Attached files
file | filename |
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10-K - FORM 10-K - WSI INDUSTRIES, INC. | c24861e10vk.htm |
EX-31.1 - EXHIBIT 31.1 - WSI INDUSTRIES, INC. | c24861exv31w1.htm |
EX-32.1 - EXHIBIT 32.1 - WSI INDUSTRIES, INC. | c24861exv32w1.htm |
EX-21.1 - EXHIBIT 21.1 - WSI INDUSTRIES, INC. | c24861exv21w1.htm |
EX-31.2 - EXHIBIT 31.2 - WSI INDUSTRIES, INC. | c24861exv31w2.htm |
EX-23.1 - EXHIBIT 23.1 - WSI INDUSTRIES, INC. | c24861exv23w1.htm |
EX-10.28 - EXHIBIT 10.28 - WSI INDUSTRIES, INC. | c24861exv10w28.htm |
EX-10.29 - EXHIBIT 10.29 - WSI INDUSTRIES, INC. | c24861exv10w29.htm |
EX-10.27 - EXHIBIT 10.27 - WSI INDUSTRIES, INC. | c24861exv10w27.htm |
EX-10.26 - EXHIBIT 10.26 - WSI INDUSTRIES, INC. | c24861exv10w26.htm |
EX-10.25 - EXHIBIT 10.25 - WSI INDUSTRIES, INC. | c24861exv10w25.htm |
EXHIBIT 10.24
Loan Number:
AMENDED AND RESTATED
REVOLVING CREDIT
PROMISSORY NOTE
REVOLVING CREDIT
PROMISSORY NOTE
$1,000,000.00 | Eden Prairie, Minnesota | |
February 1, 2011 |
FOR VALUE RECEIVED, WSI Industries, Inc., a Minnesota corporation, (the Borrower) promises
to pay to the order of M&I Marshall & Ilsley Bank, a Wisconsin banking corporation, or any future
holder hereof (Lender), the principal sum of One Million and no/100 Dollars ($1,000,000.00), or
so much thereof as may be advanced and be outstanding pursuant to and subject to the restrictions
contained in, that certain Amended and Restated Loan Agreement between Borrower and Lender of even
date herewith (Loan Agreement), together with interest accruing from and after the date hereof
on the unpaid principal balance from time to time outstanding at a fluctuating annual interest rate
equal to the LIBOR Rate, as hereinafter defined, plus Three Hundred (300) basis points per year
(collectively the LIBOR Rate plus Three Hundred (300) basis points is the Note Rate). The Note
Rate shall change concurrently with each change in the LIBOR Rate. The Note Rate is not necessarily
the lowest rate charged by Lender on loans at any given time. NOTICE: Under no circumstances will
the Note Rate be less than Three and Seventy-five/One Hundredths percent (3.75%) per annum or more
than the maximum rate allowed by applicable law. Principal and interest due hereunder shall be
paid in immediately available funds as follows:
1. Payments. Interest only (at the Note Rate) on the principal balance outstanding
from time to time shall be paid on or before the first day of the first calendar month after the
date hereof, and on or before the first day of each and every month thereafter throughout the term
of this Note.
2. Application of Payments. Unless otherwise determined by Lender in its sole
discretion, all payments shall be applied first to interest, second to principal then due, third to
late charges (including any Default Rate Margin as defined below), if any, and fourth to any escrow
required under the Loan Documents, with the balance to be applied to principal then owing, provided
however, that if any advance made by the Lender as the result of a default on the part of the
Borrower under the terms of this Note or any instrument securing this Note is not repaid on demand,
any monies received, at the option of the Lender, may first be applied to repay such advances, plus
interest thereon at an interest rate equal to the sum of the Note Rate plus the Default Rate
Margin, and the balance, if any, shall be applied in accordance with the provisions hereof. Any
application of principal hereunder shall not reduce the periodic amounts due and payable as
provided in this Note.
3. Interest Calculation. 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 shall be computed using this method. This
calculation method results in a higher effective interest rate than the numeric interest rate
stated in this Note. If any payment received is less than the amount of interest due through the
effective date of receipt of such payment, Lender reserves the right to add any such deficiency to
principal.
4. Payment Location. If Lender does not require automatic withdrawal of payments from
Borrowers account as provided herein, all payments of principal and interest due hereunder shall
be paid to Lender at 11455 Viking Road, Eden Prairie, Minnesota 55344, Attention: David Orlady, or
to such other person or at such other address as Lender may from time to time direct.
5. Maturity Date. The entire outstanding balance of principal, if not sooner paid,
together with all accrued interest thereon, shall be due and payable on February 1, 2012.
6. Loan Agreement. The terms, covenants, conditions and agreements contained in all
other Loan Documents defined in that certain Loan Agreement (the Loan Agreement) by and between
Borrower, WSI Rochester, Inc. and Taurus Numeric Tool, Inc. (Guarantors) and Lender of even date
hereof, including but not limited to those certain Guaranties executed by Guarantors pursuant to
which Guarantors agreed to guarantee Borrowers obligations under this Note and the other Loan
Documents, are hereby made a part hereof to the same extent and effect as if the same were fully
set forth herein.
7. Prepayment. This Note may be prepaid at any time, in whole or in part, with out
premium or penalty.
8. Interest Rate. The interest rate on this Note is subject to change from time to
time based on changes in an independent index which is the one month British Bankers Association
(BBA) LIBOR and reported by a major news service selected by Lender (such as Reuters, Bloomberg or
Moneyline Telerate), set two (2) London business days prior to the Loan payment date and effective
on the first day of the accrual period to the last day, with settlement in arrears (the Index).
The Index is not necessarily the lowest rate charged by Lender on its loans. 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 Borrowers request. The interest
rate change will not occur more often than each Loan payment date and will become effective without
notice to Borrower.
9. Default. A default under this Note shall occur if:
(a) there is a default in payment of any installment of principal and/or interest due
hereunder or any payments due pursuant to the Loan Documents; or
(b) there is a default in the performance by Borrower, any Guarantor or any grantor of a
mortgage, deed of trust, or other security in connection with this Note of any of the terms,
conditions or provisions contained herein other than those identified in subsection (a) above, or
contained in the Loan Documents (including, but not limited to, the Events of Default set forth in
the Loan Agreement), or contained in any document executed and/or delivered by Borrower, any
Guarantor, or any other individual or entity affiliated with Borrower and/or any Guarantor in
connection herewith, or contained in any other agreement between Borrower and/or any Guarantor and
Lender or between Borrower and/or any Guarantor and any other creditor; or
(c) Borrower or any Guarantor:
(i) | becomes insolvent or takes any action which constitutes an
admission of inability to pay its debts as they mature; |
(ii) | makes an assignment for the benefit of creditors or to an agent
authorized to liquidate any substantial amount of its assets; |
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(iii) | becomes the subject of an order for relief within the
meaning of the United States Bankruptcy Code; |
(iv) | files a petition in bankruptcy, or for reorganization, or to
effect a plan or other arrangement with creditors; |
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(v) | is adjudged a bankrupt; |
(vi) | files an answer to a creditors petition, admitting the
material allegations thereof, for an adjudication of bankruptcy or for
reorganization or to effect a plan or other arrangement with creditors; |
(vii) | applies to a court for the appointment of a receiver or a
custodian for any of its assets or proceedings; |
(viii) | has filed against it an involuntary petition pursuant to the United States
Bankruptcy Code; |
(ix) | has a receiver, trustee, custodian, liquidator or like officer
appointed to take custody, control or possession of any property subject to any
lien, encumbrance or security interest securing payment of this Note; |
(x) | dies or becomes incapacitated, or is dissolved or ceases to
continue its business as a going concern; |
(xi) | has filed against any collateral securing this Note any
foreclosure or forfeiture proceedings, whether by judicial proceedings,
self-help, repossession or otherwise, by any creditor of Borrower or any
governmental entity; |
(xii) | has filed against it a judgment which is not satisfied or
bonded over within thirty (30) days after the entry thereof; or has issued
against it any attachments or garnishments or the filing of any lien which is
not discharged or bonded over within thirty (30) days after such issuance or
filing; or |
(d) any representation, certification or warranty made or provided by or on behalf of Borrower
or any Guarantor to induce Lender to extend credit to Borrower hereunder, made or provided in the
Loan Documents or made or provided in any document delivered to Lender in conjunction with this
transaction is at anytime false, misleading or inaccurate, in any material respect; or
(e) upon the occurrence of a default under any of the Loan Documents (including, but not
limited to, the Events of Default set forth in the Loan Agreement), a default under any agreement
executed in connection with an interest rate swap or similar transaction between Borrower and
Lender, or upon the occurrence of a default under any loan, extension of credit, security
agreement, purchase or sale agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrowers property or Borrowers ability to repay this
Note or perform Borrowers obligations under this Note or any of the Loan Documents; or
(f) upon any merger, consolidation, reorganization or other transaction or event that results
in any change in the managing member, general partner or majority shareholder of the Borrower,
and/or upon any change in ownership of twenty-five percent (25%) or more of the common stock,
membership units, limited partnership, limited liability partnership, or general partnership
interests, or other ownership
units of Borrower; or
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(g) a material adverse change occurs in Borrowers or any Guarantors financial condition, or
Lender believes the prospect of payment or performance of this Note or the Guaranty is impaired, or
Lender in good faith believes itself to be insecure;
(h) Borrower or any Guarantor shall be in default under any other agreement with Lender or
with any other creditor (whether in connection with the Loan or otherwise) and any required notice
shall have been given and any time in which to cure the default shall have elapsed. For purposes
of this Section, the term Like-Owned Affiliates shall mean any Affiliate of Borrower that has the
same ultimate owner(s), whether directly or indirectly, as Borrower as of the date of any such
default. For purposes of this Section, the term Affiliate shall mean any person or entity that
controls, is controlled by, or is under common control with, Borrower as of the date of any such
default.
If Borrower fails to pay any installment of principal and/or interest when due or fails to
make any other payments when due under this Note or the Loan Documents (including, but not limited
to, any payments of real estate taxes or insurance required to be paid by Borrower), or if Borrower
or any Guarantor fails to perform any other obligation under this Note or the Loan Documents or if
Borrower, any of its Like-Owned Affiliates or any Guarantor shall otherwise be in default under
this Note or the Loan Documents, and such failure is not cured within the cure period, if any,
provided in this Section, then such failure shall constitute an Event of Default hereunder. If
any default (other than: (i) a default in payment of principal and/or interest or any other
payments required to be made under this Note or the Loan Documents including, but not limited to,
any payments of real estate taxes or insurance; or (ii) a default which is an Event of Default
under any of the Loan Documents for which a cure period has already been provided for under the
applicable document), is curable and if Borrower has not been given a notice of a breach of the
same provision of this Note within the preceding twelve (12) months, such default may be cured if
Borrower, after receiving written notice from Lender demanding cure of such default: (1) cures the
default within thirty (30) days or (2) if the cure requires more than thirty (30) days, immediately
initiates steps which Lender deems in Lenders sole discretion to be sufficient to cure the default
and thereafter Borrower continues to diligently pursue such cure and completes all reasonable and
necessary steps sufficient to cure such default as soon as reasonably practical.
Upon the occurrence of an Event of Default, the entire unpaid principal balance plus accrued
interest shall immediately become due and payable.
Upon the occurrence of an Event of Default, including failure to pay upon final maturity, the
interest rate on this Note shall be increased by adding a 5.000 percentage point margin (Default
Rate Margin) to the then applicable Note Rate. The Default Rate Margin shall also apply to each
succeeding interest rate change that would have applied had there been no occurrence of an Event of
Default. However, in no event will the interest rate exceed the maximum interest rate limitations
under applicable law.
10. Waivers. Borrower waives and renounces presentment, protest, demand and notice of
dishonor and any and all lack of diligence or delay in collection or endorsement hereof, and
expressly consents to any extension of time, release of any party liable for this obligation,
release of any security which may have been or which may hereafter be granted in connection
herewith, or any other indulgence or forbearance which may be made without notice to Borrower and
without in any way affecting the liability of Borrower. In all circumstances, the indebtedness due
hereunder shall be repaid without relief from any valuation or appraisement laws, which Borrower
hereby waives.
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11. Late Payments. If any installment of principal and/or interest due under this
Note or any payment required under the Loan Documents is not fully paid within ten (10) days after
the due date thereof, Borrower shall pay to Lender a late charge equal to five percent (5%) of such
installment or payment, to compensate Lender for the extra cost of handling delinquent payments.
Neither the requirement that such late charge be paid, nor the payment of the late charge, will be
deemed to be a waiver of a default arising from the late payment. In addition, Borrower will pay a
fee to Lender of Thirty Dollars ($30.00) if Borrower makes a payment on this Note and the check or
preauthorized charge with which Borrower pays is later dishonored.
12. Maximum Interest Rate. Nothing contained herein nor any transaction related
hereto shall be construed or shall so operate either presently or prospectively: (a) to require the
payment of interest at a rate greater than is now lawful in such case to contract for, but shall
require payment of interest only to the extent of such lawful rate; or (b) to require the payment
or the doing of any act contrary to law; but if any clause or provision herein contained shall
otherwise so operate to invalidate this Note and/or the transaction related hereto, in whole or in
part, then only such clause(s) and provision(s) shall be held for naught as though not contained
herein (or if allowed by applicable law, limited to the extent necessary to make such clause(s) or
provision(s) enforceable, but then only to the extent such limited or modified enforcement is more
beneficial to Lender than having such clause(s) or provision(s) deemed struck) and the remainder of
this Note shall remain operative and in full force and effect.
If for any reason interest in excess of the amount as limited in the foregoing paragraph shall
have been paid hereunder, whether by reason of acceleration or otherwise, then in that event any
such excess interest shall constitute and be treated as a payment of principal hereunder and shall
operate to reduce such principal by the amount of such excess, or if in excess of the then
principal indebtedness, such excess shall be refunded.
13. General Provisions. The terms of this Note shall be binding upon Borrower, upon
Borrowers heirs, personal representatives, successors and assigns, and shall inure to the benefit
of Lender and its successors and assigns. Whenever used, the singular shall include the plural,
the plural the singular, and the use of any gender shall include all genders. The rights and
remedies of Lender as provided in this Note or any document securing this Note shall be cumulative
and concurrent, and may be pursued singularly, successively or together against Borrower, the
property described in the Security Documents or any document securing this Note or any other
security for the debt evidenced by this Note, at the discretion of Lender. If any part of this
Note cannot be enforced, this fact will not affect the rest of this Note. Lender may delay or
forego enforcing any of its rights or remedies under this Note without losing them. 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 expressly stated in writing, no party who signs this Note, whether as maker, any
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 any Guarantor or collateral; or impair, fail to realize upon or perfect Lenders
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 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. In the event of any inconsistencies
between this Note and any of the Loan Documents, any loan commitment or term sheet issued by Lender
in connection with the making of this Note, or other documents executed in connection with the
making of this Note, the terms of this Note shall control. Capitalized terms used and not defined
herein shall have the meanings given to them in the Loan Agreement.
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14. Governing Law. This Note shall 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 conflicts of laws provisions. This Note has been accepted by Lender in the State of Minnesota.
15. Attorneys Fees. Borrower agrees that if, and as often as, this Note is placed in
the hands of an attorney for collection, or to defend or enforce any of Lenders rights hereunder
or under any document securing this Note, whether or not litigation is commenced, the undersigned
shall pay to Lender (subject to any limits under applicable law) Lenders reasonable attorneys
fees, together with all court costs and other expenses incurred or paid by Lender in connection
therewith.
16. CHOICE OF VENUE. BORROWER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED
BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS NOTE OR THE LOAN DOCUMENTS SHALL BE
LITIGATED IN THE DISTRICT COURT OF HENNEPIN COUNTY, MINNESOTA, OR AT LENDERS DISCRETION IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA. BORROWER HEREBY EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN SUCH
COURT. BORROWER WAIVES ANY CLAIM THAT HENNEPIN COUNTY, MINNESOTA OR THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MINNESOTA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF
VENUE. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO
PRECLUDE THE ENFORCEMENT, BY LENDER, OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING, BY
LENDER, OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND BORROWER
HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
17. WAIVER OF JURY TRIAL. 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.
18. Notices. Any notice or election required or permitted to be given or served by
Lender or Borrower hereunder to the other party shall be given in accordance with the Loan
Agreement.
19. Automatic Payments; Right of Setoff. Borrower hereby authorizes Lender
automatically to deduct from Borrowers account the amount of any payment due under this Note. If
the funds in the account are insufficient to cover any payment, Lender shall not be obligated to
advance funds to cover the payment. At any time and for any reasons, Lender may voluntarily
terminate such automatic payments. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrowers accounts with Lender (whether checking, savings, or other
account). This includes all accounts Borrower holds jointly with a third party 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 Lenders option, to administratively freeze all such accounts to
allow Lender to protect Lenders charge and setoff rights provided in this Section.
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20. Amended and Restated Note. This Note amends and restates in its entirety that
certain Revolving Credit Promissory Note dated December 4, 2002, as previously amended, made by
Borrower in favor of Excel Bank Minnesota, predecessor in interest to Lender (Note No. 80607,
Account No. 200350) and is not in payment thereof.
IN WITNESS WHEREOF, the undersigned Borrower has executed this Note as of the date first above
written.
BORROWER: WSI Industries, Inc. |
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By: | ||||
Name: | ||||
Title: |
STATE OF MINNESOTA
|
) |
) SS | |
COUNTY OF
|
) |
On this
_____
day of March, 2011, before me appeared , to me personally known,
who, being by me duly sworn, did say that he/she is the of WSI Industries, Inc., a
Minnesota corporation, and that said instrument was signed on behalf of said company by its
authority, and said person acknowledged said instrument to be the free act and deed of said
company.
In Testimony Whereof, I have hereunto set my hand and affixed my official seal the day and
year first above written.
Name: | ||||||
Notary Public, State of | ||||||
My Commission Expires: | ||||||
[SEAL]
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