EXHIBIT 10.2
WAIVER AND CONSENT
This WAIVER AND CONSENT (this "Waiver and Consent") is entered
into as of June 20, 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
as of October 3, 2001, by Amendment Number Two to Loan and
Security Agreement dated as of November 13, 2001, and by
Amendment Number Three to Loan and Security Agreement dated as
of 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.
B. Section 7.3 of the Loan Agreement, among other things,
restricts the ability of Parent, any Borrower, or any of their
respective Subsidiaries to liquidate, wind up, or dissolve
themselves (or suffer any liquidation or dissolution).
C. Parent has requested that Agent and the Lenders consent to the
dissolution of Hypercom (Arizona), Inc., an Arizona
corporation, Hypercom Transaction Network, Inc., an Arizona
corporation, and Hypercom FSC, Inc., a Barbados corporation
(each an "Inactive Subsidiary", and individually and
collectively, the "Inactive Subsidiaries").
D. Subject to the terms and conditions contained herein, the
Lenders are willing to waive the provisions of Section 7.3 of
the Loan Agreement with respect to the dissolution of the
Inactive Subsidiaries.
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. Subject to the conditions precedent set
forth in Section 2 hereof, Agent and the Lenders hereby waive any provision of
the Loan Agreement or any other
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Loan Document that would prohibit, and any Default or Event of Default that
would arise as a result of, the dissolution of the Inactive Subsidiaries.
2. Conditions Precedent to Waiver and Consent. The
satisfaction of each of the following, unless waived or deferred by Agent in its
sole discretion, shall constitute conditions precedent to the effectiveness of
this Waiver and Consent and each and every provision hereof:
a. Agent shall have received this Waiver and Consent,
duly executed by the parties hereto, and the same
shall be in full force and effect;
b. Agent shall have received the reaffirmation and
consent attached hereto as Exhibit A, duly executed
and delivered by an authorized officer of each
Guarantor identified as a party thereto;
c. Agent shall have received an assignment agreement,
duly executed and delivered by each Inactive
Subsidiary, Parent and Hypercom U.S.A., Inc., a
Delaware corporation ("HUSA"), pursuant to which each
Inactive Subsidiary assigns to Parent or HUSA all
right, title and interest that such Inactive
Subsidiary may have in any assets of any kind (if
any), and which is in form and substance satisfactory
to Agent in its discretion;
d. No Default or Event of Default shall have occurred
and be continuing on the date hereof (other than
those expressly waived by Section 1 hereof);
e. Each of the representations and warranties contained
in this Waiver and Consent and 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;
f. 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
g. Agent and the Lenders shall have received all
expenses and costs incurred by Agent and the Lenders
in entering into this Waiver and Consent, including
attorney's fees, then due.
3. Representations and Warranties. Parent and the Borrowers
each hereby represents and warrants to Agent and the Lenders that:
a. to the best of its knowledge, no Inactive Subsidiary
has any interest in any assets of any kind;
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b. 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;
c. this Waiver and Consent constitutes a legal, valid,
and binding obligation, enforceable against it in
accordance with its terms; and
d. 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 the
Lenders, nor as a consent to any further or other
matter, under the Loan Agreement. Parent and the
Borrowers acknowledge and agree that the waivers set
forth herein are subject to the conditions precedent
set forth in Section 2 hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Consent to be executed and delivered as of the date first above written.
HYPERCOM CORPORATION, HYPERCOM (ARIZONA), INC.,
a Delaware corporation an Arizona corporation
By: /s/ X. X. Xxxxxxxxx By: /s/ X. X. Xxxxxxxxx
Name: X. X. Xxxxxxxxx Name: X. X. Xxxxxxxxx
Title: President and CEO Title: President
HYPERCOM MANUFACTURING
RESOURCES, INC.,
HYPERCOM U.S.A., INC., an Arizona corporation
a Delaware corporation
By: /s/ X. X. Xxxxxxxxx
By: /s/ X. X. Xxxxxxxxx Name: X. X. Xxxxxxxxx
Name: X. X. Xxxxxxxxx Title: Chairman
Title: President
HYPERCOM HORIZON, INC., EPICNETZ, INC.,
a Missouri corporation a Nevada corporation
By: /s/ X. X. Xxxxxxxxx
Name: X. X. Xxxxxxxxx By: /s/ X. X. Xxxxxxxxx
Title: Chairman Name: X. X. Xxxxxxxxx
Title: President
HYPERCOM LATINO AMERICA, INC., HYPERCOM EMEA, INC.,
an Arizona 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 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, and by Amendment Number Three
to Loan and Security Agreement dated as of February 13, 2002 (as the same may be
further amended, restated, supplemented, or otherwise modified from time to
time, the "Loan Agreement"), or in the Waiver and Consent dated as of June 20,
2002 (the "Waiver and Consent"), 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 Waiver
and Consent; (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.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have each caused this Reaffirmation
and Consent to be executed as of the date of the Waiver and Consent.
HYPERCOM CORPORATION, HYPERCOM FINANCIAL TERMINALS
a Delaware corporation AB (SWEDEN), an organization
organized under the laws of
Sweden
By: /s/ X. X. Xxxxxxxxx By: /s/ X. X. Xxxxxxxxx
Name: X. X. Xxxxxxxxx Name: X. X. Xxxxxxxxx
Title: President and Chief Executive Officer Title: Chairman
HYPERCOM DO BRASIL INDUSTRIA E COMERCIO
LIMITADA (BRAZIL), an organization
organized under the laws of Brazil
By: Hypercom U.S.A., Inc.,
its shareholder
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: Vice President
