WAIVER DATED AS OF OCTOBER 9, 2009 IN RESPECT OF AMENDED AND RESTATED LOAN AGREEMENT BY AND AMONG NY HYPERBARIC, LLC, FOREST HILLS HYPERBARIC, LLC, SCRANTON HYPERBARIC LLC, JFK HYPERBARIC LLC, TRENTON HYPERBARIC, LLC, NEWARK BI LLC, PASSAIC...
Exhibit
10.12
WAIVER
DATED
AS OF OCTOBER 9, 2009
IN
RESPECT OF
AMENDED
AND RESTATED LOAN AGREEMENT
BY
AND AMONG
NY
HYPERBARIC, LLC, FOREST HILLS HYPERBARIC, LLC, SCRANTON HYPERBARIC LLC, JFK
HYPERBARIC LLC, TRENTON 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, SOUTH NASSAU HYPERBARIC, LLC, NEW YORK
HYPERBARIC AND WOUND CARE CENTERS LLC, NEW YORK HYPERBARIC AND WOUND CARE
CENTERS, L.L.C., VB HYPERBARIC, LLC, EIN HYPERBARIC LLC, MAIMONIDES HYPERBARIC,
LLC, THE SQUARE HYPERBARIC, LLC, SOUTH N HYPERBARIC LLC, MUHLENBERG HYPERBARIC
LLC, XXXXXX 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), NJ HYPERBARIC, LLC, FAR ROCKAWAY HYPERBARIC, LLC, ATLANTIC
HYPERBARIC, LLC, ATLANTIC ASSOCIATES, LLC, CEF PRODUCTS, LLC, CMC HYPERBARIC,
LLC, PENNSYLVANIA HYPERBARIC, LLC, HYPERBARIC, LLC (a/k/a Massachusetts
Hyperbaric, LLC) and MEADOWLANDS HYPERBARIC, LLC, BAYONNE HYPERBARIC, LLC,
RARITAN BAY HYPERBARIC, LLC, CFWH MEZZANINE, LLC, SOUTH OCEAN COUNTY HYPERBARIC,
LLC, THE CENTER FOR WOUND HEALING, INC.
AND
SIGNATURE
BANK
THIS
WAIVER (the “Waiver”) made as of the 9th day of October, 2009 by and among NY
HYPERBARIC, LLC, FOREST HILLS HYPERBARIC, LLC, SCRANTON HYPERBARIC LLC, JFK
HYPERBARIC LLC, TRENTON 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, SOUTH NASSAU HYPERBARIC, LLC, NEW YORK
HYPERBARIC AND WOUND CARE CENTERS LLC, NEW YORK HYPERBARIC AND WOUND CARE
CENTERS, L.L.C., VB HYPERBARIC, LLC, EIN HYPERBARIC LLC, MAIMONIDES HYPERBARIC,
LLC, THE SQUARE HYPERBARIC, LLC, SOUTH N HYPERBARIC LLC, MUHLENBERG HYPERBARIC
LLC, XXXXXX 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), NJ HYPERBARIC, LLC, FAR ROCKAWAY HYPERBARIC, LLC, ATLANTIC
HYPERBARIC, LLC, ATLANTIC ASSOCIATES, LLC, CEF PRODUCTS, LLC, CMC HYPERBARIC,
LLC, PENNSYLVANIA HYPERBARIC, LLC, HYPERBARIC, LLC (a/k/a Massachusetts
Hyperbaric, LLC), MEADOWLANDS HYPERBARIC, LLC, BAYONNE HYPERBARIC, LLC, RARITAN
BAY HYPERBARIC, LLC, CFWH MEZZANINE, LLC, SOUTH OCEAN COUNTY HYPERBARIC,
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; and
WHEREAS,
the Borrower and the Bank desire that the Bank waives the Borrowers’
non-compliance with a certain provision 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’ non-compliance with the provisions of Section 6.3 of the Agreement
for the fiscal quarter of the Borrower ended June 30, 2009, and for all fiscal
quarters and financial covenant testing dates ending/occurring subsequent to
June 30, 2009 and through and including the fiscal quarter ending September 29,
2010, is hereby waived, provided that (a) the Effective Tangible Net Worth of
the Borrower as at June 30, 2009 was not less than $17,455,000 and (b) the
Effective Tangible Net Worth of the Borrower will not, at any financial covenant
testing date occurring subsequent to June 30, 2009 and through and including
September 29, 2010, be less than $16,500,000. Additionally, the
Borrowers’ non-compliance with Section 6, for all fiscal quarters and financial
covenant testing dates ending/occurring subsequent to June 30, 2009 and through
and including the fiscal quarter ending September 29, 2010, 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 September 29, 2010.
3. 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.
4. 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).
5. 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).
6. 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 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.
3
7. 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 $7,500.00; 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).
8. This
Waiver is dated for convenience as of October 9, 2009 and shall be effective on
the date of execution by the Bank.
9. Except
as modified by this Waiver, the Amended and Restated Loan 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.
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Borrower:
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NY
HYPERBARIC, LLC
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FOREST
HILLS HYPERBARIC, LLC
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SCRANTON
HYPERBARIC LLC
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JFK
HYPERBARIC LLC
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TRENTON
HYPERBARIC, LLC
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NEWARK
BI LLC
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PASSAIC
HYPERBARIC, LLC
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ST
XXXXXXX HYPERBARIC LLC
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GREATER
BRONX HYPERBARIC LLC
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(f/k/a
MONTEFIORE HYPERBARIC LLC)
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XXXXX
XXXX, LLC
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SOUTH
NASSAU HYPERBARIC LLC
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NEW
YORK HYPERBARIC AND
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WOUND
CARE CENTERS LLC (DEL)
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NEW
YORK HYPERBARIC AND
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WOUND
CARE CENTERS, L.L.C. (N.Y.)
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VB
HYPERBARIC, LLC
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EIN
HYPERBARIC LLC
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MAIMONIDES
HYPERBARIC, LLC
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THE
SQUARE HYPERBARIC, LLC
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SOUTH
N HYPERBARIC LLC
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MUHLENBERG
HYPERBARIC LLC
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XXXXXX
HYPERBARIC LLC
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THE
CENTER FOR WOUND HEALING I, LLC
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(f/k/a
MODERN MEDICAL, LLC)
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THE
CENTER FOR WOUND HEALING II, LLC
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(f/k/a
MODERN MEDICAL SPECIALTIES, LLC)
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NJ
HYPERBARIC, LLC
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FAR
ROCKAWAY HYPERBARIC, LLC
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ATLANTIC
HYPERBARIC, LLC
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ATLANTIC
ASSOCIATES, LLC
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CEF
PRODUCTS, LLC
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CMC
HYPERBARIC, LLC
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PENNSYLVANIA
HYPERBARIC, LLC
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HYBERBARIC,
LLC
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(a/k/a
MASSACHUSETTS HYPERBARIC, LLC)
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BAYONNE
HYPERBARIC, LLC,
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RARITAN
BAY HYPERBARIC, LLC,
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CFWH
MEZZANINE, LLC,
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SOUTH
OCEAN COUNTY HYPERBARIC, LLC
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By
their managers/members
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By:
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/s/ Xxxxxx X.
Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Chief
Executive Officer
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By:
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/s/ Xxxxxx X.
Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Chief
Executive
Officer
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5
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Bank:
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SIGNATURE
BANK
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By:
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/s/ Xxxx
Xxxxxx
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Vice
President and Senior
Lender
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