**Exhibit 10.28**

 

**PROMISSORY NOTE**

 

February 15, 2002

 

AltrisSoftware, Inc. a California corporation (“Altris”), having an address fornotices at 9339 Carroll Park Drive, San Diego, California 92121, herebyacknowledges that as of December 22, 2001 it had received funds totaling $1,235,076 (the “Initial Funds”)from Spescom Limited, a South Africa corporation (“Spescom”), having an addressfor notices at P.O box 288, Halfway House 1685 Midrand, South Africa.  In consideration of Spescom advancing theInitial Funds to Altris and the advancement of any additional funds(the “NewFunds” and collectively with the Initial Funds, the “Loan”) by Spescom toAltris on even date herewith,  Altrispromises to repay the Loan to Spescom plus any accrued interest in accordancewith the terms set forth below:

 

1.             Payments and Interest.  The Loan shall accrue interest at the rateof 10% per annum from the date the Loan, or portion thereof, was advanced toAltris by Spescom.  All unpaid principaland accrued interest under this Note shall be due and payable on October 15,2003 (“Due Date”) unless extended by mutual written consent of  Altris and Spescom. 

 

2.             Manner of Payments.  All payments by Altris under the Loan shallbe (a) made in lawful money of the United States of America without set-off,deduction or counterclaim of any kind whatsoever, (b) credited first to amountfor late charges, if any, second to any accrued interest under the Loan andfinally to the principal balance under the Loan, and (c) deemed paid by Altris upontheir actual receipt by Spescom. Interest for any period less than one year shall be calculated on thebasis of 1/360th of one year’s interest multiplied by the number ofdays during such period.

 

3.             Interest on Interest.  All interest under the Loan shall, from itsDue Date until it is paid, bear interest at the interest rate set forth above.

 

4.             Security Interest.  This Note is subject to the terms of aSecurity Agreement, dated as of February 15, 2002 by and among Altris, Spescomand Spescom Limited, a United Kingdom corporation (the “Security Agreement”)and is subject to all the provisions thereof, and is secured by a continuingsecurity interest in the Collateral (as defined in the SecurityAgreement).  Notwithstanding theforegoing, Spescom shall have full recourse against Altris, and shall not berequired to proceed against the Collateral in an Event of Default (as definedbelow).

 

5.             Late Charge.  If any amount of interest and/or principalunder the Loan is not received by Spescom within 15 days after its Due Date,then, without any requirement for notice to Altris, Altris shall immediatelypay to Spescom as a late charge an additional sum of 5% per annum of suchoverdue amount from the Due 

 

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Date until thedate of payment.  Such late charge representsa fair and reasonable estimate of the costs that Spescom will incur by reasonof any late payment by Altris. Acceptance of such late charge by Spescom shall not constitute a waiverof Altris’ default with respect to such overdue amount, nor prevent Spescomfrom exercising any of the other rights and remedies available to Spescom underthis Note.

 

6.             Acceleration.  All unpaid principal and accrued interestunder this Note shall, at Spescom's election, be immediately due and payableupon the occurrence of any of the following events, any of which shallconstitute a default (“Event of Default”) under this Note.

 

6.1                                 Ifany amount due under this Note is not received by Spescom when due.

 

6.2                                 Theoccurrence of an Event of Default (as defined in the Security Agreement).

 

7.             Commercial Purposes.  Altris acknowledges that the Loan isobtained for business or commercial purposes and that the Loan will not be usedprimarily for personal, family, household or agricultural purposes.

 

8.             Loan Waivers.  To the extent permitted by applicable law,Altris waives presentment, demand, protest, notice of demand and dishonor.

 

9.             Prepayment Without Penalty.  This Note may be prepaid in whole or in partat any time without penalty.

 

10.           Interest Limitation.  It is not intended by any provision of thisNote to charge interest at a rate in excess of the maximum rate of interestpermitted to be charged to Altris under applicable law on a cumulativebasis.  If by mistake or error, interestin excess of such maximum rate shall be paid for any period, the excess amountshall, if permitted by applicable law, be retained by Spescom as Collateral (asdefined in the Security Agreement) to be held without interest or trust andcommingled with other assets of Spescom or, if not permitted to be so held bySpescom, shall be refunded to Altris. Such interest or premium (“Interest Shortage”) shall, if permitted byapplicable law, be added to the interest earned or to be earned for prior orsubsequent periods during the term of the Loan so that, to the extent permittedby applicable law on a cumulative basis over the life of the Loan, Spescom maycollect all of the interest and premium provided for in the Loan, the same tobe accomplished in the following manner, or otherwise as permitted byapplicable law:  (a) if Spescom werepermitted by applicable law to charge interest to Altris in such prior periodsin excess of the amount of interest and premium actually charged during suchprior periods, then the interest due on the Loan for such prior periods shallautomatically be increased by the amount of such Interest Shortage, but not inexcess of the maximum interest permitted to be 

 

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charged toAltris during such prior periods, and excess of the maximum interest permittedto be charged to Altris during such prior periods, and such increased interestfor such prior periods shall be immediately due an payable upon such demand;and (b) if Spescom shall have collected all interest permitted by applicablelaw to charge interest to Altris in such subsequent periods in excess of theamount of interest and premium actually charged during such subsequent periods,the interest due on the Loan for such subsequent periods shall automatically beincreased by the amount of such Interest Shortage, but not in excess of themaximum interest permitted to be charged to Altris during such subsequentperiod, and such increased interest for such subsequent  periods shall be due and payable at the endof each such subsequent period upon demand.

 

11.           Governing Law.  This Note shall be governed by and construedin accordance with the laws of the State of California.

 

12.           Further Assurances.  Each party to this Note shall executeall  instruments and documents and takeall actions as may be reasonably required to effectuate this Note.

 

13.           Venue and Jurisdiction.  For purposes of venue and jurisdiction, thisNote shall be deemed made and to be performed in the City of San Diego,California.

 

14.           Time of Essence.  Time and strict and punctual performance areof the essence with respect to each provision of this Note.

 

15.           Attorney’s Fees.  In the event any litigation, arbitration,mediation, or other proceeding (“Proceeding”) is initiated by any party(ies)against any other party(ies) to enforce, interpret or otherwise obtain judicialor quasi-judicial relief in connection with this Note, the prevailingparty(ies) in such Proceeding shall be entitled to recover from theunsuccessful party(ies) all costs, expenses, actual attorney’s and expertwitness fees, relating to or arising out of (a) such Proceeding (whether or notsuch Proceeding proceeds to judgment), and (b) any post-judgment or post-awardproceeding including without limitation one to enforce any judgment or awardresulting from any such Proceeding.  Anysuch judgment or award shall contain a specific provision for the recovery ofall such subsequently incurred costs, expenses, actual attorney’s and expertwitness fees.

 

16.           Modification.  This Note may be modified only by a contractin writing executed by the party(ies) to this Note against whom enforcement ofsuch modification is sought.

 

17.           Headings.  The headings of the paragraphs of this Notehave been included only for convenience, and shall not be deemed in any mannerto modify or limit any of the provisions of this Note, or be used in any mannerin the interpretation of this Note.

 

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18.           Prior Understandings.  This Note and the Security Agreement containthe entire agreement between the parties to this Note with respect to thesubject matter of this Note, are intended as a final expression of suchparties’ agreement with respect to such terms as are included in this Note, areintended as complete and exclusive statements of the terms of this Note, andsupersedes all negotiations, stipulations, understandings, agreements,representations and warranties, if any, with respect to such subject matter,which precede or accompany the execution of this Note.

 

19.           Partial Invalidity.  Each provision of this Note shall be validand enforceable to the fullest extent permitted by law.  If any provision of this Note or theapplication of such provision to any person or circumstance shall, to anyextent, be invalid or unenforceable, the remainder of this Note, or theapplication of such provision to persons or circumstances other than those asto which it is held invalid or unenforceable, shall not be affected by suchinvalidity or unenforceability, unless such provision or such application ofsuch provision is essential to this Note.

 

20.           Notices.  All notices or other communications requiredor permitted to be given to a party to this Note shall be in writing an shallbe personally delivered, sent by certified mail, postage prepaid, returnreceipt requested, or sent by an overnight express courier service thatprovides written confirmation of delivery, to such party at its address as setforth above in the introductory paragraph of this Note.  Each such notice or other communicationshall be deemed given, delivered and received upon its actual receipt, exceptthat if it sent by mail in accordance with this paragraph, then it shall bedeemed given, delivered and received three days after the date such notice orother communication is deposited with the United States Postal Service inaccordance with this paragraph.  Anyparty to this Note may give a notice of a change of its address to the otherparty to this Note.

 

21.           Waiver.  Any waiver of a default under the this Notemust be in writing and shall not be a waiver of any other default concerningthe same or any other provision of this Note. No delay or omission in the exercise of any right or remedy shall impairsuch right or remedy or be construed as a waiver.  A consent to or approval of any act shall not be deemed to waiveor render unnecessary consent to or approval of any act shall not be deemed towaive or render unnecessary consent to or approval of any other or subsequentact.

 

22.           Drafting Ambiguities.  Each party to this Note has reviewed andrevised this Note.  Each party to thisNote has had the opportunity to have such party’s legal counsel review andrevise this Note.  Altris acknowledgesthat this Note has been prepared by Solomon Ward Seidenwurm & Smith, LLP(“SWSS”) which represents only Spescom with respect to this Note and allrelated matters, that it is not being represented by SWSS in relation to thisNote and related matters and that it has been advised to retain its own legalcounsel. The rule of construction that ambiguities are to be resolved againstthe drafting party or in favor of the 

 

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partyreceiving a particular benefit under an agreement may not be employed in theinterpretation of this Note or of any amendments to this Note.

 
| ALTRIS:                  |   |                    |   |
|--------------------------|--------|-------------------------|--------|
|                     |   |                    |   |
| ALTRIS SOFTWARE, IN.,    |   |                    |   |
| a California corporation |   |                    |   |
|                     |
|                     |
| By:                      |   | /s/John W. Low          |   |
|                     |   | John W. Low             |   |
|                     |   | Chief Financial Officer |   |
|                          |        |                         |        |  |  |  |  |  |

 

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