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/ Scott
Tsujita
Name: Scott Tsujita
Title: Treasurer
HYPERCOM MANUFACTURING RESOURCES, INC., an Arizona corporation
By: /s/ Scott
Tsujita
Name: Scott Tsujita
Title: Treasurer
AGENT AND LENDERS:
BANK OF AMERICA, N.A.,
as Agent and Lender
By: /s/ Carlos
Gil
Name: Carlos Gil
Title:
Vice President
CONSENTS AND REAFFIRMATIONS
Each of HYPERCOM CORPORATION, a Delaware corporation, HYPERCOM EMEA, INC., an
Arizona corporation, HYPERCOM LATINO AMERICA, INC., an Arizona corporation,
HYPERCOM PUERTO RICO REPAIR FACILITY, G.P., an Arizona general partnership, and
HYPERCOM EMEA LTD., a company organized under the laws of the United Kingdom
(collectively, "Obligors", and each individually, an "Obligor"), hereby
acknowledges the execution of, and consents to, the terms and conditions of that
Second Amendment to Loan and Security Agreement and First Amendment to Fee
Letter dated as of December 30, 2010 (the "Amendment"), by and among HYPERCOM