exv10w1



 



Exhibit 10.1


AMENDMENT NUMBER TEN TO LOAN AND SECURITY AGREEMENT



          THIS AMENDMENT NUMBER TEN TO LOAN AND SECURITY AGREEMENT (this
“Amendment”), dated as of August 14, 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”),
WELLS 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, by Amendment Number
Eight to Loan and Security Agreement dated as of May 12, 2003, and by Amendment
Number Nine to Loan and Security Agreement and other Loan Documents dated as of
June 30, 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 agree to amend the
Loan Agreement as set forth herein; and



          WHEREAS, subject to the satisfaction of the conditions set forth herein,
the Lender Group is willing to so amend the Loan Agreement.



          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.




1






 



2.     AMENDMENT TO LOAN AGREEMENT.


     (a)  Section 1.1 of the Loan Agreement is hereby amended by amending and
restating the following definition in its entirety as follows:


          “Permitted Restricted Payments” means (a) dividends, loans, or advances to
Parent to enable Parent to make payment of its general operating expenses and
federal, state, local and foreign tax obligations then due and owing and
incurred in the ordinary course of business if and so long as Parent (i)
immediately uses the proceeds of such dividends, loans, or advances solely to
satisfy such obligations and (ii) does not use such to satisfy the obligations
of any other Person through the satisfaction of a guaranty or otherwise, and
(b) any purchase, acquisition, redemption, or retirement by Parent of any class
of its outstanding Stock on or before August 31, 2003, in an aggregate amount
not in excess of $10,000,000.



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)  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.


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


2






 


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 “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.]


3






 





     IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered as of the date first written above.





HYPERCOM CORPORATION,

a Delaware corporation

 

By: /s/ John W. Smolak

Name: John W. Smolak

Title: Executive Vice President and

Chief Financial and Administrative Officer

 


HYPERCOM U.S.A., INC.,

a Delaware corporation

 

By: /s/ John W. Smolak

Name: John W. Smolak

Title: Executive Vice President

 


HYPERCOM LATINO AMERICA, INC.,

an Arizona corporation

 

By: /s/ John W. Smolak

Name: John W. Smolak

Title: Executive Vice President

 


WELLS FARGO FOOTHILL, INC.,

a California corporation, formerly known as

Foothill Capital Corporation, as Agent and as

a Lender

 

By: /s/ John Nocita

Name: John Nocita

Title: Vice President

 






HYPERCOM EMEA, INC.,

fka Hypercom Europe Limited, Inc.,

an Arizona corporation

 

By: /s/ John W. Smolak

Name: John W. Smolak

Title: Executive Vice President

 


HYPERCOM MANUFACTURING RESOURCES, INC.,

an Arizona corporation

 

By: /s/ John W. Smolak

Name: John W. Smolak

Title: Executive Vice President

 

EPICNETZ, INC.,

a Nevada corporation

 

By: /s/ John W. Smolak

Name: John W. Smolak

Title: Executive 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”),
WELLS 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, by Amendment
Number Eight to the Loan and Security Agreement dated as of May 12, 2003, and
by Amendment Number Nine to Loan and Security Agreement and other Loan
Documents dated as of June 30, 2003 (as the same may be further amended,
restated, supplemented, or otherwise modified from time to time, the “Loan
Agreement”), or in Amendment Number Ten to Loan and Security Agreement dated as
of August 14, 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 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



By: /s/ John W. Smolak

Name: John W. Smolak

Title: Executive Vice President and

Chief Financial and Administrative Officer


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/ John W. Smolak
	 	 	
Name: John W. Smolak
	 	 	
Title: Executive Vice President
	 	 	 
	 	 	
By: Hypercom Latino America, Inc., 
       its shareholder
	 	 	 
	 	 	
By: /s/ John W. Smolak
	 	 	
Name: John W. Smolak
	 	 	
Title: Executive Vice President