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CLN# 4274533265-141/166 Exhibit 10.1.B
MODIFICATION AGREEMENT
DATE: July 28, 2000
PARTIES: Borrower: HYPERCOM CORPORATION, a Delaware corporation
Bank: BANK ONE, ARIZONA, NA, a national banking
association
RECITALS:
A. Bank has extended to Borrower credit ("LOAN") in the principal amount of
$10,000,000 (subsequently increased to $25,000,000) pursuant to the Revolving
Credit Agreement, dated January 20, 1998 ("LOAN AGREEMENT"), and evidenced by
the Revolving Commitment Note, dated January 20, 1998 ("NOTE"). The unpaid
principal of the Loan as of the date hereof is $23,285,000.00.
B. The Loan and/or guaranty of Loan is unsecured.
C. Bank and Borrower have executed and delivered previously the following
agreements ("MODIFICATIONS") modifying the terms of the Loan, the Note, the Loan
Agreement, and/or the Security Documents: (i) Modification Agreement, dated
November 11, 1998, (ii) Modification Agreement, dated January 25, 1999, (iii)
Modification Agreement, dated February 25, 2000, and (iv) Modification Agreement
dated April 26, 2000. (The Note, the Loan Agreement, the Security Documents, any
arbitration resolution, and all other agreements, documents, and instruments
evidencing, securing, or otherwise relating to the Loan, as modified in the
Modifications, are sometimes referred to individually and collectively as the
"LOAN DOCUMENTS". Hereinafter, "NOTE", "LOAN Agreement", and "SECURITY
DOCUMENTS" shall mean such documents as modified in the Modifications.)
D. Borrower has requested that Bank modify the Loan and the Loan Documents
as provided herein. Bank is willing to so modify the Loan and the Loan
Documents, subject to the terms and conditions herein.
AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower and Bank agree as follows:
1. ACCURACY OF RECITALS.
Borrower acknowledges the accuracy of the Recitals.
2. MODIFICATION OF LOAN DOCUMENTS.
2.1 The Loan Documents are modified as follows:
2.1.1 The RLC Maturity Date shall remain December 31, 2001. On the
RLC Maturity Date Borrower shall pay to Bank the unpaid principal, accrued and
unpaid interest, and all other amounts payable by Borrower under the Loan
Documents as modified herein.
2.1.2 From and after July 28, 2000, the amount of the Loan and the
Note, and the maximum principal amount that may at any time be outstanding
thereunder, is hereby increased from $25,000,000 to $35,000,000, subject to the
terms and conditions of the Loan Documents applicable to advances.
2.1.3 From and after October 31, 2000, the amount of the Loan and
the Note, and the maximum principal amount that may at any time be outstanding
thereunder, is hereby decreased to $25,000,000, subject to the terms and
conditions of the Loan Documents applicable to advances. Borrower will make a
payment on October 30, 2000 in an amount sufficient to reduce the outstanding
balance of the Note to $25,000.000.
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2.1.4 The definition of "RLC Commitment" in Section 1.1 of the
Loan Agreement is modified to read in its entirety as follows:
"RLC Commitment" means Thirty Five Million Dollars
($35,000,000) from July 28, 2000 to October 30, 2000 and Twenty Five Million
Dollars ($25,000,000) from after October 31, 2000.
2.2 Each of the Loan Documents is modified to provide that it shall be
a default or an event of default thereunder if Borrower shall fail to comply
with any of the covenants of Borrower herein or if any representation or
warranty by Borrower herein is materially incomplete, incorrect, or misleading
as of the date hereof.
2.3 Each reference in the Loan Documents to any of the Loan Documents
shall be a reference to such document as modified herein.
3. RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL.
The Loan Documents are ratified and affirmed by Borrower and shall remain in
full force and effect as modified herein. Any property or rights to or interests
in property granted as security in the Loan Documents shall remain as security
for the Loan and the obligations of Borrower in the Loan Documents.
4. BORROWER REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Bank:
4.1 No default or event of default under any of the Loan Documents as
modified herein, nor any event, that, with the giving of notice or the passage
of time or both, would be a default or an event of default under the Loan
Documents as modified herein has occurred and is continuing.
4.2 There has been no material adverse change in the financial
condition of Borrower or any other person whose financial statement has been
delivered to Bank in connection with the Loan from the most recent financial
statement received by Bank.
4.3 Each and all representations and warranties of Borrower in the Loan
Documents are accurate on the date hereof.
4.4 Borrower has no claims, counterclaims, defenses, or set-offs with
respect to the Loan or the Loan Documents as modified herein.
4.5 The Loan Documents as modified herein are the legal, valid, and
binding obligations of Borrower, enforceable against Borrower in accordance with
their terms.
4.6 Borrower is validly existing under the laws of the State of its
formation or organization and has the requisite power and authority to execute
and deliver this Agreement and to perform the Loan Documents as modified herein.
The execution and delivery of this Agreement and the performance of the Loan
Documents as modified herein have been duly authorized by all requisite action
by or on behalf of Borrower. This Agreement has been duly executed and delivered
on behalf of Borrower.
5. BORROWER COVENANTS.
Borrower covenants with Bank:
5.1 Borrower shall execute, deliver, and provide to Bank such
additional agreements, documents, and instruments as reasonably required by Bank
to effectuate the intent of this Agreement.
5.2 Borrower fully, finally, and forever releases and discharges Bank
and its successors, assigns, directors, officers, employees, agents, and
representatives from any and all actions, causes of action, claims, debts,
demands, liabilities, obligations, and suits, of whatever kind or nature, in law
or equity of Borrower, whether now known or unknown to Borrower, (i) in respect
of the Loan, the Loan Documents, or the actions or omissions of Bank in respect
of the Loan or the Loan Documents and (ii) arising from events occurring prior
to the date of this Agreement.
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5.3 Contemporaneously with the execution and delivery of this
Agreement, Borrower has paid to Bank:
5.3.1 All accrued and unpaid interest under the Note and all
amounts, other than interest and principal, due and payable by Borrower under
the Loan Documents as of the date hereof.
5.3.2 All the internal and external costs and expenses incurred by
Bank in connection with this Agreement (including, without limitation, inside
and outside attorneys, title, filing, and recording costs, expenses, and fees).
5.3.3 A documentation fee of $300.00.
5.3.4 An RLC Fee of $7,833.33 for the period from July 28, 2000
through October 30, 2000.
5.4 Contemporaneously with the execution and delivery of this
Agreement, Borrower has caused to be executed and delivered to Bank; (i) the
Continuing Guaranty, dated of even date herewith by HYPERCOM (ARIZONA), INC., an
Arizona corporation, (ii) the Continuing Guaranty, dated of even date herewith
by HYPERCOM LATINO AMERICA, INC., an Arizona corporation, and (iii) the
Continuing Guaranty, dated of even date herewith by HYPERCOM MANUFACTURING
RESOURCES, INC., an Arizona corporation each for the benefit of Bank.
5.5 Contemporaneously with the execution and delivery of this
Agreement, Borrower has executed and delivered, or caused to be executed and
delivered, to Bank, as additional security for the Loan and the Note, the
Collateral Pledge Agreement - Bank One Trust Company, NA Account No. 0482001200,
the Collateral Pledge Agreement - Lehman Brothers, Inc. Account No.
833-79055-1-0, and the Collateral Pledge Agreement - Brinker Capital Securities,
Inc. Account No. WJ77 4392-6415, WJ55 4392-6417, WJ55 4392-6419, WJ37 4392-6421,
WJ24 4392-6423, each dated of even date herewith, (collectively and individually
referred to as "COLLATERAL PLEDGE AGREEMENT"), by Borrower for the benefit of
Bank. As used in this Agreement, "LOAN DOCUMENTS" shall include the Collateral
Pledge Agreement.
6. EXECUTION AND DELIVERY OF AGREEMENT BY BANK.
Bank shall not be bound by this Agreement until (i) Bank has executed and
delivered this Agreement, (ii) Borrower has performed all of the obligations of
Borrower under this Agreement to be performed contemporaneously with the
execution and delivery of this Agreement, (iii) if required by Bank, Borrower
and any guarantor(s) of the Loan have executed and delivered to Bank an
arbitration resolution, and (iv) each guarantor of the Loan has executed the
Consent of Guarantor(s) below.
7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER.
The Loan Documents as modified herein contain the complete understanding and
agreement of Borrower and Bank in respect of the Loan and supersede all prior
representations, warranties, agreements, arrangements, understandings, and
negotiations. No provision of the Loan Documents as modified herein may be
changed, discharged, supplemented, terminated, or waived except in a writing
signed by the parties thereto.
8. BINDING EFFECT.
The Loan Documents as modified herein shall be binding upon and shall inure to
the benefit of Borrower and Bank and their respective successors and assigns.
9. CHOICE OF LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Arizona, without giving effect to conflicts of law principles.
10. COUNTERPART EXECUTION.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same document. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one document.
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DATED as of the date first above stated.
BORROWER:
HYPERCOM CORPORATION,
a Delaware corporation
By
-------------------------------------
Jonathon E. Killmer, Executive Vice President
BANK:
BANK ONE, ARIZONA, NA,
a national banking association
By
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Scott T. Schaefer, Senior Vice President
CONSENT OF GUARANTOR(S)
The undersigned (i) consent to the modification of the Loan Documents and all
other matters in the foregoing Agreement, (ii) reaffirm the Continuing
Guarantee, dated January 20, 1998 and any other agreements, documents and
instruments securing or otherwise relating thereto ("Guarantor Documents"),
(iii) acknowledge that the Guarantor Documents continue in full force and
effect, remain unchanged, except as specifically modified hereby, and are valid,
binding and enforceable in accordance with their respective terms, (iv) agree
that all references, if any, in the Guarantor Documents to any of the Loan
Documents are modified to refer to those documents as modified by the Agreement,
and (v) agree to be bound by the release of Bank set forth in the Agreement.
Dated as of the date of the Agreement.
HYPERCOM (ARIZONA), INC.
an Arizona corporation
By
-------------------------------------
Jonathon E. Killmer, Executive Vice President
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CONSENT OF GUARANTOR(S)
The undersigned (i) consent to the modification of the Loan Documents and all
other matters in the foregoing Agreement, (ii) reaffirm the Continuing
Guarantee, dated January 20, 1998 and any other agreements, documents and
instruments securing or otherwise relating thereto ("Guarantor Documents"),
(iii) acknowledge that the Guarantor Documents continue in full force and
effect, remain unchanged, except as specifically modified hereby, and are valid,
binding and enforceable in accordance with their respective terms, (iv) agree
that all references, if any, in the Guarantor Documents to any of the Loan
Documents are modified to refer to those documents as modified by the Agreement,
and (v) agree to be bound by the release of Bank set forth in the Agreement.
Dated as of the date of the Agreement.
HYPERCOM LATINO AMERICA, INC.
an Arizona corporation
By
-------------------------------------
Jonathon E. Killmer, Executive Vice President
CONSENT OF GUARANTOR(S)
The undersigned (i) consent to the modification of the Loan Documents and all
other matters in the foregoing Agreement, (ii) reaffirm the Continuing
Guarantee, dated January 20, 1998 and any other agreements, documents and
instruments securing or otherwise relating thereto ("Guarantor Documents"),
(iii) acknowledge that the Guarantor Documents continue in full force and
effect, remain unchanged, except as specifically modified hereby, and are valid,
binding and enforceable in accordance with their respective terms, (iv) agree
that all references, if any, in the Guarantor Documents to any of the Loan
Documents are modified to refer to those documents as modified by the Agreement,
and (v) agree to be bound by the release of Bank set forth in the Agreement.
Dated as of the date of the Agreement.
HYPERCOM MANUFACTURING RESOURCES, INC.
an Arizona corporation
By
-------------------------------------
Jonathon E. Killmer, Executive Vice President
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