred during the
fiscal quarter ended September 30, 2010.
6. 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 September 30, 2010 and ending/occurring on or
prior to October 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
(relating to GAAP Codification of Accounting Standards Codification Topic
470:Debt) from and after September 30, 2009 and through and including October 1,
2011.
3
7. As
an inducement for the Bank to enter into this Waiver, the Borrower hereby
represents and warrants as follows:
(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.
4
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-amendment fee in the amount of $5,000.00; and
(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 November 10, 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.
5
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:
CFWH
(Delaware), LLC
CFWH
(Massachusetts), LLC
CFWH
(New Jersey) LLC
CFWH
(New York) LLC
New
York Hyperbaric And Wound Care Centers, L.L.C.
The
Square Hyperbaric LLC
CFWH
(Pennsylvania), LLC
Each
by its manager/member,
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Xxxxxx X. Xxxxxxx | |||
| Chief Executive Officer | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | ||
| Xxxxxx X. Xxxxxxx | |||
| Chief Executive Officer | |||
|
Bank:
|
|||
|
SIGNATURE
BANK
|
|||
| By: | /s/ Xxxx Xxxxxx | ||
| Xxxx Xxxxxx | |||
| Vice President | |||
6
