Exhibit 10.1
WAIVER AND CONSENT
This WAIVER AND CONSENT (this "Waiver and Consent") is entered into as
of March 13, 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 desires to issue and sell a certain number of shares of
its common stock in the amount of $25,000,000 by March 20,
2002 (the "Equity Offering").
C. Parent and Borrowers desire to use the proceeds of the Equity
Offering to, among other things, pay off the Term Loans (the
"Requested Transaction") but acknowledge that due to the
Designated Events of Default (as defined below) and Excess
Availability of less than $5,000,000, they would be prohibited
from prepaying the Term Loans upon the consummation of the
Equity Offering.
D. 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
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:
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1. Waiver and Consent. Subject to the conditions set forth in Section 2
hereof,
(a) the Agent and the Lenders hereby waive any provision of the
Loan Agreement or any other Loan Document that would prohibit,
and any Default or Event of Default that would arise as a
result of, the prepayment of the Term Loans with the proceeds
of the Equity Offering; and
(b) the Agent and the Lenders hereby waive any Default or Event of
Default that has arisen or would arise as a result of the
Borrowers' failure to deliver to the Initial Lenders certain
collateral documents required to be delivered pursuant to the
terms of Section 3.2(h) of the Loan Agreement.
2. Conditions Precedent to Waiver and Consent. The waivers provided for
in Section 1 hereof shall be automatically rescinded without any further action
by the Agent or any Lender, with the same effect as if such waivers had not been
granted, unless all of the following conditions are satisfied:
(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) The Equity Offering shall be completed in the form attached
hereto as Exhibit A for cash proceeds of not less than
$25,000,000;
(c) The proceeds of the Equity Offering shall have been used to
pay in full the outstanding principal balance of all Term
Loans, and all accrued and unpaid interest thereon, together
with all accrued and unpaid fees and expenses of the Term Loan
Lender (collectively, the "Term Loan Obligations"), by no
later than 10:00 a.m. (California time) on March 20, 2002;
(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(b) hereof), or shall result from the
consummation of the transactions contemplated herein;
(e) 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;
(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 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.
Representations and Warranties. Parent and Borrowers each hereby represents and
warrants to Agent and Lenders that:
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(h) 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;
(i) this Waiver and Consent constitutes a legal, valid, and binding
obligation, enforceable against it in accordance with its terms; and
(j) this Waiver and Consent has been duly executed and delivered by each
such party.
3. Fees. If the Borrowers shall not have paid in full all Term Loan
Obligations on or before March 20, 2002, the Borrowers shall pay to the Agent
for the account of the Lenders a non-refundable fee in the amount of $75,000.00
(or the Agent may charge the Loan Account in the amount thereof pursuant to
Section 2.10 of the Loan Agreement), which fee shall be earned in full when paid
or charged to the Loan Account.
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.
Parent and Borrowers acknowledge and agree that the waivers set forth
herein are subject to certain conditions subsequent as described in
Section 1 hereof. In the event that Parent or any Borrower breaches or
fails to satisfy any of such conditions, this Waiver and Consent shall
be deemed to be void ab initio.
[Signature Pages Follow]
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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.
PARENT:
HYPERCOM CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
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Title: Executive Vice President
and Chief Operating Officer
-----------------------------
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 Vice President and Chief Operating Title: Secretary
Officer ------------------------------------------
---------------------------------------------
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
----------------------------------- ---------------------------------
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Signature page to Waiver and Consent dated March 13, 2002 (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
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Title: Secretary
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LENDERS:
FOOTHILL CAPITAL CORPORATION, ABLECO FINANCE LLC,
a California corporation, as Agent and as a Lender a Delaware limited liability company, as a Lender
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxx X. Genda
-------------------------------------------- --------------------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxx X. Genda
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Title: Senior Vice President Title: Senior Vice President and Chief Credit
-------------------------------------------- Officer
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