EXHIBIT 4.17
PROMISSORY NOTE
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$50,000.00 Dallas, Texas September 30, 1996
FOR VALUE RECEIVED, the undersigned, AVERY COMMUNICATIONS, INC., a
Delaware corporation ("Maker"), hereby promises to pay to the order of GLOBAL
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CAPITAL RESOURCES, INC., a Delaware corporation ("Payee"), at its offices at 190
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South LaSalle Street, Suite 1410, Chicago Illinois 60603, in lawful money of the
United States of America, the principal sum of Fifty-Thousand and 00/100 Dollars
($50,000.00), together with interest IN ARREARS on the UNPAID principal balance
at an annual rate equal to lesser of (a) the Maximum Rate (hereinafter defined),
or (b) twelve and one-half percent (12.5%), in the manner provided below.
Interest shall be calculated on the basis of a year of 365 or 366 days, as
applicable, and charged for the actual number of days elapsed.
The outstanding principal amount of this Note, together with all
accrued and unpaid interest thereon, shall be due and payable in full upon
demand of the Payee, or, if no such demand is made on or before December 31,
1997, on December 31, 1997. In addition, Maker shall make mandatory payments of
principal, together with all accrued and unpaid interest on the unpaid principal
balance of this Note, from time to time after the date hereof on the day
following the day on which Maker receives any payment on or with respect to the
indebtedness evidenced by that certain Promissory Note dated June 28, 1996, in
the original principal amount of $50,000.00 payable by Telco Group, Inc, a Texas
corporation, to the order of Maker.
All payments of principal and interest on this Note shall be made by
certified or bank cashier's check at the offices of Payee, 190 South LaSalle
Street, Suite 1410, Chicago Illinois 60603, or at such other place in the United
States of America as Payee shall designate to Maker in writing, or by wire
transfer of immediately available funds to an account designated by Payee in
writing. If any payment of principal or interest on this Note is due on a day
which is not a Business Day, such payment shall be due on the next succeeding
Business Day, and such extension of time shall be taken into account in
calculating the amount of interest payable under this Note. "Business Day" means
any day other than a Saturday, Sunday or legal holiday in the State of Illinois.
Maker may, without premium or penalty, at any time and from time to
time, prepay all or any portion of the outstanding principal balance due under
this Note, provided that each such prepayment is accompanied by accrued interest
on the amount of principal prepaid calculated to the date of such prepayment.
As used in this Note, the following terms shall have the respective
meanings indicated below:
"Default Rate" means the Maximum Rate.
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"Maximum Rate" means the maximum rate of nonusurious interest
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permitted from day to day by applicable law, including as to Article
5069-1.04, Vernon's Texas Civil Statutes (and as the same may be
incorporated by reference in other Texas statutes), but otherwise
without limitation, that rate based upon the "indicated rate ceiling"
and calculated after taking into account any and all relevant fees,
payments, and other charges in respect of this Note which are deemed to
be interest under applicable law.
Notwithstanding anything to the contrary contained herein, no
provisions of this Note shall require the payment or permit the collection of
interest in excess of the Maximum Rate. If any excess of interest in such
respect is herein provided for, or shall be adjudicated to be so provided, in
this Note or otherwise in connection with this loan transaction, the provisions
of this paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of Maker shall be obligated to pay the excess
amount of such interest, or any other excess sum paid for the use, forbearance
or detention of sums loaned pursuant hereto. If for any reason interest in
excess of the Maximum Rate shall be deemed charged, required or permitted by any
court of competent jurisdiction, any such excess shall be applied as a payment
and reduction of the principal of indebtedness evidenced by this Note; and, if
the principal amount hereof has been paid in full, any remaining excess shall
forthwith be paid to Maker. In determining whether or not the interest paid or
payable exceeds the Maximum Rate, Maker and Payee shall, to the extent permitted
by applicable law, (i) characterize any non-principal payment as an expense,
fee, or premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the entire contemplated
term of the indebtedness evidenced by this Note so that the interest for the
entire term does not exceed the Maximum Rate.
Maker shall be in default hereunder upon the happening of any of the
following events or conditions (each such event or condition hereinafter
referred to as an "Event of Default"):
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(a) Maker shall fail to pay when due any principal of or
accrued and unpaid interest on this Note.
(b) Maker shall commence a voluntary proceeding seeking
liquidation, reorganization, or other relief with respect to itself or
its debts under any bankruptcy, insolvency, or other similar law now or
hereafter in effect, or seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official for it or a
substantial part of its property or shall consent to any such relief or
to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it or shall make
a general assignment for the benefit of creditors or shall generally
fail to pay its debts as they become due or shall take any corporate
action to authorize any of the foregoing.
(c) Any involuntary proceeding shall be commenced against
Maker seeking liquidation, reorganization, or other relief with respect
to it or its debts under any bankruptcy, insolvency, or other similar
law now or hereafter in effect, or seeking the
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appointment of a trustee, receiver, liquidator, custodian, or other
similar official for it or a substantial part of its property, and such
involuntary proceeding shall remain undismissed and unstayed for a
period of thirty (30) days.
(d) This Note shall cease to be in full force and effect or
shall be declared null and void or the validity or enforceability
hereof shall be contested or challenged by Maker or any of its
shareholders, or Maker shall deny that it has any further liability or
obligation under this Note.
Upon the occurrence of any Event of Default, the holder hereof may, at
its option, declare the entire unpaid principal of and accrued interest on this
Note immediately due and payable without notice, demand or presentment, all of
which are hereby waived, and upon such declaration, the same shall become and
shall be immediately due and payable, and the holder hereof shall have the right
to foreclose or otherwise enforce all liens or security interests securing
payment hereof, or any part hereof, and offset against this Note any sum or sums
owed by the holder hereof to Maker. Failure of the holder hereof to exercise
this option shall not constitute a waiver of the right to exercise the same upon
the occurrence of a subsequent Event of Default.
If the holder hereof expends any effort in any attempt to enforce
payment of all or any part or installment of any sum due the holder hereunder,
or if this Note is placed in the hands of an attorney for collection, or if it
is collected through any legal proceedings, Maker agrees to pay all collection
costs and fees incurred by the holder, including reasonable attorneys' fees,
plus accrued and unpaid interest hereunder.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. ANY ACTION OR PROCEEDING UNDER OR IN CONNECTION WITH THIS NOTE AGAINST
MAKER OR ANY OTHER PARTY EVER LIABLE FOR PAYMENT OF ANY SUMS OF MONEY PAYABLE ON
THIS NOTE MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN COOK COUNTY, ILLINOIS.
MAKER HEREBY IRREVOCABLY (I) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURTS, AND (II) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF PAYEE TO
BRING ANY ACTION OR PROCEEDING AGAINST MAKER OR ANY OTHER PARTY LIABLE HEREUNDER
OR WITH RESPECT TO ANY COLLATERAL IN ANY STATE OR FEDERAL COURT IN ANY OTHER
JURISDICTION. ANY ACTION OR PROCEEDING BY MAKER OR ANY OTHER PARTY LIABLE
HEREUNDER AGAINST PAYEE SHALL BE BROUGHT ONLY IN A COURT LOCATED IN COOK COUNTY,
ILLINOIS.
The rights and remedies of Payee under this Note shall be cumulative
and not alternative. No waiver by Payee of any right or remedy under this Note
shall be effective unless in a writing signed by Payee. Neither the failure nor
any delay in exercising any right, power or privilege under this Note will
operate as a waiver of such right, power or privilege and no single or partial
exercise of any such right, power or privilege by Payee will preclude any other
or further exercise of such right, power or privilege or the exercise of any
other right, power or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right of Payee arising out
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of this Note can be discharged by Payee, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by Payee; (b) no
waiver that may be given by Payee will be applicable except in the specific
instance for which it is given; and (c) no notice to or demand on Maker will be
deemed to be a waiver of any obligation of Maker or of the right of Payee to
take further action without notice or demand as provided in this Note. Maker
hereby waives presentment, demand, protest and notice of dishonor and protest.
Maker and each surety, guarantor, endorser, and other party ever liable for
payment of any sums of money payable on this Note, jointly and severally waive
notice, presentment, demand for payment, protest, notice of protest and
non-payment or dishonor, notice of acceleration, notice of intent to accelerate,
notice of intent to demand, diligence in collecting, grace, and all other
formalities of any kind, waive and agree not to assert any right of offset or
similar right with respect to any payments due hereunder, and consent to all
extensions without notice for any period or periods of time and partial
payments, before or after maturity, and any impairment of any collateral
securing this Note, all without prejudice to the holder of this Note. The holder
of this Note shall similarly have the right to deal in any way, at any time,
with one or more of the foregoing parties without notice to any other party, and
to grant any such party any extensions of time for payment of any of said
indebtedness, or to release or substitute part or all of the collateral securing
this Note, or to grant any other indulgences or forbearances whatsoever, without
notice to any other party and without in any way affecting the personal
liability of any party hereunder.
THIS NOTE AND ALL OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED
AND DELIVERED BY MAKER IN CONNECTION WITH THE INDEBTEDNESS EVIDENCED BY THIS
NOTE EMBODY THE FINAL, ENTIRE AGREEMENT OF MAKER AND PAYEE WITH RESPECT TO THE
INDEBTEDNESS EVIDENCED BY THIS NOTE AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE INDEBTEDNESS EVIDENCED BY THIS NOTE AND MAY NOT BE CONTRADICTED
OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF MAKER AND PAYEE. THERE ARE NO ORAL AGREEMENTS BETWEEN MAKER AND
PAYEE.
IN WITNESS WHEREOF, this Promissory Note is executed as of the date
first above written.
AVERY COMMUNICATIONS, INC.
By: ____________________________
Thomas M. Lyons, President