EXHIBIT 10.25
AMENDED AND RESTATED INTERCREDITOR AGREEMENT
THIS AMENDED AND RESTATED INTERCREDITOR AGREEMENT is dated the 6th day
of September, 2001 between TIDEL TECHNOLOGIES, INC., a Delaware corporation
("Tidel Technologies"), TIDEL ENGINEERING, L.P., a Delaware limited partnership
("Tidel Engineering") (Tidel Technologies and Tidel Engineering are sometimes
hereinafter referred to collectively as "Tidel") and XXX XXXXXXXXXXX, a Maryland
corporation ("NCR").
BACKGROUND
JRA 222, Inc., a Delaware corporation d/b/a Credit Card Center ("CCC")
is engaged in the sale, distribution, servicing and operation of automated
teller machines (ATMs") throughout the United States. Tidel and NCR are ATM
manufacturers and have been suppliers of ATMs to CCC. Each of Tidel and NCR has
extended credit to CCC and each has a lien upon, and a security interest in,
among other things, CCC's inventory of ATMs and related parts and supplies, the
respective priorities of which have not been determined and potentially are
subject to dispute between the parties. CCC has defaulted on its obligations to
each of Tidel and NCR.
CCC is currently a Debtor and a Debtor-in-possession in Case No.
01-18495(KJC) (the "Reorganization Case") under Chapter 11 of the United States
Bankruptcy Code, as amended (the "Code") pending before the United States
Bankruptcy Court for the Eastern District of Pennsylvania (the "Bankruptcy
Court").
On August 2, 2001, the Bankruptcy Court entered a certain Order under
11 U.S.C. Sections 105 and 363 (I) Approving Bidding Procedures in Connection
with the Proposed Sale of Certain or All of the Debtor's Assets, (II) Scheduling
a Hearing Date, Auction Date and Bidding Deadline in Connection with the Asset
Sale and (III) Approving Form and Manner of Notice Thereof (the "Bidding
Procedures Order") and, pursuant thereto, bids were submitted on August 22, 2001
and an auction was conducted on August 23, 2001. At such auction, Tidel and NCR
submitted a joint bid to acquire certain inventory of CCC and such bid was
accepted by CCC. Hearings to approve the ATM Inventory Purchase Agreement (the
"Purchase Agreement"), substantially in the form attached hereto as Exhibit A
and with such changes as may be agreeable to the parties and related bid and
transactions were held on August 24, 2001 and continued to September 5, 2001 and
then September 7, 2001.
CCC's automated teller machine ("ATM") inventory includes new and used
ATMs manufactured by NCR which require the use of software owned by NCR. NCR has
terminated CCC's right to license NCR's software for use in connection with the
ATMs manufactured by NCR. NCR has advised Tidel that it intends to oppose any
attempt by CCC to license or sublicense NCR's intellectual property to any
purchaser of the ATMs manufactured by NCR.
In order to facilitate a joint bid for CCC's inventory of ATMs and
related assets, avoid a potential dispute concerning NCR's intellectual
property, at least as to New NCR ATMs (as
defined below), and to settle a dispute concerning the priority of liens in
CCC's inventory (as to New NCR ATMs and ATMs manufactured by Tidel), NCR and
Tidel have agreed that, subject to approval by the Bankruptcy Court of their
joint bid, NCR will acquire from Tidel certain of Tidel's rights under the
Purchase Agreement (but not any of Tidel's obligations thereunder) and, in
partial payment therefor, transfer to Tidel certain of NCR's rights under the
Purchase Agreement (but not any of NCR's obligations thereunder), under and
subject to the terms and conditions of this Agreement.
The parties hereto have previously entered into an Intercreditor
Agreement dated August 22, 2001 (the "Original Intercreditor Agreement") and
desire to amend and restate such Original Intercreditor Agreement, as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties agree as follows:
ARTICLE I
PURCHASE AND ASSIGNMENT OF CONTRACT RIGHTS
1.1 Purchase and Assignment. (a) Subject to the terms and conditions
set forth in this Agreement, Tidel will sell and assign to NCR, and NCR will
purchase, acquire and accept from Tidel, free and clear of all mortgages,
pledges, liens, charges, equities, encumbrances, defects in title, security
interests, hypothecations, assessments, easements, encroachments, consents,
claims, options, reservations, restrictions, condemnation proceedings, burdens
or conflicts of all kinds,
(i) all of Tidel's rights under the Purchase Agreement relating to the
New NCR ATMs (as defined below) (the rights to be assigned by Tidel to
NCR hereunder are hereinafter referred to as the "Assigned Rights");
and
(ii) Tidel's security interest in the New NCR ATMs, to the extent such
security interest is not fully released and discharged pursuant to the
Purchase Agreement, together with all other rights and interests of
Tidel, if any, in and to the New NCR ATMs (the "Other Assigned
Assets").
(b) Tidel shall assign the Assigned Rights and the Other
Assigned Assets to NCR at the closing under this Agreement (the "Closing"),
which shall occur simultaneous with the closing contemplated by the Purchase
Agreement.
(c) Except as to liens held by Tidel, which liens are being
assigned to NCR as referenced in Articles 1.1(a) and (b) above, the parties
acknowledge that any liens on the New NCR ATMs shall be treated by the
Bankruptcy Court's Order governing the sale of Purchased Assets (as defined in
the Purchase Agreement), and that Tidel shall not be in breach of this Agreement
by virtue of any lien existing on New NCR ATMs after the entry of the Bankruptcy
Court Order and such Order becoming final and non-appealable.
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1.2 Excluded Rights. The Assigned Rights to be transferred, conveyed,
set over, assigned and delivered to NCR shall exclude those rights of Tidel
under the Purchase Agreement that relate to Purchased Assets which are not New
NCR ATMs.
1.3 No Assumption of Liabilities. Neither Tidel nor NCR will assign or
transfer to the other, and neither Tidel nor NCR hereby assumes, becomes
responsible for, or agrees to pay or discharge, any debt, liability or
obligation of the other, whether or not matured, liquidated or contingent,
specifically including, without limitation, any of the obligations of the other
under the Purchase Agreement or any liability arising from any failure by either
Tidel or NCR fully and punctually to perform any obligation of the other under
the Purchase Agreement, nor shall Tidel nor NCR be deemed to have assumed,
become responsible for or agree to pay and discharge any of the foregoing by
virtue of this Agreement or the consummation of the transactions contemplated
hereby, provided that Tidel's obligation to make payments set forth in Article
2.2 (a) of the Purchase Agreement is subject to NCR's payment to CCC of the
amount set forth in Article 2.2.1 hereof.
1.4 Preservation of Rights. (a) Notwithstanding anything to the
contrary contained in this Agreement, the Purchase Agreement or any Order
entered by the Bankruptcy Court approving the Purchase Agreement or the
transactions contemplated thereunder, NCR hereby expressly preserves its legal
position (and NCR hereby reserves all available equitable and legal rights and
remedies pertaining thereto) that no person, including Tidel, may operate an ATM
manufactured by NCR which incorporates proprietary software of NCR (and/or its
licensors) without a fully paid, valid license to use such software, nor may
Tidel sell, transfer, license, sublicense or otherwise convey NCR's software
wherever resident, and Tidel agrees that it will not contest such legal position
solely or in part based on the Bankruptcy Court's entry of such Order or the
Purchase Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, the
Purchase Agreement or any Order entered by the Bankruptcy Court approving the
Purchase Agreement or the transactions contemplated thereunder, Tidel hereby
expressly preserves its legal position (and Tidel hereby reserves all available
equitable and legal rights and remedies pertaining thereto) that no person,
including NCR, may operate an ATM manufactured by Tidel which incorporates
proprietary software of Tidel (and/or its licensors) without a fully paid, valid
license to use such software, nor may NCR sell, transfer, license, sublicense or
otherwise convey Tidel's software wherever resident, and NCR agrees that it will
not contest such legal position solely or in part based on the Bankruptcy
Court's entry of such Order or the Purchase Agreement.
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ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The aggregate purchase price for the Assigned
Rights (the "Purchase Price") will be (a) cash (the "Cash Consideration") in an
amount equal to $1,000.00 multiplied by the number of ATMs manufactured by NCR
which, prior to the consummation of the Closing, have been inspected by NCR or
its representatives and determined by NCR to be in such condition as to be
saleable as new machines in the ordinary course ("New NCR ATMs"); (b) an
additional amount (the "Additional Consideration") for each New NCR ATM equal to
twenty percent (20%) of the amount, if any, by which the net proceeds received
by NCR from the resale by it of such New NCR ATM exceeds U.S.$3,000.00 (such
proceeds to be determined based on the selling price net of delivery,
installation and/or setup fees, landing fees and net of all duties and taxes
and, if the selling price is specified in any currency other than US Dollars,
based on an equivalent amount in US currency as determined by the exchange rate
published in the Wall Street Journal (Eastern Edition) on the date of the
closing in such sale); and (c) an assignment, free and clear of all mortgages,
pledges, liens, charges, equities, encumbrances, defects in title, security
interests, hypothecations, assessments, easements, encroachments, consents,
claims, options, reservations, restrictions, condemnation proceedings, burdens
or conflicts of all kinds, of (i) NCR's rights under the Purchase Agreement
relating to the Purchased Assets other than any portion thereof that relates to
the New NCR ATMs or any other ATMs manufactured by NCR including any Parts and
Supplies (as defined in the Purchase Agreement) pertaining thereto and
Intangibles (as defined in the Purchase Agreement) pertaining thereto, and (ii)
NCR's security interest in the Purchased Assets, other than any portion thereof
that relates to the New NCR ATMs or any other ATMs manufactured by NCR including
any Parts and Supplies pertaining thereto and Intangibles pertaining thereto, to
the extent such security interest is not fully released and discharged pursuant
to the Purchase Agreement, and (iii) any and all other rights and interests of
NCR, if any, in and to the Purchased Assets other than the new NCR ATMs or any
other ATMs manufactured by NCR including any Parts and Supplies pertaining
thereto and Intangibles pertaining thereto (the "Assignment Consideration").
Notwithstanding the foregoing, the aggregate amount of all Additional
Consideration will not exceed the lesser of (a) $400,000, or (b) one half of the
amount of cash payable to CCC under Article 2.2(a) of the Purchase Agreement at
the closing under the Purchase Agreement.
2.2 Payment of the Purchase Price. NCR shall pay the Purchase Price for
the Assigned Rights as follows:
2.2.1 At the Closing, NCR shall pay directly to CCC, for Tidel's
account, to be held by an escrow agent as provided in the Purchase Agreement, an
amount equal to the lesser of (a) the total Cash Consideration due to Tidel
hereunder, less a hold-back by NCR of ten percent (10%) of such balance or (b)
the total amount of cash due from Tidel to the Escrow Agent as provided in the
Purchase Agreement in accordance with Article 2.2(a) thereof, and shall pay any
remaining balance of the Cash Consideration, less such hold-back by NCR of ten
percent (10%)
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of such balance, to Tidel, both such payments to be made by wire transfer, in
immediately available funds. Such hold-back (or portion thereof) shall be
subsequently paid by NCR to Tidel when and only to the extent that the number
and condition of New NCR ATMs actually received by NCR is the same as originally
identified by Tidel and NCR pursuant to the inspection procedures identified in
Article 6.4.6(b). Such holdback (or portion thereof) shall be paid to Tidel no
later than fourteen (14) days following the Closing and shall be reduced by an
amount equal to One Thousand Dollars ($1,000.00) multiplied by the number of New
NCR ATMs that are not accepted by NCR due to a deterioration in their condition
subsequent to the inspection contemplated under Article 6.4.6(b). At the
Closing, NCR shall also pay to Tidel the Assignment Consideration by tendering
an assignment, duly executed, in form sufficient to convey the rights, security
interests and other rights and interests to be assigned to Tidel pursuant to
Article 2.1 hereof.
2.2.2 The Additional Consideration shall be payable by
ordinary check in quarterly installments, in arrears, as New NCR ATMs are resold
and proceeds from such resales are received by NCR. Each installment,
representing Additional Consideration due resulting from the resale of New NCR
ATMs in a calendar quarter, shall be paid on or before the fifteenth day of the
month immediately following the end of the applicable calendar quarter. No later
than twenty business days after the end of the applicable calendar quarter, NCR
shall provide Tidel with an officer's certificate certifying, (i) the number of
New NCR ATMs sold in such calendar quarter, (ii) the gross selling price of each
such machine, (iii) a calculation showing all delivery, installation and/or
setup fees, duties, taxes and currency adjustments and (iv) a statement that all
information contained in such certificate is true and correct to the best
knowledge of such officer.
2.3 No Determination of Value. The parties hereto agree that the
determination of the amounts to be paid by NCR on account of the New NCR ATMs
pursuant to this Article II is solely for determining the payments to be made
hereunder, and is not a determination or agreement by the parties of the
valuation of such New NCR ATMs to be used in any other context.
2.4 Reduction in Purchase Price. In the event that Tidel does not
consent to the payment of an allowed secured claim of a warehousemen or a
storage facility as provided in Article 2.2(e) of the Purchase Agreement, then
Tidel shall pay to NCR an amount equal to $1,000.00 multiplied by the number of
New NCR ATMs located at such warehouse or storage facility for which the secured
claim was not paid, solely to the extent such New NCR ATMs were included in the
Purchase Price. Tidel shall also release NCR from paying any Additional
Consideration with respect such New NCR ATMs. Tidel shall make such payment (as
provided in this Article 2.4) to NCR within twenty (20) business days following
Tidel's notice to CCC that it does not consent to the payment of such secured
claim pursuant to Article 2.2(e) of the Purchase Agreement.
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ARTICLE III
ALLOCATION OF RESPONSIBILITIES FOR
PERFORMANCE OF PURCHASERS' OBLIGATIONS UNDER
PURCHASE AGREEMENT
3.1 Payment of Consideration Due to CCC. Tidel shall be solely
responsible for performing and discharging the obligations of Tidel (a) to pay
the cash consideration due to CCC pursuant to Articles 2.2(a) and 2.4 of the
Purchase Agreement subject to performance by NCR of Article 2.2.1 hereunder, and
(b) to provide CCC with the credit against its indebtedness to Tidel pursuant to
Article 2.2(b) of the Purchase Agreement. NCR shall be solely responsible for
performing and discharging NCR's obligation under the Purchase Agreement to
provide CCC with the credit against its indebtedness to NCR pursuant to Article
2.2(c) of the Purchase Agreement.
3.2 Acquisition of Assets. The parties agree that they will severally
and separately acquire the Purchased Assets from CCC as provided for in the
Purchase Agreement (and as contemplated in this Agreement).
3.3 Warranty Obligations under Purchase Agreement. As between the
parties hereto, Tidel shall be solely responsible for any liability to CCC
resulting from any breach by Tidel of any representation and warranty of Tidel
contained in the Purchase Agreement, and NCR shall be solely responsible for any
liability to CCC resulting from any breach by NCR of any representation and
warranty of NCR contained in the Purchase Agreement.
3.4 Other Obligations under Purchase Agreement. Except as otherwise
provided herein or in the Purchase Agreement, all of the other obligations of
the parties hereto as Purchasers under the Purchase Agreement are and shall
remain the joint obligations of the parties, and each agrees that it will fully
and punctually perform such obligations.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TIDEL
4.1 Representations and Warranties of Tidel. Tidel represents and
warrants to NCR as follows:
4.1.1 Corporate Organization and Standing. Tidel Technologies is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware. Tidel Engineering is a limited partnership duly organized and
validly existing under the laws of Delaware.
4.1.2 No Conflict. The execution, delivery and performance of this
Agreement, by Tidel Technologies do not and will not conflict with or violate
any provision of any Certificate of Incorporation or by-laws of Tidel
Technologies. The execution, delivery and
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performance of this Agreement by Tidel Engineering do not and will not conflict
with or violate any provision of the limited partnership agreement or
certificate of Tidel Engineering.
4.1.3 Authorization. Each of Tidel Technologies and Tidel
Engineering has full right, power and authority to enter into this Agreement and
to perform fully its obligations hereunder. The execution and delivery of this
Agreement by Tidel, the performance by Tidel of its obligations hereunder and
the consummation by Tidel of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the part of Tidel Technologies
and all requisite partnership action of Tidel Engineering. This Agreement has
been duly executed and delivered by Tidel and is the valid and binding
obligation of Tidel enforceable against it in accordance with its terms.
4.1.4 No Litigation. There is no action, suit, proceeding,
arbitration or investigation pending or, to the best knowledge of Tidel
threatened, against Tidel, which if determined adversely to Tidel, would enjoin
or prohibit the consummation of the transactions contemplated hereby.
4.1.5 No Consent. No consent, approval, authorization order,
filing, registration or qualification of or with any court, governmental
authority or third person is required to be made or obtained by Tidel in
connection with the execution and delivery of this Agreement by Tidel or the
consummation by Tidel of the transactions contemplated hereby, except for the
Order of the Bankruptcy Court referred to in the Purchase Agreement.
4.1.6 Brokers, Finders. Tidel has not retained any broker or finder
in connection with the transactions contemplated herein and is not obligated and
has not agreed to pay any brokerage or finder's commission, fee or similar
compensation.
4.1.7 No Breach. Tidel has not breached or failed to perform any of
its obligations under the Purchase Agreement and has no actual knowledge that
CCC has breached or failed to perform any of its obligations under the Purchase
Agreement.
4.1.8 Tidel's Title. Subject to the provisions of Article 1.1(c),
Tidel has and will have at the Closing, good and valid title to all of the
Assigned Rights, free and clear of all liens, charges, encumbrances, security
interests, claims and restrictions of any kind, and enjoys (and will enjoy)
peaceful and undisturbed possession thereof.
4.2 Survival. All of the representations and warranties of Tidel
hereunder shall survive the Closing for a period of ninety days.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NCR
5.1 Representations and Warranties of NCR. NCR represents and warrants
to Tidel as follows:
5.1.1 Corporate Organization and Standing. NCR is a corporation
duly organized, validly existing and in good standing under the laws of
Maryland.
5.1.2 No Conflict. The execution, delivery and performance of this
Agreement by NCR do not and will not conflict with or violate any provision of
the Certificate of Incorporation or by-laws of NCR.
5.1.3 Authorization. NCR has full right, power and authority to
enter into this Agreement and to perform fully its obligations hereunder. The
execution and delivery of this Agreement by NCR, the performance by NCR of its
obligations hereunder and the consummation by NCR of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of NCR. This Agreement has been duly executed and delivered by NCR
and is the valid and binding obligation of NCR enforceable against it in
accordance with its terms.
5.1.4 No Litigation. There is no action, suit, proceeding,
arbitration or investigation pending or, to the best knowledge of NCR,
threatened, against NCR, which if determined adversely to NCR, would enjoin or
prohibit the consummation of the transactions contemplated hereby.
5.1.5 No Consent. No consent, approval, authorization order,
filing, registration or qualification of or with any court, governmental
authority or third person is required to be made or obtained by NCR in
connection with the execution and delivery of this Agreement by NCR or the
consummation by NCR of the transactions contemplated hereby, except for the
Bankruptcy Court Order referred to in the Purchase Agreement.
5.1.6 Brokers, Finders. NCR has not retained any broker or finder
in connection with the transactions contemplated herein and is not obligated and
has not agreed to pay any brokerage or finder's commission, fee or similar
compensation.
5.1.7 No Breach. NCR has not breached or failed to perform any of
its obligations under the Purchase Agreement and has no actual knowledge that
CCC has breached or failed to perform any of its obligations under the Purchase
Agreement.
5.2 Survival. All of the representations and warranties of NCR
hereunder shall survive the Closing for a period of ninety days.
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ARTICLE VI
CERTAIN COVENANTS
6.1 Information Sharing. Until September 29, 2001, each party promptly
shall, from time to time upon the other party's reasonable request, provide to
the other party true copies of all (or the relevant portion of all)
correspondence, memoranda and/or written reports prepared by its employees and
representatives that pertain or relate to the condition or location of the
Purchased Assets (other than those Purchased Assets received or recovered by the
parties prior to the date of such request pursuant to the provisions of this
Agreement) or the state of CCC's title thereto, or to the performance or
nonperformance of the Purchase Agreement by CCC, provided, however, that this
sentence shall not require disclosure of any communications reasonably believed
by the non-disclosing party to be subject to the attorney-client privilege or
protected by the attorney work product doctrine. In addition, Tidel and NCR
shall make fully available to the other all information (written or unrecorded)
concerning the Purchased Assets developed by it during all inspections and
inventories of the Purchased Assets conducted by it prior to the execution and
delivery of this Agreement.
6.2 Required Consents. Each party shall use its best efforts, prior to
the Closing, to (i) obtain all consents required in connection with the
transactions contemplated hereby, and (ii) undertake all actions required
pursuant to all such consents.
6.3 Further Assurances. Upon a party's request, the other party
promptly will execute and deliver such additional documents and do such other
acts and things as the requesting party may determine are necessary or desirable
in order to consummate or confirm the consummation of the transactions
contemplated hereby or otherwise effectuate and carry out this Agreement.
6.4 Conduct Pending Closing. From the date hereof until the
consummation of the Closing, each party will:
6.4.1 fully and punctually perform its obligations under the
Purchase Agreement except to the extent that this Agreement expressly
contemplates or provides otherwise and use its reasonable efforts to cause the
closing contemplated by the Purchase Agreement.
6.4.2 promptly advise the other party if it should become aware of
any breach by CCC of the Purchase Agreement, or of the non-fulfillment of any
condition to any party's obligations under the Purchase Agreement or under this
Agreement.
6.4.3 consult in good faith with the other party on all matters
relating to the Purchase Agreement or any action proposed to be taken by the
parties as Purchasers thereunder.
6.4.4 participate in bidding to acquire any of the Purchased Assets
only jointly with the other parties to this Agreement.
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6.4.5 use its reasonable efforts to cause the Bankruptcy Court to
enter the Sale Order.
6.4.6 cause the timely performance of (a) the obligations under
Article 6.6 of the Purchase Agreement, and (b) a physical inspection of ATMs
manufactured by NCR, of whatever condition and wherever located, promptly after
which NCR shall provide Tidel with a list of the New NCR ATMs (identified by
location and serial number) to be acquired by NCR from CCC as contemplated in
the Purchase Agreement and Article 2.1 of this Agreement.
6.5 Removal of Purchased Assets after Closing. Except with respect to
the liens of warehousemen for periods through September 29, 2001, which liens
have been provided for in the Purchase Agreement, each of Tidel and NCR shall be
solely responsible for all costs and expenses incurred in connection with taking
possession of the Purchased Assets to be acquired by it under the Purchase
Agreement, and removing the same from the locations at which such assets are
stored on the Closing Date, including any storage costs payable because certain
assets have not been removed on or prior to September 29, 2001 (such storage
costs to be borne solely by the party responsible for the non-removal of such
assets).
ARTICLE VII
CONDITIONS TO TIDEL'S OBLIGATIONS
7.1 The obligations of Tidel under this Agreement are subject to the
fulfillment by NCR prior to or at the Closing of each of the following
conditions, any one or more of which may be waived by Tidel:
7.1.1 No Injunctive Proceedings. No stay, preliminary or permanent
injunction or other order (including a temporary restraining order) of any state
or federal court or other governmental agency which prohibits, prevents or
materially restrains the consummation of the transactions which are the subject
of this Agreement and the Purchased Assets shall have been issued and remain in
effect.
7.1.2 Representations and Warranties. All representations and
warranties of NCR contained in this Agreement shall be true in all material
respects on and as of the Closing Date, with the same force and effect as though
made on and as of the Closing Date, except for changes contemplated and
permitted by this Agreement.
7.1.3 Performance by NCR. NCR shall have fully performed in all
material respects all obligations, agreements, conditions and commitments
required to be fulfilled by NCR pursuant to the terms hereof on or prior to the
Closing Date.
7.1.4 Compliance Certificate. NCR shall have delivered to Tidel its
certificate, dated the Closing Date, executed on its behalf by its duly
authorized representative, as to the fulfillment of the conditions set forth in
Article 7.1.2 and 7.1.3 hereof.
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7.1.5 Purchase Agreement Effective. The Purchase Agreement shall
remain in effect on the Closing Date; on such date, neither CCC nor NCR shall
have committed a material breach of the Purchase Agreement, and all conditions
to the obligations of CCC under the Purchase Agreement shall have been satisfied
or waived.
7.1.6 Sale Order. The Sale Order (as defined in the Purchase
Agreement), in the form attached as an Exhibit to the Purchase Agreement, shall
have been entered by the Bankruptcy Court, and shall not be stayed, reversed,
ordered to be reconsidered, or amended or modified in any manner not approved by
Tidel.
ARTICLE VIII
CONDITIONS TO NCR'S OBLIGATIONS
8.1 The obligations of NCR under this Agreement are subject to the
fulfillment by Tidel prior to or at the Closing of each of the following
conditions, any one or more of which may be waived by NCR:
8.1.1 No Injunctive Proceedings. No stay, preliminary or permanent
injunction or other order (including a temporary restraining order) of any state
or federal court or other governmental agency which prohibits, prevents or
materially restrains the consummation of the transactions which are the subject
of this Agreement and the Purchased Assets shall have been issued and remain in
effect.
8.1.2 Representations and Warranties. All representations and
warranties of Tidel contained in this Agreement shall be true in all material
respects on and as of the Closing Date, with the same force and effect as though
made on and as of the Closing Date, except for changes contemplated and
permitted by this Agreement.
8.1.3 Performance by Tidel. Tidel shall have fully performed in all
material respects all obligations, agreements, conditions and commitments
required to be fulfilled by Tidel pursuant to the terms hereof on or prior to
the Closing Date.
8.1.4 Compliance Certificate. Tidel shall have delivered to NCR its
certificate, dated the Closing Date, executed on its behalf by its duly
authorized representative, as to the fulfillment of the conditions set forth in
Article 8.1.2 and 8.1.3 hereof.
8.1.5 Purchase Agreement Effective. The Purchase Agreement shall
remain in effect on the Closing Date; on such date, neither CCC nor Tidel shall
have committed a material breach of the Purchase Agreement, and all conditions
to the obligations of CCC under the Purchase Agreement shall have been satisfied
or waived.
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8.1.6 Sale Order. The Sale Order (as defined in the Purchase
Agreement), in the form attached as an Exhibit to the Purchase Agreement, shall
have been entered by the Bankruptcy Court, and shall not be stayed, reversed,
ordered to be reconsidered, or amended or modified in any manner not approved by
NCR.
ARTICLE IX
THE CLOSING
9.1 Closing Date and Place. The consummation of the transactions
contemplated by this Agreement (the "Closing") will take place at the offices of
counsel to NCR at Xxxxxxx Xxxxxxxxx Xxxxx & Xxxxxx, One Xxxxx Square,
Philadelphia, Pennsylvania at the time and date of the closing under the
Purchase Agreement (the "Closing Date"). The parties hereto agree that the
Closing may be effected by facsimile.
9.2 Tidel's Obligations. On the Closing Date, Tidel shall execute
and/or deliver to NCR all of the following in form and substance reasonably
satisfactory to NCR and its counsel:
9.2.1 Resolutions. Copies of resolutions of Tidel certified by the
Secretary or an Assistant Secretary of Tidel authorizing the execution, delivery
and performance of this Agreement and the transactions contemplated hereby.
9.2.2 Assignment. Subject to Article 1.1(c), an Assignment of the
Assigned Rights and its security interest and other rights and interests (if
any) in the NCR Assets, duly executed by Tidel, in form and substance reasonably
satisfactory to counsel for NCR, sufficient to convey, transfer and assign to
Purchaser all right, title and interest of Tidel in and to the Assigned Rights
free and clear of all liens, security interests, encumbrances, charges and
restrictions and Tidel's security interest in the NCR Assets in accordance with
this Agreement.
9.2.3 Compliance Certificate. The certificate required by Article
8.1.4 hereof.
9.3 NCR's Obligations. On the Closing Date, NCR shall execute and/or
deliver to Tidel all of the following in form and substance reasonably
satisfactory to Tidel and its counsel:
9.3.1 Cash Consideration. The Cash Consideration, by wire transfer
of immediately available funds.
9.3.2 Assignment to Tidel. An assignment, duly executed by NCR, in
form and substance reasonably satisfactory to counsel for Tidel, sufficient to
convey, transfer and assign to Tidel the rights of NCR to be assigned to it
hereunder free and clear of all liens, security interests, encumbrances, charges
and restrictions and NCR's security interest and all other rights and interests
of NCR, if any, in the Purchased Assets, other than the New NCR ATMs or any
other ATMs manufactured by NCR including any Parts and Supplies pertaining
thereto and Intangibles pertaining thereto, in accordance with this Agreement.
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9.3.3 Compliance Certificate. The certificate required by Article
7.1.4 hereof.
ARTICLE X
TERMINATION
10.1 Termination. This Agreement may be terminated at any time prior to
the Closing
10.1.1 by the mutual agreement of Tidel and NCR in connection with
the termination of the Purchase Agreement provided, such termination is set
forth in writing executed by both parties;
10.1.2 at the election of NCR, if any of the conditions specified
in Article VIII hereof shall not have been met by the Closing Date and shall not
have been waived in writing by NCR provided, however, that NCR shall not
terminate this Agreement due to the nonperformance by Tidel of its obligations
hereunder without first notifying Tidel of such nonperformance and providing
Seller with ten days to cure, following notice;
10.1.3 at the election of Tidel, if any of the conditions set forth
in Article VII hereof shall not have been met by the Closing Date and shall not
have been waived in writing by Tidel provided, however, that Tidel shall not
terminate this Agreement due to the nonperformance by NCR of its obligations
hereunder without first notifying NCR of such nonperformance and providing
Seller with ten days to cure, following notice;
10.1.4 at the election of Tidel or NCR,
(a) if there is any final, non-appealable injunction, stay,
order, or decree of any nature of any governmental body of competent
jurisdiction that is in effect that prohibits or materially restrains the
consummation of the transactions contemplated hereby;
(b) if the parties, as joint bidders, do not have their bid
accepted and consequently do not enter into the Purchase Agreement with CCC;
(c) at any time after twenty (20) days of the signing of
this Agreement, if by such date the Sale Order has not been entered; or
10.1.5 should either party become the subject of a proceeding under
Xxxxx 00, Xxxxxx Xxxxxx Code (the Bankruptcy Code) prior to the consummation of
the closing under the Purchase Agreement and, in such event, neither party shall
have any liability to the other party hereto.
10.1.6 at the election of either party, if the Closing does not
occur within thirty (30) days of the date of this Agreement.
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10.1.7 at the election of either party, if the Conditions to
Purchasers' Obligations, as set forth in Article VIII of the Purchase Agreement,
are not satisfied or waived on or prior to the Closing Date.
10.3 Effect of Termination. If this Agreement so terminates, it shall
become null and void and have no further force or effect, except that such
termination shall not eliminate or limit the liability of any party arising from
a breach by such party occurring prior to the termination of this Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 Assignment. This Agreement may not be assigned by any party
without the prior written consent of the other, and any assignment made or
purportedly made in violation of this Article shall be null and void ab initio.
Notwithstanding the preceding sentence, either party may assign all or any part
of this Agreement and its rights hereunder to any entity controlling, controlled
by, or under common control with such party without the consent of the other,
but only in connection with a similar assignment by such party of its rights
under the Purchase Agreement which is permitted by the terms thereof.
Notwithstanding any assignment made hereunder, the assignor shall remain liable
hereunder.
11.2 Notices. All notices, requests, demands and other communications
given hereunder (collectively, "Notices") shall be in writing and personally
delivered, sent by telecopier or telex or mailed by registered or certified
mail, postage prepaid, or by nationally recognized overnight carrier, as
follows:
11.2.1 If to NCR, to NCR at XXX Xxxxxxxxxxx
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx XXX-0
Xxxxxx, XX 00000
Fax: (000-000-0000
Attention: Xxxxxx X. Xxxxx, Esquire,
[title]
With copy to Xxxxxxx Xxxxxxxxx Xxxxx & Xxxxxx
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx, Esquire
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11.2.2 If to Tidel, to Tidel at Tidel Technologies, Inc.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Attention: Xx. Xxxxx Xxxx
and to Tidel Engineering, L.P.
0000 XxXxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Attention: Xx. Xxxxx Xxxx
With copy to Xxxxxx Xxxxxxxx Frome
Xxxxxxxxxx & Wolosky LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Esquire
All Notices shall be deemed delivered when actually received if personally
delivered, sent by telecopier or telex or three days after having been placed in
the mail, or one day after being sent by nationally recognized overnight
carrier, addressed in accordance with Articles 11.2.1 or 11.2.2 hereof, as the
case may be, provided that any Notice sent by telecopier or telex must
immediately be placed in the mail. Each of the parties shall hereafter notify
the other in accordance with this Article of any change of address to which
Notice is required to be mailed.
11.3 Abandoned Machines. Tidel agrees that following its inspection of
the Purchased Assets, if it determines, in its sole discretion, that it intends
to abandon any ATMs manufactured by NCR that are not New NCR ATMs at the
premises where such machines are located (the "Abandoned Machines"), then Tidel
shall (1) provide notice to NCR of such intent to abandon (which notice shall
specify the quantity, serial numbers (if applicable) and location of such
Abandoned Machines) and (2), if requested by NCR, assign to NCR any and all
right, title and interest of Tidel in and to such Abandoned Machines and permit
NCR to take possession of such Abandoned Machines, at NCR's sole cost and
expense, including without limitation any and all costs of removal, storage or
other charges relating to such Abandoned Machines. NCR shall agree in writing to
assume all such costs and expenses in such form as may be reasonably requested
by Tidel. NCR must notify Tidel within two business days following its receipt
of Tidel's notification to NCR of the existence of the Abandoned Machines, both
of which notifications shall be in writing and delivered in accordance with
Article 11.2 above, whether it intends to take possession of such Abandoned
Machines pursuant to this Article 11.3. Upon any failure by NCR to comply with
any provision of this Article 11.3, Tidel may, subject to NCR's rights as
provided in Article 1.4(a) above, dispose of the Abandoned Machines as it shall
determine in its sole discretion.
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11.4 Counterparts. This Agreement, and any subsequent amendments
thereto, may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any prior understandings, agreements, or
representations by or among the parties, written or oral, to the extent they
related in any way to the subject matter hereof.
11.6 Headings. The headings contained in this Agreement and in the
schedules hereto are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
11.7 Amendment of Agreement. This Agreement amends and restates the
Original Intercreditor Agreement and as so amended this Agreement is in full
force and effect. This Agreement may be amended only by written agreement of the
parties hereto, duly executed by an authorized representative of each of the
parties hereto.
11.8 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania
applicable to contracts made in that state without giving effect to the conflict
of laws principles thereof.
11.9 No Third Party Rights. This Agreement is not intended and shall
not be construed to create any rights in any parties other than Tidel and NCR
and no person shall have any rights as a third party beneficiary hereunder.
11.10 Non-Waiver. The failure in any one or more instances of a party
to insist upon performance of any of the terms, covenants or conditions of this
Agreement, to exercise any right or privilege in this Agreement conferred, or
the waiver by said party of any breach of any of the terms, covenants or
conditions of this Agreement shall not be construed as a subsequent waiver of
any such terms, covenants, conditions, rights or privileges, but the same shall
continue and remain in full force and effect.
11.11 Severability. The invalidity of any provision of this Agreement
or portion of a provision shall not affect the validity of any other provision
of this Agreement or the remaining portion of the applicable provision.
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11.12 Consent to Jurisdiction and Service of Process; Waiver of Jury
Trial. All disputes arising out of or related to this Agreement, including,
without limitation, any dispute relating to the interpretation, meaning or
effect of any provision hereof, will be resolved by the Bankruptcy Court and the
parties hereto each submit to the exclusive jurisdiction of the Bankruptcy Court
for the purpose of adjudicating any such dispute; provided, however, that the
parties agree that if the Bankruptcy Court does not accept jurisdiction over any
such dispute, such dispute shall then be brought exclusively in the courts of
the Commonwealth of Pennsylvania located in the city of Philadelphia or of the
United States of America for the Eastern District of Pennsylvania and each party
hereby expressly submits to the personal jurisdiction and venue of such courts
for the purposes thereof and expressly waives any claim of improper venue and
any claim that such courts are an inconvenient forum. In any such dispute, each
party shall bear its own costs and legal fees.
11.13 Indemnification. In the event NCR fails to make the payment in
such time, manner and amount as required pursuant to the terms of the first
sentence of Article 2.2.1 of this Agreement, and such failure is determined in a
final, non-appealable order of a competent tribunal to have been a breach of
this Agreement, which breach was not preceded by a breach of this Agreement or
the Purchase Agreement by Tidel, NCR shall indemnify and hold harmless Tidel
from and against any and all losses, liabilities, damages, demands, claims,
suits, actions, judgments or causes of action, costs and expenses, including
without limitation interest, penalties, reasonable attorneys' fees, and any and
all amounts paid in settlement of any claim or litigation, asserted against,
resulting to, imposed upon, or incurred or suffered by Tidel, as a result of or
arising from claims against Tidel for breach of Article 2.2(a) of the Purchase
Agreement.
TIDEL AND NCR HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties, through their duly authorized
officers, have executed and delivered this Agreement the day and year first
above written.
XXX XXXXXXXXXXX TIDEL TECHNOLOGIES, INC.
By: By:
------------------------------ ---------------------------------
Name: Name:
------------------------- ----------------------------
Title: Title:
------------------------ ----------------------------
TIDEL ENGINEERING, L.P.
By: TIDEL CASH SYSTEMS, INC.,
General Partner
By:
------------------------------
Name:
-------------------------
Title:
------------------------
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