EXHIBIT 4.02
Dallas, Texas
$5,000,000.00 June 12, 1997
FOR VALUE RECEIVED, TIDEL ENGINEERING, INC., a Delaware corporation
(herein called "BORROWER"), promises to pay to the order of TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association (herein called "PAYEE"), at
0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, or at such other place as Payee may
hereafter designate in writing, in immediately available funds and in lawful
money of the United States of America, the principal sum of FIVE MILLION DOLLARS
AND NO/100 ($5,000,000.00) (or the unpaid balance of all principal advanced
against this note, if that amount is less), together with interest on the unpaid
principal balance of this note from time to time outstanding until maturity at
the rate or rates provided for in the Credit Agreement and interest on all past
due amounts at the Past Due Rate as provided in the Credit Agreement; PROVIDED,
that for the full term of this note, the interest rate produced by the aggregate
of all sums paid or agreed to be paid to the holder of this note for the use,
forbearance or detention of the debt evidenced hereby shall not exceed the
Highest Lawful Rate, if any, applicable to Payee.
If, for any reason whatever, the interest paid or received on this note
during its full term produces a rate which exceeds the Highest Lawful Rate, if
any, applicable to Payee, the holder of this note shall refund to the payor or,
at the holder's option, credit against the principal of this note such portion
of said interest as shall be necessary to cause the interest paid on this note
to produce a rate equal to the Highest Lawful Rate, if any, applicable to payee.
All sums paid or agreed to be paid to the holder of this note for the use,
forbearance or detention of the indebtedness evidenced hereby shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
in equal parts throughout the full term of this note, so that the interest rate
is uniform throughout the full term of this note. To the extent the laws of the
State of Texas are applicable for purposes of determining the "Highest Lawful
Rate," such term shall mean the "indicated rate ceiling" from time to time in
effect under Article 1.04, Title 79, Revised Civil Statutes of Texas, as
amended, or if permitted by applicable law and effective upon the giving of the
notices required by such Article 1.04 (or effective upon any other date
otherwise specified by applicable Law), the "monthly ceiling," the "quarterly
ceiling," or "annualized ceiling" from time to time in effect under such Article
1.04, whichever that Lender shall elect to substitute for the "indicated rate
ceiling," and vice versa, each such substitution to have the effect provided in
such Article 1.04; and Lender shall be entitled to make such election from time
to time and one or more times and, without notice to Borrower, to leave any such
substitute rate in effect for subsequent periods in accordance with subsection
(h)(1) of such Article 1.04. Pursuant to Article 15.10(b) of Chapter 15,
Subtitle 79, Revised Civil Statutes of Texas, 1925, as amended, Xxxxxxxx agrees
that such Chapter 15 (which regulates certain revolving credit loan accounts and
revolving tri-party accounts) shall not govern or in any manner apply to the
Obligations.
This note has been issued pursuant to the terms of a Credit Agreement
(which, as it may have been or may be amended, restated, modified or
supplemented from time to time, is herein
called the "CREDIT AGREEMENT") of even date herewith, by and between Borrower
and Payee, to which reference is made for all purposes. This note is a Note
under the terms of the Credit Agreement, and advances against this note by Xxxxx
or other holder hereof, payments and prepayments hereunder and acceleration
hereof shall be governed by the Credit Agreement. Capitalized words and phrases
used herein and not defined herein and which are defined in the Credit Agreement
shall have the same meanings herein as are ascribed to them in the Credit
Agreement.
The unpaid principal balance of this note at any time shall be the total
of all principal lent or advanced against this note less the sum of all
principal payments and permitted prepayments made on this note by or for the
account of Borrower. All loans and advances and all payments and permitted
prepayments made hereon may be endorsed by the holder of this note on the
schedule which is attached hereto (and hereby made a part hereof for all
purposes) or otherwise recorded in the holder's records; PROVIDED, that any
failure to make notation of (a) any advance shall not cancel, limit or otherwise
affect Borrower's obligations or any holder's rights with respect to that
advance, or (b) any payment or permitted prepayment of principal shall not
cancel, limit or otherwise affect Borrower's entitlement to credit for that
payment as of the date received by the holder.
Borrower and any and all co-makers, endorsers, guarantors and sureties
severally waive notice (including, but not limited to, notice of intent to
accelerate and notice of acceleration, notice of protest and notice of
dishonor), demand, presentment for payment, protest, diligence in collecting and
the filing of suit for the purpose of fixing liability and consent that the time
of payment hereof may be extended and re-extended from time to time without
notice to any of them. Each such person agrees that his, her or its liability on
or with respect to this note shall not be affected by any release of or change
in any guaranty or security at any time existing or by any failure to perfect or
maintain perfection of any lien against or security interest in any such
security or the partial or complete unenforceability of any guaranty or other
surety obligation, in each case in whole or in part, with or without notice and
before or after maturity.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF TEXAS (OTHER THAN THE CONFLICTS OF LAWS PRINCIPLES THEREOF) AND
THE UNITED STATES OF AMERICA FROM TIME TO TIME IN EFFECT.
TIDEL ENGINEERING, INC.,
a Delaware corporation
By: /S/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx, President
