EXHIBIT 11.1(e)
SUBORDINATION AGREEMENT
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PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER INITIALS
$6,500,000.00 02-07-2002 06-30-2004 932900001-1 932900001-1 22163 [INITIALS ILLEGIBLE]
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References in the shaded area are for Lender's use only and do not limit the applicability of this document
to any particular loan or item. Any item above containing "***" has been omitted due to text length limitations.
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BORROWER: INTERNATIONAL REMOTE LENDER:
CALIFORNIA BANK & TRUST
IMAGING SYSTEMS, INC. COMMERCIAL LOAN CENTER
0000 XXXX XXXXXX 000 XXXXX XXXX XXXXXX, XXXXX 000
XXXXXXXXXX, XX 00000 XXX XXXXXXX, XX 00000
CREDITOR: DIGITAL IMAGING TECHNOLOGIES, INC.
0000 XX. XXXXX XXXXX, #000
XXXXXXX, XX 00000
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THIS
SUBORDINATION AGREEMENT DATED FEBRUARY 7, 2002, IS MADE AND EXECUTED AMONG
INTERNATIONAL REMOTE IMAGING SYSTEMS, INC., 0000 XXXX XXXXXX; XXXXXXXXXX, XX
00000 ("BORROWER"); DIGITAL IMAGING TECHNOLOGIES, INC.; 0000 XX. XXXXX XXXXX,
#000; XXXXXXX, XX 00000 ("CREDITOR"); AND
CALIFORNIA BANK & TRUST, COMMERCIAL
LOAN CENTER, 000 XXXXX XXXX XXXXXX, XXXXX 000, XXX XXXXXXX, XX 00000 ("LENDER").
CURRENT INDEBTEDNESS OWING TO CREDITOR. As of the date of this Agreement,
Borrower is indebted to Creditor in the AGGREGATE AMOUNT OF $7,000,000.00. This
amount is the total indebtedness of every kind from Borrower to Creditor.
REQUESTED FINANCIAL ACCOMMODATIONS. Borrower and Creditor each want Lender to
provide financial accommodations to Borrower in the form of (A) new credit or
loan advances, (B) an extension of time to pay or other compromises regarding
all or part of Borrower's present indebtedness to Lender, or (C) other benefits
to Borrower. Borrower and Creditor each represent and acknowledge to Lender
that Creditor will benefit as a result of these financial accommodations from
Lender to Borrower, and Creditor acknowledges receipt of valuable consideration
for entering into this Agreement. BASED ON THE REPRESENTATIONS AND
ACKNOWLEDGMENTS CONTAINED IN THIS AGREEMENT, BORROWER AND CREDITOR AGREE WITH
LENDER AS FOLLOWS:
SUBORDINATED INDEBTEDNESS. The words "Subordinated Indebtedness" as used in
this agreement mean the following specific indebtedness from BORROWER TO
CREDITOR, including all renewals, extensions, modifications and substitutions
for the indebtedness, including principal, interest, and all costs and
attorneys' fees, relating to the indebtedness: $7,000,000.00.
SUPERIOR INDEBTEDNESS. The words "Superior Indebtedness" as used in this
Agreement mean and include all present and future indebtedness, obligations,
liabilities, claims, rights, and demands of any kind which may be now or
hereafter owing from BORROWER TO LENDER. The term "Superior Indebtedness" is
used in its broadest sense and includes without limitation all principal, all
interest, all costs, attorneys' fees, all sums paid for the purpose of
protecting Lender's rights in security (such as paying for insurance on
collateral if the owner fails to do so), all contingent obligations of Borrower
(such as a guaranty), all obligations arising by reason of Borrower's accounts
with Lender (such as an overdraft on a checking account), and all other
obligations of Borrower to Lender, secured or unsecured, of any nature
whatsoever.
SUBORDINATION. All Subordinated Indebtedness of Borrower to Creditor is and
shall be subordinated in all respects to all Superior Indebtedness of Borrower
to Lender. If Creditor holds one or more Security Interests, whether now
existing or hereafter acquired, in any of Borrower's real property or personal
property, Creditor also subordinates all Creditor's Security Interests to all
Security Interests held by Lender, whether now existing or hereafter acquired.
PAYMENTS TO CREDITOR. Except as provided below, Borrower will not make and
Creditor will not accept, at any time while any Superior Indebtedness is owing
to Lender, (A) any payment upon any Subordinated Indebtedness, (B) any advance,
transfer, or assignment of assets to Creditor in any form whatsoever that would
reduce at any time or in any way the amount of Subordinated Indebtedness, or
(C) any transfer of any assets as security for the Subordinated Indebtedness.
Notwithstanding the foregoing, Borrower may make regularly scheduled payments
of interest only to Creditor so long as Borrower is not in default under any
written agreement between Lender and Borrower. Creditor may not accelerate any
amounts owed to Creditor without Lender's prior written consent.
Notwithstanding the foregoing, Borrower may make regularly scheduled payments
of $97,250.00 EACH MONTH (PRINCIPAL PAYMENT) to Creditor in accordance with the
terms of the Subordinated Indebtedness so long as Borrower is not in default
under any written agreement between Lender and Borrower. Creditor may not
accelerate any amounts owed to Creditor without Lender's prior written consent.
In the event of any distribution, division, or application, whether partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or
any part of Borrower's assets, or the proceeds of Borrower's assets, in
whatever form, to creditors of Borrower or upon any indebtedness of Borrower,
whether by reason of the liquidation, dissolution or other winding-up of
Borrower, or by reason of any execution sale, receivership, insolvency, or
bankruptcy proceeding, assignment for the benefit of creditors, proceedings for
reorganization, or readjustment of Borrower or Borrower's properties, then and
in such event, (A) the Superior Indebtedness shall be paid in full before any
payment is made upon the Subordinated Indebtedness, and (B) all payments and
distributions, of any kind or character and whether in cash, property, or
securities, which shall be payable or deliverable upon or in respect of the
Subordinated Indebtedness shall be paid or delivered directly to Lender for
application in payment of the amounts then due on the Superior Indebtedness
until the Superior Indebtedness shall have been paid in full.
Should any payment, distribution, security or proceeds thereof be received by
Creditor at any time on the Subordinated Indebtedness contrary to the terms of
this Agreement, Creditor immediately will deliver the same to Lender in
precisely the form received (except for the endorsement or assignment of
Creditor if necessary), for application on or to secure the Superior
Indebtedness, whether it is due or not due, and until so delivered the same
shall be held in trust by Creditor as property of Lender. In the event Creditor
fails to make any such endorsement or assignment, Lender, or any of its
officers on behalf of Lender, is hereby irrevocably authorized by Creditor to
make the same.
CREDITOR'S NOTES. Creditor agrees to deliver to Lender, at Lender's request,
copies of all notes of Borrower to Creditor, or other evidence of the
Subordinated Indebtedness, now held or hereafter acquired by Creditor, while
this Agreement remains in effect. At Lender's request, Borrower also will
execute and deliver to Creditor a promissory note evidencing any book account
or claim now or hereafter owed by Borrower to Creditor, which not also shall be
delivered by Creditor to Lender. Creditor agrees not to sell, assign, pledge or
otherwise transfer any of such notes except subject to all the terms and
conditions of this Agreement.
**not outlined under this agreement.
SUBORDINATION AGREEMENT
LOAN NO: 932900001-1 (CONTINUED) PAGE 2
PAGE 2
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CREDITOR'S REPRESENTATIONS AND WARRANTIES. Creditor represents and warrants to
Lender that: (A) no representations or agreements of any kind have been made to
Creditor which would limit or qualify in any way the terms of this Agreement;
(B) this Agreement is executed at Borrower's request and not at the request of
Lender; (C) Lender has made no representation to Creditor as to the
creditworthiness of Borrower; and (D) Creditor has established adequate means of
obtaining from Borrower on a continuing basis information regarding Borrower's
financial condition. Creditor agrees to keep adequately informed from such means
of any facts, events, or circumstances which might in any way affect Creditor's
risks under this Agreement, and Creditor further agrees that Lender shall have
no obligation to disclose to Creditor information or material acquired by Lender
in the course of its relationship with Borrower.
CREDITOR'S WAIVERS. Creditor waives any right to require Lender: (A) to make,
extend, renew, or modify any loan to Borrower or to grant any other financial
accommodations to Borrower whatsoever; (B) to make any presentment, protest,
demand, or notice of any kind, including notice of any nonpayment of the
Superior Indebtedness or of any nonpayment related to any Security Interests, or
notice of any action or nonaction on the part of Borrower, Lender, any surety,
endorser, or other guarantor in connection with the Superior Indebtedness, or in
connection with the creation of new or additional Superior Indebtedness; (C) to
resort for payment or to proceed directly or at once against any person,
including Borrower; (D) to proceed directly against or exhaust any Security
Interests held by Lender from Borrower, any other guarantor, or any other person
(E) to pursue any other remedy within Lender's power; or (F) to commit any act
or omission of any kind, at any time, with respect to any matter whatsoever.??
LENDER'S RIGHTS. Lender may take or omit any and all actions with respect to the
Superior Indebtedness or any Security Interests for the SUPERIOR Indebtedness
without affecting whatsoever any of Lender's rights under this Agreement. In
particular, without limitation, Lender may, without notice of any kind to
Creditor, (A) make one or more additional secured or unsecured loans to
Borrower; (B) repeatedly alter, compromise, renew, extend, accelerate, or
otherwise change the time for payment or other terms of the Superior
Indebtedness or any part thereof, including increases and decreases of the rate
of interest on the Superior Indebtedness; extensions may be repeated and may be
for longer than the original loan term; (C) take and hold Security Interests for
the payment of the Superior Indebtedness, and exchange, enforce, waive, and
release any such Security Interests, with or without the substitution of new
collateral; (D) release, substitute, agree not to xxx, or deal with any one or
more of Borrower's sureties, endorsers, or guarantors on any terms or manner
Lender chooses; (E) determine how, when and what application of payments and
credits, shall be made on the Superior Indebtedness; (F) apply such security and
direct the order or manner of sale thereof, as Lender in its discretion may
determine; and (G) assign this Agreement in whole or in part.
DEFAULT BY BORROWER. If Borrower becomes insolvent or bankrupt, this Agreement
shall remain in full force and effect. In the event of a corporate
reorganization or corporate arrangement of Borrower under the provisions of the
Bankruptcy Code, as amended, this Agreement shall remain in full force and
effect and the court having jurisdiction over the reorganization or arrangement
is hereby authorized to preserve such priority and subordination provided under
this Agreement in approving any such plan of reorganization or arrangement.
DURATION AND TERMINATION. This Agreement will take effect when received by
Lender, without the necessity of any acceptance by Lender, in writing or
otherwise, and will remain in full force and effect until Creditor shall notify
Lender in writing at the address shown above to the contrary. Any such notice
shall not affect the Superior Indebtedness owed Lender by Borrower at the time
of such notice, nor shall such notice affect Superior Indebtedness thereafter
granted in compliance with a commitment made by Lender to Borrower prior to
receipt of such notice, nor shall such notice affect any renewals of or
substitutions for any of the foregoing. Such notice shall affect only
indebtedness of Borrower to Lender arising after receipt of such notice and not
arising from financial assistance granted by Lender to Borrower in compliance
with Lender's obligations under a commitment. Any notes lodged with Lender
pursuant to the section titled "Creditor's Notes" above need not be returned
until this Agreement has no further force or effect.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
ATTORNEYS' FEES; EXPENSES. Creditor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Creditor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Creditor also shall pay
all court costs and such additional fees as may be directed by the
court.
AUTHORITY. The person who signs this Agreement as or on behalf of
Creditor represents and warrants that he or she has authority to execute
this Agreement and to subordinate the Subordinated Indebtedness and the
Creditor's security interests in Borrower's property, if any.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Agreement.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF
CALIFORNIA. THIS AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF
CALIFORNIA.
CHOICE OF VENUE. If there is a lawsuit, Creditor agrees upon Lender's
request to submit to the jurisdiction of the courts of Los Angeles
County, State of
California.
INTERPRETATION. In all cases where there is more than one Creditor, then
all words used in this Agreement in the singular shall be deemed to have
been used in the plural where the context and construction so require;
and where there is more than one Creditor named in this Agreement or
when this Agreement is executed by more than one , the words "Creditor"
shall mean all and any one or more of them. Reference to the phrase
"Creditor" includes the heirs, successors, assigns, and transferees of
each of them.
SUCCESSORS AND ASSIGNS. This Agreement shall be understood to be for the
benefit of Lender and for such other person or persons as may from time
to time become or be the holder or owner of any of the Indebtedness or
any interest therein, and this Agreement shall be transferable to the
same extent and with the same force and effect as any such Indebtedness
may be transferable.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Creditor, shall constitute a waiver of any of
Lender's rights or of any of Creditor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
WAIVE JURY. ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE THE RIGHT TO ANY
JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY
PARTY AGAINST ANY OTHER PARTY.
SUBORDINATION AGREEMENT
LOAN NO: 932900001-1 (CONTINUED) PAGE 3
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DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
AGREEMENT. The word "Agreement" means this
Subordination Agreement, as
this
Subordination Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this
Subordination
Agreement from time to time.
BORROWER. the word "Borrower" means International Remote Imaging Systems,
Inc., and all other persons and entities signing the Note in whatever
capacity.
CREDITOR. The word "Creditor" means Digital Imaging Technologies, Inc.
INDEBTEDNESS. The word "Indebtedness" means the Indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the Related
Documents. The word note shall mean that certain Subordinated Note dated
3/14/01 by and between Creditor and Borrower in the amount of
$7,000,000.00.
LENDER. The word "Lender" means
California Bank & Trust, its successors and
assigns.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
SECURITY INTEREST. The words "Security Interest" mean, without limitation,
any and all types of collateral security, present and future, whether in
the form of a lien, charge, encumbrance, mortgage, deed of trust, security
deed, assignment, pledge, crop pledge, chattel mortgage, collateral chattel
mortgage, chattel trust, factor's lien, equipment trust, conditional sale,
trust receipt, lien or title retention contract, lease or consignment
intended as a security device, or any other security or lien interest
whatsoever whether created by law, contract, or otherwise.
SUBORDINATED INDEBTEDNESS. The words "Subordinated Indebtedness" mean the
indebtedness described in the section of this Agreement titled
"Subordinated Indebtedness".
SUPERIOR INDEBTEDNESS. The words "Superior Indebtedness" mean the
indebtedness described in the section of this Agreement titled "Superior
Indebtedness".
BORROWER AND CREDITOR EACH ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF
THIS
SUBORDINATION AGREEMENT, AND BORROWER AND CREDITOR EACH AGREE TO ITS TERMS.
THIS AGREEMENT IS DATED FEBRUARY 7, 2002.
BORROWER:
INTERNATIONAL REMOTE IMAGING SYSTEMS, INC.
BY: /s/ Xxxx X. X'Xxxxxx BY: /s/ Xxxx Xxxxx
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XX. XXXX X. X'XXXXXX XXXX XXXXX
CEO/CHAIRMAN OF INTERNATIONAL REMOTE CFO/SECRETARY OF INTERNATIONAL
IMAGING SYSTEMS, INC. REMOTE IMAGING SYSTEMS, INC.
CREDITOR:
DIGITAL IMAGING TECHNOLOGIES, INC.
BY: /s/ [SIGNATURE ILLEGIBLE]
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AUTHORIZED SIGNER FOR DIGITAL IMAGING
TECHNOLOGIES, INC.
BY:
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AUTHORIZED SIGNER FOR DIGITAL IMAGING
TECHNOLOGIES, INC.
