EXHIBIT 10.1
AMENDMENT NUMBER EIGHT TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER EIGHT TO LOAN AND SECURITY AGREEMENT
(this "Amendment"), dated as of May 12, 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, by Amendment Number Six to Loan and Security
Agreement dated as of March 5, 2003, and by Amendment Number Seven to Loan and
Security Agreement dated as of March 28, 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 requested that the Lender Group
consent to the dissolution of Hypercom Network Systems Pte. Ltd., a company
formed under the laws of Singapore (the "Designated Transaction");
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 Transaction.
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.
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2. AMENDMENT TO LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by
amending the definition of "Permitted Liens" by deleting the word "$2,500,000"
appearing in clause (m) thereof and replacing it with the word "$3,500,000".
3. OTHER AGREEMENTS; CONSENT. 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. The Lenders hereby authorize Agent to execute and
deliver any documents which may be necessary, in Agent's discretion, to release
any pledge by Borrowers of the Stock in Hypercom Network Systems Pte. Ltd.
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;
(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
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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.
(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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President, 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President Title: Executive Vice President
HYPERCOM HORIZON, INC., EPICNETZ, INC.,
a Missouri corporation a Nevada corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President Title: Executive Vice President
HYPERCOM LATINO AMERICA, INC.,
an Arizona corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent
and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
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, by
Amendment Number Six to Loan and Security Agreement dated as of March 5, 2003,
and by Amendment Number Seven to Loan and Security Agreement dated as of March
28, 2003 (as the same may be further amended, restated, supplemented, or
otherwise modified from time to time, the "Loan Agreement"), or in Amendment
Number Eight to Loan and Security Agreement dated as of May 12, 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: Hypercom U.S.A., Inc.,
_________________________ its shareholder
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
Title: Executive Vice President,
Chief Financial and Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Administrative Officer ___________________________
_________________________
Title: Executive Vice President
___________________________
By: Hypercom Latino America, Inc.,
its shareholder
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
Title: Executive Vice President
___________________________