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1 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 2 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: ----------------------------------- ----------------------------------- 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 3 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