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Exhibit 10.1(b)
MODIFICATION AGREEMENT
DATE: January 25, 1999
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
$10,000,000.00 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 $1,550,000.00.
B. The Loan and/or guaranty of Loan is secured by, among other things, (i)
the Security Agreement, dated January 20, 1998 ("Security Agreement #1") by
Borrower for the benefit of Bank, (ii) the Continuing Security Agreement dated
April 4,1996 ("Security Agreement #2") by HYPERCOM MANUFACTURING RESOURCES,
INC., an Arizona corporation for the benefit of Bank, (iii) the Continuing
Security Agreement dated March 13, 1996 ("Security Agreement #3") by HYPERCOM,
INC., an Arizona corporation for the benefit of Bank, and (iv) the Continuing
Security Agreement dated April 4,1996 ("Security Agreement #4") by HYPERCOM
LATINO AMERICA, INC., an Arizona corporation for the benefit of Bank (the
agreements, documents, and instruments securing the Loan and the Note are
referred to individually and collectively as the ("Security Documents").
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 of Security Agreement, dated January 20,
1998 between HYPERCOM, INC., an Arizona corporation and Bank, (iii) Modification
of Security Agreement, dated January 20, 1998 between HYPERCOM MANUFACTURING
RESOURCES, INC., an Arizona corporation and Bank, and (iv) Modification of
Security Agreement, dated January 20, 1998 between HYPERCOM LATINO AMERICA,
INC., an Arizona corporation and Bank. (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.
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2.1 The Loan Documents are modified as follows:
2.1.1 The RLC Maturity Date shall remain December 5, 2000. On the
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 Contemporaneously with the execution and delivery of this
Agreement, Bank has released all property, rights to property, or interests in
property from the Security Documents.
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.
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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.
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).
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.
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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.
DATED as of the date first above stated.
HYPERCOM CORPORATION, a Delaware corporation
By:
/Xxxxxx X. Xxxxx, President
BANK ONE, ARIZONA, NA,
a national banking association
By: Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Senior Vice President
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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 Inc., an Arizona corporation
By: Xxxxxx X. Xxxxx, President and CEO
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, an Arizona corporation
By: Xxxxxx X. Xxxxx, 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, an
Arizona corporation
By: Xxxxxx X. Xxxxx, President
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