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EXHIBIT 4.50
MORTGAGE NOTE
$2,100,000 ----------, 1997
Chicago, Illinois
1. PROMISE TO PAY. For value received, the undersigned, Futorian
Furnishings, Inc., a Delaware corporation ("Maker"), hereby promises to pay to
the order of Banco Popular, a state banking corporation (the "Lender") at its
office at 4801 W. Fullerton, Chicago, Illinois 60639, or at such other place as
the holder hereof may from time to time designate in writing, the principal sum
of Two Million One Hundred Thousand Dollars ($2,100,000), together with
interest thereon, to be paid in lawful money of the United States of America.
2. PAYMENT OF PRINCIPAL AND INTEREST.
A. Interest Rate. From the date of the disbursement of
the proceeds hereof until November 30, 2002 (the "Fixed Interest Period"),
interest on the outstanding principal balance of this Note shall accrue at the
annual rate of eight and one half percent (8.5%). From and after the
expiration of the Fixed Interest Period, interest shall be adjusted every five
(5) years, so that said rate shall change on December 1, 2002, December 1, 2007
and December 1, 2012 (each a "Change Date"). On each Change Date, the
interest rate shall be adjusted to a per annum rate equal to two hundred (200)
basis points in excess of the then current yield for United State treasury
securities adjusted to a constant maturity of five (5) years.
B. Monthly Payments of Interest and Principal. On
December 1, 1997, Maker shall pay to Lender interest only for the period
commencing on the date of disbursement of the proceeds hereof, and thereafter,
on the first day of every month until the Maturity Date (as defined below),
Maker shall make monthly payments of principal and interest based upon the then
current interest rate amortized over twenty (20) years. The monthly payments of
principal and interest for the Fixed Interest Period shall be Eighteen Thousand
Two Hundred Twenty-Four and 29/100 Dollars ($18,224.29).
C. Maturity Date. All unpaid principal and accrued
interest, if not sooner due or paid, shall be due and payable on December 1,
2017.
D. Calculation of Interest. Interest payable under this
Note shall be computed for the actual number of days elapsed in any
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portion of a month for which interest may be due and on the basis of a year
consisting of 360 days. Prior to the occurrence of a Default (defined below),
all payments received on account of this Note shall first be applied to interest
and the remainder, if any, shall be applied to principal.
E. Default Rate. In the event that there shall occur (a) any
Default (as hereinafter defined) hereunder, or (b) maturity of the indebtedness
evidenced hereby without repayment thereof, whether by passage of time,
acceleration, declaration or otherwise, then the entire principal balance
hereof and all accrued interest but unpaid interest thereon shall thereafter at
the option of the holder hereof bear interest at a rate equal to four percent
(4%) above the then current interest rate (the "Default Rate") until the loan
is repaid in full, or at the option of Lender, until the Default shall have
been cured. Interest accruing at the Default Rate shall be payable on demand.
F. Late Charge. In the event any monthly payment due hereunder
shall become overdue for a period in excess of fifteen (15) days, Maker shall
pay to the holder hereof a late charge of five ($.05) cents for each dollar so
overdue, in order to defray part of the cost of collection.
G. Right to Prepay. Maker may prepay this Note during the Fixed
Interest Period upon payment of the following prepayment premium, which shall be
the percentage set forth below of the then outstanding principal balance:
Prepayment Period Prepayment Premium
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12/1/97 - 11/30/98 5%
12/1/98 - 11/30/99 4%
12/1/99 - 11/30/00 3%
12/1/00 - 11/30/01 2%
12/1/01 - 11/30/02 1%
From and after expiration of the Fixed Interest Period, Maker shall have the
right to prepay this Note in whole or in part at any time and from time to time
without penalty or premium of any kind.
H. Payment on Non-Banking Day. Whenever any payment on
account of the loan evidenced by this Note is stated to be due on a day which
is not a banking day, such payment will be payable on the next succeeding
banking day, and such extension of time will in such case be included in the
computation of interest.
3. SECURITY. This Note shall be secured by, among other things, a
Mortgage, Security Agreement, Assignment of Rents and Financing
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Statement of even date herewith (the "Mortgage") on the property described
therein.
4. DEFAULT. It is agreed that the occurrence of any of the
following shall be a default under this Note (a "Default"):
(a) prior to the Maturity Date, failure to make any monthly
payment in accordance with the terms hereof, which failure is not fully
cured within five (5) business days after the date due;
(b) default in the due and punctual payment of all
outstanding principal and interest hereon on the Maturity Date; or
(c) occurrence of any "Default" (as defined therein) after
the expiration of the applicable cure period under the Mortgage or any
other document securing this Note (collectively, the "Loan Documents"),
as defined in the applicable document.
5. REMEDIES. In the event of any Default, at the election of the
holder hereof and without further notice to the Maker, said holder may declare
the entire unpaid principal and interest accrued thereon and all other sums due
from Maker hereunder or any other instrument related hereto or thereto, to be
immediately due and payable, notice hereby being expressly waived by Maker, and
Lender may proceed to pursue any and all rights and remedies granted under this
Note, as well as all remedies available at law or in equity, and all remedies
granted under the Mortgage and other Loan Documents.
The remedies of the holder hereof shall be cumulative and concurrent and
may be pursued singly, successively or together against Maker.
After occurrence of a Default, Lender may apply funds received by it
from or on account of Maker to expenses of collection, interest and principal
in such priority as it may elect.
If (i) any Loan Document is placed in the hands of an attorney for
collection or enforcement or is collected or enforced through any legal
proceeding; (ii) an attorney is retained to represent Lender in any bankruptcy,
reorganization, receivership or other proceedings affecting creditor's rights
and involving a claim under the Loan Documents, (iii) an attorney is retained
to protect or enforce the lien of the Mortgage or any other Loan Document, or
(iv) an attorney is retained to represent Lender in any other proceeding
whatsoever in connection with this Note, the Mortgage or other Loan Documents,
then in all such events, Maker shall pay to Lender, upon demand, in addition to
all other amounts due hereunder, all such reasonable attorneys' fees and costs
associated therewith.
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6. BUSINESS LOAN. The Maker of this Note hereby certifies that
the indebtedness evidenced hereby was incurred as a result of a business
transaction; and that said indebtedness is in law and in fact a business
purpose loan within the operation and purview of Section 205/4 of Chapter 815
of the ILCS.
7. WAIVER. Maker (and each guarantor hereof) jointly and
severally waive all applicable exemption rights and also severally waive
valuation and appraisement, presentment for payment, demand, notice of
nonpayment, notice of dishonor, protest of any dishonor, notice of protest and
protest of this Note, and all other notices in connection with the delivery,
acceptance, performance, default or enforcement of the payment of this Note,
except as otherwise specifically provided for herein, and agree that the
liability of each of them shall be joint, several and unconditional without
regard to the liability of any other party and shall not be in any manner
affected by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by the holder hereof; and Maker (and each guarantor
hereof, if any) consent to any and all extensions of time, renewals, waivers or
modifications that may be granted by the holder hereof with respect to the
payment or other provisions of this Note, and to the release of any collateral
given to secure the payment hereof, or any part thereof, with or without
substitution, and agree that additional makers or guarantors may become parties
hereto without notice to them or affecting their liability hereunder.
The holder hereof shall not, by any action of omission or commission, be
deemed to waive any of its rights or remedies hereunder unless such waiver be
in writing and signed by the holder hereof, and then only to the extent
specifically set forth therein; a waiver of one event shall not be construed as
continuing or as a bar to or waiver of such right or remedy on a subsequent
event. Failure of Lender, for any period of time or on more than one occasion,
to exercise its option to accelerate the Maturity Date of this Note shall not
constitute a waiver of the right to exercise said right at any time thereafter
or in the event of any subsequent Default.
8. GOVERNING LAW; EXCESS INTEREST. It being the intention of
Lender and Maker to comply with the laws of the State of Illinois with regard
to the rate of interest charged hereunder, it is agreed that, notwithstanding
any provision to the contrary in this Note or Security Agreement no such
provision, including without limitation any provision of this Note providing
for the payment of interest or other charges shall require the payment or
permit the collection of any amount in excess of the maximum amount of interest
permitted by law ("Excess Interest") to be charged for the use or detention, or
the forbearance in the collection, of all or any portion of the indebtedness
evidenced by this Note. If any Excess Interest is provided for, or is
adjudicated to be provided for, in this Note, the
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Security Agreement , or any of the other documents securing this Note, then in
such event:
(a) the provisions of this paragraph shall govern and
control;
(b) Maker shall not be obligated to pay any Excess
Interest;
(c) any Excess Interest that Lender may have received
hereunder shall, at the option of Lender, shall be (i) applied as a
credit against the then outstanding principal balance due under this
Note, accrued and unpaid interest thereon not to exceed the maximum
amount permitted by law, or both, (ii) refunded to the payor thereof,
or (iii) any combination of the foregoing;
(d) the applicable interest rate or rates shall be
automatically subject to reduction to the maximum lawful rate allowed to
be contracted for in writing under the applicable usury laws of the
aforesaid State, and this Note, the Security Agreement, and the other
Loan Documents shall be deemed to have been, and shall be, reformed and
modified to reflect such reduction in such interest rate or rates; and
(e) Neither Maker (nor any guarantor hereof) shall have any
action or remedy against Lender for any damages whatsoever or any
defense to enforcement of the Note, Security Agreement, or any other
Loan Document arising out of the payment or collection of any Excess
Interest.
9. APPLICATION OF PROVISIONS. If any provision of this Note or
the application thereof to any party or circumstance is held invalid or
unenforceable, the remainder of this Note and the application of such provision
to other parties or circumstance is held invalid or unenforceable, the
remainder of this Note and the application of such provision to other parties
or circumstances shall not be affected thereby, the provisions of this Note
being severable in any such instance.
10. NOTICE. All notices required herein shall be in writing and
shall be deemed given when personally delivered, or on the second business day
after being deposited in the United States mail, registered or certified,
postage prepaid, addressed as set forth below, or at such other address as a
party may have designated in writing to all other parties:
If to Lender: Banco Popular
4801 W. Fullerton
Chicago, Illinois 60639
Attn: Michael Houlihan
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If to Maker: Futurion Furnishings, Inc.
95 Revere Drive
Suite J
Northbrook, Illinois 60062
With a copy served
in like manner to: Vedder Price Kaufman & Kammholz
222 N. LaSalle Street
Suite 2600
Chicago, IL 60601-1003
Attn: Robert Washlow or
Pearl A. Zager
11. TIME OF ESSENCE. It is hereby expressly agreed by Maker that
time is of the essence hereof.
12. WAIVER OF TRIAL BY JURY. MAKER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS NOTE OR THE LOAN
EVIDENCED HEREBY OR ANY OF THE DOCUMENTS GIVEN IN CONNECTION THEREWITH OR ANY
OTHER STATEMENTS OR ACTIONS OF LENDER. MAKER ACKNOWLEDGES THAT THIS WAIVER HAS
BEEN REVIEWED BY MAKER AND MAKER'S COUNSEL AND THAT IT IS A MATERIAL INDUCEMENT
FOR LENDER TO MAKE THE LOAN AND ENTER INTO THE LOAN DOCUMENTS AND THAT THIS
WAIVER SHALL BE EFFECTIVE AS TO EACH OF THE LOAN DOCUMENTS AS IF FULLY
INCORPORATED THEREIN.
MAKER FURTHER AGREES THAT THE CIRCUIT COURT OF COOK COUNTY,
ILLINOIS SHALL HAVE JURISDICTION AND VENUE WITH RESPECT TO ANY ACTION BROUGHT
IN CONNECTION HEREWITH AND THAT IT WILL NOT BRING ANY OBJECTION WITH RESPECT TO
SAID JURISDICTION OR VENUE.
IN WITNESS WHEREOF, the Maker has caused this Note to be executed,
sealed and delivered as of the day and year first above written.
MAKER:
Futorian Furnishings, Inc.
By:
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Its
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