Exhibit 10.19
AMENDMENT NUMBER SEVEN TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SEVEN TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of March 28, 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"),
FOOTHILL CAPITAL CORPORATION, a California 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, and by Amendment Number Six to Loan and Security
Agreement dated as of March 5, 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;
WHEREAS, Borrowers have requested that the Lender Group agree to
release the Accounts of Hypercom EMEA, Inc. from the Collateral;
WHEREAS, Borrowers have requested that the Lender Group consent to
the dissolution of Hypercom GmbH and Hypercom S.A.R.L. (France) (collectively,
the "Dissolutions");
WHEREAS, Borrowers have requested that the Lender Group consent to
the formation of HBNet, Inc. and to the Investment by Parent in HBNet, Inc. in
an amount that does not exceed $500,000 in the aggregate (the "Canadian
Transaction");
WHEREAS, Borrowers have requested that the Lender Group consent to
the formation of Golden Eagle Credit, Inc. and to the Investment by Parent in
Golden Eagle Credit, Inc. in an amount that does not exceed $30,000,000 in the
aggregate (the "GEL Transaction"; and together with the Canadian Transaction and
the Dissolutions, collectively the "Designated Transactions");
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WHEREAS, Borrowers have requested that the Loan Agreement be amended
as set forth herein; and
WHEREAS, subject to the satisfaction of the conditions set forth
herein, the Lender Group is willing to so consent to the amendment of the Loan
Agreement and to the consummation of the Designated Transactions.
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.
2. AMENDMENTS TO LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by adding the
following defined term in proper alphabetical order:
"Seventh Amendment" means that certain Amendment Number Seven to
Loan and Security Agreement, dated as of March 28, 2003, among Lenders, Agent,
Parent and Borrowers.
"Seventh Amendment Effective Date" means the date, if ever, that all
of the conditions set forth in Section 4 of the Seventh Amendment shall be
satisfied (or waived by the Lenders in their sole discretion).
(b) Section 1.1 of the Loan Agreement is hereby amended by amending and
restating the following definitions in their entirety as follows:
"Maximum Revolver Amount" means $15,000,000.
(c) Section 1.1 of the Loan Agreement is hereby amended by amending the
definition of "Eligible Accounts" as follows: (i) deleting the word "or"
appearing at the end of clause (n) thereof, (ii) deleting the period appearing
at the end of clause (o) and replacing it with the phrase "; or" and (iii)
inserting the following clause (p) immediately following clause (o):
"(p) Accounts of Hypercom EMEA, Inc."
(d) Section 2.11 of the Loan Agreement is hereby amended by inserting
the following new clause (e) immediately following clause (c) thereof:
"(e) SEVENTH AMENDMENT FEE. On or before the Seventh Amendment
Effective Date, Borrowers shall pay to Agent an amendment fee of $100,000, which
fee shall be fully earned and non-refundable when paid and shall be charged to
Borrowers' Loan Account on the date hereof."
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(e) Section 3.2 of the Loan Agreement is hereby amended by (i) inserting
the word "and" at the end of Section 3.2(g), (ii) deleting the phrase "; and"
appearing at the end of Section (h)(iii) thereof and replacing it with a period,
and (iii) deleting Section 3.2(i) in its entirety.
(f) Section 7.20(a)(i) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(i) "MINIMUM EBITDA. EBITDA of Parent, measured on the fiscal
period set forth below, of not less than the required amount set
forth in the following table for the applicable period set forth
opposite thereto:
Applicable Amount Applicable Period
----------------- -----------------
$1,870,000 For the 3 month period
ending June 30, 2001
$6,885,000 For the 3 month period
ending September 30, 2001
$(556,000) For the one month period
ending October 31, 2001
$3,524,000 For the two month period
ending November 30, 2001
$13,940,000 For the 6 month period
ending December 31, 2001
$17,765,000 For the 9 month period
ending March 31, 2002
$22,610,000 For the 12 month period
ending June 30, 2002
$24,310,000 For the 12 month period
ending September 30, 2002
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Applicable Amount Applicable Period
----------------- -----------------
$22,850,000 For the 12 month period
ending December 31, 2002
$13,988,000 For the 12 month period
ending March 31, 2003
$14,445,000 For the 12 month period
ending June 30, 2003
$20,103,000 For the 12 month period
ending September 30, 2003
$25,576,000 For the 12 month period
ending December 31, 2003"
(g) Section 7.20(a)(ii) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(ii) MINIMUM EBITDA WITHOUT GOLDEN EAGLE. EBITDA of Parent
excluding Golden Eagle and any Subsidiaries of Golden Eagle, measured on a
fiscal quarter-end basis, of not less than the required amount set forth in the
following table for the applicable period set forth opposite thereto:
Applicable Amount Applicable Period
----------------- -----------------
$595,000 For the 3 month period
ending June 30, 2001
$5,270,000 For the 6 month period
ending September 30. 2001
$10,710,000 For the 9 month period
ending December 31, 2001
$12,580,000 For the 12 month period
ending March 31, 2002
$15,385,000 For the 12 month period
ending June 30, 2002
$16,320,000 For the 12 month period
ending September 30, 2002
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Applicable Amount Applicable Period
----------------- -----------------
$17,850,000 For the 12 month period
ending December 31, 2002
$7,900,000 For the 12 month period
ending March 31, 2003
$8,000,000 For the 12 month period
ending June 30, 2003
$14,295,000 For the 12 month period
ending September 30, 2003
$21,064,000 For the 12 month period
ending December 31, 2003"
(h) Section 7.20(a)(iii) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(iii) TANGIBLE NET WORTH. Tangible Net Worth of at least the
required amount set forth in the following table as of the applicable date set
forth opposite thereto:
Applicable Amount Applicable Period
----------------- -----------------
$126,905,000 September 30, 2001
$129,455,000 December 31, 2001
$128,605,000 March, 31, 2002
$128,350,000 June 30, 2002
$131,155,000 September 30, 2002
$133,705,000 December 31, 2002
$132,770,000 March, 31, 2003
$133,195,000 June 30, 2003
$136,850,000 September 30, 2003
$141,525,000 December 31, 2003
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3. OTHER AGREEMENTS; CONSENT.
(a) Subject to the satisfaction of each of the conditions listed in
Section 4, the provisions of the Loan Agreement to the contrary notwithstanding,
the Lender Group hereby consents to the consummation of the Designated
Transactions, so long as, (i) with respect to the GEL Transaction, (A) 99% of
the outstanding Stock of Golden Eagle Credit, Inc. is held by Golden Eagle and
1% of such Stock is held by Parent, (B) 100% of the Investments by Parent in
Golden Eagle Credit, Inc. is funded from the proceeds of dividend from Golden
Eagle to Parent, (C) the aggregate amount of all such Investments does not
exceed $30,000,000, and (D) neither a Borrower nor a Guarantor transfers any
assets to Golden Eagle Credit, Inc., other than as described above in clauses
(B) or (C) hereof, and (ii) with respect to the Canadian Transaction, the
aggregate amount of all of the Investments in HBNet, Inc. does not exceed
$500,000.
(b) Upon the effectiveness of this Amendment, (i) the Accounts of
Hypercom EMEA, Inc. shall not for any purpose be deemed to be Collateral under
the Loan Agreement or the other Loan Documents, and (ii) except for the duties,
liabilities and obligations under this Amendment, Parent and its Subsidiaries
hereby release each of the members of the Lender Group from any duty, liability
or obligation under the Loan Documents in respect of such Accounts. In
conjunction with the foregoing, the Lenders hereby authorize and instruct Agent
to, and Agent agrees that it shall, execute and deliver, on behalf of the
Lenders (and without the requirement that the same be executed by any of the
Lenders), such agreements, acknowledgements, written releases, terminations,
notices, re-conveyance instruments, transfer documents, certificates, and other
documents (in appropriate form for recording or filing, as reasonably
requested), and to take all such other actions, in each case as may be necessary
to terminate any rights in the Accounts of Hypercom EMEA, Inc. that the Lender
Group may have and to give effect to the consents and releases contained herein
or contemplated hereby.
(c) The Lender Group hereby agrees that Hypercom Financial Terminals
(AB) Sweden shall have no obligation or liability under the Guaranty or the
Guarantor Security Agreement to Agent or any Lender.
4. 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;
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(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.
5. 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.
6. ENTIRE AMENDMENT; EFFECT OF AMENDMENT. 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.
7. 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.
8. 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.
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(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/ X. X. Xxxxxxxxx By: /s/ X. X. Xxxxxxxxx
_____________________________ _____________________________
Name: X. X. Xxxxxxxxx Name: X. X. Xxxxxxxxx
Title: Chairman and CEO Title: President
HYPERCOM U.S.A., INC., HYPERCOM MANUFACTURING
a Delaware corporation RESOURCES, INC.,
an Arizona corporation
By: /s/ X. X. Xxxxxxxxx By: /s/ X. X. Xxxxxxxxx
_____________________________ _____________________________
Name: X. X. Xxxxxxxxx Name: X. X. Xxxxxxxxx
Title: President Title: Chairman
HYPERCOM HORIZON, INC., EPICNETZ, INC.,
a Missouri corporation a Nevada corporation
By: /s/ X. X. Xxxxxxxxx By: /s/ X. X. Xxxxxxxxx
_____________________________ _____________________________
Name: X. X. Xxxxxxxxx Name: X. X. Xxxxxxxxx
Title: Chairman Title: President
HYPERCOM LATINO AMERICA, INC.,
an Arizona corporation
By: /s/ X. X. Xxxxxxxxx
_____________________________
Name: X. X. Xxxxxxxxx
Title: President
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent
and as a Lender
By: /s/ Xxxx Xxxxxx
_____________________________
Name: Xxxx Xxxxxx
Title: Vice President
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"), FOOTHILL CAPITAL CORPORATION, a California 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, and by
Amendment Number Six to Loan and Security Agreement dated as of March 5, 2003
(as the same may be further amended, restated, supplemented, or otherwise
modified from time to time, the "Loan Agreement"), or in Amendment Number Seven
to Loan and Security Agreement dated as of March 28, 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.
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/ X.X. Xxxxxxxxx By: Hypercom U.S.A., Inc.,
_____________________________ its shareholder
Name: X.X. Xxxxxxxxx
___________________________
Title: Chairman and CEO
__________________________ By: /s/ X.X. Xxxxxxxxx
__________________________
Name: X.X. Xxxxxxxxx
__________________________
Title: President
__________________________
By: Hypercom Latino America, Inc.,
its shareholder
By: /s/ X.X. Xxxxxxxxx
__________________________
Name: X.X. Xxxxxxxxx
__________________________
Title: Chairman
__________________________
