EXHIBIT 10.27
WAIVER AND CONSENT
This WAIVER AND CONSENT (this "Waiver and Consent") is entered into as of March
25, 2002, 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:
A. 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
October 3, 2001, by Amendment Number Two to Loan and Security
Agreement dated November 13, 2001, and by Amendment Number
Three to Loan and Security Agreement dated February 13, 2002
(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.
B. Parent recently consummated a private placement of its common
stock resulting in proceeds to Parent in excess of $35 million
(the "Private Placement").
C. Parent and Borrowers desire to pay off amounts outstanding
under the Xxxxxxx Replacement Note with proceeds received from
the Private Placement (the "Requested Transaction").
C. Subject to the terms and conditions contained herein, the
Lenders are willing to waive the provisions of the Loan
Agreement and applicable Loan Documents for which the above
Requested Transaction would prohibit or violate so long as the
Requested Transaction is consummated in accordance with the
terms and conditions set forth herein.
E. Terms used herein without definitions shall have the meanings
ascribed to them in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Waiver and Consent. The Lenders hereby waive the provisions of the Loan
Agreement and applicable Loan Documents that would prohibit or that
would be violated by the payment and cancellation of the Replacement
Xxxxxxx Notes ON THE CONDITION THAT the proceeds of the Private
Placement are used to make such payment and cancellation and that such
payment does not exceed $3.6 million.
2. Conditions Precedent to Waiver and Consent. The satisfaction of each of
the following, unless waived or deferred by Agent and Lenders in their
sole discretion, shall constitute conditions precedent to the
effectiveness of this Waiver and Consent and each and every provision
hereof:
(a) Agent and Lenders shall have received this Waiver and Consent,
duly executed by the parties hereto, and the same shall be in
full force and effect;
(b) No Default or Event of Default shall have occurred and be
continuing on the date hereof, or shall result from the
consummation of the transactions contemplated herein;
(c) Each of the representations and warranties contained in the
Loan Agreement shall be true and correct in all respects on
and as of the effectiveness hereof, as though made on and as
of such date except for such representations or warranties
that are made expressly as of an earlier date;
(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 any
party hereto; and
(e) Agent and Lenders shall have received all expenses and costs
incurred by Agent and Lenders in entering into this Waiver and
Consent, including attorney's fees, then due and payable.
3. Representations and Warranties. Parent and Borrowers each hereby
represents and warrants to Agent and Lenders that:
(a) the execution, delivery, and performance of this Waiver and
Consent are within its corporate powers, has been duly
authorized by all necessary corporate 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) this Waiver and Consent constitutes a legal, valid, and
binding obligation, enforceable against it in accordance with
its terms; and
(c) this Waiver and Consent has been duly executed and delivered
by each such party.
4. Miscellaneous.
(a) Counterparts; Telefacsimile Execution; Effectiveness. This
Waiver and Consent may be executed in any number of
counterparts, each of which, when so executed and delivered,
shall be deemed an original. All of such counterparts shall
constitute but one and the same instrument. Delivery of an
executed counterpart of this Waiver and Consent by
telefacsimile shall be equally effective as delivery of an
original executed counterpart of this Waiver and Consent. Any
party delivering an executed counterpart of this Waiver and
Consent by telefacsimile also shall deliver a manually
executed counterpart of this Waiver and Consent but the
failure to deliver a manually executed counterpart shall not
affect the validity, enforceability, and binding effect of
this Waiver and Consent.
(b) Choice of Law and Venue; Jury Trial Waiver. This Waiver and
Consent shall be governed by and construed in accordance with
the laws of the State of California. The parties hereto agree
that the provisions of Section 13 of the Loan Agreement are
hereby incorporated herein by this reference mutatis mutandis.
(c) Limited Agreement. The waivers, consents, and modifications
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 except as
expressly set forth herein, shall not operate as a waiver or
an amendment of any right, power or remedy of Agent or
Lenders, nor as a consent to any further or other matter,
under the Loan Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Consent to be executed and delivered as of the date first above written.
PARENT:
HYPERCOM CORPORATION,
a Delaware corporation
By: /s/ XXXXXXXX X. XXXXXXX
--------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive VP & COO
BORROWERS:
HYPERCOM U.S.A., INC., HYPERCOM MANUFACTURING RESOURCES, INC.,
a Delaware corporation an Arizona corporation
By: /s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
-------------------------- -------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Executive VP & COO Title: Secretary
HYPERCOM HORIZON, INC., EPICNETZ, INC.,
a Missouri corporation a Nevada corporation
By: /s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
-------------------------- --------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary Title: Secretary
Signature page to Waiver and Consent (continued)
BORROWERS (continued)
HYPERCOM LATINO AMERICA, INC., HYPERCOM EMEA, INC.,
an Arizona corporation an Arizona corporation
By: /s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
------------------------ --------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary Title: Secretary
HYPERCOM (ARIZONA), INC.,
an Arizona corporation
By: /s/ XXXXXXXX X. XXXXXXX
--------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary
LENDERS:
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and as a Lender
By: /s/ XXXX XXXXXX
---------------------------
Name: Xxxx Xxxxxx
Title: Vice President
