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EXHIBIT 4.49
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FINANCING STATEMENT
THIS MORTGAGE, made this 12th day of November, 1997, by Futorian
Furnishings, Inc., a Delaware corporation ("Mortgagor") in favor of Banco
Popular, a state banking corporation ("Mortgagee").
W I T N E S S E T H :
WHEREAS, Pursuant to that certain Mortgage Note of even date herewith
made by Mortgagor to the order of Mortgagee (the "Note"), Mortgagor is justly
indebted to Mortgagee in the principal amount of Two Million One Hundred
Seventy Thousand Dollars ($2,170,000) (the "Loan"); and
WHEREAS, pursuant to the Note, Mortgagor promises to pay the said
principal sum and interest at the rate or rates and in installments as provided
in said Note, and a final payment of principal and interest, if not sooner
paid, on or before December 1, 2017 (the "Maturity Date"), at the office of
Mortgagee at 0000 X. Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such place as the
holder of the Note may from time to time in writing appoint; and
WHEREAS, Mortgagee has required as a condition of the Loan, that this
Mortgage be executed and delivered by Mortgagor to Mortgagee.
NOW, THEREFORE, Mortgagor, to secure the payment of the principal
indebtedness and interest thereon in accordance with the terms of the Note, to
secure the performance of the covenants and agreements herein contained by
Mortgagor to be performed and the additional obligations hereinafter described,
as said Note may be amended, modified or replaced from time to time, and also
in consideration of the sum of ONE DOLLAR ($1.00) in hand paid, the receipt
whereof is hereby acknowledged, does by these presents MORTGAGE, GRANT, REMISE,
RELEASE AND CONVEY unto Mortgagee, its successors and assigns, the real estate
and all of its estate, right, title and interest therein situate, lying and
being in the County of Lake and State of Illinois, which, with the property
hereinafter described, is collectively referred to herein as the "Premises";
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TOGETHER with all easements and rights of way appurtenant thereto,
whether now or hereafter existing and all heretofore or hereafter vacated
alleys and streets abutting said real estate;
TOGETHER with all buildings and other improvements now located thereon
or which may hereafter be placed thereon (the "Improvements"), tenements,
easements, fixtures and appurtenances thereto belonging, and all rents, issues
and profits thereof for so long and during all such times as Mortgagor may be
entitled thereto (which are pledged primarily and on a parity with said real
estate and not secondarily), and all fixtures, apparatus, equipment or articles
now or hereafter therein or thereon used to supply heat, gas, electricity, air
conditioning, water, light, power, sprinkler protection, waste removal,
refrigeration (whether single units or centrally controlled), and ventilation,
including (without restricting the foregoing) all items set forth on Exhibit B
attached hereto and made a part hereof, it being understood that the
enumeration of any specific articles of property shall in no way exclude or be
held to exclude any items of property not specifically mentioned;
TOGETHER with all the estate, interest, right, title, other claim or
demand, including claims or demands with respect to the proceeds of insurance
in effect with respect thereto, which Mortgagor now have or may hereinafter
acquire in the Premises, and any and all awards made for the taking of eminent
domain, or by any proceedings or purchase in lieu thereof, or of the whole or
any part of the Premises, including without limitation any awards resulting
from the change of grade of streets and awards for severance damages;
TOGETHER with all royalties, minerals, oil and gas rights and profits,
water and water rights (whether or not appurtenant) owned by Mortgagor and
shares of stock pertaining to such water or water rights, ownership of which
affects such real estate;
TOGETHER with all building materials, equipment, work in process or
other personal property of any kind, whether stored on the Premises or
elsewhere, which have been or later will be acquired for the purpose of being
delivered to, incorporated into or installed in or about the Premises;
TOGETHER with all books and records pertaining to any and all of the
property described above, including computer-readable memory and any computer
hardware or software necessary to access and process such memory ("Books and
Records"); and
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TOGETHER with all proceeds of, additions and accretions to,
substitutions and replacements for, and changes in any of the property
described above.
All of the land, estate and property hereinabove described, real,
personal and mixed, whether affixed or annexed or not (except where otherwise
hereinabove specified) and all rights hereby conveyed and mortgaged are
intended so to be as a unit and are hereby understood, agreed and declared to
form a part and parcel of the real estate and to be appropriated to the use of
the real estate, and shall for the purposes of this Mortgage be deemed to be
real estate and conveyed and mortgaged hereby.
Mortgagor covenants that it is lawfully seized of the Premises, that
the same are unencumbered except as heretofore approved by Mortgagee in
writing, and that it has good right, full power and lawful authority to convey
and mortgage the same, and that it will forever defend said Premises and the
quiet and peaceful possession of the same against the lawful claims of all
persons whomsoever.
TO HAVE AND TO HOLD the Premises mortgaged and conveyed unto the said
Mortgagee, its successors and assigns, forever, for the purposes and uses
herein set forth.
Mortgagor hereby further covenants and agrees to and with Mortgagee,
as follows:
1. PROTECTION AND MAINTENANCE OF THE PREMISES.
(a) Maintenance, Repair and Restoration of Improvements,
Payment of Indebtedness, Payment of Prior Liens.
Mortgagor shall: (i) promptly repair, restore or rebuild any building
or improvements now or hereafter on the Premises which may become damaged or
destroyed to substantially the same character as prior to such damage or
destruction; (ii) keep said Premises in good condition and repair, without
waste, and free from nuisance, mechanics' lien or other liens or claims for
lien not expressly subordinated to the lien hereof or insured over or permitted
hereunder; (iii) immediately pay when due any indebtedness which may be secured
by a lien or charge on the Premises superior to the lien hereof, and upon
request exhibit satisfactory evidence of the discharge of such prior lien to
Mortgagee; (iv) comply in all material respects with all requirements of
applicable law, including any applicable local, state or federal environmental
laws, municipal ordinances, and restrictions of record with respect to the
Premises and the use thereof; and (v) pay each item of indebtedness secured by
this Mortgage when due according to the
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terms hereof and of the Note and other loan documents securing the Note (the
"Loan Documents"). As used in this Paragraph 1 and elsewhere in this Mortgage,
the term "indebtedness" shall mean and include the principal sum evidenced by
the Note, together with all interest thereon, and all other sums at any time
due to Mortgagee pursuant to the Note, this Mortgage and all other Loan
Documents.
(b) Contested Liens. Notwithstanding anything to the
contrary herein contained, Mortgagor shall have the right to contest by
appropriate legal or administrative proceedings diligently prosecuted any
mechanics', materialmen's or other lien or claim for lien upon the Premises
(collectively referred to as a "Contested Lien") and no Contested Lien shall
constitute a Default (hereinafter defined) hereunder, provided that Mortgagor
shall furnish to Mortgagee such security as may be deemed reasonably
satisfactory to Mortgagee to insure payment thereof and to prevent any sale,
foreclosure or forfeiture of the Premises by reason of nonpayment thereof, and
provided further that, upon final determination of the lien or claim for lien,
Mortgagor shall immediately pay any judgment recorded, with all prior costs and
charges, and shall have the lien released and any judgment satisfied. Security
delivered to Mortgagee in the form of cash or its equivalent shall be released
to Mortgagor to be applied toward satisfaction of such judgment upon
presentation of appropriate documentation.
2. PAYMENT OF TAXES, TAX CONTESTS OR TAX DEPOSITS.
(a) Mortgagor's Obligation to Pay Taxes When Due.
Mortgagor shall pay when due and before any penalty or interest attaches all
general real estate taxes, and shall pay special taxes, special assessments,
water charges, sewer service charges, and all other like charges against the
Premises of any nature whatsoever when due and prior to delinquency (all
hereinafter referred to as "Taxes"), and shall, upon written request, furnish
to Mortgagee duplicate receipts therefor.
(b) Right to Contest Taxes. Mortgagor may contest the
validity or amount of any such Taxes by appropriate legal or administrative
proceedings diligently prosecuted, provided that if in conjunction with such
contest Mortgagor shall not pay such contested tax, pending any such legal
proceedings, Mortgagor shall give Mortgagee such security as may be deemed
reasonably satisfactory to Mortgagee to insure payment of the amount of the
tax, assessment, tax lien or other imposition or charge, and any and all
interest and penalties thereon, including Mortgagee's reasonable attorneys'
fees as may be required. Security delivered to Mortgagee in the form of cash
or its equivalent shall be
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released to Mortgagor to discharge any tax due with respect to said contest,
upon presentation of appropriate documentation.
(c) Tax Deposits. After a default by Mortgagor
hereunder and if Mortgagee so requests, Mortgagor shall deposit with Mortgagee
on the first day of each month until the indebtedness secured by this Mortgage
is fully paid, at such place as Mortgagee may from time to time in writing
appoint, and in the absence of such appointment, then at the office of
Mortgagee in Chicago, Illinois, a sum equal to (i) one-twelfth of the annual
Taxes on the Premises for the last ascertainable year (unless said taxes are
based upon assessments which exclude the improvements or any part thereof now
constructed, or to be constructed, in which event the amount of such deposits
shall be based upon Mortgagee's reasonable estimate as to the amount of Taxes
to be levied and assessed), plus (ii) an amount reasonably estimated by
Mortgagee to provide for any tax increase. The deposits for Taxes posted with
Mortgagee may be held in a nonsegregated, non-interest bearing account. In the
event of any Default, any part or all of such reserve fund may be applied to
any part of the loan indebtedness secured by this Mortgage and in refunding
any part of such reserve fund, Mortgagee may deal with whomever is represented
to be the owner of the Premises at that time. If, one month prior to the due
date of any of the aforementioned Taxes, the amounts then on deposit therefor
shall be insufficient for the payment of such Taxes in full, Mortgagor, within
ten (10) days after written notice from Mortgagee, shall deposit the amount of
the deficiency with or as directed by Mortgagee.
3. INSURANCE.
(a) Mortgagor to Maintain Insurance. Mortgagor shall
maintain the following policies of insurance with respect to the Premises with
carriers rated A7 or higher: (a) flood insurance whenever in the opinion of
Mortgagee such protection is necessary and is available, (b) All-risk builder's
risk insurance no less broad than "standard multi-peril", with a full
replacement cost endorsement and 25% soft cost coverage whenever improvements
to the Premises are undertaken, (c) Worker's Compensation Insurance in
statutory limits, (d) casualty insurance for the full replacement cost of the
Improvements, including loss or damage by fire, lightning, wind storm, hail
storm, aircraft, vehicles, smoke, earthquake, explosion, riot or civil
commotion as provided by the standard fire and extended coverage policy, (e) if
the Premises is a rental property, rent interruption insurance insuring
Mortgagor for one years' rental income; and (f) commercial general liability
insurance for injury to or death of any person in an amount of not less than
Two Million Dollars ($2,000,000) combined single limit
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coverage with umbrella coverage of at least Two Million Dollars ($2,000,000);
(g) if Borrower has employees on the Premises, employer's liability insurance
with a limit of at least One Million Dollars ($1,000,000). All policies of
insurance to be furnished hereunder shall be in forms, companies and amounts
satisfactory to Mortgagee, with standard mortgagee clauses attached to all
policies in favor of and in form satisfactory to Mortgagee, including a
provision requiring that the coverage evidenced thereby shall not be terminated
or materially modified without less than thirty (30) days' prior written notice
to Mortgagee, and with Mortgagee named as an additional insured with respect to
all general commercial liability insurance carried by Mortgagor. Mortgagor
shall deliver to Mortgagee all policies, including additional and renewal
policies, or certificates therefor or other evidence thereof, reasonably
satisfactory to Mortgagee, and, in the case of insurance about to expire, shall
deliver renewal policies not less than thirty (30) days prior to their
respective dates of expiration.
(b) No Separate Insurance. Mortgagor shall not take out
separate insurance concurrent in form or contributing in the event of loss with
that required to be maintained hereunder unless Mortgagee is included thereon
under a standard mortgage clause acceptable to Mortgagee. Mortgagor shall
immediately notify Mortgagee whenever any such separate insurance is taken out
and shall promptly deliver to Mortgagee the policy or policies of such
insurance.
(c) Monthly Insurance Premium Deposits. If Mortgagor
shall default in its obligation and undertaking to pay the insurance premiums
as set forth above, and the same shall not have been cured within ten (10) days
after written notice and demand from Mortgagee to do so, then in addition to
any other remedies of Mortgagee set forth in this Mortgage in case of a Default
(defined below) by Mortgagor, the Mortgagee shall have the right to demand and
require that Mortgagor deposit with Mortgagee on the 1st day of each month
thereafter until the indebtedness secured by this Mortgage is fully paid, at
such place as Mortgagee may from time to time in writing appoint, and in the
absence of such appointment, then at the office of Mortgagee in Chicago,
Illinois, a sum equal to one-twelfth of the aggregate annual insurance premium
as evidenced by the most recent invoice for same. Any deposits for insurance
premiums posted with Mortgagee may be held in non-segregated accounts and
without any allowance of interest. In the event of any Default, any part or all
of such reserve fund may be applied to any part of the loan indebtedness
secured by this Mortgage and in refunding any part of such reserve fund,
Mortgagee may deal with whomever is represented to be the owner of the Premises
at that time. If, one month prior to the due date of any
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of the aforementioned premiums for insurance, the amounts then on deposit
therefor shall be insufficient for the payment of such insurance premiums in
full, Mortgagor, within ten days after written notice from Mortgagee shall
deposit the amount of the deficiency with or as directed by Mortgagee.
4. ADJUSTMENT OF LOSSES WITH INSURER AND APPLICATION OF PROCEEDS
OF INSURANCE. In case of loss or damage by fire or other casualty which causes
damage to the Premises, which damage or destruction shall cost in excess of One
Hundred Thousand Dollars ($100,000) to repair, Mortgagee shall have the right,
but not the obligation, to settle (with Mortgagor's consent as to amount if no
Default exists hereunder) and collect such proceeds, and Mortgagee may elect
either to apply such proceeds to the payment of amounts due hereunder and under
the Note, or provided no Default (as hereinafter defined) exists hereunder, to
hold such proceeds, without interest, to reimburse Mortgagor for the cost of
the rebuilding or restoration of any or all Improvements on said Premises. If
Mortgagee elects to apply said proceeds to the repayment of amounts due
hereunder and under the Note, then, at Mortgagee's option, the entire amount
due thereunder shall immediately become due and payable. Mortgagee shall not
be responsible for any failure to collect any amount in connection with any
casualty regardless of the cause of such failure.
Insurance proceeds held by Mortgagee for restoration or repairing of
the Premises shall be disbursed from time to time upon Mortgagee being
furnished with (i) plans and specifications for such restoration, which shall
provide for the reconstruction of the Premises to be of at least equal value as
prior to the subject casualty, and which shall be approved by Mortgagee, which
approval shall not be unreasonably withheld or delayed, (ii) evidence
reasonably satisfactory to it of the estimated cost of the restoration or
repair, (iii) funds sufficient in addition to the proceeds of insurance, to
fully pay for the restoration or repair, and (iv) such architect's
certificates, waivers of lien, contractor's sworn statements, title insurance
endorsements, plats of survey and such other evidences of cost, payment and
performance as Mortgagee may reasonably require and approve. No payment made
prior to the final completion of the restoration or repair shall exceed ninety
percent (90%) of the value of the work performed from time to time, as such
value shall be determined by Mortgagee in its reasonable judgment; funds other
than insurance proceeds shall be disbursed prior to disbursement of such
proceeds, and at all times the undisbursed balance of such proceeds remaining
in the hands of Mortgagee together with funds deposited or irrevocably
committed, to the satisfaction of Mortgagee by or on behalf of Mortgagor to pay
the cost of such repair or restoration, shall be sufficient in
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the reasonable judgment of Mortgagee to pay the entire unpaid cost of the
restoration or repair, free of all liens or claims for lien. Any surplus
remaining out of insurance proceeds held by Mortgagee after payment of such
costs of restoration or repair shall be paid to Mortgagor, provided that no
Default then exits hereunder. No interest shall be allowed to Mortgagor on
account of any proceeds of insurance or other funds held by Mortgagee
In the event of loss or casualty which causes damage to the Premises,
which damage shall cost One Hundred Thousand Dollars ($100,000) or less to
repair, all insurance proceeds in connection therewith shall be turned over to
Mortgagor and applied to the repair of such damage.
5. STAMP TAX. If, by the laws of the United States of America,
or of any state having jurisdiction over Mortgagor, any tax is due or becomes
due in respect of the issuance of the Note (other than income taxes or other
like taxes customarily payable by Mortgagee) hereby secured, the Borrower
covenants and agrees to pay such tax in the manner required by any such law.
Mortgagor further covenants to reimburse Mortgagee for any reasonable sums
which Mortgagee may expend by reason of the imposition of any tax on the
issuance of the Note secured hereby or the recording of this Mortgage.
6. INTENTIONALLY OMITTED.
7. ASSIGNMENT OF RENTS. As further security for Mortgagor's
obligations to Mortgagee pursuant to the Loan Documents, Mortgagor hereby
assigns unto Mortgagee, and grants to Mortgagee a security interest in, all of
the rents, leases and income now or hereafter due with respect to the Premises,
it being the intention hereby to establish an absolute transfer and assignment
of all such leases, rents and income thereunder to Mortgagee, whether such
leases now exist or shall or shall exist in the future. Mortgagor hereby
irrevocably appoints Mortgagee its attorney-in-fact (this power of attorney
and any other powers of attorney granted herein are powers coupled with an
interest and cannot be revoked, modified or altered without the written consent
of Mortgagee) with or without taking possession of the Premises as provided in
Paragraph 12 hereof, to lease any portion of the Premises to any party upon
such terms as Mortgagee shall determine, and to collect all rents due under
each of the leases, with the same rights and powers and subject to the same
immunities, exoneration of liability and rights of recourse and indemnity as
Mortgagee would have upon taking possession pursuant to the provisions of
Paragraph 12 hereof. Mortgagor represents that no rent has been or will be
paid by any person in possession of any portion of the Premises for more than
one
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installment in advance and that the payment of none of the rents for any
portion of the Premises has been or will be waived, reduced or otherwise
discharged or compromised by Mortgagor. Mortgagor waives any rights of set-off
against any person in possession of any portion of the Premises. Mortgagor
agrees that it will not assign any of the rents or profits of the Premises,
except to a purchaser or grantee of the Premises. Nothing herein contained
shall be construed as constituting Mortgagee a mortgagee in possession in the
absence of the taking of actual possession of the Premises by Mortgagee
pursuant to Paragraph 12(b) hereof. Mortgagor expressly waives all liability
of Mortgagee in the exercise of the powers herein granted Mortgagee or at law
or in equity. Mortgagor shall execute and deliver, at the request of
Mortgagee, all such further assurances and assignments in the Premises as
Mortgagee shall from time to time require. Although the assignment contained
in this paragraph is a present assignment, Mortgagee shall not exercise any of
the rights or powers conferred upon it by this paragraph until a Default (as
hereinafter defined) shall exist under this Mortgage. Within thirty (30) days
of Mortgagee's written demand, Mortgagor will furnish Mortgagee with executed
copies of each of the leases and with estoppel letters from each tenant in a
form satisfactory to Mortgagee. If Mortgagee requires that Mortgagor execute
and record a separate collateral assignment of rents or separate assignments of
any of the leases to Mortgagee, the terms of those assignments shall control in
the event of a conflict with the terms of this Mortgage. Mortgagee shall apply
revenues collected in accordance herewith, first to the payment of any expenses
incurred by Mortgagor in connection with said collection, second to the payment
of amounts due to Mortgagee pursuant to the Loan Documents in such order and
priority as it may elect, and third, to such person or entity entitled thereto,
as their interests may appear.
8. EFFECT OF EXTENSIONS OF TIME. If the payment of any
indebtedness due from Mortgagor or Mortgagor or any part thereof be extended or
varied or if any part of any security for the payment of the indebtedness be
released, all persons now or at any time hereafter liable therefor, or
interested in said Premises, shall be held to assent to such extension,
variation or release, and their liability and the lien and all provisions
hereof shall continue in full force, the right of recourse against all such
persons being expressly reserved by the Mortgagee, notwithstanding such
extension, variation or release.
9. MORTGAGEE'S PERFORMANCE OF DEFAULTED ACTS. In case of Default
(defined below), Mortgagee may, but need not, make any payment or perform any
act herein required of Mortgagor in any form and manner deemed expedient, and
may be made or accomplished either
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before or after acceleration of the indebtedness secured hereby or foreclosure
of the lien hereof and during the period of redemption, if any. Mortgagee may,
but need not, make full or partial payments of principal or interest on prior
encumbrances, if any, and purchase, discharge, compromise or settle any tax
lien or other prior lien or title encumbrance or claim thereof, or redeem from
any tax sale or forfeiture affecting said Premises or contest any tax or
assessment or cure any default of landlord in any lease of the Premises. All
monies paid for any of the purposes herein authorized and all expenses paid or
incurred in connection therewith, including attorneys' fees (which may include
in-house counsel), and any other monies advanced by Mortgagee in regard to any
tax if not paid and or to protect the Premises or the lien hereof, shall be so
much additional indebtedness secured hereby, and shall become immediately due
and payable without notice and with interest thereon at the Default Rate
specified in the Note. Inaction of Mortgagee shall never be considered as a
waiver of any right accruing to it on account of any default on the part of
Mortgagor.
10. MORTGAGEE'S RELIANCE. Mortgagee in making any payment hereby
authorized: (a) relating to taxes and assessments, may do so according to any
xxxx, statement or estimate procured from the appropriate public office without
inquiry into the accuracy of such xxxx, statement or estimate or into the
validity of any tax, assessment, sale, forfeiture, tax lien or title or claim
thereof; or (b) for the purchase, discharge, compromise or settlement of any
other prior lien, may do so without inquiry as to the validity or amount of any
claim for lien which may be asserted, subject to Mortgagor's rights as set
forth in sub-paragraphs 1(b) and 2(b) hereof.
11. ACCELERATION OF INDEBTEDNESS IN CASE OF DEFAULT. Mortgagor
further covenants and agrees with Mortgagee, that if: (a) a "Default" (as
defined therein) under the Note shall occur; or (b) Mortgagor shall file a
petition in voluntary bankruptcy or under any Chapter of Title Eleven of the
United States Code or any similar law, state or federal, whether now or
hereafter existing, or any answer admitting insolvency or inability to pay its
debts, or fail to obtain a vacation or stay of involuntary proceedings within
sixty (60) days, as hereinafter provided; or (c) Mortgagor shall be adjudicated
a bankrupt, or a trustee or a receiver shall be appointed for Mortgagor or the
major part thereof in any involuntary proceeding or any court shall have taken
jurisdiction of the property of Mortgagor in any involuntary proceeding for the
reorganization, dissolution, liquidation or winding up of such Mortgagor, and
such trustee or receiver shall not be discharged or such jurisdiction
relinquished or vacated or stayed on appeal or
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otherwise stayed within sixty (60) days; or (d) Mortgagor shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall consent to
the appointment of a receiver or trustee or liquidator of all of its property
or the major part thereof; or (e) default shall be made in the due observance
or performance of any other of the covenants, agreements or conditions
hereinbefore or hereinafter contained, required to be kept or performed or
observed by Mortgagor, which shall not be cured within thirty (30) days after
written notice thereof is sent by Mortgagee to Mortgagor, or commenced to be
corrected and diligently pursued to completion within sixty (60) days after
such notice if correction is impossible to perform within a 30-day period; or
(f) the occurrence of a Prohibited Transfer (as defined in Paragraph 26 below);
or (g) default which shall not have been cured within the applicable grace
period, if any, shall be made under any of the Loan Documents, or (h) a Default
shall occur under any other Loan Document, and in every such case the whole of
the indebtedness hereby secured shall, at once, at the option of Mortgagee,
become immediately due and payable without notice to Mortgagor. For purposes
of this Mortgage, each of the events described in (a) through (h) above after
expiration of any grace or cure periods permitted therein shall be referred to
as a "Default". If while any insurance proceeds or condemnation awards are
being held by Mortgagee to reimburse Mortgagor for the cost of rebuilding or
restoration of any or all Improvements on the Premises, as set forth in this
Mortgage, Mortgagee shall be or become entitled to, and shall accelerate the
indebtedness secured hereby, then and in such event, Mortgagee shall be
entitled to apply all such insurance proceeds and condemnation awards then held
by it in reduction of the indebtedness hereby secured and any excess held by it
over the amount of indebtedness then due hereunder shall be returned to
Mortgagor or any subsequent party holding record title to the Premises or
otherwise entitled thereto, without interest.
12. OTHER REMEDIES. In addition to the acceleration of
indebtedness provided for in Paragraph 11 above, and other remedies provided
for herein and under the Note and other Loan Documents, Mortgagee shall have
the following remedies, as well as all remedies available at law and in equity:
(a) Receiver. Mortgagee shall, as a matter of right,
without notice and without giving bond to Mortgagor or anyone claiming by,
under or through Mortgagor, and without regard for the solvency or insolvency
of Mortgagor or the then value of the Premises, to the extent permitted by
applicable law, be entitled to have a receiver appointed for all or any part of
the Premises and for the rents, proceeds, issues and profits thereof, with the
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rights and powers referenced below and such other rights and powers as the
court making such appointment shall confer, and Mortgagee hereunder or any
holder of the Note may be appointed such receiver. Mortgagor hereby consents
to the appointment of such a receiver and waives the right to assert any
objection thereto. Such receiver shall have all powers and duties prescribed
by Section 15-1704 of the Illinois Mortgage Foreclosure Law (the "Act"), all
other powers which are necessary or usual in such cases for the protection,
possession, control, management and operation of the Premises, and such rights
and powers as Mortgagee would have, upon entering and taking possession of the
Premises under section (b) below, including but not limited to, the power to
collect the rents, issues and profits of said Premises before and during the
pendency of any foreclosure suit and, in case of a sale and a deficiency during
the full statutory period of redemption, whether there be redemption or not, as
well as during any further times when Mortgagor, except for the intervention of
such receiver, would be entitled to collect such rents, issues and profits.
The court from time to time may authorize the receiver to apply the net income
in his hands in payment in whole or in part of: (i) the indebtedness secured
hereby, or by any decree foreclosing this Mortgage, or any tax, special
assessment or other lien which may be or become superior to the lien hereof or
of such decree, provided such application is made prior to a foreclosure; and
(ii) the deficiency in case of a sale and deficiency.
(b) Entry. Mortgagee, in person, by agent or by
court-appointed receiver, may enter, take possession of, manage and operate all
or any part of the Premises, and may also do any and all other things in
connection with those actions as Mortgagee in its sole discretion shall
consider necessary or appropriate to protect the security of this Mortgage.
Such other things may include, but shall not be limited to: taking possession
of the Books and Records; entering into, enforcing, modifying or canceling
leases on such terms and conditions as Mortgagee may consider proper,
including, without limitation, extending the term of any such lease beyond the
Maturity Date; obtaining and evicting tenants; fixing or modifying rents;
collecting and receiving any payment of money owing to Mortgagor; completing
any unfinished construction; and/or contracting for and making such repairs and
alterations as Mortgagee shall deem necessary. If Mortgagee so requires,
Mortgagor shall assemble all of the personal property pledged to Mortgagee
hereunder that has been removed from the Premises and make all of it available
to Mortgagee at the Premises. Mortgagor hereby irrevocably constitutes and
appoints Mortgagee as Mortgagor's attorney-in-fact to perform such acts and
execute such documents as Mortgagee in its sole discretion may consider
appropriate in connection with taking these measures, including
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endorsement of Mortgagor's name on any instruments. Mortgagee shall not be
obligated to perform or discharge, nor does it hereby undertake to perform or
discharge, any obligation, duty or liability under any leases or other
agreements affecting the Premises. Mortgagor shall and does hereby agree to
indemnify and hold Mortgagee harmless of and from any and all liability, loss
or damage which it may or might incur under said leases or agreements or under
or by reason of the assignment thereof and of and from any and all claims and
demands whatsoever which may be asserted against it by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants or agreements contained in said leases or agreements, except
those which result from Mortgagee's gross negligence or wilful misconduct.
Should Mortgagee incur any such liability, loss or damage, under said leases or
under or by reason of the assignment thereof, or in the defense of any claims
or demands, the amount thereof, including costs, expenses and attorneys' fees,
shall be secured hereby, and Mortgagor shall reimburse Mortgagee therefor
immediately upon demand with interest therein at the Default Rate from the date
of disbursement until the date repaid.
(c) Application of Income Received by Mortgagee.
Mortgagee, in the exercise of the rights and powers hereinabove conferred upon
it shall have full power to use and apply the avails, rents, issues and profits
of the Premises to the payment of or on account of the following, in such order
as Mortgagee may determine:
(i) to the payment of the operating expenses of
the Premises, including cost of management and sale or leasing thereof
(which shall include reasonable compensation to Mortgagee and its
agent or agents, if management be delegated to an agent or agents, and
shall also include lease or sale commissions and other compensation
and expenses of seeking and procuring tenants or purchasers and
entering into leases or sales contracts), established claims for
damages, if any, and premiums on insurance hereinabove authorized;
(ii) to the payment of taxes and special
assessments now due or which may hereafter become due on the Premises;
and, if this is a leasehold mortgage, of all rents due or which may
become hereafter due under the underlying lease;
(iii) to the payment of all repairs, decorating,
renewals, replacements, alterations, additions, betterments, and
improvements of the Premises, including the cost from time to time of
installing or replacing personal property such as appliances therein,
and of placing the Premises in such
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condition as will, in the judgment of Mortgagee are necessary to make
it readily rentable or saleable; and
(iv) to the payment of any indebtedness secured
hereby or any deficiency which may result from any foreclosure sale.
(d) Uniform Commercial Code Remedies. Mortgagee may
exercise any or all of the remedies granted to a secured party under the
Illinois Uniform Commercial Code (the "Code").
(e) Foreclosure; Lawsuits. Mortgagee shall have the
right to foreclose the lien hereof for the indebtedness secured hereby or part
thereof in accordance with the Act, and to exercise any other remedies of
Mortgagee at law or in equity or as otherwise granted pursuant to the Loan
Documents. In any suit to foreclose the lien hereof, there shall be allowed
and included as additional indebtedness in the decree for sale all reasonable
expenditures and expenses which may be paid or incurred by or on behalf of
Mortgagee for reasonable attorneys' fees, appraiser's fees, outlays for
documentary and expert evidence, stenographers' charges, publication costs, and
costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies and similar data and assurances with
respect to the title as Mortgagee may deem necessary either to prosecute such
suit or to evidence to bidders at any sale which may be had pursuant to such
decree the true condition of the title to or the value of the Premises. All
costs and expenses of the nature mentioned in this paragraph and such
reasonable expenses and fees as may be incurred in the protection of said
Premises and the maintenance of the lien of this Mortgage, including the
reasonable fees of any attorney employed by Mortgagee in any litigation or
proceeding affecting this Mortgage, the Loan Documents or said Premises,
including probate and bankruptcy proceedings, or in preparations for the
commencement or defense of any proceeding or threatened suit or proceeding
shall immediately become due and payable by Mortgagor, with interest thereon at
the Default Rate (as defined in the Note) from the time of such expenditure
until paid. Anything herein to the contrary notwithstanding, any costs or fees
of Mortgagee that is awarded or confirmed by any court in conjunction with the
foreclosure proceedings set forth herein shall be deemed reasonable.
Mortgagee's in-house counsel fees shall be included in the expenses described
herein. Without limiting the foregoing, Mortgagee may proceed by a suit or
suits in law or equity, whether for specific performance of any covenant or
agreement
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(f) Failure to Join a Tenant. Mortgagee shall have the
right and option to commence a civil action to foreclose this Mortgage and to
obtain a Decree of Foreclosure and Sale subject to the rights of any tenant or
tenants of the Premises. The failure to join any such tenant or tenants as
party defendant or defendants in any such civil action or the failure of any
Decree of Foreclosure and Sale to foreclose their rights shall not be asserted
by Mortgagor as a defense in any civil action instituted to collect the
indebtedness secured hereby, or any part thereof or any deficiency remaining
unpaid after foreclosure and sale of the Premises, any statute or rule of law
at any time existing to the contrary notwithstanding.
(g) Mortgagee May Bid. Upon any foreclosure sale,
Mortgagee may bid for and purchase the Premises and shall be entitled to apply
all or part of the indebtedness secured hereby as a credit to the purchase
price.
(h) Single or Multiple Foreclosure Sales. If the
Premises consists or more than one lot or parcel, Mortgagee may:
(i) designate the order in which the lots or
parcels shall be sold or disposed of or offered for sale or
disposition; and
(ii) elect to dispose of the lots or parcels
through a single consolidated sale or disposition to be held or made
under or in connection with judicial proceedings, or by virtue of a
judgment and decree of foreclosure and sale; or through two or more
such sales or dispositions; or in any other manner Mortgagee may deem
to be in its best interest.
13. APPLICATION OF PROCEEDS OF FORECLOSURE SALE. The proceeds of
any foreclosure sale of the Premises shall be distributed and applied in the
following order of priority: first, on account of all costs and expenses
incident to the foreclosure proceedings, including all such items as are
mentioned in the preceding paragraph hereof; second, to reimburse Mortgagee for
all sums expended pursuant to Paragraph 9 hereof to the extent unpaid together
with interest thereon at the Default Rate; third, to pay all other sums due to
Mortgagee in any order and proportion as Mortgagee in its sole discretion may
choose; and fourth, any surplus to any party entitled thereto as their rights
may appear.
14. RIGHTS AND REMEDIES CUMULATIVE; NO WAIVER. Each right, power
and remedy herein conferred upon Mortgagee is cumulative and in addition to
every other right, power or remedy, express or implied, given now or hereafter
existing, at law or in equity, and
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each and every right, power and remedy herein set forth or otherwise so
existing may be exercised from time to time as often and in such order as may
be deemed expedient by Mortgagee, and the exercise or the beginning of the
exercise of one right, power or remedy shall not be a waiver of the right to
exercise at the same time or thereafter any other right, power or remedy, and
no delay or omission of Mortgagee in the exercise of any right, power or remedy
accruing hereunder or arising otherwise shall impair any such right, power or
remedy, or be construed to be a waiver of any default or acquiescence therein.
15. MORTGAGEE'S RIGHT OF INSPECTION. Mortgagee shall have the
right to inspect the Premises and to inspect the Books and Records and
documents of Mortgagor pertaining thereto at all reasonable times and access
thereto shall be permitted for that purpose upon at least 24 hours notice and
during the business day.
16. CONDEMNATION. Mortgagor hereby assigns, transfers and sets
over unto Mortgagee the entire proceeds of any award or any claim for damages
for any of the Premises taken or damaged under the power of eminent domain or
by condemnation. Mortgagee may elect to apply the proceeds of the award upon
or in reduction of the indebtedness secured hereby without prepayment premium,
whether due or not, or if no Default exists, Mortgagor may hold such proceeds
in account and to make said proceeds available for restoration or rebuilding of
the Premises. If said proceeds shall be made available for repair or
restoration, same shall be governed by the provisions of Paragraph 4 hereof for
the payment of insurance proceeds toward the cost of rebuilding or restoration.
Any surplus of said award after payment of such cost of rebuilding or
restoration shall, at the option of Mortgagee, be applied on account of the
indebtedness secured hereby or be paid to any party entitled thereto.
Mortgagor agrees to execute such further assignments of any compensation,
awards, claims, and damages as Mortgagee may reasonably require from time to
time. Mortgagee shall not be responsible for any failure to collect any amount
in connection with any such proceeding regardless of the cause of such failure.
17. Intentionally Omitted.
18. RELEASE UPON PAYMENT AND DISCHARGE OF MORTGAGOR'S OBLIGATIONS.
Mortgagee shall release this Mortgage and the lien thereof by proper instrument
upon payment and discharge of all indebtedness secured hereby. Mortgagee may
require from Mortgagor reimbursement of any reasonable attorneys' fees and
other out of pockets expenses incurred for preparation and delivery of any
release.
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19. GIVING OF NOTICE. Any notice which shall be required to be
given hereunder shall be in writing, and the mailing thereof in the United
States mail by certified or registered mail addressed to Mortgagor and
Mortgagee at their respective addresses as set forth in Paragraph 27 (c)
hereof, or at such other place as Mortgagor or Mortgagee may by notice in
writing designate as a place for service of notice, or personal delivery, or
overnight courier, shall constitute service of notice hereunder. Any notice
mailed shall be deemed to have been given two (2) business days after the date
of mailing. Notice may also be given by hand delivery or overnight courier
and, in such case, shall be deemed to have been given as of the date of
receipt.
20. WAIVER OF DEFENSE. No action for the enforcement of the lien
or of any provision hereof shall be subject to any defense which would not be
good and available to the party interposing same in an action at law upon the
Note hereby secured.
21. WAIVERS.
(a) Waiver of Statutory Rights. Mortgagor hereby
expressly waives any and all rights of redemption from sale under any order or
decree of foreclosure of this Mortgage, or under any sale pursuant to any
statute, order, decree or judgment of any court, on its own behalf and on
behalf of each and every person (except decree or judgment creditors of
Mortgagor) acquiring any interest in or title to the Premises subsequent to the
date of this Mortgage, and to the extent permitted by law, hereby waives any
homestead right in and to the Premises.
(b) Waiver of Claims. Mortgagor further waives any and
all right to claim or recover against Mortgagee, its officers, employees,
agents and representatives for loss or damage to Mortgagor, the Premises,
Mortgagor's other property, or the property of others under Mortgagor's control
from any cause except for the gross negligence and willful or malicious acts of
Mortgagee, its employees, agents and representatives. All sums payable by
Mortgagor hereunder shall be paid without notice, demand, counterclaim, setoff,
deduction, or defense, and without abatement, suspension, deferment,
diminution, or reduction, and the obligations and liabilities of Mortgagor
hereunder shall in no way be released, discharged, or otherwise affected
(except as expressly provided herein) by reason of: (i) any damage to or
destruction of or any condemnation or similar taking of the Premises or any
part thereof; (ii) any restriction or prevention of or interference with any
use of the Premises or any part thereof; (iii) any title defect or encumbrance
or any eviction from the Premises or any part thereof by title paramount or
otherwise; (iv) any bankruptcy, insolven-
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cy, reorganization, composition, adjustment, dissolution, liquidation, or other
like proceeding relating to Mortgagee, or any action taken with respect to this
Mortgage by any trustee or receiver of Mortgagee, or by any court, in any such
proceeding; (v) any claim which Mortgagor has or might have against Mortgagee;
(vi) any default or failure on the part of Mortgagee to perform or comply with
any of the terms hereof of any other agreement with Mortgagor; or (vii) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing; or
whether or not Mortgagor shall have notice or knowledge of any of the
foregoing. Except as expressly provided herein, Mortgagor waives all rights
now or hereafter conferred by statute or otherwise to any abatement,
suspension, deferment, diminution, or reduction of any obligations secured
hereby.
22. FILING AND RECORDING FEES. Mortgagor will pay all filing,
registration or recording fees, and all expenses incident to the execution and
acknowledgment of this Mortgage and all federal, state, county and municipal
taxes, and other taxes (other than Mortgagee's income on other like taxes
accruing by reason of the interest payable on the loan), duties, imposts,
assessments and charges arising out of or in connection with the execution and
delivery of said Note and this Mortgage.
23. LATE CHARGE. The Note secured hereby requires the payment of
a late charge in the event any installment of principal or interest due
thereunder shall become overdue for a period in excess of ten (10) days. Said
Note requires the payment to Mortgagee of a late charge of five cents ($.05)
for each dollar so overdue to defray part of the cost of collection. Said late
charge shall be secured hereby as indebtedness as that term is defined in
Paragraph 1 hereof.
24. NO MERGER. It being the desire and intention of the parties
hereto that the Mortgage and the lien thereof do not merge in fee simple title
to the Premises, it is hereby understood and agreed that should Mortgagee
acquire any additional or other interests in or to the Premises or the
ownership thereof, then, unless a contrary intent is manifested by Mortgagee as
evidenced by an express statement to that effect in an appropriate document
duly recorded, this Mortgage and the lien thereof shall not merge in the fee
simple title, toward the end that this Mortgage may be foreclosed as if owned
by a stranger to the fee simple title.
25. TRUTH-IN-LENDING. Mortgagor represents and agrees that the
obligations secured hereby is an exempt transaction under the Truth-In-Lending
Act, 15 U.S.C., Section 1601 et seq.
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26. RESTRICTIONS ON TRANSFER.
(a) Prohibited Transfers. It shall be an immediate event
of default hereunder if, without the prior written consent of the Mortgagee,
(i) Mortgagor shall create, effect or consent to or shall suffer or permit, any
sale, assignment, transfer, lien, pledge, mortgage, security interest or other
encumbrance or alienation of all or any part of the Premises, or interest
therein, except for the liens contemplated hereby, or (ii) Mortgagor shall sell
or otherwise transfer its ownership of its Barcalounger division to a third
party, including without limitation, the creation by Mortgagor of a separate
entity to own said division or the transfer by Mortgagor of its Barcalounger
division to another company owned by Mortgagor, its parent or affiliates, or
any type or merger, consolidation or other transaction, the result of which
would be that the income generated by the Barcalounger division would no longer
be the property of Mortgagor.
(b) Reasonableness of Restrictions. Mortgagor
acknowledges and agrees, for itself and its successors, that the foregoing
restrictions on sale, transfer, or conveyance are reasonable. Any violation of
the terms of this paragraph shall entitle Mortgagee to declare the whole
outstanding principal balance of the Note, together with interest accrued
thereon and any other sums owing under the terms of this Mortgage or any other
Loan Documents, immediately due and payable and to foreclose the lien and
security interest granted in this Mortgage.
(c) Binding Upon Successors. The provisions of this
Section 26 shall be operative with respect to, and shall be binding upon, any
persons who, in accordance with the terms hereof or otherwise, shall acquire
any part or interest in or encumbrance upon the Premises.
27. SECURITY AGREEMENT AND FINANCING STATEMENT.
(a) Security Agreement. Mortgagor and Mortgagee agree:
(i) that this Mortgage shall constitute a Security Agreement within the meaning
of the Code with respect to (x) all sums, now or hereinafter on deposit with
the Mortgagee for taxes and insurance premiums, if any, and any insurance or
condemnation proceeds attributable to the Premises, or any part thereof
("Deposits"), (y) with respect to any property included in the definition
herein of the word "Premises", which property may be deemed to form a part of
the real estate described in Exhibit "A" or may constitute a
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"fixture" (within the meaning of Section 9-313 of the Code) ("Fixtures"), and
necessary for the operation of the Premises, but excluding any of Mortgagee's
trade fixtures, inventory and equipment used in the operation of its business,
and all replacements of, substitutions for and additions to such property, and
the proceeds thereof (said Deposits, Fixtures and Personal Property,
replacements, substitutions, additions and the proceeds thereof being sometimes
herein collectively referred to as the "Collateral"); and (ii) that a security
interest in and to the Collateral is hereby granted to the Mortgagee; and (iii)
that the Collateral and all of Mortgagor's right, title and interest therein
are hereby assigned to the Mortgagee; all to secure payment of the indebtedness
and to secure performance by the Mortgagor of the terms, covenants and
provisions hereof.
(b) Applicability of Commercial Code in Case of Default.
If a Default occurs under this Mortgage, Mortgagee, pursuant to the appropriate
provisions of the Code, shall have an option to proceed with respect to both
the real property and Collateral in accordance with its rights, powers and
remedies with respect to the real property, in which event the default
provisions of the Code shall not apply. The parties agree that if the
Mortgagee shall elect to proceed with respect to the Collateral separately from
the real property, Mortgagee shall have all remedies available to a secured
party under the Code and ten (10) days written notice of the sale of the
Collateral shall be reasonable notice. The expenses of retaking, holding,
preparing for sale, selling and the like incurred by Mortgagee shall include,
but not be limited to, attorneys' fees and legal expenses incurred by
Mortgagee. Mortgagor agrees that, without the written consent of Mortgagee,
Mortgagor will not remove or permit to be removed from the Premises any of the
Collateral except that so long as the Mortgagor is not in Default hereunder,
Mortgagor shall be permitted to sell or otherwise dispose of the Collateral
when obsolete, worn out, inadequate, unserviceable or unnecessary for use in
the operation of the Premises, but only upon replacing the same or substituting
for the same other Collateral at least equal in value and utility to the
initial value and utility of that disposed of and in such a manner that said
replacement or substituted Collateral shall be subject to the security interest
created hereby and that the security interest of Mortgagee shall be perfected
and first in priority, it being expressly understood and agreed that all
replacements, substitutions and additions to the Collateral shall be and become
immediately subject to the security interest of this Mortgage and covered
hereby. Mortgagor covenants and represents that all Collateral now is, and
that all replacements thereof, substitutions therefor or additions thereto,
unless the Mortgagee
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otherwise consents, will be free and clear of liens, encumbrances, title
retention devices and security interests of others.
(c) Financing Statement. This Mortgage is intended to be
a financing statement within the purview of Section 9-402(b) of the Illinois
Uniform Commercial Code with respect to the Collateral. The addresses of the
Mortgagor (Debtor) and Mortgagee (Secured Party) are hereinafter set forth:
Address of Mortgagor: Futurion Furnishings, Inc.
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Address of Mortgagee: Banco Popular
0000 X. Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx
This Mortgage is to be filed for record with the Recorder of Deeds of the
county where the Premises are located. Mortgagor is the record owner of the
Premises.
(d) Separate Security Agreements and Financing
Statements. Mortgagor, upon request by Mortgagee from time to time, shall
execute, acknowledge and deliver to Mortgagee, a separate Security Agreement,
Financing Statement or other similar security instruments, in form satisfactory
to Mortgagee, covering all property of the kind and nature set forth in Exhibit
B owned by Mortgagor, which is used in the operation of the Premises (as
opposed to the operation of Mortgagor's business) and which constitutes goods
within the meaning of the Code or concerning which there may be any doubt
whether the title to same has been conveyed by or security interest perfected
by this Mortgage under the laws of the state in which the Premises are located,
and will further execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, any financing statement, affidavit, continuation
statement or certificate or other document as Mortgagee may request in order to
perfect, preserve, maintain, continue and extend the security interest under
and the priority of this Mortgage and such security instrument. Mortgagor
further agrees to pay to Mortgagee on demand all reasonable costs and expenses
incurred by Mortgagee in connection with the preparation, execution, recording,
filing and re-filing of any such document. Mortgagor shall from time to time,
but not more frequrently than once every year on request of Mortgagee, deliver
to Mortgagee an inventory of the Collateral in reasonable detail.
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28. MAXIMUM ALLOWABLE RATE OF INTEREST. All agreements herein and
in the Note are expressly limited so that in no contingency or event
whatsoever, whether by reason of advancement of the proceeds hereof,
acceleration of maturity of the unpaid principal balance of the Note, or
otherwise, shall the amount paid or agreed to be paid to Mortgagee for the use,
forbearance or detention of the money to be advanced hereunder exceed the
highest lawful rate permissible under applicable usury laws. If, from any
circumstances whatsoever, fulfillment of any provision hereof or of the Note or
any other agreement referred to herein, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by law which a court of competent jurisdiction may deem applicable
hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to
the limit of such validity and if from any circumstance Mortgagee shall ever
receive as interest an amount which would exceed the highest lawful rate, such
amount which would be excessive interest shall be applied to the reduction of
the unpaid principal balance due under the Note and not to the payment of
interest.
29. MORTGAGEE'S LIEN FOR SERVICE CHARGE AND EXPENSES; FUTURE
ADVANCES. At all times, regardless of whether any loan proceeds have been
disbursed, this Mortgage secures (in addition to any loan proceeds disbursed
from time to time) the payment of any and all loan fees or service charges,
liquidated damages, loan expenses including but not limited to reasonable
attorneys' fees of Mortgagee's counsel to prepare loan documents, appraisal
fees, and advances due to or incurred by Mortgagee in connection with the loan
to be secured hereby; provided, however, that in no event shall the total
amount of loan proceeds disbursed plus such additional amounts exceed three
hundred percent (300%) of the face of the Note. All advances pursuant to the
Note including future advancements shall be a lien from the time this Mortgage
is recorded, as provided in the Act.
30. MISCELLANEOUS. The following understandings shall be
applicable to this Mortgage.
(a) Successors. This Mortgage and all provisions hereof
shall extend to and be binding upon Mortgagor and his successors, grantees and
assigns, any subsequent owner or owners of the Premises and all persons
claiming under or through any Mortgagor, and the word "Mortgagor" or
"Mortgagors" when used herein shall include all such persons and all persons
liable for the payment of the indebtedness or any part thereof, whether or not
such persons shall have executed said Note or this Mortgage. The word
"Mortgagee" when used herein shall include the successors and assigns of
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Mortgagee named herein, and the holder or holders, from time to time, of any
Note secured hereby.
(b) Invalidity of a Provision. In the event one or more
of the provisions contained in this Mortgage or any Note secured hereby or in
any other security documents given to secure the payment of the Note secured
hereby shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall at the
option of Mortgagee, not affect any other provision of this Mortgage, and this
Mortgage shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein or therein.
(c) Notices. Any notice which any party hereto may be
required or may desire to give hereunder shall be in writing and shall be
deemed to have been given on the second business day after mailing if mailed by
United States registered or certified mail in Illinois addressed as set forth
in Paragraph 27(c) above, or on the day of receipt if given by personal
delivery, overnight courier or by facsimile transmission.
(d) Illinois Law. This Mortgage and the Note it secures
are to be construed and governed by the laws of the state of Illinois.
(e) Estoppel Certificates. Mortgagor, on written request
of Mortgagee, will furnish a signed statement of the amount of the indebtedness
secured hereby and whether or not any default then exists hereunder and
specifying the nature of such default.
(f) Subordination. At the option of Mortgagee, this
Mortgage shall become subject and subordinate, in whole or in part (but not
with respect to priority of entitlement to insurance proceeds or any award in
condemnation) to any and all leases of all or any part of the Premises upon the
execution by Mortgagee and recording thereof, at any time hereafter, in the
Office of the Recorder of Deeds in and for the county wherein the Premises are
situated, of a unilateral declaration to that effect.
(g) Grammatical Adjustments. Whenever the context
requires, the singular form of any word herein shall include the plural form,
and vice versa, and the neuter form of any word shall include the masculine and
feminine forms, and vice versa.
(h) Waiver of Jury Trial. MORTGAGOR 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 MORTGAGE OR
THE LOAN OR ANY OF THE LOAN DOCUMENTS OR ANY
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OTHER STATEMENTS OR ACTIONS OF MORTGAGEE. MORTGAGOR ACKNOWLEDGES THAT THIS
WAIVER HAS BEEN REVIEWED BY MORTGAGOR AND MORTGAGOR'S COUNSEL AND THAT IT IS A
MATERIAL INDUCEMENT FOR MORTGAGEE 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.
IN WITNESS WHEREOF, Mortgagor has executed this instrument the day and year
first above written.
Futorian Furnishings, Inc.
By: [SIG]
-----------------------------
Its: [SIG]
-------------------------
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State of Illinois )
) SS
County of Xxxx )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that XXXXXXXX X. XXXXXXX personally known to me
to be the CEO & CHAIRMAN of Futorian Furnishings, Inc., an Illinois corporation
and personally known to me to be the same person whose name is subscribed to
the foregoing instrument, appeared before me this day in person acknowledged
that as such CEO & CHAIRMAN he signed, as his free and voluntary act, and as
the free and voluntary act and deed of said corporation, the foregoing
instrument for the uses and purposes therein set forth.
Given under my hand and official seal, this 12th day of November,
1997.
XXXXX X. XXXXX
-----------------------------
Notary Public
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EXHIBIT "A"
LEGAL DESCRIPTION
THAT PART OF THE SOUTH 351.04 FEET (AS MEASURED PERPENDICULARLY TO THE SOUTH
LINE THEREOF) OF THE SOUTH HALF OF THE SOUTHWEST 1/4 OF SECTION 17, TOWNSHIP 43
NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING EASTERLY OF THE
EASTERLY LINE OF WAUKEGAN ROAD AS DESCRIBED IN DEED RECORDED APRIL 8, 1964 AS
DOCUMENT 1221390 AND LYING WESTERLY OF A LINE DRAWN FROM A POINT 750.00 FEET
(AS MEASURED ALONG THE SOUTH LINE OF SAID SOUTHWEST 1/4) EAST OF THE AFORESAID
EASTERLY LINE OF WAUKEGAN ROAD TO THE SOUTHEAST CORNER OF PROPERTY DESCRIBED IN
DOCUMENT 1221388, RECORDED APRIL 8, 1964, IN LAKE COUNTY, ILLINOIS.
A - 1
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EXHIBIT "B"
PERSONAL PROPERTY
All personal property located on the Premises and affixed to the
Premises or used in the operation of the Premises as a building (as opposed to
use by Mortgagor in the operation if its business on the Premises), described
below, and all substitutions therefor, replacements thereof, and proceeds
thereof and specifically excluding all personal property which is not a fixture
or otherwise necessary for the operation of the Premises:
air conditioner, antennas, apparatus, awnings, basins, bathtubs,
bidets, blinds, boilers, built-in bookcases, built-in cabinets, carpets,
coolers, curtains, dehumidifiers, disposals, doors, drapes, dryers, ducts,
dynamos, elevators, equipment, escalators, fans, fittings, floor coverings,
furnaces, hardware, heaters, humidifiers, incinerators, lighting fixtures,
machinery, motors, ovens, pipes, plumbing, pumps, radiators, ranges,
recreational facilities, refrigerators, screens, screen and storm doors, storm
windows, security systems, shades, shelving, sinks, sprinklers, stoves,
toilets, ventilators, wall coverings, washers, window coverings, wiring and all
renewals or replacements thereof and substitutions therefor.
B - 1
