Unassociated Document


    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 JOSEPHS HYPERBARIC LLC, GREATER BRONX HYPERBARIC LLC (f/k/a
Montefiore Hyperbaric LLC), ELISE KING, 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 JOSEPHS HYPERBARIC LLC, GREATER BRONX
HYPERBARIC LLC (f/k/a Montefiore Hyperbaric LLC), ELISE KING, 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 155 White plains Road, Tarrytown, NY  10591 (the foregoing
Persons, individually and collectively, the “Borrower”), and SIGNATURE BANK, a
New York bank having an office at 1225 Franklin Avenue, Garden City, New York
11530 (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:

    


    
      
         

      

      
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    (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

     

    
      
         

      

      
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    (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
      JOSEPHS HYPERBARIC LLC

                GREATER
      BRONX HYPERBARIC LLC

                ELISE
      KING, 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

                THE
      CENTER FOR WOUND HEALING, INC.

              	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Andrew
      G. Barnett	 
	 	 	Andrew
      G. Barnett	 
	 	 	Chief
      Executive Officer	 
	 	 	 	 


      

       

    

    
      
         

      

      
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      	 	THE
      CENTER FOR WOUND HEALING, INC.	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Andrew
      G. Barnett	 
	 	 	Andrew
      G. Barnett	 
	 	 	Chief
      Executive Officer	 
	 	 	 	 


    

     

    
      
        	 	      
                Bank:

                SIGNATURE
      BANK

              	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/
      Lori Cabana	 
	 	 	Lori
      Cabana	 
	 	 	Vice
      President & Senior Lender	 
	 	 	 	 


      

    

    


    
      
         

      

      
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    EXHIBIT
I

     

    THE
CENTER FOR WOUND HEALING, INC.

    


    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

    


    
      
         

      

      
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    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