Exhibit 10.02(e)
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (the "Agreement") is dated as of March 24,
2003, by and among Occupational Health + Rehabilitation Inc, a Delaware
corporation (the "Company"), the holders of Promissory Notes (the "Notes")
listed in Schedule I attached hereto (the "Subordinated Creditors"), and DVI
Business Credit Corporation ("DVIBC") and DVI Financial Services Inc. ("DVIFS"
and together with DVIBC, the "Senior Creditors").
W I T N E S S E T H:
WHEREAS, the Subordinated Creditors will on the date hereof acquire certain
Promissory Notes of the Company in the original aggregate principal amount of
$2,699,740.35 (the obligations of the Company to the Subordinated Creditors
under the Notes are hereinafter called the "Subordinated Debt");
WHEREAS, the Company pursuant to a Loan and Security Agreement dated as of
December 15, 2000 between the Company and DVIBC and a Master Loan Agreement
dated March 1, 2001 between the Company and DVIFS (collectively, as amended or
restated from time to time, the "Credit Agreements"), has borrowed and will from
time to time borrow and re-borrow money from the Senior Creditors (all
obligations of the Company to the Senior Creditors, whether now existing or
hereafter arising, including all principal, interest, costs, fees, expenses and
other amounts owed by the Company to the Senior Creditors pursuant to the Credit
Agreements and all other amounts which are included in the Obligations (as that
term is defined in either of the Credit Agreements) are herein called the
"Senior Debt");
WHEREAS, the Senior Debt is secured pursuant to the terms of the Credit
Agreements; and
WHEREAS, each Subordinated Creditor, as an inducement to each Senior
Creditor to continue present credit extensions to the Company and from time to
time make further loans and credit available to the Company, desires to
subordinate, in the manner and to the extent herein set forth, the payment of
the Subordinated Debt to the due and punctual payment of the Senior Debt.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. Subordination. Each Subordinated Creditor, for itself, its successors
and assigns, covenants and agrees that the payment of the principal of and
interest on all Subordinated Debt now or hereafter outstanding is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
to the payment of the Senior Debt. This
Agreement shall constitute a continuing agreement of subordination and shall
continue in effect until written notice from the Subordinated Creditors
representing at least 662/3% of the then outstanding aggregate principal amount
of the Promissory Notes to the Senior Creditors. No such notice or revocation
shall affect the rights of the parties with respect to any Senior Debt
outstanding or committed for on the date of revocation, as to which this
Agreement shall continue in force and effect until such Senior Debt shall be
paid in full.
2. No Payment Upon Default. In the event of a default by the Company under
the terms of each Credit Agreement due to the Company's failure to make payments
thereunder or satisfy the financial covenants thereunder, and during the
continuance of such default for a period up to one hundred eighty (180) days and
thereafter if (a) the maturity of any Senior Debt has been accelerated by the
Senior Creditors, (b) judicial proceedings shall have been instituted with
respect to such default, or (c) (if a shorter period) until such default has
been cured or waived in writing by a Senior Creditor, then and during the
continuance of such period, no payment of principal of, interest on, or fees,
costs, expenses or other amounts with respect to, any Subordinated Debt shall be
made by the Company or accepted any each Subordinated Creditor.
3. Payments Held in Trust. Each Subordinated Creditor agrees that, if any
payment of principal of, interest on, or fees, costs, expenses or other amounts
with respect to, any Subordinated Debt is received by it before all Senior Debt
shall have been paid in full, despite or in violation or contravention of the
terms of this Agreement, such Subordinated Creditor will hold the same in trust
for the Senior Creditor and forthwith pay the same to the Senior Creditors, to
be held by the Senior Creditors as additional security for the Senior Debt or
applied by the Senior Creditors to payment of the Senior Debt in such manner as
the Senior Creditors may choose in their sole discretion.
4. Bankruptcy. In the event of any receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization (whether or not pursuant
to bankruptcy laws), sale of all or substantially all of the assets,
dissolution, liquidation, winding up of the business or affairs of the Company
or any other marshalling of the assets and liabilities of the Company:
(a) Each Subordinated Creditor will prove, enforce and endeavor to
obtain payment of the principal of, interest on and all other amounts
payable with respect to all Subordinated Debt and will pay over, but only
out of and to the extent of any proceeds realized therefor, to the Senior
Creditors amounts thereof sufficient, after application of all other
amounts then or theretofore realized for payment of principal of and
interest on, or other payments with respect to, the Senior Debt, to pay in
full the Senior Debt, as provided in Section 2 hereof. Each Subordinated
Creditor may file claims in any such proceeding on its own behalf;
provided, however, in the event that a Subordinated Creditor fails to make
such filings by the tenth day prior to the due date of such filings then
during the ten day period prior to the due date of such filings (a
"Forfeited Filing Period"), the Senior Creditors may file claims in any
such proceeding on such
Subordinated Creditor's behalf during such Forfeited Filing Period and in
no event shall any Subordinated Creditor on whose behalf a Senior Creditor
has made a filing waive, forgive or cancel any claim it may now or
hereafter have against the Company with respect to such filing. For
purposes of the foregoing, each Senior Creditor is hereby irrevocably
constituted and appointed by each Subordinated Creditor failing to file a
claim prior to a Forfeited Filing Period as its attorney-in-fact to file
any and all proofs of claim and any other documents and to take all other
actions during such Forfeited Filing Period, either in such Senior
Creditor's name or in the name of a Subordinated Creditor, that in such
Senior Creditor's opinion is reasonably necessary to enable such Senior
Creditor to obtain such payments.
(b) The Senior Creditors may, at their option, claim directly from the
trustee or representative of the Company's estate in such proceeding. In
the event that a Senior Creditor does so elect to claim directly against
the trustee or representative of the Company's estate, each Subordinated
Creditor hereby grants to such Senior Creditor an irrevocable proxy to vote
its claims in any such proceeding or at any meeting of creditors, and
agrees to execute all further documents requested by each Senior Creditor
to facilitate exercise of this proxy. Each Subordinated Creditor and the
Company agree to furnish all assignments, powers or other documents
requested by each Senior Creditor to facilitate such direct collection by
such Senior Creditor or the perfection of any interest of such Senior
Creditor hereunder.
5. Certain Prohibited Actions. Until the payment in full of the Senior
Debt, without the prior written consent of the Senior Creditors:
(a) No Subordinated Creditor shall request, demand or seek to obtain
from the Company, and the Company shall not grant or deliver to any
Subordinated Creditor, any collateral or other security for the
Subordinated Debt;
(b) No Subordinated Creditor shall (i) accelerate the maturity of any
Subordinated Debt or (ii) exercise any right or remedy, or take any action,
against the Company or any of the assets or property of the Company to
enforce his rights with respect to any Subordinated Debt; provided,
however, the foregoing restrictions on the Subordinated Creditors shall
only apply if there is a default under the Credit Agreement with respect to
the Company's failure to make payments thereunder or satisfy the financial
covenants; and
(c) No Subordinated Creditor shall sell, assign or otherwise transfer
or further encumber any Subordinated Debt or interest therein without first
procuring and delivering to the Senior Creditors evidence in writing of the
consent and agreement of the purchaser, pledgee, assignee or transferee of
such Subordinated Debt or interest therein to comply with all terms,
conditions and provisions of this Agreement. The rights of the Senior
Creditors under this Section 5 shall inure to the benefit of its successors
and assigns.
6. Consents and Waivers. Each Subordinated Creditor hereby irrevocably
consents to (a) any amendment or waiver of the terms of the Senior Debt, (b) any
renewal, extension or postponement of the time of payment of the Senior Debt or
any other indulgence with respect to the Senior Debt, (c) any substitution,
exchange or release of collateral for the Senior Debt and (d) the addition or
release of any person primarily or secondarily liable on the Senior Debt, made
or effected by a Senior Creditor. Each Senior Creditor may exercise, fail to
exercise, waive or amend any of its rights under any instrument evidencing or
securing or under any agreement delivered in connection with any Senior Debt,
and in reference thereto may make and enter into such agreements as to it may
seem proper or desirable, all without notice to or further assent from any
Subordinated Creditor, and any such action shall not in any manner impair or
affect this Agreement or any of such Senior Creditor's rights hereunder. Each
Subordinated Creditor hereby irrevocably waives (i) presentment, notice and
protest in connection with all negotiable instruments evidencing Senior Debt or
Subordinated Debt, (ii) notice of the acceptance of this Agreement by a Senior
Creditor, (iii) notice of any extensions of credit made, extensions granted or
other action taken in reliance hereon, and (iv) all demands and notices of every
kind in connection with this Agreement. Each Subordinated Creditor hereby waives
and agrees not to assert against a Senior Creditor any rights which a guarantor
or surety with respect to any indebtedness of the Company could exercise; but
nothing in this Agreement shall constitute any Subordinated Creditor a guarantor
or surety.
7. Further Assurances. Each Subordinated Creditor and the Company shall
execute and deliver to each Senior Creditor such further instruments and
documents and shall take such further action as each Senior Creditor may at any
time or times reasonably request in order to carry out the provisions and intent
of this Agreement.
8. No Obligations of Senior Creditor. The rights granted to each Senior
Creditor hereunder are solely for its protection and nothing herein contained
shall impose on a Senior Creditor any duties with respect to the Subordinated
Debt or any property of any Subordinated Creditor or the Company received
hereunder beyond reasonable care while in any Senior Creditor's custody and
redelivery upon expiration of this Agreement.
9. Specific Performance. Each Senior Creditor is hereby authorized to
demand specific performance of this Agreement, whether or not the Company shall
have complied with the provisions hereof applicable to it, at any time when any
Subordinated Creditor shall have failed to comply with any provision hereof.
10. Amendment; Waiver. This Agreement may not be amended or waived except
by a writing signed by each Senior Creditor, the Company and the Subordinated
Creditors representing at least a majority of the then outstanding aggregate
principal amount of the Promissory Notes. No delay on the part of a Senior
Creditor in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any partial exercise or waiver of any privilege or
right hereunder preclude any further exercise of such privilege or right or the
exercise of any other right, power or privilege. The rights
-
and remedies expressed in this Agreement are cumulative and not exclusive of any
right or remedy which each Senior Creditor may otherwise have.
11. Notices. Any notices or other communications to be given to the Senior
Creditors under this Agreement shall be in writing and shall be deemed given
when mailed to the Senior Creditors by overnight courier or by registered mail
addressed to DVI Business Credit Corporation, 0000 Xxxx Xxxx, Xxxxxxx, XX 00000,
Attention: Xxxxxx X. Xxxxx, Xx., Chief Operating Officer, or to such other
address or addresses as the Senior Creditors may from time to time designate for
that purpose.
12. Governing Law. This Subordination Agreement shall be deemed to be a
contract made under and shall be construed in accordance with, and this
Subordination Agreement and any claim arising out of the relationship of the
parties hereto, whether arising under this Subordination Agreement or otherwise,
shall be governed by the laws of the State of Delaware. This Agreement shall be
deemed to be an instrument under seal.
13. Counterparts. This Agreement may be signed in any number of
counterparts, which together will be one and the same instrument. This Agreement
shall become effective whenever each party shall have signed at least one such
counterpart. This Agreement shall be binding upon each Subordinated Creditor and
its executors, administrators, personal representatives, heirs, devisees,
legatees, successors and assigns, and shall inure to the benefit of each Senior
Creditor and its successors and assigns.
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IN WITNESS WHEREOF, each party hereto has cause this Subordination
Agreement to be executed by its duly authorized officer as of the date first
above written.
Subordinated Creditors:
XXXXXX, XXXXXXX STRATEGIC
PARTNERS FUND, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Title: General Partner
STRATEGIC ASSOCIATES, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Title: General Partner
AXA U.S. GROWTH FUND LLC
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Title: Managing Member
PANTHEON GLOBAL PCC LIMITED
By: /s/ Xxxxxx Xxxx
------------------------------------------
Title: Alternate Director
DOUBLE BLACK DIAMOND II LLC
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Title: Managing Member
/s/ Xxxxxx X. XxXxxxxx
----------------------------------------------
Xxxxxxx Worms, signed by
Xxxxxx XxXxxxxx pursuant to a power of
attorney
THE VENTURE CAPITAL FUND OF
NEW ENGLAND III, L.P.
By: FH & Co. III, L.P., Its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Title: General Partner
BANCBOSTON VENTURES, INC.
By: /s/ Xxxx X. XxXxxxxxx
------------------------------------------
Title: Vice President
VENROCK ASSOCIATES
VENROCK ASSOCIATES II, L.P.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Title: General Partner
ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Title: General Partner
Senior Creditor:
DVI BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President and
Chief Operating Officer
DVI FINANCIAL SERVICES INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
Company:
OCCUPATIONAL HEALTH + REHABILITATION INC
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
SCHEDULE I
Name of
Subordinated Principal amounts
Creditor of Notes
------------ -----------------
Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. $ 1,294,049.41
Strategic Associates, L.P. $ 71,701.91
Venrock Associates $ 127,047.21
Venrock Associates II, L.P. $ 190,569.86
The Venture Capital Fund of New England III, L.P. $ 127,047.21
Asset Management Associates, 1989, L.P. $ 158,807.58
Pantheon Global PCC Limited $ 330,322.37
AXA U.S. Growth Fund LLC $ 165,161.18
Double Black Diamond II LLC $ 31,762.28
Xxxxxxx Worms $ 12,701.48
BancBoston Ventures, Inc. $ 190,569.86
----------------
Totals $ 2,699,740.35
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