exv10w23



 





EXHIBIT 10.23




Associated Bank

PROMISSORY NOTE




	 	 	 	 	 	 	 
	Borrower:

	 	BROADVIEW MEDIA, INC.
	 	Lender:
	 	ASSOCIATED BANK MINNESOTA, NATIONAL
	 

	 	TERRY L MYHRE
	 	 	 	ASSOCIATION
	 

	 	4455 W 77TH ST
	 	 	 	1801 RIVERSIDE AVENUE
	 

	 	MINNEAPOLIS, MN 55435 
	 	 	 	MINNEAPOLIS, MN 55454 






	 	 	 	 	 	 	 	 	 
	Principal Amount:

	 	$500,000.00 
	 	Initial Rate:
	 	6.000% 
	 	Date of Note: December 18, 2003 






PROMISE TO PAY. Broadview Media, Inc.; and Terry L Myhre (“Borrower”) jointly and severally
promise to pay to ASSOCIATED BANK MINNESOTA, NATIONAL ASSOCIATION (“Lender”), or order, in lawful
money of the United States of America, the principal amount of Five Hundred Thousand & 00/100
Dollars ($500,000.00) or so much as may be outstanding, together with interest on the unpaid
outstanding principal balance of each advance. Interest shall be calculated from the date of each
advance until repayment of each advance.



PAYMENT. Borrower will pay this loan in accordance with the following payment schedule:





SUBJECT TO ANY PAYMENT CHANGES RESULTING FROM CHANGES IN THE INDEX, BORROWER WILL PAY THIS
LOAN IN 9 PRINCIPAL PAYMENTS OF $8,333.33 EACH AND ONE FINAL PRINCIPAL AND INTEREST PAYMENT OF
$427,125.03. BORROWER’S FIRST PRINCIPAL PAYMENT IS DUE JANUARY 18, 2004, AND ALL SUBSEQUENT
PRINCIPAL PAYMENTS ARE DUE ON THE SAME DAY OF EACH MONTH AFTER THAT. IN ADDITION, BORROWER WILL
PAY REGULAR MONTHLY PAYMENTS OF ALL ACCRUED UNPAID INTEREST DUE AS OF EACH PAYMENT DATE, BEGINNING
JANUARY 18, 2004, WITH ALL SUBSEQUESNT INTEREST PAYMENTS TO BE DUE ON THE SAME DAY OF EACH MONTH
AFTER THAT. BORROWER’S FINAL PAYMENT DUE OCTOBER 31, 2004, WILL BE FOR ALL PRINCIPAL AND ALL
ACCRUED INTEREST NOT YET PAID.



Unless otherwise agreed or required by applicable law, payments will be applied first to any
accrued unpaid interest; then to principal; and then to any late charges. The annual interest rate
for this Note is computed on a 365/360 basis; that is, by applying the ratio of the annual interest
rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender’s
address shown above or at such other place as Lender may designate in writing.



VARIABLE INTEREST RATE. The Interest rate on this Note is subject to change from time to time
based on changes in an index which is the Lender’s Prime Rate (the “Index”). This is the rate
Lender charges, or would charge, on short-term unsecured loans to its most creditworthy commercial
customers. This rate may or may not be the lowest rate available from Lender at any given time.
Lender will tell Borrower the current Index rate upon Borrower’s request. The interest rate change
will not occur more often than each DAY. Borrower understands that Lender may make loans based on
other rates as well. The Index currently is 4.000% per annum. The interest rate to be applied to
the unpaid principal balance of this Note will be at a rate of 2.000 percentage points over the
Index, adjusted if necessary for any minimum and maximum rate limitations described below,
resulting in an initial rate of 6.000% per annum. Notwithstanding the foregoing, the variable
interest rate or rates provided for in this Note will be subject to the following minimum and
maximum rates. NOTICE: Under no circumstances will the interest rate on this Note be less than
5.000% per annum or more than the maximum rate allowed by applicable law.



PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully
as of the date of the loan and will not be subject to refund upon early payment (whether voluntary
or as a result of default), except as otherwise required by law. Except for the foregoing,
Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early
payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower’s obligation
to continue to make payments of accrued unpaid interest. Rather, early payments will reduce the
principal balance due. Borrower agrees not to send Lender payments marked “paid in full”, “without
recourse”, or similar language. If Borrower sends such a payment, Lender may accept it without
losing any of Lender’s rights under this Note, and Borrower will remain obligated to pay any
further amount owed to Lender. All written communications concerning disputed amounts, including
any check or other payment instrument that indicates that the payment constitutes “payment in full”
of the amount owed or that is tendered with other conditions or limitations or as full satisfaction
of a disputed amount must be mailed or delivered to: ASSOCIATED BANK, P.O. BOX 19097 GREEN BAY, WI
54307-9097.



LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the unpaid
portion of the regularly scheduled payment.



INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its
option, may, if permitted under applicable law, increase the variable interest rate on this Note to
7.000 percentage points over the Index. The interest rate will not exceed the maximum rate
permitted by applicable law.


 


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PROMISSORY NOTE

(Continued)




DEFAULT. Each of the following shall constitute an event of default (“Event of Default”) under
this Note:




Payment Default. Borrower fails to make any payment when due under this Note.




Other Defaults. Borrower fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Note or in any of the related documents or to comply with
or to perform any term, obligation, covenant or condition contained in any other agreement between
Lender and Borrower.




Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension
of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any
other creditor or person that may materially affect any of Borrower’s property or Borrower’s
ability to repay this Note or perform Borrower’s obligations under this Note or any of the related
documents.




False Statements. Any warranty, representation or statement made or furnished to Lender by
Borrower or on Borrower’s behalf under this Note or the related documents is false or misleading in
any material respect, either now or at the time made or furnished or becomes false or misleading at
any time thereafter.




Insolvency. The dissolution or termination of Borrower’s existence as a going business, the
insolvency of Borrower, the appointment of a receiver for any part of Borrower’s property, any
assignment for the benefit of creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.




Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other method, by any creditor of
Borrower or by any governmental agency against any collateral securing the loan. This includes a
garnishment of any of Borrower’s accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity of
reasonableness of the claim which is the basis of the creditor or a surety bond for the creditor or
forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.




Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor,
endorser, surety, or accommodation party of any of the indebtedness or any guarantor, surety, or
accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or
liability under, any guaranty of the indebtedness evidenced by this Note.




Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the
common stock of Borrower.




Adverse Change. A material adverse change occurs in Borrower’s financial condition, or Lender
believes the prospect of payment or performance of this Note is impaired.




Insecurity. Lender in good faith believes itself insecure.



LENDER’S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance on this Note
and all accrued unpaid interest immediately due, and then Borrower will pay that amount.



ATTORNEYS’ FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if
Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits
under applicable law, Lender’s reasonable attorneys’ fees and Lender’s legal expenses, whether or
not there is a lawsuit, including reasonable attorneys’ fees, expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction), and appeals. If not
prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums
provided by law.



JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Lender or Borrower against the other.



GOVERNING LAW. This Note will be governed by, construed and enforced in accordance with federal
law and the laws of the State of Minnesota. This Note has been accepted by Lender in the State of
Minnesota.



DISHONORED ITEM FEE. Borrower will pay fee to Lender of $25.00 if Borrower makes a payment on
Borrower’s loan and the check or preauthorized charge with which Borrower pays is later dishonored.



RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in
all Borrower’s accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open
in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for
which setoff would be prohibited by law.


 


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PROMISSORY NOTE

(Continued)




Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums
owing on the indebtedness against any and all such accounts, and at Lender’s option, to
administratively freeze all such accounts to allow Lender to protect Lender’s charge and setoff
rights provided in this paragraph.



COLLATERAL. Borrower acknowledges this Note is secured by all security agreements, guarantees,
mortgages, and other security instruments previously granted, contemporaneously granted, and
granted in the future.



LINE OF CREDIT. This Note evidences a revolving line of credit. Up to the principal amount of
this Note and subject to the terms and conditions hereof, Borrower may borrow, repay, and
re-borrow. Advances under this Note, as well as directions for payment from Borrower’s accounts,
may be requested orally or in writing by Borrower or by an authorized person. Lender may, but need
not, require that all oral requests be confirmed in writing. Borrower agrees to be liable for all
sums either: (A) advanced in accordance with the instructions of an authorized person or (B)
credited to any of Borrower’s accounts with Lender. The unpaid principal balance owing on this
Note at any time may be evidenced by endorsements on this Note or by Lender’s internal records,
including daily computer print-outs. Lender will have no obligation to advance funds under this
Note if: (A)
Borrower or any guarantor is in default under the terms of this Note or any agreement that Borrower
or any guarantor has with Lender, including any agreement made in connection with the signing of
this Note; (B) Borrower or any guarantor ceases doing business or is insolvent; (C) any
guarantor seeks, claims or otherwise attempts to limit, modify or revoke such guarantor’s guarantee
of this Note or any other loan with Lender; (D) Borrower has applied funds provided pursuant to
this Note for purposes other than those authorized by Lender; or (E) Lender in good faith
believes itself insecure.



INTIAL NOTE RATE PROVISION. The Initial Note Rate is as of DECEMBER 17, 2003.



BUSINESS LOAN AGREEMENT. If Borrower and Lender have either previously or contemporaneously
entered into a Business Loan Agreement, it is agreed that this Note is subject to the terms and
conditions of said agreement.



SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower’s
heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender
and its successors and assigns.



GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this
Note without losing them. Each Borrower understands and agrees that, with or without notice to
Borrower, Lender may with respect to any other Borrower (a) make one or more additional secured
or unsecured loans or otherwise extend additional credit; (b) alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other terms of any
indebtedness, including increases and decreases of the rate of interest on the indebtedness; (c)
exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any security,
with or without the substitution of new collateral; (d) apply such security and direct the order
or manner of sale thereof, including without limitation, any non-judicial sale permitted by the
terms of the controlling security agreements, as Lender in its discretion may determine; (e)
release, substitute, agree not to sue, or deal with any one or more of Borrower’s sureties,
endorsers, or other guarantors on any terms or in any manner Lender may choose; and (f)
determine how, when and what application of payments and credits shall be made on any other
indebtedness owing by such other Borrower. Borrower and any other person who signs, guarantees
or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and
notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly
stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker
or endorser, shall be released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan or release any party or guarantor or
collateral; or impair, fail to realize upon or perfect Lender’s security interest in the
collateral; and take any other action deemed necessary by Lender without the consent of or notice
to anyone. All such parties also agree that Lender may modify this loan without the consent of or
notice to anyone other than the party with whom the modification is made. The obligations under
this Note are joint and several.



SECTION DISCLOSURE. This loan is made under Minnesota Statutes, Section 48.195.



PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING
THE VARIABLE INTEREST RATE PROVISIONS. EACH BORROWER AGREES TO THE TERMS OF THE NOTE.



BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.




BORROWER:

BROADVIEW MEDIA, INC.



	 	 	 	 	 
	By:

	 	/s/ Mark Red White
 

MARK RED WHITE, COO OF BROADVIEW MEDIA, INC.
	 	 
	 
	 	 	 	 
	x

	 	/s/ Terry L. Myhre
 

TERRY L MYHRE, Individually
	 	 





 


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