1
Exhibit 4.01
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment") is
made and entered into as of February __, 1998, by and between CHASE BANK OF
TEXAS, N.A., a national banking association ("Lender"), formerly known as TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, and TIDEL ENGINEERING, INC., a Delaware
corporation ("Borrower").
R E C I T A L S:
A. On June 12, 1997, Lender and Borrower entered into that certain
Credit Agreement (the "Credit Agreement") pursuant to which Lender agreed to
make loans and advances (collectively the "Loans") to Borrower in accordance
with the terms thereof. The Loans are evidenced by that certain Promissory Note
of even date with the Credit Agreement, in the stated principal amount of
$5,000,000.00, bearing interest and being payable to the order of Lender as
therein provided (as amended, the "Note"). The Credit Agreement, the Note and
the documents, instruments and agreements executed in connection therewith are
collectively referred to herein as the "Loan Documents".
B. Borrower has requested Lender to modify the Credit Agreement so as
to require Annual Audited Financial Statements (as such term is defined in the
Credit Agreement) only on Tidel Technologies, Inc., formerly known as American
Medical Technologies, Inc., d/b/a AMT Industries, Inc., the parent of Borrower,
and Annual Consolidating Financial Statements (as such term is defined in this
Amendment), instead of Annual Audited Financial Statements, on Borrower.
C. Lender, at the request of Borrower, for good and valuable
consideration, is willing to enter into this Amendment upon the terms and
conditions set forth below:
A G R E E M E N T:
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Borrower and Lender hereby covenant and agree
as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the meanings given to them in the Credit Agreement.
2. Annual Audited Financial Statements. The second sentence of the
definition of Annual Audited Financial Statements in the Credit Agreement is
hereby amended to read in its entirety as follows:
2
The Annual Audited Financial Statements for the Parent and its
Subsidiaries shall be prepared on a Consolidated and consolidating
basis in accordance with GAAP.
3. Annual Consolidating Financial Statements. Section 1.1 of the Credit
Agreement is hereby amended by adding the following definition of Annual
Consolidating Financial Statements:
Annual Consolidating Financial Statements shall mean the
annual audited consolidating financial statements of a Person,
including all notes thereto, which statements shall include a balance
sheet as of the end of such fiscal year and an income statement, a
retained earnings statement and a statement of cash flows for such
fiscal year, all setting forth in comparative form the corresponding
figures from the previous fiscal year, all prepared in conformity with
GAAP by a "Big 6" accounting firm or other accounting firm of similar
national standing and reputation.
4. Financial Statements and Information. Clause (a) of Section 6.3 of
the Credit Agreement is hereby amended to read in its entirety as follows:
(a) as soon as available and in any event within ninety (90) days after
the end of each fiscal year of the Borrower or the Parent, as the case
may be, Annual Audited Financial Statements of the Parent and its
Subsidiaries, and Annual Consolidating Financial Statements of the
Borrower;
This amendment to clause (a) of Section 6.3 is effective for the fiscal
year of the Parent and the Borrower that ended September 30, 1997, except that
the Annual Consolidating Financial Statements of the Borrower for the 1997
fiscal year shall be furnished to the Lender by March 17, 1998.
5. Costs and Expenses. Borrower agrees to reimburse Lender for Lender's
costs and expenses, including, but not limited to, attorneys' fees and legal
expenses, incurred by Lender in connection with the preparation of this
Amendment and in connection with the negotiation and consummation of the
transaction contemplated hereby.
6. The Credit Agreement. All references to the Credit Agreement in the
Loan Documents shall be deemed to be the Credit Agreement, as modified hereby.
Borrower expressly promises to perform all of its obligations under the Credit
Agreement and other Loan Documents, as modified by this Amendment.
7. Acknowledgments of Borrower. Borrower hereby acknowledge and agree
that (a) Lender is not in default in the performance of its obligations under
the Loan Documents; (b) Borrower has no claims, counterclaims, offsets, credits
or defenses to the Loan Documents and the performance of its obligations
thereunder, or if Borrower has any such claims, counterclaims, offsets, credits
or defenses to the Loan Documents or any transaction related to the Loans and/or
the Loan Documents, same are hereby waived, relinquished and released in
consideration of Lender's execution and delivery of this Amendment; (c) all of
the provisions of the Loan Documents, except as amended hereby, are in full
force and effect; and (d) upon the
3
execution hereof, the Credit Agreement, the Note, and the other Loan Documents
are not in default.
8. Full Force and Effect. Except as expressly modified and amended in
this Amendment, all of the terms, provisions and conditions of the Credit
Agreement, the Note, and all other Loan Documents are and shall remain in full
force and effect and are incorporated herein by reference.
9. Counterparts. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original, and all of
which taken together shall constitute but one and the same instrument.
10. No Oral Agreements. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS
EMBODY THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDE ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS, IF ANY, RELATING TO THE SUBJECT MATTER HEREOF.
THIS WRITTEN AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
4
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Credit Agreement as of the day and year first above written.
LENDER:
CHASE BANK OF TEXAS, N.A.,
a national banking association
By: /s/ XXXXXX XXXXXXXX
Xxxxxx Xxxxxxxx, Vice President
BORROWER:
TIDEL ENGINEERING, INC.,
a Delaware corporation
By: /s/ XXXXX X. XXXX
Xxxxx X. Xxxx, Chairman of the Board
5
By its execution below, Tidel Technologies, Inc., formerly known as
American Medical Technologies, Inc., a Delaware corporation ("Guarantor"), d/b/a
AMT Industries, Inc., acknowledges and consents to all of the terms and
conditions of this Amendment, and ratifies and confirms its respective Guaranty
to and for the benefit of Lender. Guarantor acknowledges that Guarantor has no
claims, counterclaims, offsets, credits or defenses to the Loan Documents and
the performance of its obligations thereunder, or if Guarantor does have any
such claims, counterclaims, offsets, credits or defenses to the Loan Documents
or any transaction related to the Loans and/or the Loan Documents, same are
hereby waived, relinquished and released in consideration of Lender's execution
and delivery of this Amendment. Further, Guarantor agrees that nothing contained
in this Amendment shall adversely affect any right or remedy of Lender under the
Guaranty and that with respect to the Guaranty, all references in the Guaranty
to the "Obligations" shall mean the "Obligations", as amended by this Amendment;
that the execution and delivery of this Amendment shall in no way change or
modify its obligations as Guarantor pursuant to its Guaranty; and that the
execution and delivery of any agreements by Borrower and Lender in connection
with this Amendment shall not constitute a waiver by Lender of any of Lender's
rights against Guarantor.
TIDEL TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ XXXXX X. XXXX
Xxxxx X. Xxxx, Chairman of the Board
