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EXHIBIT 10-B
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES EXCHANGE ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE
SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED,
PLEDGED, OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS OR, IN THE OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THE SECURITIES REPRESENTED
HEREBY, SUCH OFFER, SALE, TRANSFER, PLEDGE, OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.
PROMISSORY NOTE
Tucson, Arizona
$1,500,000.00 December 27, 2000
1. FUNDAMENTAL PROVISIONS.
The following terms will be used as defined terms in this Promissory
Note (as it may be amended, modified, extended and renewed from time to
time, the "Note"):
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Payee and Holder: GEORGE WALLNER, a man.
Maker: HYPERCOM CORPORATION, a Delaware corporation.
Principal Amount: One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00).
Interest Rate: Twelve percent (12%) per annum.
Default
Interest Rate: Three percent (3%) per annum above the Interest Rate.
Maturity Date: February 1, 2001.
Business Day: Any day of the year other than Saturdays, Sundays and legal holidays on
which Holder's main office at Bank One Arizona, N.A., is closed.
Loan: The loan from Holder to Maker in the Principal Amount and evidenced by
this Note.
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2. PROMISE TO PAY.
For value received, Maker promises to pay to the order of Holder, at
his address in Miami, Florida, or at such other place as the Holder
hereof may from time to time designate in writing, the Principal
Amount, together with accrued interest from the date of disbursement on
the unpaid principal balance at the Interest Rate.
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3. INTEREST; PAYMENTS.
(a) Absent an Event of Default hereunder, each advance made
hereunder shall bear interest at the Interest Rate. Throughout
the term of this Note, interest shall be computed by applying
the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by
the actual number of days the principal balance is
outstanding.
(b) All payments of principal and interest due hereunder shall be
made (i) without deduction of any present and future taxes,
levies, imposts, deductions, charges or withholdings, which
amounts shall be paid by Maker, and (ii) without any other set
off. Maker will pay the amounts necessary such that the gross
amount of the principal and interest received by the holder
hereof is not less than that required by this Note.
(c) Maker shall make all payments of principal and interest due
hereunder, and any other amounts due hereunder due and
payable, on the Maturity Date. If any payment of principal and
interest to be made by Maker hereunder shall become due on a
day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and such extension of time
shall be included in computing the interest in such payment.
4. PREPAYMENT.
Maker may prepay the Loan, in whole or in part, at any time without
penalty or premium.
5. LAWFUL MONEY.
Principal and interest are payable in lawful money of the United States
of America.
6. APPLICATION OF PAYMENTS/LATE CHARGE/DEFAULT INTEREST.
(a) Absent the occurrence of an Event of Default hereunder, any
payments received by the holder hereof pursuant to the terms
hereof shall be applied first to sums, other than principal
and interest, due the holder hereof pursuant to this Note,
next to the payment of all interest accrued to the date of
such payment, and the balance, if any, to the payment of
principal. Any payments received by the holder hereof after
the occurrence of an Event of Default hereunder shall be
applied to the amounts specified in this Paragraph 6(a) in
such order as the holder hereof may, in its sole discretion,
elect.
(b) If any payment of interest and/or principal is not received by
the holder hereof when such payment is due, then in addition
to the remedies conferred upon the holder hereof pursuant to
Paragraph 9 hereof, the amount due and unpaid shall bear
interest at the Default Interest Rate, computed from the date
on which the amount was due and payable until paid.
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7. EVENT OF DEFAULT.
The (i) default in the payment of principal or interest when due
pursuant to the terms of this Note and (ii) any default under any other
material loan agreement executed by Maker shall be deemed to be an
event of default ("Event of Default") hereunder.
8. REMEDIES.
Upon the occurrence of an Event of Default, then at the option of the
holder hereof, the entire balance of principal together with all
accrued interest thereon, and all other amounts payable by Maker
hereunder shall, without demand or notice, immediately become due and
payable. Upon the occurrence of an Event of Default (and so long as
such Event of Default shall continue), the entire balance of principal
hereof, together with all accrued interest thereon, and any judgment
for such principal, interest, and other amounts shall bear interest at
the Default Interest Rate, subject to the limitations contained in
Paragraph 13 hereof. No delay or omission on the part of the holder
hereof in exercising any right under this Note hereof shall operate as
a waiver of such right.
9. WAIVER.
Maker, endorsers, guarantors, and sureties of this Note hereby waive
diligence, demand for payment, presentment for payment, protest, notice
of nonpayment, notice of protest, notice of intent to accelerate,
notice of acceleration, notice of dishonor, and notice of nonpayment,
and all other notices or demands of any kind and expressly agree that,
without in any way affecting the liability of Maker, endorsers,
guarantors, or sureties, the holder hereof may extend any maturity date
or the time for payment of any installment due hereunder, accept
additional security, release any Person liable, and release any
security or guaranty. Maker, endorsers, guarantors, and sureties waive,
to the full extent permitted by law, the right to plead any and all
statutes of limitations as a defense.
10. CHANGE, DISCHARGE, TERMINATION, OR WAIVER.
No provision of this Note may be changed, discharged, terminated, or
waived except in a writing signed by the party against whom enforcement
of the change, discharge, termination, or waiver is sought. No failure
on the part of the holder hereof to exercise and no delay by the holder
hereof in exercising any right or remedy under this Note or under the
law shall operate as a waiver thereof.
11. ATTORNEYS' FEES.
If this Note is not paid when due or if any Event of Default occurs,
Maker promises to pay all costs of enforcement and collection and
preparation therefor, including but not limited to, reasonable
attorneys' fees, whether or not any action or proceeding is brought to
enforce the provisions hereof (including, without limitation, all such
costs incurred in connection with any bankruptcy, receivership, or
other court proceedings whether at the trial or appellate level).
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12. SEVERABILITY.
If any provision of this Note is unenforceable, the enforceability of
the other provisions shall not be affected and they shall remain in
full force and effect.
13. INTEREST RATE LIMITATION.
Maker hereby agrees to pay an effective rate of interest that is the
sum of the interest rate provided for herein, together with any
additional rate of interest resulting from any other charges of
interest or in the nature of interest paid or to be paid in connection
with the Loan. Holder and Maker agree that none of the terms and
provisions contained herein shall be construed to create a contract for
the use, forbearance or detention of money requiring payment of
interest at a rate in excess of the maximum interest rate permitted to
be charged by the laws of the State of Arizona. In such event, if any
holder of this Note shall collect monies which are deemed to constitute
interest which would otherwise increase the effective interest rate on
this Note to a rate in excess of the maximum rate permitted to be
charged by the laws of the State of Arizona, all such sums deemed to
constitute interest in excess of such maximum rate shall, at the option
of the holder, be credited to the payment of other amounts payable
hereunder or returned to Maker.
14. NUMBER AND GENDER.
In this Note the singular shall include the plural and the masculine
shall include the feminine and neuter gender, and vice versa.
15. HEADINGS.
Headings at the beginning of each numbered section of this Note are
intended solely for convenience and are not part of this Note.
16. CHOICE OF LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ARIZONA WITHOUT GIVING EFFECT TO CONFLICT OF LAWS
PRINCIPLES.
17. INTEGRATION.
This Note contains the complete understanding and agreement of the
holder hereof and Maker and supersede all prior representations,
warranties, agreements, arrangements, understandings, and negotiations.
18. BINDING EFFECT.
This Note will be binding upon, and inure to the benefit of, the holder
hereof, Maker, and their respective successors and assigns. Maker may
not delegate its obligations under this Note.
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19. TIME OF THE ESSENCE.
Time is of the essence with regard to each provision hereof as to which
time is a factor.
20. SURVIVAL.
The representations, warranties, and covenants of the Maker in this
Note shall survive the execution and delivery of this Note and the
making of the Loan.
21. SUBORDINATION.
Holder's rights to payment under this Note shall be at all times and in
all respects wholly subordinate and inferior in claim and right to the
obligations of Maker to the Banks, as that term is defined in that
certain Credit Agreement between Maker and Banks, dated August 31,
2000.
HYPERCOM CORPORATION, a Delaware corporation
By: /s/ Jonathon E. Killmer
Name: Jonathon E. Killmer
Title: Executive VP and COO
"MAKER"
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