claim
or controversy arising out of this Amendment.
30. Counterparts.
This Amendment may be executed in the original or by telecopy
in any number of counterparts, each of which will be deemed original and all of
which taken together will constitute one and the same Amendment.
31. Total Agreement.
This Amendment, the Loan Agreement, and all other Loan
Documents embody the entire understanding of the parties with respect to the
subject matter thereof and supersede all prior understandings regarding the same
subject matter.
32. Acknowledgements and Release.
Each Borrower hereby acknowledges that:
(a)
it has no defenses, claims or set-offs to the enforcement by Agent or Lenders of
the Obligations on the date hereof; (b) to its knowledge, Agent and Lenders have
fully performed all undertakings and obligations owed to it as of the date
hereof; and (c) except to the limited extent expressly set forth in this
Amendment, Agent and Lenders do not waive, diminish or limit any term or
condition contained in the Loan Agreement or any of the other Loan
Documents.
EACH BORROWER HEREBY IRREVOCABLY RELEASES AND FOREVER DISCHARGES
AGENT AND LENDERS AND THEIR AFFILIATES, AND EACH SUCH PERSON'S RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, MEMBERS, ATTORNEYS AND REPRESENTATIVES
(EACH, A "RELEASED PERSON") OF AND FROM ALL DAMAGES, LOSSES, CLAIMS, DEMANDS,
LIABILITIES, OBLIGATIONS, ACTIONS OR CAUSES OF ACTION WHATSOEVER (EACH A
"CLAIM") THAT SUCH BORROWER MAY NOW HAVE OR CLAIM TO HAVE AGAINST ANY RELEASED
PERSON ON THE DATE
HEREOF, WHETHER KNOWN OR UNKNOWN, OF EVERY NATURE AND EXTENT WHATSOEVER, FOR OR
BECAUSE OF ANY MATTER OR THING DONE, OMITTED OR SUFFERED TO BE DONE OR OMITTED
BY ANY OF THE RELEASED PERSONS THAT BOTH (I) OCCURRED PRIOR TO OR ON THE DATE
HEREOF AND (II) IS ON ACCOUNT OF OR IN ANY WAY CONCERNING, ARISING OUT OF OR
FOUNDED UPON THE LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT.
EACH BORROWER INTENDS THE ABOVE RELEASE TO COVER, ENCOMPASS, RELEASE, AND
EXTINGUISH, INTER ALIA, ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION THAT MIGHT
OTHERWISE BE RESERVED BY THE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY
EQUIVALENT PROVISION UNDER NEW YORK LAW), WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR."
EACH BORROWER ACKNOWLEDGES THAT IT MAY HEREAFTER DISCOVER FACTS DIFFERENT FROM
OR IN ADDITION TO THOSE NOW KNOWN OR BELIEVED TO BE TRUE WITH RESPECT TO SUCH
CLAIMS, DEMANDS, OR CAUSES OF ACTION, AND AGREES THAT THIS AMENDMENT AND THE
ABOVE RELEASE ARE AND WILL REMAIN EFFECTIVE IN ALL RESPECTS NOTWITHSTANDING ANY
SUCH DIFFERENCES OR ADDITIONAL FACTS.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above.
BORROWERS:
HYPERCOM U.S.A., INC.,
a Delaware corporation
By: /s/ Thomas