Exhibit 10.1
AMENDMENT NUMBER TEN TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER TEN TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of August 14, 2003, is entered into between and among, on the one hand,
the lenders identified on the signature pages hereof (such lenders, together
with their respective successors and assigns, are referred to hereinafter each
individually as a "Lender" and collectively as the "Lenders"), XXXXX FARGO
FOOTHILL, INC., a California corporation, formerly known as Foothill Capital
Corporation, as the arranger and administrative agent for the Lenders ("Agent"),
and, on the other hand, HYPERCOM CORPORATION, a Delaware corporation ("Parent"),
and each of Parent's Subsidiaries identified on the signature pages hereof (such
Subsidiaries are referred to hereinafter each individually as a "Borrower", and
individually and collectively, jointly and severally, as the "Borrowers"), with
reference to the following:
W I T N E S S E T H
WHEREAS, Borrowers and Parent previously entered into that certain
Loan and Security Agreement, dated as of July 31, 2001, as amended by Amendment
Number One to Loan and Security Agreement dated as of October 3, 2001, by
Amendment Number Two to Loan and Security Agreement dated as of November 13,
2001, by Amendment Number Three to Loan and Security Agreement dated as of
February 13, 2002, by Amendment Number Four to Loan and Security Agreement dated
as of June 24, 2002, by Amendment Number Five to Loan and Security Agreement
dated as of December 23, 2002, by Amendment Number Six to Loan and Security
Agreement dated as of March 5, 2003, by Amendment Number Seven to Loan and
Security Agreement dated as of March 28, 2003, by Amendment Number Eight to Loan
and Security Agreement dated as of May 12, 2003, and by Amendment Number Nine to
Loan and Security Agreement and other Loan Documents dated as of June 30, 2003
(as the same may be further amended, restated, supplemented, or otherwise
modified from time to time, the "Loan Agreement"), with Agent and Lenders
pursuant to which Lenders have made certain loans and financial accommodations
available to Borrowers and Parent;
WHEREAS, Borrowers have requested that the Lender Group agree to
amend the Loan Agreement as set forth herein; and
WHEREAS, subject to the satisfaction of the conditions set forth
herein, the Lender Group is willing to so amend the Loan Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend the
Loan Agreement as follows:
1. DEFINITIONS
Capitalized terms used herein and not otherwise defined herein shall have
the meanings ascribed to them in the Loan Agreement, as amended hereby.
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2. AMENDMENT TO LOAN AGREEMENT
(a) Section 1.1 of the Loan Agreement is hereby amended by amending and
restating the following definition in its entirety as follows:
"Permitted Restricted Payments" means (a) dividends, loans, or advances to
Parent to enable Parent to make payment of its general operating expenses
and federal, state, local and foreign tax obligations then due and owing
and incurred in the ordinary course of business if and so long as Parent
(i) immediately uses the proceeds of such dividends, loans, or advances
solely to satisfy such obligations and (ii) does not use such to satisfy
the obligations of any other Person through the satisfaction of a guaranty
or otherwise, and (b) any purchase, acquisition, redemption, or retirement
by Parent of any class of its outstanding Stock on or before August 31,
2003, in an aggregate amount not in excess of $10,000,000.
3. CONDITIONS PRECEDENT TO THIS AMENDMENT
The satisfaction of each of the following shall constitute conditions
precedent to the effectiveness of this Amendment and each and every provision
hereof:
(a) The representations and warranties in the Loan Agreement and the
other Loan Documents shall be true and correct in all respects on and as of the
date hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
(b) Agent shall have received the reaffirmation and consent of each
Guarantor, attached hereto as Exhibit A, duly executed and delivered by an
authorized official of Guarantor;
(c) No Default or Event of Default shall have occurred and be continuing
on the date hereof or as of the date of the effectiveness of this Amendment; and
(d) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against Borrower, Guarantors, or the Lender Group.
4. CONSTRUCTION
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
IN THE STATE OF CALIFORNIA.
5. ENTIRE AMENDMENT; EFFECT OF AMENDMENT
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This Amendment, and terms and provisions hereof, constitute the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes any and all prior or contemporaneous amendments relating to the
subject matter hereof. Except for the amendments to the Loan Agreement expressly
set forth in Section 2 hereof, the Loan Agreement and other Loan Documents shall
remain unchanged and in full force and effect. Except as expressly set forth
herein, the execution, delivery, and performance of this Amendment shall not
operate as a waiver of any right, power, or remedy of the Lender Group as in
effect prior to the date hereof. The agreements set forth herein are limited to
the specifics hereof, shall not apply with respect to any facts or occurrences
other than those on which the same are based, shall not excuse future
non-compliance with the Loan Agreement, and shall not operate as a consent to
any further or other matter, under the Loan Documents. To the extent any terms
or provisions of this Amendment conflict with those of the Loan Agreement or
other Loan Documents, the terms and provisions of this Amendment shall control.
This Amendment is a Loan Document.
6. COUNTERPARTS; TELEFACSIMILE EXECUTION
This Amendment may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Amendment by signing any such counterpart.
Delivery of an executed counterpart of this Amendment by telefacsimile shall be
equally as effective as delivery of an original executed counterpart of this
Amendment. Any party delivering an executed counterpart of this Amendment by
telefacsimile also shall deliver an original executed counterpart of this
Amendment, but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this Amendment.
7. MISCELLANEOUS
(a) Upon the effectiveness of this Amendment, each reference in the Loan
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like
import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the Loan
Documents to the "Loan Agreement", "thereunder", "therein", "thereof" or words
of like import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered as of the date first written above.
HYPERCOM CORPORATION, HYPERCOM EMEA, INC.,
a Delaware corporation fka Hypercom Europe Limited, Inc.,
an Arizona corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: Executive Vice President and Title: Executive Vice President
Chief Financial and Administrative Officer
HYPERCOM U.S.A., INC., HYPERCOM MANUFACTURING RESOURCES,
a Delaware corporation INC., an Arizona corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: Executive Vice President Title: Executive Vice President
HYPERCOM LATINO AMERICA, INC., EPICNETZ, INC.,
an Arizona corporation a Nevada corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: Executive Vice President Title: Executive Vice President
XXXXX FARGO FOOTHILL, INC.,
a California corporation, formerly
known as Foothill Capital Corporation,
as Agent and as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
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EXHIBIT A
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein shall have
the meanings ascribed to them in that certain Loan and Security Agreement by and
among the lenders identified on the signature pages thereof (such lenders,
together with their respective successors and assigns, are referred to
hereinafter each individually as a "Lender" and collectively as the "Lenders"),
XXXXX FARGO FOOTHILL, INC., a California corporation, formerly known as Foothill
Capital Corporation, as the arranger and administrative agent for the Lenders
("Agent"), and, on the other hand, HYPERCOM CORPORATION, a Delaware corporation
("Parent"), and each of Parent's Subsidiaries identified on the signature pages
thereof (such Subsidiaries are referred to hereinafter each individually as a
"Borrower", and individually and collectively, jointly and severally, as the
"Borrowers"), dated as of July 31, 2001, as amended by Amendment Number One to
Loan and Security Agreement dated as of October 3, 2001, by Amendment Number Two
to Loan and Security Agreement dated as of November 13, 2001, by Amendment
Number Three to Loan and Security Agreement dated as of February 13, 2002, by
Amendment Number Four to Loan and Security Agreement dated as of June 24, 2002,
by Amendment Number Five to Loan and Security Agreement dated as of December 23,
2002, by Amendment Number Six to Loan and Security Agreement dated as of March
5, 2003, by Amendment Number Seven to Loan and Security Agreement dated as of
March 28, 2003, by Amendment Number Eight to the Loan and Security Agreement
dated as of May 12, 2003, and by Amendment Number Nine to Loan and Security
Agreement and other Loan Documents dated as of June 30, 2003 (as the same may be
further amended, restated, supplemented, or otherwise modified from time to
time, the "Loan Agreement"), or in Amendment Number Ten to Loan and Security
Agreement dated as of August 14, 2003 (the "Amendment"), among Parent, the
Borrowers and the Lender Group. The undersigned hereby (a) represent and warrant
to the Lender Group that the execution, delivery, and performance of this
Reaffirmation and Consent are within its powers, have been duly authorized by
all necessary action, and are not in contravention of any law, rule, or
regulation, or any order, judgment, decree, writ, injunction, or award of any
arbitrator, court, or governmental authority, or of the terms of its charter or
bylaws, or of any contract or undertaking to which it is a party or by which any
of its properties may be bound or affected; (b) consents to the transactions
contemplated by the Amendment and the execution and delivery thereof; (c)
acknowledges and reaffirms its obligations owing to the Lender Group under the
Guaranty and any other Loan Documents to which it is a party; and (d) agrees
that each of the Loan Documents to which it is a party is and shall remain in
full force and effect. Although the undersigned has been informed of the matters
set forth herein and has acknowledged and agreed to same, it understands that
the Lender Group has no obligations to inform it of such matters in the future
or to seek its acknowledgment or agreement to future amendments, and nothing
herein shall create such a duty. Delivery of an executed counterpart of this
Reaffirmation and Consent by telefacsimile shall be equally as effective as
delivery of an original executed counterpart of this Reaffirmation and Consent.
Any party delivering an executed counterpart of this Reaffirmation and Consent
by telefacsimile also shall deliver an original executed counterpart of this
Reaffirmation and Consent but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Reaffirmation and Consent. This Reaffirmation and Consent shall be governed
by the laws of the State of California.
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IN WITNESS WHEREOF, the undersigned have each caused this Reaffirmation
and Consent to be executed as of the date of the Amendment.
HYPERCOM CORPORATION, HYPERCOM DO BRASIL INDUSTRIA E
a Delaware corporation COMERCIO LIMITADA (BRAZIL), an
organization organized under the
laws of Brazil
By: /s/ Xxxx X. Xxxxxx By: Hypercom U.S.A., Inc.,
Name: Xxxx X. Xxxxxx its shareholder
Title: Executive Vice President and
Chief Financial and Administrative By: /s/ Xxxx X. Xxxxxx
Officer Name: Xxxx X. Xxxxxx
Title: Executive Vice President
By: Hypercom Latino America, Inc.,
its shareholder
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
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