SUBORDINATION AGREEMENT
This Subordination Agreement is made as of the 15th day of November, 2000
by and between Medtronic Asset Management, Inc., a Minnesota corporation (the
"Subordinated Creditor") and Fleet National Bank (the "Bank").
WHEREAS, the Bank (or its corporate predecessor) has entered into certain
financing arrangements for EP MedSystems, Inc., a New Jersey corporation (the
"Borrower"), pursuant to which the Bank has made and may in the future make
loans to the Borrower on the terms and conditions described in a letter
agreement dated March 31, 1999 between the Borrower and the corporate
predecessor of the Bank (said letter agreement, as same may be from time to time
amended, being hereinafter referred to as the "Loan Agreement"); and
WHEREAS, the Subordinated Creditor wishes to make a $3,200,000 loan to the
Borrower evidenced by that certain $3,200,000 Secured Promissory Note of the
Borrower (the "Subordinated Note") issued pursuant to that certain Note Purchase
Agreement (the "Subordinated Note Agreement") dated as of November 15, 2000
between the Borrower and the Subordinated Creditor (the obligations and
indebtedness represented by said Subordinated Note and/or said Subordinated Note
Agreement, as same may be from time to time amended or extended, including,
without limitation, all principal, interest, fees and charges, being hereinafter
referred to as the "Subordinated Debt"); and
Whereas, absent the consent of the Bank, the incurrence of the
Subordinated Debt by the Borrower would be in breach of the Loan Agreement; and
WHEREAS, the Bank requires that the Subordinated Creditor enter into this
Subordination Agreement as a condition precedent to the Bank's consent to the
Borrower's incurrence of the Subordinated Debt;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby act and
agree as follows:
1. The Subordinated Creditor agrees that the payment of all of the
Subordinated Debt is expressly subordinated, in the manner hereinafter set
forth, in right of payment to the prior payment and satisfaction in full of the
Senior Debt. As used herein, "Senior Debt" means (i) the principal, interest,
fees and other sums payable from time to time to the Bank under the Loan
Agreement and/or under the Revolving Note or the Term Note (each as defined in
the Loan Agreement), each as same may be from time to time amended and (ii) any
and all other indebtedness or liabilities of the Borrower to the Bank resulting
from any other or additional credit hereafter extended by the Bank to or for the
benefit of the Borrower. Interest, fees and charges constituting Senior Debt
will be calculated as provided for in the note and/or other instruments
governing same and without regard to whether or not same are allowable in any
bankruptcy or insolvency proceedings involving the Borrower.
2. (a) So long as any part of the Senior Debt is unpaid or any facility
for loans or other extensions of credit by the Bank to or for the benefit of the
Borrower remains in effect, no payment of or with respect to any Subordinated
Debt shall be made at any time by the Borrower or received by the Subordinated
Creditor without the prior written consent of the Bank, except as expressly
provided below in this Section 2. If the Subordinated Creditor receives any
payment to which the Subordinated Creditor shall not be entitled under this
Section 2, the Subordinated Creditor will hold any such payment in trust for the
benefit of the Bank and, upon demand, will forthwith remit same to the Bank (and
any such payments so remitted shall then not be treated as having been made to
the Subordinated Creditor and shall not reduce its claim).
(b) Notwithstanding anything to the contrary provided above in this
Section 2, at any time when neither a Payment Default Standstill Period (defined
below) nor a Covenant Default Standstill Period (defined below) is in effect,
the Borrower may pay as same become due any regularly-scheduled payments of
principal of and interest (at a rate not in excess of Prime Rate (as defined
herein) plus 2% per annum) on the Subordinated Debt.
(c) As used in this Section 2, a "Payment Default Standstill Period" will
be deemed to be in effect during any period commencing with the date on which a
Payment Default occurs and ending only upon the earlier of (i) payment in full
of the Senior Debt in cash or (ii) the expiration of 180 days (subject to
extension as provided below) after the date on which such Payment Default occurs
(unless all then existing Payment Defaults have been waived in writing by the
Bank, in which case the Payment Default Standstill Period will end on the date
of such waiver). As used herein, a "Payment Default" is a default with respect
to the payment of money which occurs with respect to any of the Senior Debt or
any instrument evidencing the same and which continues beyond the expiration of
all applicable notice and/or grace periods, if any. If, at any time during a
Payment Default Standstill Period, the Bank shall be restrained or prohibited by
a court of competent jurisdiction or governmental agency asserting jurisdiction
(or prohibited or prevented by any relevant law, rule or statute) from
collecting the Senior Debt, the Payment Default Standstill Period shall be
deemed extended until the later of: (A) the date upon which it would have
otherwise expired pursuant to the terms of the first sentence of this Subsection
2(c), or (B) the 30th day following the last day on which the Bank is so
restrained, prohibited or prevented.
(d) As used in this Section 2, a "Covenant Default Standstill Period" will
be deemed to be in effect during any period commencing with the giving of any
Covenant Default Standstill Notice by the Bank to the Subordinated Creditor and
ending on the 180th day thereafter (subject to extension as hereinafter
provided) (or, if all of the relevant Covenant Defaults shall have been earlier
waived by the Bank, the date of such earlier waiver), unless the Bank shall have
accelerated any Senior Debt prior to such 180th day (in which case a Payment
Default will be deemed to have resulted from such acceleration and a Payment
Default Standstill Period will be deemed to have occurred, commencing on the
date of such Payment Default and terminating only as provided in Subsection 2(c)
above). If, at any time during a Covenant Default Standstill Period, the Bank
shall be restrained or prohibited by a court of competent jurisdiction or
governmental agency asserting jurisdiction (or prohibited or prevented by any
relevant law, rule or statute) from accelerating any of the Senior Debt, the
Covenant Default Standstill Period shall
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be deemed extended until the later of: (A) the date upon which it would have
otherwise expired pursuant to the terms of the immediately preceding sentence,
or (B) the 30th day following the last day on which the Bank is so restrained,
prohibited or prevented. As used herein, a "Covenant Default Standstill Notice"
is a written notice given by the Bank to the Subordinated Creditor, at its
address set forth below, stating that any Covenant Default under any Senior Debt
or any instrument evidencing or relating to same has occurred for any reason or
that any such Covenant Default would result from any proposed payment of
Subordinated Debt. As used herein, "Covenant Default" means any Event of Default
(other than a Payment Default) under the Loan Agreement; provided, however, that
in determining whether or not an Event of Default has or would occur, compliance
with each of Sections 3.7, 3.8 and 3.9 of the Loan Agreement will be determined
both as at the fiscal quarter-end immediately preceding the date of any proposed
payment (on a pro forma basis, giving effect to the proposed payment of
Subordinated Debt as if made at such fiscal quarter-end) and, on a pro forma
basis, as at the date of such payment, even if not a fiscal quarter-end.
Notwithstanding anything provided above, the Bank may not give more than one
Covenant Default Standstill Notice during any 360-day period.
(e) "Prime Rate" shall mean the prime rate in effect on the particular
date of determination as quoted by Xxxxx Fargo Bank Minnesota, N.A.,
Minneapolis, MN.
(f) Nothing contained in this Agreement will in any event be deemed to
prevent the Subordinated Creditor from converting, at any time, all or any
portion of the Subordinated Debt into equity of the Borrower and, upon such
conversion, receiving and retaining shares of capital stock of the Borrower.
Further, nothing contained in this Agreement will in any event be deemed to
prevent the Subordinated Creditor from pursuing its rights and remedies under
the Stock Pledge Agreement dated as of November 15, 2000 (the "Stock Pledge")
between the Subordinated Creditor and Xxxxx X. Xxxxxxx; and the Subordinated
Creditor may receive and retain the proceeds of any foreclosure, under the Stock
Pledge, on the "Pledged Shares" described therein.
3. In the event of an acceleration of any Senior Debt (or the making of
demand with respect to any Senior Debt which is a demand obligation) or the
failure to pay any Senior Debt at maturity, or in the event of any foreclosure
by the Bank with respect to any Collateral (as defined in the Loan Agreement),
or in the event of a distribution of the assets, dissolution, winding-up,
liquidation or reorganization of the Borrower (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or otherwise):
(a) The Senior Debt shall be paid and satisfied in full in cash
before the Subordinated Creditor is entitled to receive any payment on account
of Subordinated Debt, and any payment or distribution to which any holder of
Subordinated Debt would otherwise be entitled on account of any Subordinated
Debt, but for the subordination provisions of this Agreement, shall be paid
directly to the Bank (and any such payments so paid to the Bank shall then not
be treated as having been made to the Subordinated Creditor and shall not reduce
its claim).
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(b) In the event that any such payment on account of Subordinated
Debt or distribution of assets of the Borrower shall be received by the
Subordinated Creditor in violation of the subordination provisions of this
Agreement, such payment or distribution shall be held by the Subordinated
Creditor in trust for the benefit of the Bank and, upon demand, shall be paid
over forthwith to the Bank.
4. The Subordinated Creditor irrevocably authorizes and directs the Bank
and its successors and assigns and any trustee in bankruptcy, receiver or
assignee for the benefit of creditors of the Borrower, whether in voluntary or
involuntary liquidation, dissolution or reorganization, to take such action in
the name of the Subordinated Creditor as the Bank may deem to be necessary or
appropriate to effectuate the subordination provided for in this Agreement and
to file all such claims and proofs of claim as the Bank may deem necessary or
appropriate to collect on the Subordinated Debt or any of same; and the
Subordinated Creditor hereby irrevocably appoints the Bank and its successors
and assigns, acting severally, or any such trustee, receiver or assignee, as the
attorney- or attorneys-in-fact of the Subordinated Creditor for such purpose,
with full powers of substitution and resubstitution. The Subordinated Creditor
further appoints the Bank as its attorney-in-fact for the purpose of voting with
respect to any plan proposed in any reorganization, arrangement or composition
proceedings for the Borrower, it being understood that the Bank may exercise its
rights hereunder as the Bank in its sole discretion (acting in a commercially
reasonable manner and with written notice to the Subordinated Creditor) may
determine, and without regard to the effect which same would have on the
interests of the Subordinated Creditor. The powers of attorney granted herein
are powers coupled with an interest and are, therefore, irrevocable.
5. The terms of this Agreement, the subordination effected hereby and the
rights of the holder or holders of Senior Debt shall not be affected by: (i) any
amendment of or addition or supplement to the Loan Agreement, the Revolving
Note, the Term Note or any other instrument or agreement relating to the Senior
Debt or securing or guaranteeing any of the Senior Debt, (ii) any exercise or
non-exercise of any right, power or remedy under or in respect of the Senior
Debt or any instrument or agreement relating thereto, or securing or
guaranteeing any of same, or (iii) any waiver, consent, release, indulgence,
extension, renewal, modification, delay or other action, inaction or omission in
respect of any Senior Debt or any instrument or agreement relating thereto, or
securing or guaranteeing any of same, all whether or not the holders of the
Subordinated Debt shall have had notice or knowledge of any of the foregoing.
6. As long as any of the Senior Debt shall be outstanding or any agreement
by the Bank as to the advance of funds or other extension of credit to the
Borrower shall be in effect:
(a) No note or instrument evidencing any Subordinated Debt shall be
amended, terminated or otherwise affected without the prior written consent of
the Bank.
(b) The Subordinated Creditor will neither demand nor receive any
payment of any of the Subordinated Debt, under the Subordinated Note or
otherwise, except payments expressly permitted under Section 2 above.
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(c) The Subordinated Creditor will neither request nor accept any
security for any of the Subordinated Debt, except the pledge of the Pledged
Shares pursuant to the Stock Pledge.
(d) None of the Subordinated Debt will be accelerated, unless and
until the Senior Debt has been accelerated.
7. The Subordinated Creditor shall not be entitled to any right of
subrogation, contribution or similar right, regardless of any payment made
hereunder, unless and until all Senior Debt shall have been indefeasibly paid in
full in cash and no facility shall exist pursuant to which further Senior Debt
may arise.
8. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
9. The Subordinated Note and each other promissory note now or hereafter
evidencing any of the Subordinated Debt shall be marked with the following
legend:
"Payment of this note is subject to the terms and conditions of a
Subordination Agreement dated November 15, 2000 between the payee and
Fleet National Bank. A copy of said Subordination Agreement may be
obtained, upon written request of any holder of this note, from Fleet
National Bank, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000."
10. Nothing contained in this Agreement or otherwise will in any event be
deemed to constitute any holder of Senior Debt the agent of the Subordinated
Creditor for any purpose nor to create any fiduciary relationship between any
such holder of Senior Debt and the Subordinated Creditor. The Subordinated
Creditor acknowledges and agrees that, notwithstanding any subrogation,
contribution or similar rights or any other right which the Subordinated
Creditor may now or hereafter have, due to payment of the Senior Debt or
otherwise, no release, action or inaction with respect to any collateral for
Senior Debt; nor any amendment to the Loan Agreement, the Revolving Note, the
Term Note or any instrument or agreement relating to, securing or guaranteeing
any of the Senior Debt; nor any exercise or non-exercise of any right, power or
remedy under or in respect of any of the Senior Debt or any instrument or
agreement relating to, securing or guaranteeing any of the Senior Debt; nor any
waiver, consent, release, indulgence, extension, renewal, modification, delay or
other action, inaction or omission (intentional or unintentional) in respect of
any of the Senior Debt or any collateral therefor or any instrument or agreement
relating to, securing or guaranteeing any of the Senior Debt will in any event
give rise to any claim against any holder of Senior Debt or any officer,
director, employee or agent of such holder, and the Bank shall be free, in its
sole discretion, to do or refrain from doing any of the foregoing, even if the
result of any of the foregoing would be to impair the value of any such
subrogation, contribution or similar rights.
11. This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts.
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12. The Bank hereby consents to the Borrower's incurrence of the
Subordinated Debt and waives any default under Section 4.1 of the Loan Agreement
which would otherwise result therefrom; provided that this consent and waiver is
expressly conditioned as follows: (i) the Subordinated Debt to which the Bank
consents is solely as described in the subordinated loan documents attached
hereto, and the Bank does not consent to any other Subordinated Debt nor to any
other terms, (ii) this consent and waiver relate solely to Section 4.1 of the
Loan Agreement and not to any other provision of the Loan Agreement, and,
without limitation of the foregoing, the Borrower acknowledges that it must
continue to comply strictly with each of Sections 3.7 - 3.10, inclusive, of the
Loan Agreement, and (iii) this consent and waiver does not constitute a consent
or waiver, nor an agreement to give any consent or waiver, with respect to any
other or future indebtedness of the Borrower, whether incurred on terms similar
to those of the Subordinated Debt or otherwise.
Executed, as an instrument under seal, as of the day and year first above
written.
SUBORDINATED CREDITOR:
MEDTRONIC ASSET MANAGEMENT, INC.
By: s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Accepted:
FLEET NATIONAL BANK
By: s/ Xxxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
Acknowledged and agreed to:
EP Medsystems, Inc.
By: s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
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