Exhibit 4.03 (c)
AMENDMENT NO. 1
TO
LOAN AND SECURITY AGREEMENT
DATED DECEMBER 15, 2000
AMONG
OCCUPATIONAL HEALTH + REHABILITATION INC
CM OCCUPATIONAL HEALTH, LIMITED LIABILITY COMPANY
0HR-SSM, LLC
OCCUPATIONAL HEALTH CONNECTION LLC
OCCUPATIONAL HEALTH PHYSICIANS OF NEW JERSEY, P.A.
AND
DVI BUSINESS CREDIT CORPORATION
This Amendment No. 1 ("Amendment") to the Loan and Security Agreement is
made and entered into as of July 19, 2002, by and between Occupational Health +
Rehabilitation Inc ("OHR"), a Delaware corporation; CM Occupational Health,
Limited Liability Company ("CM"), a Maine limited liability company; OHR-SSM,
LLC ("OHR-SSM"), a Missouri limited liability company; Occupational Health
Connection LLC ("OHC"), a New York limited liability company and Occupational
Health Physicians of New Jersey, P.A. ("OHP"), a New Jersey professional service
corporation (collectively and individually referred to as "Borrowers") and DVI
Business Credit Corporation ("Lender").
RECITALS
A. Borrowers and Lender entered into a Loan and Security Agreement
dated December 15, 2000 and other related documents, instruments
and agreements (collectively referred to as the "Agreement").
B. Borrowers and Lender desire to amend certain terms of the
Agreement on and subject to the terms of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are being acknowledged and affirmed, the parties hereto
agree as follows:
1. Occupational Health Connection, LLC is hereby deleted as a Borrower to
the Agreement, each and every reference to "Borrower" in each Loan Document
shall be deemed to exclude Occupational Health Connection LLC as a Borrower, on
and after the date of this Amendment.
2. Occupational Health Physicians of New Jersey, P.A., is hereby added to
the Agreement as a Borrower. Occupational Health Physicians of New Jersey, P.A.
hereby: (a) becomes a Borrower under, in accordance with and subject to the
terms and conditions of the Agreement, the Note and the other Loan Documents;
(b) joins in and agrees to be bound by and perform in accordance with the terms
of the Agreement, the Note and the other Loan Documents; and (c) subject to the
provisions of Section 2.15 of the Agreement, confirms that it shall be jointly
and severally liable to Lender for all of the Obligations. Occupational Health
Physicians of New Jersey, P.A. hereby makes in favor of Lender all of the
representations, warranties, covenants and agreements set forth in the Agreement
and the other Loan Documents. Each and every reference to "Borrower" in each
Loan Document shall be deemed to include Occupational Health Physicians of New
Jersey, P.A. along with the existing Borrowers, on and after the date of this
Amendment.
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3. The exact name of OHP is Occupational Health Physicians of New Jersey,
P.A. organized under the laws of the State of New Jersey. The following are all
previous legal names of OHP: None
OHP uses the following trade names: None
4. The chief executive office of OHP is located at: 0 Xxxxx Xxxx, Xxxxx
Xxxxx, XX 000000 OHP maintains all of its records with respect to Accounts at
the following address: c/o Occupational Health + Rehabilitation Inc, 000 Xxxxx
Xxxxxx, Xxxxx 00, Xxxxxxx, XX 00000
5. Section 1.1 "Account Debtors" definition shall be amended in its
entirety to read as follows:
""Account Debtors" shall have the meaning given the term "account
debtor" in the UCC."
6. Section 1.1 "Accounts" definition shall be amended in its entirety to
read as follows:
""Accounts" means all accounts, accounts receivable, monies and debt
obligations in any form owing to any Borrower (whether arising in connection
with contracts, contract rights, instruments, general intangibles or chattel
paper) arising out of the rendition of services by such Borrower whether or not
earned by performance and includes, without limitation, health-care-insurance
receivables, all amounts due under any contract listed on Schedule 6.1, and any
other property and rights set forth in the definition of "account" in the UCC."
7. The following definitions shall be added to Section 1.1:
"OHP" shall mean Occupational Health Physicians of New Jersey, P.A.
"OHP Borrowing Base" shall mean on the date of determination thereof,
an amount equal to the lesser of (i) the sum of eighty-five percent (85%) of the
Net Collectible Value of OHP's Eligible Accounts, or (ii) the aggregate total of
the monthly Accounts collections for OHP over the immediately preceding three
(3) month period.
8. Section 2.4 "The Borrowing Base" shall be amended in its entirety to
read as follows:
"Section 2.4 The Borrowing Base. Two times a month, the Borrowing
Base will be recalculated by adding new xxxxxxxx to the prior Borrowing Base's
Eligible Accounts and subtracting deposits and adjustments, and then multiplying
this amount by the Net Collectible Percentage. The Borrowing Base shall be
calculated on the basis of the reports delivered to Lender pursuant to Section
5.4. To the extent that any Borrower fails to deliver the Borrowing Base report
to Lender, the Borrowing Base shall be reduced by the full amount of all lock
box collections related to that Borrower."
9. Section 3.1 "Grant of Security Interest" shall be amended in its
entirety to read as follows:
"Section 3.1 Grant of Security Interest. In order to secure prompt
payment and performance of all Obligations, each Borrower hereby grants to
Lender a continuing first-priority pledge and security interest in all of each
Borrower's: (i) present and future Accounts including without limitation
health-care-insurance receivables, chattel paper, instruments, investment
property, documents, and general intangibles including without limitation
payment intangibles; (ii) deposit accounts, lockbox accounts, credit insurance,
guaranties, and letter-of-credit rights; (iii) deposits, reserves, Medicare or
Medicaid pools, cost report settlements, prospective payments, adjustments and
incentive payments of any kind; (iv) inventory, equipment, goods and fixtures;
(v) attachments, accessories, accessions, returns, repossessions, exchanges,
substitutions and replacements thereto; (vi) Borrower's Books related to the
foregoing; and (vii) all income, proceeds and products and any and all security
for any of the foregoing; all whether now owned or existing or hereafter
acquired or arising and regardless of where located (collectively, the
"Collateral"). This security interest in the Collateral shall attach to all
Collateral without further action on the part of Lender or Borrower.
The Collateral, as defined in the DVIFS Documents also secures all
Obligations of Borrower under this Agreement. The Collateral as defined in this
Section 3 also secures all obligations due DVIFS under the DVIFS
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Documents."
10. Section 5.4 "The Borrowing Base and Other Reports" letter (a) shall be
amended in its entirety to read as follows:
Section 5.4 Borrowing Base and Other Reports
"(a) Reports. OHR, on behalf of each Borrower, shall deliver to Lender
on the third Friday of each month by Internet E-Mail or in a computer disc or
tape format acceptable to Lender, in form and content satisfactory to Lender (i)
a Borrowing Base report updated to reflect xxxxxxxx, adjustments and
collections; and (ii) a summary system generated accounts receivable aging
report by Financial Class."
Borrower hereby agrees to execute and deliver such other and further
documents and instruments as Lender may request to implement the provisions of
this Amendment and the Agreement and to perfect and protect the Liens and
security interests created by the Loan Documents.
Lender is entering into this Amendment without any forbearance, and without
waiver or prejudice of defaults, events of default, and any rights or remedies
Lender has or may have under the Agreement and applicable law. Except as
otherwise agreed to in writing, Lender hereby expressly reserves the right to
declare a default in accordance with the Agreement and exercise all of Lender's
rights and remedies thereunder.
All capitalized terms used herein and not otherwise defined herein shall
have the same meaning as in the Agreement. Any provision in the Amendment hereof
that may be contrary to any provision of the Agreement shall prevail and
override the Agreement. Except as expressly set forth herein, all other
provisions of the Agreement shall remain in full force and effect. Borrower and
Lender warrant to each other that this Amendment has been authorized and duly
executed and is binding on all parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
BORROWER: LENDER:
OCCUPATIONAL HEALTH + REHABILITATION INC DVI BUSINESS CREDIT CORPORATION
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
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Print Name: Xxxxx X. Xxxx Print Name: Xxxxxx X. Xxxxx, Xx.
---------------------------------- ----------------------------
Title: Chief Financial Officer Title: Executive Vice President & Chief Operating Officer
--------------------------------------- --------------------------------------------------
BORROWER: BORROWER:
CM OCCUPATIONAL HEALTH, OHR-SSM, LLC
LIMITED LIABILITY COMPANY
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
------------------------------------------- -------------------------------------
Print Name: Xxxxx X. Xxxx Print Name: Xxxxx X. Xxxx
---------------------------------- ----------------------------
Title: Chief Financial Officer Title: Chief Financial Officer
--------------------------------------- ---------------------------------
Occupational Health + Rehabilitation Inc Occupational Health + Rehabilitation Inc
Its Member and Manager Its Member and Manager
BORROWER: BORROWER:
OCCUPATIONAL HEALTH PHYSICIANS OCCUPATIONAL HEALTH CONNECTION LLC
OF NEW JERSEY, P.A.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
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Print Name: Xxxxx X. Xxxx Print Name: Xxxxx X. Xxxx
---------------------------------- ----------------------------
Title: Vice President Title: Chief Financial Officer
--------------------------------------- ---------------------------------
Occupational Health + Rehabilitation Inc
Its Member and Manager
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