**Exhibit 10.44**

 

Effective as of December 31, 2004 

 

Bank of America, N.A., 

  as Administrative Agent 

231 South LaSalle Street 

Mail Code: IL1-231-08-30 

Chicago, IL 60604 

Attn: Anne Zeschke 

 

 

HealthTronics, Inc., a Georgiacorporation, successor in interest by merger (the “***Merger***”) to Prime Medical Services, Inc. (“***Company***”), certain Lenders (“***Lenders***”), and Bank of America, N.A., asAdministrative Agent for those Lenders (“***Administrative Agent***”), have entered into that certain Fifth Amended and Restated Loan Agreement (as renewed, extended, restated, and amended from time to time, the “***LoanAgreement***”) dated as of July 26, 2002. Unless otherwise specified (A) capitalized terms used herein shall have the same meanings as set forth in the Loan Agreement and (B) references to “***Sections***” are to sectionsof the Loan Agreement. Company hereby requests a waiver of certain terms and provisions of the Loan Agreement, and Company, Lenders, and Administrative Agent have agreed to waive certain provisions of the Loan Agreement, each subject to the termsand conditions contained herein. 

 

**Section 1. Company Request.**

 

A. For the fiscal quarter ending on December 31, 2004, Company failed tocomply with ***Section 8.11(a)*** (*Total Net Funded Debt to Adjusted EBITDA*) and ***Section 8.11(c)***(*Debt Service Coverage Ratio*) of the Loan Agreement (collectively, the “***Subject FinancialCovenants***”). 

 

B. Company has requested that Lenders waivercompliance with the Subject Financial Covenants for the fiscal quarter ending on December 31, 2004. 

 

**Section 2. Waivers to Loan Agreement.**Lenders hereby waive compliance with the Subject Financial Covenants *solely* for the fiscal quarter ending on December 31, 2004. 

 

**Section 3. Representations.**Company and each Guarantor hereby represent and warrant toAdministrative Agent and Lenders that: (A) the representations and warranties contained in the Loan Agreement and the other Loan Documents are true and correct on and as of the date hereof as though made on and as of such date, except to the extentthat such representations and warranties speak to a specific date or the facts on which such representations and warranties are based have been changed by transactions contemplated by the Loan Documents, *provided that* with respect to***Section 6.07,*** the representation regarding Defaults shall not include the Defaults waived pursuant to ***Paragraph 2*** hereof; (B) after giving effect to this letter and the waiver granted herein, neither Company nor any

 

Waiver Letter        

Effective as of December 31, 2004 

Page 2 

 

Guarantors is in default in the due performance of anycovenant or agreement contained in the Loan Agreement or any other Loan Document; and (C) after giving effect to this letter and the waiver granted herein, no Default has occurred and is continuing. 

 

**Section 4.****Confirmations.**Each of Company and Guarantors ratifies and confirmsthat the Loan Agreement, the Guaranties, the Borrower Security Agreement, the Guarantor Security Agreements, the Pledge Agreements, and the other Loan Documents are and remain in full force and effect in accordance with their respective terms, asamended hereby. In addition, each of the Guarantors acknowledges, agrees, accepts and consents to the terms and provisions hereof and each other Loan Document as amended hereby. Except as expressly provided herein, this letter does not constitute awaiver or modification of any of the terms or provisions set forth in the Loan Agreement or any other Loan Document and shall not impair any right that Administrative Agent or Lenders may now or hereafter have under or in connection with the LoanAgreement or any other Loan Document. 

 

**Section 5.****No Impairment.**The waivers hereby granted by Administrative Agent and Required Lenders (A) does not impair Administrative Agent’s or any of Lenders’ rights to insist upon strict compliance with the Loan Agreement or the other Loan Documents, and (B)does not extend to any other Loan Document (as waived or amended hereby). The Loan Documents, as waived and amended hereby, continue to bind and inure to Administrative Agent, Lenders, Company, Guarantors, and their respective successors andpermitted assigns. 

 

**Section 6. Conditions Precedent**. The effectivenessof this letter and waiver agreement is subject to the conditions precedent that Administrative Agent shall have received all of the following, in form and substance satisfactory to Administrative Agent: 

 
 (A)******No Default.** No Default (other than any Defaults waived pursuant to ***Paragraph 2*** hereof) shall have occurred and be continuing under the Loan Agreement.
 
 (B)**Representations and Warranties.** All of the representations and warranties contained in ***Article VI*** of the Loan Agreement and in each of the other Loan Documentsshall be true and correct on and as of the date hereof with the same force and effect as if such representations and warranties had been made on and as of such date, except to the extent that such representations and warranties speak to a specificdate or the facts on which such representations and warranties are based have been changed by transactions contemplated by the Loan Documents; *provided that* with respect to ***Section 6.07,*** the representation regarding Defaultsshall not include the Defaults waived pursuant to ***Paragraph 2*** hereof. 
 
 (C)**Fees and Expenses.** Payment of all fees and expenses of counsel for Administrative Agent in connection with the preparation and negotiation of this waiver letter.
 

**Section 7.****Counterparts.**This agreement, whencountersigned by Company, Guarantors, Administrative Agent, and Required Lenders shall be a “*Loan Document*” as defined and referred to in the Loan Agreement and the other Loan Documents and may be signed in any number ofcounterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This agreement shall be governed by and construed in accordance with the laws of the State of Texas. 

Effective as of December 31, 2004 

Page 3 

 

**Section 8****Entire Agreement.**THIS AGREEMENT, THELOAN AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THESUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. 

 

***[REMAINDER OF PAGE INTENTIONALLY BLANK.***

***SIGNATURE PAGES FOLLOW.]***

If the foregoing is agreeable to you, please signify your acceptance of the terms and conditions set forth herein byplacing your signature in the space provided below. 

 

Very truly yours,

**HEALTHTRONICS, INC.,** successor in interest by

merger to Prime Medical Services, Inc.

    *as Company*

By:
 
 

Name:
 
 

Title:
 
 

 

***SignaturePage to Waiver Letter***

**GUARANTORS:**

**LITHOTRIPTORS, INC.**

**PRIME MEDICAL OPERATING, INC.**

**PRIME MANAGEMENT, INC.**

**PRIME LITHOTRIPTER OPERATIONS, INC.**

**PRIME LITHOTRIPSY SERVICES, INC.**

**SUN MEDICAL TECHNOLOGIES, INC.**

**PRIME SERVICE CENTER, INC.**

formerly known as Prime Cardiac Rehabilitation Services, Inc.

**ALABAMA RENAL STONE INSTITUTE, INC.**

**PRIME KIDNEY STONE TREATMENT, INC.**

**PRIME RVC, INC.**

**AK ASSOCIATES, L.L.C.**

**PRIME MEDICAL MANUFACTURING, LLC**

**PRIME REFRACTIVE MANAGEMENT, L.L.C.**

**WINEMILLER COMMUNICATIONS, INC.**

**ALUMINUM BODY CORPORATION**

**MEDSTONE INTERNATIONAL, INC.**

  *each as a Guarantor*

By:
 
 

Name:
 
 

Title:
 
 
**PRIME MEDICAL MANAGEMENT, L.P.**
*    as a Guarantor*

By:
 
**PRIME MEDICAL OPERATING, INC.,**
  
**its*General Partner*
  
By:
 
 
  
Name:
 
 
  
Title:
 
 

 

***SignaturePage to Waiver Letter***

Effective as of December 31, 2004 

Page 6 

 
**TENNGA STONE GROUP THREE**
  *as a Guarantor*

By:
 
**HT LITHOTRIPSY MANAGEMENT COMPANY,**

**L.L.C.,**
  
its Managing General Partner
  
By:
 
 
  
Name:
 
 
  
Title:
 
 

**ORTHOTRIPSY SERVICES OF BAKERSFIELD, L.P.**

**ORTHOTRIPSY SERVICES OF ROCHESTER, L.P.**

**ORTHOTRIPSY SERVICES OF SOUTHERN**

**IDAHO, L.P.**

**OSSATRON SERVICES OF ALABAMA, L.P.**

**OSSATRON SERVICES OF ARIZONA, L.P.**

**OSSATRON SERVICES OF CHESAPEAKE BAY, L.P.**

**OSSATRON SERVICES OF CINCINNATI, L.P.**

**OSSATRON SERVICES OF LAS VEGAS, L.P.**

**OSSATRON SERVICES OF MANHATTAN, L.P.**

**OSSATRON SERVICES OF MILWAUKEE, L.P.**

**OSSATRON SERVICES OF THE TRI-STATES I, L.P.**

**OSSATRON SERVICES OF UTAH, L.P.**

**OSSATRON SERVICES OF NEW ENGLAND, L.P.**

**OSSATRON SERVICES OF INDIANAPOLIS, L.P.**

**OSSATRON SERVICES OF SOUTHEAST**

**MICHIGAN, L.P.**

**OSSATRON SERVICES OF THE TWIN**

**CITIES, L.L.L.P.**

**OSSATRON SERVICES OF WESTERN**

**MICHIGAN, L.P.**

  *each as a Guarantor*

By:
 
**HT ORTHOTRIPSY MANAGEMENT**

**COMPANY, LLC,**
  
its Managing General Partner
  
By:
 
 
  
Name:
 
 
  
Title:
 
 

 

***SignaturePage to Waiver Letter***

Effective as of December 31, 2004 

Page 7 

 

**LITHO MANAGEMENT, INC.**

**HLE CORP.**

**CAMBRIDGE HEALTH SERVICES OF TEXAS, INC.**

**HERITAGE MEDICAL SERVICES OF GEORGIA, INC.**

**INTEGRATED LITHOTRIPSY OF GEORGIA, INC.**

**INTEGRATED HEALTH CARE MANAGEMENT**

**CORP.**

**T2 LITHOTRIPTER INVESTMENT OF INDIANA, INC.**

**LITHO GROUP, INC.**

**T2 LITHOTRIPTER INVESTMENT, INC.**

**SERVICETRENDS, INC.**

**N.Y.L.S.A. #4 INC.**

**INTEGRATED HEARING SERVICES, INC.**

**WEST COAST CAMBRIDGE, INC.**

**AMCARE, INC.**

**MIDWEST CAMBRIDGE, INC.**

**AMCARE HEALTH SERVICES, INC.**

**HT LITHOTRIPSY MANAGEMENT COMPANY, L.L.C.**

**HT ORTHOTRIPSY MANAGEMENT**

**COMPANY, LLC**

**HT PROSTATE THERAPY MANAGEMENT**

**COMPANY, L.L.C.**

**HT CRYOSURGERY MANAGEMENT COMPANY, LLC**

**HEALTHTRONICS TECHNOLOGY SERVICES &**

**DEVELOPMENT, LLC**

**FLORIDA LITHOLOGY NO. 2, INC.**

**INTEGRATED ORTHOTRIPSY, INC.**

**ROCKY MOUNTAIN PROSTATE**

**THERMOTHERAPY LLC**

**FRONTLINE HOLDINGS, INC.**

**SURGICENTER MANAGEMENT, INC.**

**NGST, INC.**

**HT PROSTATE SERVICES, L.L.C.**

  *each as a Guarantor*

By:
 
 

Name:
 
 

Title:
 
 

 

***SignaturePage to Waiver Letter***

**AGREED AND ACCEPTED** as of the date first stated above. 

 
**BANK OF AMERICA, N.A.,**
  *as Administrative Agent*

By:
 
 
  
Anne M. Zeschke
  
Assistant Vice President

 

***SignaturePage to Waiver Letter***

**BANK OF AMERICA, N.A.,**
      *as a Lender*

By:
 
 
  
Daniel H. Penkar
  
Senior Vice President

 

***SignaturePage to Waiver Letter***

**JPMORGAN CHASE BANK, N.A.,** successor by

merger to Bank One, NA (Main Office Chicago),

*as a Lender*

By:
 
 

Name:
 
 

Title:
 
 

 

***SignaturePage to Waiver Letter***

**LASALLE BANK, NATIONAL ASSOCIATION,**

        *as a Lender*

By:
 
 

Name:
 
 

Title:
 
 

 

***SignaturePage to Waiver Letter***

**COMERICA BANK,**

        *as a Lender*

By:
 
 

Name:
 
 

Title:
 
 

 

***SignaturePage to Waiver Letter***