Attached files
| file | filename |
|---|---|
| 10-K - FORM 10-K - ATRM Holdings, Inc. | form10k2009.htm |
| EX-23.HTM - EXHIBIT 23.1 - ATRM Holdings, Inc. | ex23v1.htm |
| EX-32.HTM - EXHIBIT 32.1 - ATRM Holdings, Inc. | ex32v1.htm |
| EX-31.HTM - EXHIBIT 31.2 - ATRM Holdings, Inc. | ex31v2.htm |
| EX-31.HTM - EXHIBIT 31.1 - ATRM Holdings, Inc. | ex31v1.htm |
| EX-31.HTM - EXHIBIT 31.3 - ATRM Holdings, Inc. | ex31v3.htm |
| EX-10.HTM - EXHIBIT 10.10 - ATRM Holdings, Inc. | ex10v10.htm |
Exhibit
10.11
PROMISSORY
NOTE
|
Principal
$2,000,000.00
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Loan
Date
12-03-2009
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Maturity
12-02-2010
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Loan
No
418887
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Call
/ Coll
11
/ 3190
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Account
12003591
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Officer
081
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Initials
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References
in the boxes above are for Lender’s use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing “***” has been omitted due to text length
limitations.
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|||||||
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Borrower:
|
Aetrium
Incorporated
2350
Helen St
North
St. Paul, MN 55109
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Lender:
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Bremer
Bank, National Association
Minneapolis
Office
8555
Eagle Point Blvd
P.O.
Box 1000
Lake
Elmo, MN 55042
|
Principal
Amount: $2,000,000 Date
of Note: December 3, 2009
PROMISE TO
PAY. Aetrium Incorporated (“Borrower”) promises to pay to
Bremer Bank, National Association (“Lender”), or order, in lawful money of the
United States of America, the principal amount of Two Million & 00/100
Dollars ($2,000,000.00) 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 one payment of all outstanding principal plus all accrued
unpaid interest on December 2, 2010. In addition, Borrower will pay
regular monthly payments of all accrued unpaid interest due as of each payment
date, beginning January 3, 2010, with all subsequent interest payments to be due
on the same day of each month after that. Unless otherwise agreed or
required by applicable law, payments will be applied first to any accrued unpaid
interest; then to principal; then to any unpaid collection costs; and then to
any late charges. 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 rate as announced from
time to time by Bremer Bank, National Association (the “Index”). The
Index is the Prime rate as published by Bloomberg at www.Bloomberg.com under
“Market Data: Rates and Bonds: Key Rates,” as of the date of
determination. The Index is not necessarily the lowest rate charged
by Lender on its loans and is set by Lender in its sole
discretion. If the Index becomes unavailable during the term of this
loan, Lender may designate a substitute index after notifying
borrower. 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 3.250% per
annum. Interest on the unpaid principal balance of this Note will be
calculated as described in the “INTEREST CALCULATION METHOD” paragraph using a
rate of 1.000 percentage point over the Index, adjusted if necessary for any
minimum and maximum rate limitations described below, resulting in an initial
rate of 4.500% per annum based on a year of 360 days. NOTICE: Under
no circumstances will the interest rate on this Note be less than 4.500% per
annum or more than the maximum rate allowed by applicable law.
INTEREST
CALCULATION METHOD. Interest on this Note is computed on a 365/360
basis; that is, by applying the ratio of the 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. All interest
payable under this Note is computed using this method.
PREPAYMENT; MINIMUM INTEREST
CHARGE. In any event, even upon full prepayment of this Note,
Borrower understands that Lender is entitled to a minimum interest charge of
$10.00. Other than Borrower’s obligation to pay any minimum
interest charge, 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: Bremer Bank,
National Association; Minneapolis Office; 8555 Eagle Point Blvd; P.O. Box 1000;
Lake Elmo, MN 55042.
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, the interest rate on this Note shall be increased by adding a 2.000
percentage point margin (“Default Rate Margin”). The Default Rate
Margin shall also apply to each succeeding interest rate change that would have
applied had there been no default. However, in no event will the
interest rate exceed the maximum interest rate limitations under applicable
law.
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 or reasonableness of the claim
which is the basis of the creditor or forfeiture proceeding and if Borrower
gives Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as being
an adequate
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PROMISSORY
NOTE
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||
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Loan
No: 418887
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(Continued)
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Page
2
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reserve
or bond for the dispute.
Events Affecting
Guarantor. Any of the preceding events occurs with respect to
any Guarantor of any of the indebtedness or any Guarantor 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.
LENDER’S
RIGHTS. Upon default, Lender may declare the entire unpaid
principal balance under 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 federal law applicable to Lender
and, to the extent not preempted by federal law, the laws of the State of
Minnesota without regard to its conflicts of law provisions. This
Note has been accepted by Lender in the State of Minnesota.
DISHONORED ITEM
FEE. Borrower will pay a fee to Lender of $15.00 if Borrower
makes a payment on Borrower’s loan and the check or pre authorized 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. 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 inventory, chattel paper, accounts,
equipment and general intangibles as listed in the Commercial Security Agreement
dated October 25, 2007 between the Borrower and the Lender.
LINE OF
CREDIT. This Note evidences a revolving line of
credit. Advances under this Note may be requested either orally or in
writing by Borrower or as provided in this paragraph. Lender may, but
need not, require that all oral requests be confirmed in writing. All
communications, instructions, or directions by telephone or otherwise to Lender
are to be directed to Lender’s office shown above. The following
person or persons are authorized to request advances and authorize payments
under the line of credit until Lender receives from Borrower, at Lender’s
address shown above, written notice of revocation of such authority: Any 2 of the following: Joseph C.
Levesque, CEO of Aetrium Incorporated; John J. Pollock, President of Aetrium
Incorporated; Paul H. Askegaard, Treasurer/Asst Secretary of Aetrium
Incorporated; and Douglas L Hemer, CAO/Secretary of Aetrium
Incorporated. 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; or (D)
Borrower has applied funds provided pursuant to this Note for purposes other
than those authorized by Lender.
EXISTING SECURITY
AGREEMENT. This Promissory Note constitutes “Indebtedness” as
defined in the Security Agreement dated October 25, 2007 between the Borrower
and the Lender.
ADVANCE
RESTRICTIONS. ALL LOAN ADVANCES WILL BE AT THE SOLE AND ABSOLUTE
DISCRETION OF THE BANK.
PRIOR NOTE. This is
in substitution of not in payment of a Promissory Note dated October 24, 2008 in
the original amount of $2,000,000.00 between Aetrium Incorporated (“Borrower”)
and Bremer Bank, National Association (“Lender”).
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.
NOTIFY US OF INACCURATE INFORMATION
WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if
we report any inaccurate information about your account(s) to a consumer
reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address: Bremer Service
Center 8555 Eagle Point Boulevard, P.O. Box 1000 Lake Elmo, MN
55042.
GENERAL
PROVISIONS. If any part of this Note cannot be enforced, this
fact will not affect the rest of the Note. Lender may delay or forgo
enforcing any of its rights or remedies under this Note without losing
them. In addition, Lender shall have all the rights and remedies
provided in the related documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of
Lender’s rights and remedies shall be cumulative and may be exercised singularly
or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Borrower shall not affect Lender’s right
to declare a default and to exercise its rights and
remedies. 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. To the extent not preempted by federal law, this
loan is made under Minnesota Statutes, Section 47.59.
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PROMISSORY
NOTE
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||
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Loan
No: 418887
|
(Continued)
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Page
3
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PRIOR
TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER
AGREES TO THE TERMS OF THE NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
AETRIUM
INCORPORATED
By: /s/
Joseph C.
Levesque By: /s/ Paul H.
Askegaard
Joseph C. Levesque, CEO of Aetrium
Incorporated Paul H. Askegaard, Treasurer/Asst
Secretary of
Aetrium
Incorporated
By: /s/
Douglas L.
Hemer
Douglas L. Hemer, CAO/Secretary of
Aetrium
Incorporated