Exhibit 4.02(c)
March 7, 2005
VIA FACSIMILE AND FEDERAL EXPRESS
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Xxxxx X. Xxxx
Chief Financial Officer
Occupational Health + Rehabilitation Inc
000 Xxxxx Xxxxxx
Xxxxx 00
Xxxxxxx, XX 00000
RE: Waiver under the Amended and Restated Revolving Credit and Security
Agreement, dated as of December 15, 2003 (as amended, modified or
supplemented to date, the "Agreement"), between Occupational Health +
Rehabilitation Inc, CM Occupational Health, Limited Liability Company and
OHR-SSM, LLC (individually and collectively referred to herein as the
"Borrower") and CapitalSource Finance LLC ("Lender")
Dear Xx. Xxxx,
Reference is hereby made to the Agreement. All capitalized terms used
herein without definition shall have the meanings ascribed to such terms in the
Agreement.
Reference is made to Section 8.1(f) of the Agreement which states in
part:
"VIII. EVENTS OF DEFAULT
The occurrence of any one or more of the following shall
constitute an "Event of Default:
(f) (i) any default occurs, which is not cured or waived, (x) in
the payment of any amount with respect to any Indebtedness (other
than the Obligations) of any Borrower or Guarantor in excess of
$100,000, (y) in the performance, observance or fulfillment of
any provision contained in any agreement, contract, document or
instrument to which any Borrower or Guarantor is a party or to
which any of their properties or assets are subject or bound
under or pursuant to which any Indebtedness was issued, created,
assumed, guaranteed or secured and such default continues for
more than any applicable grace period or permits the holder of
any Indebtedness to accelerate the maturity thereof, or (z) in
the performance, observance or fulfillment of any provision
contained in any agreement, contract, document or instrument
between any Borrower or Guarantor and Lender or any Affiliate of
Lender (other than the Loan Documents), or (ii) any Indebtedness
of any Borrower or Guarantor is declared to be due and payable or
is required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof, or any obligation
of such Person for the payment of Indebtedness (other than the
Obligations) is not paid when due or within any applicable grace
period, or any such obligation becomes or is declared to be due
and payable before the expressed maturity thereof, or there
occurs an event which, with the giving of notice or lapse of
time, or both, would cause any such obligation to become, or
allow any such obligation to be declared to be, due and payable;"
On or about March 24, 2004, Borrower advised Lender that it had failed
to make a scheduled payment due March 24, 2004, with respect to the Investor
Notes, and that the failure to make such payment constituted a default (the
"Investor Notes Default") with respect to the Indebtedness evidenced by the
Investor Notes. Lender waived any Default of Event of Default that occurred
under the Agreement or any other Loan Document, with respect to Borrower's
Investor Notes Default; provided, however, that such waiver would automatically
terminate, without further notice required, upon the holders of the Investor
Notes attempting to exercise any remedies with respect to the Investor Notes
Default.
Borrower has advised Lender that it has failed to pay the Investor
Notes in full when due and that the failure to make such payment constitutes a
default (the "Investor Notes Default") with respect to the Indebtedness
evidenced by the Investor Notes.
Subject to the terms hereof, through December 31, 2005, Lender hereby
waives any Default or Event of Default that has occurred under the Agreement or
any other Loan Document with respect to Borrower's Investor Notes Default;
provided, however, that this waiver shall automatically terminate, with no
further notice required, upon the holders of the Investor Notes attempting to
exercise any remedies with respect to the Investor Notes Default.
Except as expressly set forth herein, this letter agreement shall not
be deemed to be a waiver of any provisions of the Agreement or any other Loan
Document. This letter agreement also shall not preclude the future exercise of
any right, power, or privilege available to Lender whether under the Agreement,
the other Loan Documents or otherwise.
This letter agreement (i) constitutes the entire understanding of the
parties with respect to the subject matter hereof, and any other prior or
contemporaneous agreements, whether written or oral, with respect thereto are
expressly superseded hereby, (ii) shall be governed by and construed in
accordance with the laws of the State of Maryland, and (iii) shall be binding
upon and inure to the benefit of the successors and assigns of the parties
hereto.
Please indicate your consent to the terms and conditions of this
letter agreement by signature of your authorized officer in the space indicated
below.
Very truly yours,
CAPITALSOURCE FINANCE LLC
By: /s/ J. Xxxxxxx Xxxxxx
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Name: J. Xxxxxxx Xxxxxx
Title: Director
ACKNOWLEDGED AND AGREED TO as of
March 7, 2005.
OCCUPATIONAL HEALTH + REHABILITATION INC
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
CM OCCUPATIONAL HEALTH, LIMITED LIABILITY COMPANY
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Financial Officer, Occupational Health + Rehabilitation Inc
Its Member and Manager
OHR-SSM, LLC
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer, Occupational Health + Rehabilitation Inc
Its Member and Manager
