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EXHIBIT 10.23
BORROWER
BANKWINDSOR CAFE ODYSSEY, INC.
IDS Center
000 Xxxxxxxxx Xxxxxx XXXXXXXXXX/
Xxxxxxxxxxx, XX 00000 AGRICULTURAL
(000) 000-0000 REVOLVING OR DRAW
"LENDER" ADDRESS NOTE-VARIABLE RATE
0000 X 00xx Xx XXXXX 000
XXXXXXXXXXX, XX 00000
TELEPHONE NO. IDENTIFICATION NO.
OFFICER INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER NUMBER LOAN NUMBER
INITIALS RATE CREDIT LIMIT AGREEMENT DATE DATE
KRH VARIABLE $825,000,00 03/10/99 03/10/00 97498502
PROMISE TO PAY
For value received, Xxxxxxxx promises to pay to the order of Lender indicated
above the principal amount of EIGHT HUNDRED TWENTY-FIVE THOUSAND AND NO/100
Dollars ($825,000.00) or, if less, the aggregate unpaid principal amount of all
loans or advances made by the Lender to the Borrower, plus interest on the
unpaid principal balance at the rate and in the manner described below. All
amounts received by Xxxxxx shall be applied first to late payment charges and
expenses, then to accrued interest, and then to principal or in any other order
as determined by Xxxxxx, in Xxxxxx's sole discretion, as permitted by law.
INTEREST RATE: This Note has a variable rate feature. Interest on the Note may
change from time to time if the Index Rate identified below changes. Interest
shall be computed on the basis of 360 days and the actual number of days per
year. Interest on this Note shall be calculated at a variable rate equal to
No/1000 percent (0.00%) per annum over the Index Rate. The initial Index Rate is
currently SEVEN AND 750/1000 percent (7.750%) per annum. The initial interest
rate on this Note shall be SEVEN AND 750/1000 percent (7.750%) per annum. Any
change In the interest rate resulting from a change in the Index Rate will be
effective on: THE DATE THE INDEX RATE CHANGES.
INDEX RATE: The Index Rate for this Note shall be: U.S. BANK REFERENCE RATE
MINIMUM RATE/MAXIMUM RATE: The minimum interest rate on this Note shall be SEVEN
AND 750/1000 percent (7.750) per annum. The maximum interest rate on this Note
shall not exceed TWENTY-ONE AND 750/1000 percent (21.750%) per annum or the
maximum interest rate Lender is permitted to charge by law, whichever is less.
POST-MATURITY RATE: After maturity, whether due to scheduled maturity or
acceleration, Lender may increase the interest rate on this Note to: __________,
or the maximum interest rate Lender is permitted to charge by law, from the date
of maturity until paid.
PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to the
following schedule: ON DEMAND, IF NO DEMAND IS MADE, THEN INTEREST ONLY PAYMENTS
BEGINNING APRIL 10, 1999 AND CONTINUING AT MONTHLY TIME INTERVALS THEREAFTER. A
FINAL PAYMENT OF THE UNPAID PRINCIPAL BALANCE PLUS ACCRUED INTEREST IS DUE AND
PAYABLE ON MARCH 10, 2000.
All payments will be made to Lender at its address described above and in lawful
currency of the United States of America.
RENEWAL: If checked, [ ] this Note is a renewal of loan number ______________,
and is not in payment of that Note.
SECURITY: To secure the payment and performance of obligations incurred under
this Note, Borrower grants Lender a security interest in, and pledges and
assigns to Lender all of Borrower's rights, title, and interest, in all monies,
instruments, savings, checking and other deposit accounts of Borrower's,
(excluding IRA, Xxxxx and trust accounts and deposits subject to tax penalties
if so assigned) that are now or in the future in Xxxxxx's custody or control.
Upon default, and to the extent permitted by applicable law, Lender may exercise
any (or all of Its rights or remedies as a secured party with respect to such
property which rights and remedies shall be in addition to all other rights and
remedies granted to Lender including, without limitation, Xxxxxx's common law
right of setoff. [ ] If checked, the obligations under this Note are also
secured by a lien and/or security interest in the property described in the
documents executed in connection with this Note as well as any other property
designated as security now or in the future.
PREPAYMENT: This Note may be prepaid in part or in full on or before its
maturity date. If this Note contains more than one installment, all prepayments
will be credited as determined by Xxxxxx and as permitted by law. If this Note
is prepaid in full, there will be: [X] no prepayment penalty. [ ] A prepayment
penalty of _________ % of the principal prepaid.
LATE CHARGE: If a payment is received more than [N/A] days late, Borrower will
be charged a late charge of: [ ] _______ % of the late payment; [ ]
$____________ or __________ % of the late payment, whichever is [ ] greater [ ]
less.
REVOLVING OR DRAW FEATURE: [X] This Note possesses a revolving feature. Upon
satisfaction of the conditions set forth in this Note, Borrower shall be
entitled to borrow up to the full principal amount of the Note and to repay and
reborrow from time to time during the term of this Note. [ ] This Note possesses
a draw feature. Upon satisfaction of the conditions set forth in this Note,
Borrower shall be entitled to make one or more draws under this Note. The
aggregate amount of such draws shall not exceed the full principal amount of
this Note. Lender shall maintain a record of the amounts loaned to and repaid
by Borrower under this Note. The aggregate unpaid principal
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amount shown on such record shall be rebuttable presumptive evidence of the
principal amount owing and unpaid on this Note. The Lender's failure to record
the date and amount of any loan or advance shall not limit or otherwise affect
the obligations of the Borrower under this Note to repay the principal amount of
the loans or advances together with all interest accruing thereon. Lender shall
not be obligated to provide Borrower with a copy of the record on a periodic
basis. Borrower shall be entitled to inspect or obtain a copy of the record
during Xxxxxx's business hours.
CONDITIONS FOR ADVANCES: If there is no default under this Note, Borrower shall
be entitled to borrow monies or make draws under this Note (subject to the
limitations described above) under the following conditions: THIS NOTE EVIDENCES
A DISCRETIONARY LINE OF CREDIT; IT SHALL NOT MEAN THAT THE BANK IS OBLIGATED TO
MAKE ANY ADVANCES. EACH ADVANCE ON THIS NOTE SHALL BE IN THE SOLE DISCRETION OF
THE BANK'S OFFICERS.
XXXXXXXX ACKNOWLEDGES THAT XXXXXXXX HAS READ, UNDERSTANDS, AND AGREES TO THE
TERMS AND CONDITIONS OF THIS NOTE INCLUDING THE PROVISIONS ON THE REVERSE SIDE.
BORROWER ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS NOTE.
NOTE DATE: March 10, 1999
BORROWER: CAFE ODYSSEY, INC. BORROWER: CAFE ODYSSEY, INC.
/s/ Xxxxxxx Xxxx /s/ Xxxxxx Xxxxxx
XXXXXXX XXXX XXXXXX XXXXXX
CEO PRESIDENT
BORROWER: BORROWER:
----------------------------------- -----------------------------------
BORROWER: BORROWER:
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TERMS AND CONDITIONS
1. DEFAULT: Borrower will be in default under this Note in the event that
Borrower or any guarantor or any other third party: (a) fails to make any
payment on this Note or any other indebtedness to Lender when due; (b) fails to
perform any obligation or breaches any warranty or covenant to Lender Contained
in this Note or any other present or future written agreement regarding this or
any indebtedness of Borrower to Lender; (c) provides or causes any false or
misleading signature or representation to be provided to Lender; (d) allows the
collateral securing this Note (if any) to be lost, stolen, destroyed, damaged in
any material respect, or subjected to seizure or confiscation; (e) permits the
entry or service of any garnishment, judgment, tax levy, attachment or lion
against Borrower, any guarantor, or any of their property or the Collateral; (f)
dies, becomes legally incompetent, is dissolved or terminated, ceases to operate
its business, becomes insolvent, makes an assignment for the benefit of
creditors, fails to pay debts as they become due, or becomes the subject of any
bankruptcy, insolvency or debtor rehabilitation proceeding; or (g) causes Lender
to deem itself insecure for any reason, or Lender, for any reason, in good xxxxx
xxxxx itself insecure.
2. RIGHTS OF LENDER ON DEFAULT: If there is a default under this Note, Lender
will be entitled to exercise one or more of the following remedies without
notice or demand (except as required by law): (a) to cease making additional
advances under this Note; (b) to declare the principal amount plus accrued
interest under this Note and all other present and future obligations of
Borrower immediately due and payable in full; (c) to collect the outstanding
obligations of Borrower with or without resorting to judicial process; (d) to
take possession of any collateral in any manner permitted by law; (e) to require
Borrower to deliver and make available to Lender any collateral at a place
reasonably convenient to Borrower and Lender; (f) to sell, lease or otherwise
dispose of any collateral and collect any deficiency balance with or without
resorting to legal process; (g) to set-off Borrower's obligations against any
amounts due to Borrower including, but not limited to monies, instruments, and
deposit accounts maintained with Lender; and (h) to exercise all other rights
available to Lender under any other written agreement or applicable law.
Xxxxxx's rights are cumulative and may be exercised together, separately, and in
any order. Xxxxxx's remedies under this paragraph are in addition to those
available at common law, including, but not limited to, the right of set-off.
3. DEMAND FEATURE: If this Note contains a demand feature, Xxxxxx's right to
demand payment, at any time, and from time to time, shall be in Xxxxxx's sole
and absolute discretion, whether or not any default has occurred.
4. FINANCIAL INFORMATION: Borrower will provide Lender with current financial
statements and other financial information (including, but not limited to),
balance sheets and profit and loss statements) upon request.
5. MODIFICATION AND WAIVER: The modification or waiver of any of Borrower's
obligations or Xxxxxx's rights under this Note must be contained in a writing
signed by Xxxxxx. Lender may perform any of Borrower's obligations or delay or
fail to exercise any of its rights without causing a waiver of those obligations
or rights. A waiver on one occasion will not constitute a waiver on any other
occasion. Borrower's obligations under this Note shall not be affected if Lender
amends, compromises, exchanges, fails to exercise, impairs or releases any of
the obligations belonging to any co-borrower or guarantor or any of its rights
against
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any co-borrower, guarantor or collateral.
6. SEVERABILITY AND INTEREST LIMITATION: If any provision of this Note is
invalid, illegal or unenforceable, the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Notwithstanding anything contained in this Note to the contrary, in no event
shall interest accrue under this Note, before or after maturity, at a rate in
excess of the highest rate permitted by applicable law, and if interest
(including any charge or fee held to be interest by a court of competent
jurisdiction) in excess thereof be paid, any excess shall constitute a payment
of, and be applied to, the principal balance hereof, and if the principal
balance has been fully paid, then such interest shall be repaid to the Borrower.
7. ASSIGNMENT: Borrower will not be entitled to assign any of its rights,
remedies or obligations described in this Note without the prior written consent
of Lender which may be withheld by Xxxxxx in its sole discretion. Lender will be
entitled to assign some or all of its rights and remedies described in this Note
without notice to or the prior consent of Borrower in any manner.
8. NOTICE: Any notice or other communication to be provided to Borrower or
Lender under this Note shall be in writing and sent to the parties at the
addresses as described in this Note or such other address as the parties may
designate in writing from time to time.
9. APPLICABLE LAW: This Note shall be governed by the laws of the state
indicated in Xxxxxx's address. Borrower consents to the jurisdiction and venue
of any court located in the state indicated in Xxxxxx's address in the event of
any legal proceeding pertaining to the negotiation, execution, performance or
enforcement of any term or condition contained in this Note or any related loan
document and agrees not to commence or seek to remove such legal proceeding in
or to a different court.
10. COLLECTION COSTS: If Xxxxxx hires an attorney to assist in collecting any
amount due or enforcing any right or remedy under this Note, Xxxxxxxx agrees to
pay Xxxxxx's attorney's fees, to the extent permitted by applicable law, and
collection costs.
11. RETURNED CHECK: If a check for payment is returned to Lender for any reason,
Xxxxxx will charge an additional fee of $20.00.
12. MISCELLANEOUS: This Note is being executed for commercial/agricultural
purposes. Xxxxxxxx and Xxxxxx agree that time is of the essence. Borrower waives
presentment, demand for payment, notice of dishonor and protest. If Xxxxxx
obtains a judgment for any amount due under this Note, interest will accrue on
the judgment at the judgment rate of interest permitted by law. All references
to Borrower in this Note shall include all of the parties signing this Note. If
there is more than one Borrower, their obligations will be joint and several.
This Note and any related documents represent the complete and integrated
understanding between Borrower and Lender pertaining to the terms and conditions
of those documents.
13. JURY TRIAL WAIVER: BORROWER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS NOTE OR THE COLLATERAL SECURING
THIS NOTE.
14. ADDITIONAL TERMS:
Purpose: Working capital
