Exhibit 10.49
FORM OF NON-RECOURSE PROMISSORY NOTE
_________________ March 20, 2002
FOR VALUE RECEIVED, the undersigned, __________________ ("Maker"),
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hereby promises to pay to the order of AVERY COMMUNICATIONS, INC. ("Payee"), at
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190 South LaSalle Street, Suite 1710, Chicago, Illinois 60603, on or before
October 19, 2002 (the "Maturity Date"), in lawful money of the United States of
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America, the principal sum of __________________________________ ($ ), together
with interest on the outstanding principal balance from day to day remaining, in
like money, at a rate per annum equal to 6.6% (the "Contract Rate").
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This promissory note (this "Note") is a restatement and replacement,
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but not an extinguishment or novation, of that certain Promissory Note (the
"Original Note"), dated as of October 19, 2000, in the original principal amount
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of $_______________ payable by Maker to the order of Payee. The Original Note
inadvertently omitted (i) the paragraph contained herein specifying that this
Note is non-recourse and the Maker will look solely to the collateral described
herein for the payment hereof and (ii) the paragraph describing the collateral
securing the payment hereof and granting a security interest therein.
Accrued interest on the outstanding unpaid principal balance hereof
shall be due and payable on the Maturity Date. Any payments of interest not paid
when due shall be added to the outstanding principal balance hereof and shall
bear interest as provided herein, which shall be referred to herein as
"Compounding Annual Interest." All accrued but unpaid interest hereon, together
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with the outstanding unpaid principal balance of this promissory note (this
"Note"), shall be due and payable in full on the Maturity Date. The foregoing
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notwithstanding, all accrued interest on this Note, and the outstanding unpaid
principal balance hereof, shall be immediately due and payable in full upon the
earlier of (i) the maturity of the principal of this Note, whether by
acceleration or otherwise, (ii) the termination of Maker's employment with Payee
or any of its subsidiaries, or (iii) the sale by Maker of the shares of Payee's
Common Stock, par value $0.01 per share (the "Common Stock"), which have been
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pledged as collateral securing this Note as set forth below.
Maker hereby pledges, assigns, transfers and delivers to Payee, and
grants to Payee, a first priority security interest in all of the following
(collectively, the "Collateral"): (i) the shares of Common Stock set forth on
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Exhibit A attached hereto (the "Shares"); (ii) any and all cash, money, checks,
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deposit accounts, securities, proceeds, dividends, distributions and other
property of any kind at any time and from time to time receivable or otherwise
distributed in respect of or in exchange for the Shares or any portion thereof;
and (iii) whatever is received upon the sale, exchange, collection or other
disposition of the Collateral described in (i) or (ii) preceding or proceeds,
including, without limitation, any and all present and future cash, money,
checks, deposit accounts, accounts, certificates of deposit, securities, general
intangibles, chattel paper and other proceeds of every type and description
whatsoever arising from or by virtue of, or from the sale, transfer or
distribution of, or claims against any other person or entities with respect to,
all or any part of the Collateral described in (i) or (ii) preceding or
proceeds. Maker hereby confirms that the certificates representing the Shares
have at all times since the date of the Original Note been in the possession and
control of Maker for the purpose of securing the payment of this Note. Maker
represents and warrants to Payee that Payee has a valid and
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perfected first lien security interest in the Shares, that such security
interest has been perfected in favor of Maker since the date of the Original
Note, and that Maker has granted no other liens or security interests in the
Shares since the date of the Original Note.
Maker hereby covenants and agrees that Maker shall not (i) sell,
transfer, exchange or otherwise dispose or agree to dispose of all or any
portion of the Collateral (except pursuant to a sale of the Collateral to which
the proceeds of such sale are paid directly to Payee in full satisfaction of the
obligations of Maker under this Note); or (ii) further pledge, assign or deliver
a security interest in the Collateral to any person other than Payee.
Maker shall have no personal liability for the payment of this Note or
for the performance or observance of any of the covenants, representations and
warranties of Maker contained in the Note, and Payee agrees not to seek any
damages or personal money judgment against Maker for any default under the Note,
but in such event will look solely to the Collateral.
Interest on the indebtedness evidenced by this Note shall be computed
on the basis of a year of 365 or 366 days, as the case may be.
Maker shall have the right to prepay, at any time and from time to time
without premium or penalty, the entire unpaid principal balance of this Note or
any portion thereof.
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 himself or
his 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 Maker or a
substantial part of Maker's 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
Maker or shall make a general assignment for the benefit of creditors
or shall generally fail to pay Maker's debts as they become due or
shall take any 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 Maker or Maker's 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
Maker or a substantial part of Maker's property, and such involuntary
proceeding shall remain undismissed and unstayed for a period of sixty
(60) 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 Maker shall deny
that Maker has any further liability or obligation under this Note;
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(e) Maker, any guarantor, surety, or other person ever liable
for the payment of this Note shall, if an individual, have died or
become incompetent, or, if not an individual, have liquidated,
dissolved or otherwise ceased to exist;
(f) Maker shall sell, transfer, exchange or otherwise dispose
or agree to dispose of all or any portion of the Collateral (except
pursuant to a sale of the Collateral to which the proceeds of such sale
are paid directly to Payee in full satisfaction of Maker's obligations
under this Note); or
(g) Maker shall further pledge, assign or deliver a security
interest in the Collateral to any person other than Payee.
Upon the occurrence and during the continuance of any Event of Default,
the holder hereof may, at such holder's 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 the security interest granted herein, or any part hereof,
and offset against this Note any sum or sums owed by the holder hereof to Maker.
Maker expressly agrees that in the event the value of the Collateral securing
Maker's obligations hereunder shall be less than the total amount due to Payee
under this Note, Payee shall have the right to foreclose or otherwise enforce
its security interest hereunder. Failure of the holder hereof to exercise the
foregoing options shall not constitute a waiver of the right to exercise the
same upon the occurrence of a subsequent Event of Default. It shall not be an
Event of Default if Compounding Annual Interest occurs.
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. This Note is performable in Cook County, Illinois. 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 and each
such other party hereby irrevocably (i) submit to the nonexclusive jurisdiction
of such courts, and (ii) waive any objection Maker or any such other party 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.
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, 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 hereof. 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
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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.
MAKER
By:
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