EXHIBIT 10.23
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), NOR UNDER ANY STATE SECURITIES LAW AND SUCH SECURITY MAY NOT BE
PLEDGED, SOLD, ASSIGNED, HYPOTHECATED, OR OTHERWISE TRANSFERRED UNTIL (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR (2) THE COMPANY RECEIVES AN OPINION OF
COUNSEL TO THE COMPANY OR COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITY MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED, OR TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS.
PROMISSORY NOTE
$1,000,000 Chicago, Illinois
January , 2001
FOR VALUE RECEIVED, the undersigned, ___ Olympic Cascade
Financial Corporation, a Delaware corporation having an address at 875 North
Michigan Avenue, Suite 1560, Chicago, Illinois, 60611, ("Maker"), promises to
pay to the order of _______________ ("Payee") at c/o __________, or at such
other place as Payee may from time to time designate by written notice to Maker,
in lawful money of the United States, the sum of One Million Dollars
($1,000,000), plus interest from the date of this Note on the unpaid balance.
All principal and interest is to be paid as set forth below. Maker further
agrees as follows:
Section 1. Interest Rate.
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(a) Interest shall accrue at a rate equal to nine percent
(9%) per annum.
(b) Interest shall be computed on the basis of a year of
365 days for the actual number of days elapsed.
Section 2. Payments.
(a) Principal shall be due and payable on January __, 2003
(the "Principal Payment Date").
(b) Accrued interest shall be payable in arrears on a
quarterly calendar basis commencing March 31, 2001.
(c) Maker shall have the right to prepay this Note in full
or in part at any time without penalty.
Section 3. Default.
It shall be an event of default ("Event of Default"), and the
entire unpaid principal of this Note, together with accrued interest, shall
become immediately due and payable, at the election of Payee, upon the
occurrence of any of the following events:
(a) any failure on the part of Maker to make any payment
when due, whether by acceleration or otherwise, and the continuation of such
failure for a period of five (5) business days thereafter;
(b) any failure on the part of Maker to keep or perform
any of the material provisions (other than payment) of this Note or any
amendment thereof, which failure is not cured within ten (10) days;
(c) any failure on the part of Maker to pay any material
debt within sixty (60) days of its due date (except where contested in good
faith);
(d) Maker shall commence (or take any action for the
purpose of commencing) any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, moratorium or similar law or statute;
(e) a proceeding shall be commenced against Maker under
any bankruptcy, reorganization, arrangement, readjustment of debt, moratorium or
similar law or statute and relief is ordered against it, or the proceeding is
controverted but is not dismissed within sixty (60) days after the commencement
thereof;
(f) Maker consents to or suffers the appointment of a
receiver, trustee or custodian to any substantial part of its assets that is not
vacated within thirty (30) days;
(g) Maker consents to or suffers an attachment,
garnishment, execution or other legal process against any of its assets that
is not released within thirty (30) days;
Section 4. Subordination.
This note shall rank junior and be subordinated to the
revolving credit facility of the Maker and its affiliates; provided, however,
that Maker may make all payments of interest and principal hereunder if no event
of default under the credit facility has occurred and is continuing at the time
of such payments.
Section 5. Jurisdiction.
Maker irrevocably submits to the exclusive jurisdiction of the
courts of the State of Illinois, and of any federal court located in the State
of Illinois, in connection with any action or proceeding arising out of or
relating to, or a breach of, this Note. Maker agrees that such court may award
reasonable legal fees and expenses to the prevailing party.
Section 6. Waivers.
(a) Maker waives demand, presentment, protest, notice of
protest, notice of dishonor, and all other notices or demands of any kind or
nature with respect to this Note.
(b) Maker agrees that a waiver of rights under this Note
shall not be deemed to be made by Payee unless such waiver shall be in writing,
duly signed by Payee, and each such waiver, if any, shall apply only with
respect to the specific instance involved and shall in no way impair the rights
of Payee or the obligations of Maker in any other respect at any other time.
(c) Maker agrees that in the event Payee demands or
accepts partial payment of this Note, such demand or acceptance shall not be
deemed to constitute a waiver of any right to demand the entire unpaid balance
of this Note at any time in accordance with the terms of this Note.
Section 7. Assignment of Note.
Maker may not assign or transfer this Note or any of its
obligations under this Note in any manner whatsoever (including, without
limitation, by the consolidation or merger of Maker, if a corporation, with or
into another corporation) without the prior written consent of Payee. The Note
may be assigned at any time by Payee.
Section 8. Miscellaneous.
(a) This Note may be altered only by prior written
agreement signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought. This Note may not be modified by an oral
agreement, even if supported by new consideration.
(b) This Note shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
such jurisdiction's principles of conflict of laws.
(c) Subject to Section 7, the covenants, terms, and
conditions contained in this Note apply to and bind the heirs, successors,
executors, administrators and assigns of the parties.
(d) This Note constitute a final written expression of
all the terms of the agreement between the parties regarding the subject matter
hereof, are a complete and exclusive statement of those terms, and supersede all
prior and contemporaneous agreements, understandings, and representations
between the parties. If any provision or any word, term, clause, or other part
of any provision of this Note shall be invalid for any reason, the same shall be
ineffective, but the remainder of this Note shall not be affected and shall
remain in full force and effect.
(e) The singular includes the plural. If more than one
Maker executes this Note, the term "Maker" shall be deemed to refer to each of
the undersigned Makers as well as to all of them, and their obligations and
agreements under this Note shall be joint and several. If any of the undersigned
is a married person, recourse may be had against his or her separate property
for all of his or her obligations under this Note. The term "Obligor" shall be
deemed to refer to each Maker, endorser, guarantor, or surety of this Note as
well as to all of them. The term "Payee" shall include the initial party to whom
payment is designated to be made and, in the event of an assignment of this
Note, the successor assignee or assignees, and, as to each successive additional
assignment, such successor assignee or assignees.
(f) All notices, consents, or other communications
provided for in this Note or otherwise required by law shall be in writing and
may be given to or made upon the respective parties at the addresses set forth
in the preamble hereof. Such addresses may be changed by notice given as
provided in this subsection. Notices shall be effective upon the date of
receipt; provided, however, that a notice (other than a notice of a changed
address) sent by certified or registered U.S. mail, with postage prepaid, shall
be presumed received not later than three (3) business days following the date
of sending.
(g) Time is of the essence under this Note.
IN WITNESS WHEREOF, Maker has executed this Note effective as
of the date first set forth above.
OLYMPIC CASCADE FINANCIAL CORPORATION
By:__________________________________
Steven A. Rothstein
Chairman