EXHIBIT 4.24
RESTATED INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (the "AGREEMENT") is made and effective as
of September 12, 2003, by and among Bristol Investment Fund, Ltd. ("BRISTOL"),
Alpha Capital Aktiengesellschaft, ("ALPHA"), SDS Merchant Fund, LP ("SDS") and
Xxxxxxxxxxx Limited Partnership ("XXXXXXXXXXX") (Bristol is referred to as the
"FIRST CREDITOR", Alpha is referred to as the "SECOND CREDITOR", Alpha, SDS and
Bristol are collectively referred to as the "THIRD CREDITOR" and Xxxxxxxxxxx is
referred to as the "FOURTH CREDITOR" and the First Creditor, the Second
Creditor, the Third Creditor and the Fourth Creditor are collectively referred
to as the "CREDITORS"). This Agreement shall replace and supercede the
Intercreditor Agreement dated May 9, 2003 entered into by and between the
Company and Alpha and Bristol.
RECITALS
WHEREAS, Amnis Systems Inc. (the "COMPANY") has granted in favor of the
First Creditor a security interest in all of the assets of the Company (the
"FIRST CREDITOR SECURITY INTEREST"), pursuant to that certain Securities
Purchase Agreement, dated as of December 28, 2001, by and among the Company and
the signatories thereto (the "FIRST TRANSACTION"), which Security Interest
secures the Company's obligation under the debentures issued to the First
Creditor at the First Transaction (the "FIRST DEBENTURES");
WHEREAS, at the time of the closing of the First Transaction, the First
Creditor Security Interest was subordinate to the security interest in the
assets of the Company granted by the Company to Pacific Business Funding
Corporation ("PBF") to secure the Company's obligations under a Factoring
Agreement dated September 29, 1998 between the Company and PBF (the "SENIOR
SECURITY INTEREST"), which Senior Security Interest was purchased and assigned
to the First Creditor pursuant to the Assignment Agreement dated as of May 2,
2003 between PBF and the First Creditor (the "ASSIGNMENT") for US$112,500 (the
"SENIOR SECURITY INTEREST PURCHASE PRICE");
WHEREAS, the First Creditor has assigned a portion of the Senior
Security Interest to the Second Creditor pursuant to a Purchase Agreement dated
May 8, 2003, between the First Creditor and Second Creditor (the "PURCHASE
AGREEMENT") in exchange for payment by the Second Creditor of US$80,357 of the
Senior Security Interest Purchase Price, which amount represents the percentage
of Second Creditor's total investment in the Company to the total collective
investment of First Creditor and Second Creditor as of the date of the Purchase
Agreement, multiplied by the Senior Security Interest Purchase Price;
WHEREAS, the Company has granted in favor of the Second Creditor a
security interest in the assets of the Company (the "SECOND SECURITY INTEREST"),
pursuant to the that certain Modification Agreement dated May 9, 2003 (the
"SECOND TRANSACTION") which modifies the Amended and Restated Unit Purchase
Agreement, dated June 18, 2002, by and among the Company and the signatories
thereto, which Second Security Interest secures the Company's obligation under
the notes issued to the Second Creditor at the Second Transaction (the "SECOND
NOTES");
WHEREAS, the Company has granted in favor of the Third Creditor a
security interest in the assets of the Company (the "THIRD SECURITY INTEREST"),
pursuant to that certain Securities Purchase Agreement dated May 9, 2003 (the
"THIRD TRANSACTION"), which Security Interest secures the Company's obligation
under the debentures issued to the Third Creditor at the Third Transaction (the
"THIRD DEBENTURES");
WHEREAS, the Company has granted in favor of the Fourth Creditor a
security interest in the assets of the Company (the "Fourth SECURITY INTEREST"),
pursuant to that certain Securities Purchase Agreement dated September 12, 2003
(the "Fourth TRANSACTION"), which Security Interest secures the Company's
obligation under the debentures issued to the Fourth Creditor at the Fourth
Transaction (the "Fourth DEBENTURES");
WHEREAS, the Creditors wish to memorialize their agreement concerning
their respective rights, duties and obligations to one another with respect to
the security interests (the "SECURITY INTERESTS") granted in connection with the
First Transaction, the Assignment, the Second Transaction, the Third Transaction
and the Fourth Transaction (collectively referred to herein as the "FINANCING
DOCUMENTS");
NOW, THEREFORE, in consideration of the mutual covenants herein, their
respective performances and benefits pertaining to the Financing Documents, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. RANKING.
1.1 The Security Interests shall rank in the following
order of priority:
1.1.1 Senior Security Interest in respect of any sums
secured or owed to the First Creditor pursuant to the
Assignment and Senior Security Interest in respect of
any sums secured or owed to the Second Creditor
pursuant to the Purchase Agreement PARI PASSU and
PRO-RATA in proportion to each the First and Second
Creditors' contribution to the Senior Security
Interest Purchase Price;
1.1.2 First Creditor Security Interest in respect of any
sums secured or owed to the First Creditor pursuant
to the First Transaction;
1.1.3 Second Security Interest in respect of any sums
secured or owed to the Second Creditors pursuant to
the Second Transaction;
1.1.4 Third Security Interest in respect of any sums
secured or owed to the Third Creditors pursuant to
the Third Transaction; and
1.1.5 Fourth Security Interest in respect of any sums
secured or owed to the Fourth Creditors pursuant to
the Fourth Transaction;
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1.2 If an Event of Default (as defined in the First Debentures,
Second Notes, Third Debentures and the Fourth Debentures)
occurs and any party hereto receives payment from the Company
not in compliance with this Agreement, the other parties
hereto shall be immediately notified and such payment shall be
shared with all of the other Creditors as set forth above.
1.3 If an Event of Default occurs and any party hereto collects
proceeds pursuant to its rights under any of the Financing
Documents, the other parties shall be immediately notified and
such payment shall be shared with all of the other Creditors
as set forth above.
1.4 Notwithstanding any other provision in this Agreement,
adjustments shall be made between the Creditors from time to
time to reflect the fact that any contingent obligation taken
into account as an obligation under the First, Second, Third
or Fourth Transactions becomes satisfied or incapable of
maturing into an actual obligation.
2. INDEMNIFICATION BY EACH CREDITOR. Each Creditor shall indemnify,
defend, and hold harmless the other Creditors against and in respect of
any and all liability, claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies,
including interest, penalties, and reasonable professional and
attorney's fees, including those arising from settlement negotiations,
that the other Creditors shall incur or suffer, which arise, result
from, or relate to a breach of, or failure by a Creditor to perform
under, Section 1.2 or 1.3 of this Agreement.
4. MISCELLANEOUS.
4.1 Assignment. The rights and obligations of the parties
under this Agreement may not be assigned or assumed without the prior
written consent of all parties.
4.2 Binding Effect. This Agreement shall be binding on, and
shall inure to the benefit of, the parties to it and their respective
heirs, legal representatives, and successors.
4.3 Parties in Interest. Except as expressly provided in this
Agreement, nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their
respective successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision
give any third persons any right to subrogation or action over against
any party to this Agreement.
4.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter
contained in it and supersedes all prior and contemporaneous
agreements, representations and understandings of the parties.
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4.5 Amendment. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by all the
parties.
4.6 Waiver. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
4.7 Notices. Notices given under this Agreement shall be
delivered as set forth in the purchase agreement to the Second
Transaction.
4.8 Governing Law and Venue. This Agreement shall be construed
in accordance with, and governed by, the laws of the State of New York,
and any action or proceeding, including arbitration, brought by any
party in which this Agreement is a subject, shall be brought in New
York County, New York.
4.9 Effect of Headings. The headings of the Sections of this
Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
4.10 Invalidity. Any provision of this Agreement which is
invalid, void, or illegal, shall not affect, impair, or invalidate any
other provision of this Agreement, and such other provisions of this
Agreement shall remain in full force and effect.
4.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which may be executed by less than all of the
parties and shall be deemed to be an original instrument which shall be
enforceable against the parties actually executing such counterparts
and all of which together shall constitute one and the same instrument.
In lieu of the original documents, a facsimile transmission or copy of
the original documents shall be as effective and enforceable as the
original.
4.12 Number and Gender. When required by the context of this
Agreement, each number (singular and plural) shall include all numbers,
and each gender shall include all genders.
4.13 Further Assurances. Each party to this Agreement agrees
to execute further instruments as may be necessary or desirable to
carry out this Agreement, provided the party requesting such further
action shall bear all related costs and expenses.
4.14 Professional Fees and Costs. If any legal or equitable
action, arbitration, or other proceeding, whether on the merits or on
motion, are brought or undertaken, or an attorney retained, to enforce
this Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this
Agreement, then the successful or prevailing party or parties in such
undertaking (or the party that would prevail if an action were brought)
shall be entitled to recover reasonable attorney's fees and other
professional fees and other costs incurred in such action, proceeding,
or discussions, in addition to any other relief to which such party may
be entitled. The parties intend this provision to be given the most
liberal construction possible and to apply to any circumstances in
which such party reasonably incurs expenses.
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[SIGNATURE PAGE RESTATED INTERCREDITOR AGREEMENT]
IN WITNESS WHEREOF, this Agreement has been duly executed by the Creditors
as of the day and year first written above.
BRISTOL INVESTMENT FUND, LTD. ALPHA CAPITAL AKTIENGESELLSCHAFT
By: ____________________________ By: _____________________________
Name: Name:
Title: Title:
SDS MERCHANT FUND, XX XXXXXXXXXXX LIMITED PARTNERSHIP
By: ____________________________ By: _____________________________
Name: Name:
Title: Title:
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