EXHIBIT 10.1
AMENDMENT NUMBER ONE
TO LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT (the "Amendment") is
entered into as of October 3, 2001, 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:
WHEREAS, Borrowers and Parent previously entered into that certain Loan and
Security Agreement, dated as of July 31, 2001 (as 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, pursuant to Section 3.2 of the Loan Agreement, the parties agreed to
amend the Loan Agreement to add a negative covenant in form and substance
satisfactory to Parent and each Initial Lender with respect to the monthly
operating expenses of Parent and its Subsidiaries with which Parent and its
Subsidiaries will be required to comply until the Term Loan is paid in full;
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. Defined Terms. All terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Loan
Agreement.
2. Amendment To The Loan Agreement. A new Section 7.24 shall be
added to the Loan Agreement to read in its entirety as
follows:
"Section 7.24 Operating Expenses.
Until the Term Loan shall be paid in full, permit the combined
monthly operating expenses of Parent and its Subsidiaries
(calculated in accordance with GAAP applied on a basis
consistent with the calculations used to prepare the financial
statements to be delivered pursuant to Section 6.3(c) and the
Closing Date Business Plan) to exceed the amount set forth in
the following table for the applicable period set forth
opposite thereto:
Time Period Maximum Combined Operating Expense
July 2001 $10,800,000
August 2001 $10,800,000
September 2001 No designated limit
October 2001 $10,800,000
November 2001 $10,800,000
December 2001 No designated limit
Each first and second month An amount equal to the result of
of each calendar quarter thereafter (a) one third of the sum of the
Projections for (x) selling,
general and administrative
expenses and (y) research and
development expenses, in each
case as set forth in the Closing
Date Business Plan for the
quarter which includes such month,
multiplied by (b) 120%."
Each third month of each calendar No designated limit
quarter thereafter
Representations and Warranties. Each of the Borrowers and the Parent hereby
represents and warrants to the Agent and the Lenders that (a) the execution,
delivery, and performance of this Amendment and of the Loan Agreement, as
amended hereby, 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 Governing Documents, 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 Amendment and the Loan Agreement,
as amended hereby, constitute its legal, valid, and binding obligation,
enforceable against it in accordance with its terms, and (c) this Amendment has
been duly executed and delivered by it.
Choice of Law and Venue; Jury Trial Waiver. This Amendment 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.
Counterparts; Telefacsimile Execution. This Amendment may be executed in any
number of counterparts and by different parties and separate counterparts, each
of which when so executed
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and delivered, shall be deemed an original, and all of which, when taken
together, shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telefacsimile shall be
effective as delivery of a manually executed counterpart of this Amendment. Any
party delivering an executed counterpart of this Amendment by telefacsimile also
shall deliver a manually executed counterpart of this Amendment, but the failure
to deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Amendment.
Effect on Loan Documents.
The Loan Agreement, as amended hereby, and each of the other Loan Documents
shall be and remain in full force and effect in accordance with its respective
terms and hereby is ratified and confirmed in all respects. The execution,
delivery, and performance of this Amendment shall not, except as expressly set
forth herein, operate as a waiver of or, except as expressly set forth herein,
as an amendment of, any right, power, or remedy of Agent or any Lender under the
Loan Agreement, as in effect prior to the date hereof. 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 shall
not operate as a consent to any further or other matter, under the Loan
Documents.
Upon and after 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, and each reference in the other Loan
Documents to "the Agreement", "thereunder", "therein", "thereof" or words of
like import referring to the Loan Agreement, shall mean and be a reference to
the Loan Agreement as modified and amended hereby.
To the extent that any terms and conditions in any of the Loan Documents shall
contradict or be in conflict with any terms or conditions of the Loan Agreement,
after giving effect to this Amendment, such terms and conditions are hereby
deemed modified or amended accordingly to reflect the terms and conditions of
the Loan Agreement as modified or amended hereby.
Further Assurances. Each of the Borrowers and Parent shall execute and deliver
all agreements, documents, and instruments, in form and substance satisfactory
to Agent, and take all actions as Agent may reasonably request from time to
time, to perfect and maintain the perfection and priority of Agent's security
interests in the Collateral (for the benefit of the Lenders) and to fully
consummate the transactions contemplated under this Amendment and the Loan
Agreement.
Entire Agreement. This Amendment, together with all other instruments,
agreements, and certificates executed by the parties in connection herewith or
with reference thereto, embody the entire understanding and agreement between
the parties hereto and thereto with respect to the subject matter hereof and
thereof and supersede all prior agreements, understandings, and inducements,
whether express or implied, oral or written.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Number One to Loan and Security Agreement to be executed and delivered as of the
date first above written.
PARENT:
HYPERCOM CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
BORROWERS:
HYPERCOM U.S.A., INC., HYPERCOM MANUFACTURING RESOURCES, INC.,
a Delaware corporation an Arizona corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary Title: Secretary
HYPERCOM HORIZON, INC., EPICNETZ, INC.,
a Missouri corporation a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary Title: Secretary
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Signature page to Amendment Number One to Loan and Security Agreement
(continued)
BORROWERS (continued)
HYPERCOM LATINO AMERICA, INC., HYPERCOM EUROPE LIMITED, INC.,
an Arizona corporation an Arizona corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary Title: Secretary
HYPERCOM (ARIZONA), INC.,
an Arizona corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
LENDERS:
FOOTHILL CAPITAL CORPORATION, ABLECO FINANCE LLC,
a California corporation, as a Delaware limited liability company,
Agent and as a Lender as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President Title: Senior Vice President and Chief
Credit Officer
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