AMENDMENT NUMBER NINE TO LOAN AND SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS

EXHIBIT 10.1

AMENDMENT NUMBER NINE TO LOAN AND SECURITY AGREEMENT AND
THE OTHER LOAN DOCUMENTS

THIS AMENDMENT NUMBER NINE TO LOAN AND SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS (this “Amendment”), dated as of June 30, 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, and by Amendment Number Eight to Loan and Security Agreement dated as of May 12, 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 informed the Lender Group that Hypercom Horizon, Inc. desires to enter into that certain Asset Purchase Agreement dated as of June 30, 2003 by and among TASQ Technology, Inc., Hypercom U.S.A., Inc. (a subsidiary of Parent) and Hypercom Horizon, Inc. (the “Purchase Agreement”), pursuant to which Hypercom Horizon, Inc. will dispose of substantially all of its assets;

WHEREAS, Borrowers have requested that the Lender Group (a) consent to the consummation of the transactions evidenced by the Purchase Agreement and the dissolution of Hypercom Horizon, Inc. (collectively, the “Designated Transaction”), and (b) release Hypercom Horizon, Inc. from the Loan Agreement and each other Loan Document to which it is a party;

WHEREAS, subject to the satisfaction of the conditions set forth herein, the Lender Group is willing to so consent to the consummation of the Designated Transaction and to release Hypercom Horizon, Inc. from each of the Loan Documents to which it is a party.

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. CONSENT; RELEASE OF HYPERCOM HORIZON, INC. 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 Transaction. Upon the consummation of the transactions evidenced by the Purchase Agreement, (a) the Lenders hereby authorize Agent to release, and Agent hereby releases, its Lien in and to any and all of Hypercom Horizon, Inc.’s assets, (b) the Lender Group hereby releases Hypercom Horizon, Inc. from the Loan Agreement and from each other Loan Document to which it is a party. The Lender Group hereby authorizes Borrowers to file such Uniform Commercial Code termination statements with respect to Hypercom Horizon, Inc. (which Borrowers prepare and which are reasonably satisfactory to Agent) as may be reasonably necessary to evidence the termination of Agent’s Liens in and to the assets of Hypercom Horizon, Inc. The Lenders hereby authorize Agent to execute and deliver any other documents which may be necessary, in Agent’s discretion, to release such Liens in and to the assets of Hypercom Horizon, Inc.

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) Agent shall have received a true and correct copy of the Purchase Agreement, together with all schedules thereto and each other agreement which is executed in connection therewith, which shall be in form and substance reasonably satisfactory to Agent;

(d) Concurrent with the consummation of the transactions evidenced by the Purchase Agreement, Agent shall have received 100% of the net cash proceeds thereof in accordance with the terms of the Loan Agreement;

(e) 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

(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 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. 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 “a Borrower”, “Borrowers”, or words of like import referring to one or more of the Borrowers shall mean and refer to the Borrowers other than Hypercom Horizon, Inc.

(b) Upon the effectiveness of this Amendment, each reference in each other Loan Agreement to “a Pledgor”, “Pledgors”, “a Debtor”, “Debtors”, “an Obligor”, “Obligors” or words of like import referring to one or more of the Borrowers or the Guarantors shall mean and refer to the Borrowers and/or Guarantors (as applicable) other than Hypercom Horizon, Inc.

(c) 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.

(d) 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.]

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 Chief	Title:	Executive Vice President
	Financial and Administrative Officer

HYPERCOM U.S.A., INC.,		HYPERCOM MANUFACTURING
a Delaware corporation		RESOURCES, 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 HORIZON, INC.,		EPICNETZ, INC.,
a Missouri 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


HYPERCOM LATINO AMERICA, INC.,
an Arizona corporation

By:	/s/ Xxxx X. Xxxxxx

Name:	Xxxx X. Xxxxxx

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

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, and by Amendment Number Eight to the Loan and Security Agreement dated as of May 12, 2003 (as the same may be further amended, restated, supplemented, or otherwise modified from time to time, the “Loan Agreement”), or in Amendment Number Nine to Loan and Security Agreement dated as of June 30, 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, a Delaware corporation		HYPERCOM DO BRASIL INDUSTRIA E COMERCIO LIMITADA (BRAZIL), an organization organized under the laws of Brazil


By:	/s/ Xxxx X. Xxxxxx	By:	Hypercom U.S.A., Inc., its shareholder

Name:	Xxxx X. Xxxxxx	By:	/s/ Xxxx X. Xxxxxx

Title:	Executive Vice President and Chief Financial and Administrative 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

Document Metadata

Table of Contents

AMENDMENT NUMBER NINE TO LOAN AND SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS

Document Metadata