HYPERCOM CORP
EX-10.1
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<TYPE>EX-10.1
<SEQUENCE>3
<FILENAME>p66562ex10-1.txt
<DESCRIPTION>EX-10.1
<TEXT>
<PAGE>
                                                                    Exhibit 10.1


                                                                     [Execution]

          AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT AND CONSENTS



                                                         March 31, 2002

Congress Financial Corporation
1133 Avenue of the Americas
New York, New York 10036

Ladies and Gentlemen:

         Congress Financial Corporation ( "Lender") has entered into financing
arrangements with Golden Eagle Leasing, Inc., an Arizona corporation
("Borrower"), and Hypercom Corporation, an Arizona corporation ("Guarantor"),
pursuant to which Lender has made and may make loans and advances to Borrower as
set forth in the Loan and Security Agreement, dated as of August 28,2001, by and
among Borrower and Lender (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, the "Loan
Agreement"), and other agreements, documents and instruments referred to therein
or at any time executed and/or delivered in connection therewith or related
thereto (together with this Amendment, all of the foregoing, including the Loan
Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein as the "Financing Agreements"). All capitalized terms used
herein shall have the respective meanings assigned thereto in the Loan
Agreement, unless otherwise defined herein,

         Borrower has requested certain amendments to the Loan Agreement and the
Subordination Agreement (as hereunder defined) and has requested that Lender
consent to (a) Guarantor's conversion to equity of a portion of the outstanding
subordinated intercompany Indebtedness owing to it from Borrower (the "Junior
Debt"), (b) Borrower's repayment of a portion of the Junior Debt and (c) an
increase in the maximum amount of Borrower's revolving credit facility with
Webster Bank ("Webster"). Lender is willing to agree to such amendments and
provide such consents, subject to the terms and conditions contained herein. By
this Amendment, Lender, Borrower and Guarantor desire and intend to evidence
such amendments and consent.

         In consideration of the foregoing, and the respective agreements and
covenants contained herein, the parties hereto agree as follows:
<PAGE>
         1. Amendments to Loan Agreement

                  (a) Section 1.4 of the Loan Agreement is hereby amended so
that the title of the definition of such Section is deleted in its entirety and
replaced by the following "Net Worth".

                  (b) Section 9.9(e) of the Loan Agreement is hereby amended by
inserting the following subsection prior to the semicolon at the end of such
section:

                           "and (v) except as otherwise set forth in Section 2.2
                  of the Subordination Agreement, dated as of the date hereof,
                  as amended, among Borrower, Guarantor and Lender, the
                  outstanding principal amount of such Indebtedness shall not be
                  less than $3,079,435.12 at any time"

                  (c) Section 9.21 of the Loan Agreement is hereby amended by
deleting such Section in its entirety and substituting the following therefor:

                           "9.21 Net Worth. Borrower shall, at all times,
                  maintain Net Worth of not less than $43,000,000."

                  2. Amendment to Subordination Agreement. Borrower and
Guarantor agree that Section 3.10 of the Subordination Agreement, dated as of
August 28, 200 1, among Borrower, Guarantor and Lender (the "Subordination
Agreement") is hereby amended and restated in its entirety as follows:

                           "(f) except as otherwise set forth in Section 2.2
                  hereof, Junior Creditor and Debtor shall not permit the total
                  outstanding principal amount of the Junior Debt to be less
                  than $3,079,435.12 at any time;"

         3. Consents.

                  (a) Junior Debt, Subject to the terms and conditions set forth
herein, notwithstanding the provisions of Section 9.9(e) of the Loan Agreement
and Section 2 of the Subordination Agreement, Lender hereby consents to (i)
Guarantor's conversion to equity of $16,646,496.38 of the Junior Debt effective
as of August 3 1, 2001 and (ii) a one time cash repayment by Borrower of up to
$1,500,000 of the Junior Debt, which repayment shall be made prior to April
30,2002.

                  (b) Increase in Webster Bank Indebtedness. Subject to the
terms and conditions set forth herein, notwithstanding the provisions of Section
9.9(t) of the Loan Agreement, Lender hereby consents to Borrower entering into
the Second Amendment to Loan and Security Agreement, between Borrower and
Webster (the "Webster Amendment"), providing for, among other things, the
increase in the maximum amount of the revolving credit facility provided to
Borrower thereunder from $10,000,000 to $15,000,000; provided m (i) Lender shall
have promptly received true, correct and complete copies of the Webster
Amendment and all other agreements, documents and instruments evidencing or
otherwise related to the increase in such


                                      -2-
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Indebtedness, as duly executed and delivered by the parties thereto, (ii) Lender
shall have received any other information with respect to the increase in such
Indebtedness as Lender may reasonably request, (iii) no Event of Default or act,
condition or event which with notice or passage of time would constitute an
Event of Default shall exist or have occurred and be continuing as a result of
the increase in such Indebtedness; (iv) such arrangements and agreements do not
provide for a lien on any Collateral, and (v) upon the request of Lender,
Webster shall execute a Waiver, Disclaimer and Release Agreement in form and
substance satisfactory to Webster and Lender.

         4. Waiver of Existing Defaults.

                  (a) Subject to the terms and conditions contained herein,
Lender hereby waives the following Event of Default (collectively, the "Existing
Defaults"): any default or Event of Default arising under Section 10.1 (r) of
the Loan Agreement as a result of the occurrence of the following events of
default under the Loan Agreement, dated as of July 3 1, 2001, as amended, by and
among, inter alia, Foothill Capital Corporation ("Foothill") and Guarantor (the
"Foothill Agreement") arising out of Guarantor's failure to comply with the
following covenants of the Foothill Agreement (the "Foothill Defaults"): (i)
Guarantor's failure to maintain EBITDA of not less than $6,885,000 for the
period from July 1, 2001 through September 30, 2001, in violation of Section
7.20(a)(i) of the Foothill Agreement; (ii) Guarantor's failure to maintain
EBITDA (excluding Borrower and any subsidiaries of Borrower) of not less than
$5,270,000 for the period from July 1, 2001 through September 30, 2001, in
violation of Section 7.2O(a)(ii) of the Foothill Agreement; and (iii)
Guarantor's failure to timely deliver a required listing of certain unencumbered
assets and to use its best efforts to take such actions as reasonably requested
in order to subject such assets to a valid and perfected lien, in violation of
Section 3.2(a) of the Foothill Agreement.

                  (b) Lender has not waived and is not by this Amendment
waiving, and has no present intention of waiving, any Events of Default (other
than the Existing Defaults), which may have occurred prior to the date hereof,
or may be continuing on the date hereof or any Event of Default which may occur
after the date hereof, whether the same or similar to the Events of Default
described in Section 4(a) above or otherwise. Lender reserves the right, in its
discretion, to exercise any or all of its rights and remedies arising under the
Financing Agreements applicable or otherwise, as a result of any Events of
Default (other than the Existing Defaults), which may have occurred prior to the
date hereof, or are continuing on the date hereof, or any Event of Default which
may occur after the date hereof, whether the same or similar to the Event of
Default described above or otherwise.

         5. Representations. Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Lender pursuant to the other Financing Agreements, Borrower
and Guarantor hereby represent, warrant and covenant with and to Lender as
follows (which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof and shall be incorporated into
and made a part of the Financing Agreements):


                                      -3-
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                  (a) The failure of Borrower to comply with the covenants,
conditions and agreements contained herein or in any other agreement, document
or instrument at any time executed and/or delivered by Borrower with, to or in
favor of Lender shall constitute an Event of Default under the Financing
Agreements.

                  (b) This Amendment has been duly executed and delivered by
Borrower and Guarantor and is in full force and effect as of the date hereof,
and the agreements and obligations of Borrower and Guarantor contained herein
constitute legal, valid and binding obligations of Borrower and Guarantor
enforceable against Borrower and Guarantor in accordance with their respective
terms.

                  (c) As of the date hereof, the total principal amount of the
Junior Debt is $4,579,435.12, prior to giving effect to the repayment permitted
by Section 3(a)(ii) hereof.

                  (d) As of the date hereof, other than the Existing Defaults,
no Event of Default or act, condition or event which with notice or passage of
time or both would constitute an Event of Default, has occurred or is
continuing.

         6. Conditions Precedent. The effectiveness of the other terms and
provisions contained herein shall be subject to the following conditions
precedent:

                  (a) the receipt by Lender of an original of this Amendment, in
form and substance satisfactory to Lender, duly authorized, executed and
delivered by Borrower and Guarantor;

                  (b) the receipt by Lender of the items referred to in Section
3(b)(i) and (v) hereof;

                  (c) the receipt by Lender of a waiver letter with respect to
the Foothill Defaults, in form and substance satisfactory to Lender, duly
authorized, executed and delivered by Foothill and Guarantor; and

                  (d) as of the date hereof, other than the Existing Defaults,
no Event of Default or act, condition or event which with notice or passage of
time or both would constitute an Event of Default, shall exist or have occurred
and be continuing.

         7. Effect of this Agreement. Except as modified pursuant hereto, no
other changes or modifications in the Loan Agreement or the other Financing
Agreements are intended or implied and the Financing Agreements are hereby
specifically ratified, restated and confirmed by the parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment shall
control.

         8. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York without regard to principals of conflicts
of laws, but excluding any rule of law that would cause the application of the
law of any jurisdiction other that the laws of the State of New


                                      -4-
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York.

         9. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.

         10. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. This Amendment may be executed and delivered by telecopier
with the same force and effect as if it were a manually executed and delivered
counterpart.

                  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


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         11. Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as my be necessary or
reasonably desirable to effectuate the provisions and purposes of this
Amendment.

                                         Very truly yours,

                                         GOLDEN EAGLE LEASING, INC.

                                         By: /s/ Jonathon E. Killmer
                                             -----------------------

                                         Title:  President

                                         HYPERCOM  CORPORATION

                                         By: /s/ Jonathon E. Killmer
                                             -----------------------
                                         Title: Executive VP & COO


AGREED:

CONGRESS FINANCIAL CORPORATION

By: /s/ Marc J. Brier
   -----------------------
Title: Vice President
      --------------------

                                      -6-


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