Exhibit 10.27
SECURED PROMISSORY NOTE &
ASSIGNMENT AGREEMENT
$125,000 March 13, 2002
1. FOR VALUE RECEIVED, the undersigned, Xxxxxxxxx Xxxxxx on behalf of himself
and the X. Xxxxxx Limited Partnership, (Obligor"), hereby promises to pay to the
order of Davox Corporation a Delaware corporation or its successors ("Lender"),
at its principal office at 0 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxx, XX 00000 or at
such other place as may be designated from time to time in writing by Lender,
the principal sum of One-Hundred-Twenty-Five-Thousand Dollars and Zero Cents
($125,000) together with interest in arrears from and including the date hereof
on the unpaid principal balance hereunder at the mid-term Monthly Applicable
Federal Rate (AFR) of interest. Interest shall be calculated on the basis of
actual number of days elapsed and a year of 365 or 366 days, as applicable.
Notwithstanding any other provision of this Promissory Note, Lender does not
intend to charge and Obligor shall not be required to pay any interest or other
fees or charges in excess of the maximum permitted by applicable law; any
payments in excess of such maximum shall be credited to reduce principal
hereunder. Principal and interest shall be payable in lawful money of the United
States of America.
2. All principal and interest hereunder shall be due and payable on the earlier
of: (i) January 14, 2004 or on the date that Obligor is no longer employed by
Lender (the "Maturity Date"). Notwithstanding the immediately preceding
sentence, the Lender, in its sole discretion, may at any time or from time to
time extend the Maturity Date by one or more periods of seven (7) days each.
3. Obligor acknowledges that certain Deferred Common Holder Payments, as
defined in the Agreement and Plan of Merger By And Among Davox Corporation, AP
Acquisition Corporation and Cellit, Inc. ("Merger Agreement"), are to be paid
to Obligor pursuant to the terms of the Merger Agreement. Obligor hereby
assigns to Lender all Delayed Common Holder Payments to Xx. Xxxxxxxxx Xxxxxx
and the X. Xxxxxx Limited Partnership up to a maximum of the principal and
interest owing hereunder. If this Agreement is not enough evidence for the
Escrow Agent (as defined in the Merger Agreement), Obligor will execute and
deliver whatever writings are required to ensure that such Delayed Common
Holder Payments are automatically paid to Lender when they become payable.
Lender shall be paid all Delayed Common Holder Payments of Obligor's until such
time as all principal and interest thereon is paid in full. Notwithstanding the
foregoing, in the event the Escrow Agent will not pay such Deferred Common
Holder Payments directly to Lender, Obligor must do so immediately upon receipt
of such funds until all such principal and interest thereon is paid in full.
4. If any day on which a payment is due pursuant to the terms of this
Promissory Note is not a day on which banks in the Commonwealth of
Massachusetts are generally open (a "Business Day"), such payment shall be due
on the next Business Day following.
5. This Promissory Note may be prepaid at any time, without premium or
penalty, in whole or in part. Any prepayment of principal shall be accompanied
by a payment of accrued interest in respect of the principal being prepaid.
6. If this Promissory Note is not paid in accordance with its terms, Obligor
shall pay to Lender, in addition to principal and accrued interest thereon, all
costs of collection of the principal and accrued
Promissory Note -- Page 2
interest, including, but not limited to, reasonable attorneys' fees, court
costs and other costs for the enforcement of payment of this Promissory Note.
7. No waiver of any obligation of Obligor under this Promissory Note shall be
effective unless it is in a writing signed by Lender. A waiver by Lender of any
right or remedy under this Promissory Note on any occasion shall not be a bar to
exercise of the same right or remedy on any subsequent occasion or of any other
right or remedy at any time.
8. Any notice required or permitted under this Promissory Note shall be in
writing and shall be deemed to have been given on the date of delivery, if
personally delivered to the party to whom notice is to be given, or on the
fifth Business Day after mailing, if mailed to the party to whom notice is to
be given, by certified mail, return receipt requested, postage prepaid, and
addressed to the addressee at the address of the addressee set forth herein, or
to the most recent address, specified by written notice, given to the sender
pursuant to this paragraph.
9. This Promissory Note shall be enforceable in accordance with the laws of
the Commonwealth of Massachusetts, and shall be construed in accordance
therewith, and shall have the effect of a sealed instrument.
10. In the event any one or more of the provisions of this Promissory Note
shall for any reason be held to be invalid, illegal or unenforceable, in whole
or in part or in any respect, or in the event that any one or more of the
provisions of this Promissory Note operate or would prospectively operate to
invalidate this Promissory Note, then and in any such event, such provision(s)
only shall be deemed null and void and shall not affect any other provision of
this Promissory Note and the remaining provisions of this Promissory Note shall
remain operative and in full force and effect and in no way shall be affected,
prejudiced, or disturbed thereby.
OBLIGOR: Xxxxxxxxx Xxxxxx
By: /s/ Xxxxxxxxx Xxxxxx
Name: Xxxxxxxxx Xxxxxx
AGREED AND ACCEPTED:
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Davox Corporation
/s/ Xxxxxxx X. Xxxxxxxxxx, III
Xxxxxxx Xxxxxxxxxx
VP Finance & CFO
