aehr_ex101





 





 Exhibit 10.1


 






Silicon Valley Bank

 





U.S.
Small Business Administration


Paycheck
Protection Program

 


Note


 





	

SBA
Loan No.

	

4678457100


	

SBA
Loan Name

	

Borrower Legal
Name

	

 AEHR
TEST SYSTEMS


	

DBA

	
 


	

Date

	

4/23/2020


	

Loan
Amount

	

$ 1678789


	

Interest
Rate

	

1.0%
per annum


	

Borrower

	

AEHR
TEST SYSTEMS


	

Operating
Company

	

Not
applicable


	

Lender

	

Silicon
Valley Bank







   





1.

PROMISE TO
PAY.





 





In
return for the Loan, Borrower promises to pay to the order of
Lender the amount of $ 
1678789 Dollars, interest on the unpaid principal balance,
and all other amounts required by this Note.


 







2.

DEFINITIONS.






 





“Collateral”
means any property taken as security for payment of this Note or
any guarantee of this Note.


 


“CARES
Act” means the Coronavirus Aid, Relief, and Economic Security
Act.


 


“Guarantor”
means each person or entity that signs a guarantee of payment of
this Note.


 


“Loan”
means the loan evidenced by this Note.


 


“Loan
Documents” means the documents related to this loan signed by
Borrower, any Guarantor, or anyone who pledges
collateral.


 





“Paycheck
Protection Program” means loan program created by Section
1102 of the CARES Act.


 




 

1








 





 


“Per
Annum” means for a year deemed to be comprised of 360
days.

 





“SBA”
means the Small Business Administration, an Agency of the United
States of America.


 







3.

PAYMENT TERMS:
Borrower must make all payments at the place Lender designates. The
payment terms for this Note are:






 







A.


Conditions Precedent to Disbursement of Loan Proceeds.





 





Before
the funding of the Loan, the following conditions must be
satisfied:


 







1.

Lender has approved
the request for the Loan.





 







2.

Lender has received
approval from SBA to fund the Loan.






 







B.

No Payments During Deferral
Period. There shall be no payments due by Borrower during
the six-month period beginning on the date of this Note (the
“Deferral Period”). However, during the Deferral Period
interest will accrue at the Interest Rate on the unpaid principal
balance computed on the basis of the actual number of days elapsed
in a year of 360 days.






 







C.

Principal and Interest
Payments. Commencing one month after the expiration of the
Deferral Period, and continuing on the same day of each month
thereafter until the Maturity Date, Borrower shall pay to Lender
monthly payments of principal and interest, each in such equal
amount required to fully amortize the principal amount outstanding
on the Note on the last day of the Deferral Period by the Maturity
Date.






 







D.

Maturity Date. On the date
which is twenty-four (24) months from the date of this Note (the
“Maturity Date”), Borrower shall pay to Lender any and
all unpaid principal plus accrued and unpaid interest plus interest
accrued during the Deferral Period. This Note will mature on the
Maturity Date.






 







E.

Not a Business Day. If any
payment is due on a date for which there is no numerical equivalent
in a particular calendar month then it shall be due on the last day
of such month. If any payment is due on a day that is a Saturday,
Sunday or any other day on which California chartered banks are
authorized to be closed, the payment will be made on the next
business day.






 







F.

Payment Allocation. Payments
shall be allocated among principal and interest at the discretion
of Lender unless otherwise agreed or required by applicable law
(including the CARES Act). Notwithstanding, in the event the Loan,
or any portion thereof, is forgiven pursuant to the Paycheck
Protection Program under the federal CARES Act, the amount so
forgiven shall be applied to principal.






 







F.

Prepayments. Borrower may
prepay this Note at any time without payment of any penalty or
premium.





 






 

2







 





 




G.

Borrower
Certifications.





 





Borrower certifies
to Lender as follows:


 







1.

Current economic
uncertainty makes this Loan necessary to support the ongoing
operations of Borrower.






 







2.

Loan funds will be
used by Borrower to retain its workers and maintain its payroll or
make its mortgage payments, lease payments, and utility
payments.






 







3.

For the period
beginning on February 15, 2020 and ending on December 31, 2020,
Borrower did not receive, and agrees it will not apply for or
receive, another loan under the Paycheck Protection
Program.






 







4.

Borrower was in
operation on February 15, 2020 and (i) had employees for whom it
paid salaries and payroll taxes or (ii) paid independent
contractors as reported on a 1099-Misc.





 







5.

Borrower has
reviewed and understands Sections 1102 and 1106 of the CARES Act
and the related guidelines and has completed the Application,
including Borrower’s eligibility in conformity with those
provisions.






 






6.

Borrower has taken
its “affiliates” (as defined by the SBA) into account
when determining the number of employees and the total amount of
loans permitted under the Paycheck Protection Program.






 







7.

Borrower is a small
business concern or is otherwise eligible to receive a covered
loan.






 







8.

The person who has
completed and signed the application, this Note and the Loan
Documents has been validly authorized by Borrower to enter into
borrowings on behalf of Borrower.





 







H.


Agreements.





 





Borrower
understands and agrees, and waives and releases Lender, its
affiliates and their respective directors, officers, agents and
employees, as follows:


 







1.

The Loan will be
made under the SBA’s Paycheck Protection Program.
Accordingly, this Note and the other Loan Documents must be
submitted to and approved by the SBA. There is limited funding
available under the Paycheck Protection Program and accordingly,
all applications submitted will not be approved by the
SBA.






 







2.

Lender is
participating in the Payroll Protection Program to help businesses
impacted by the economic impact from COVID-19. However, Lender
anticipates high volumes and there may be processing delays and
system failures along with other issues that interfere with
submission of Borrower’s application to SBA. Lender does not
represent or guarantee that it will submit the application while
SBA funding remains available under the Payroll Protection Program
or at all. Borrower hereby agrees that Lender is not responsible or
liable to Borrower or any of its affiliates (i) if the Lender does
not submit Borrower’s application to the SBA until after the
date that SBA stops approving





 



 

3







 






 











applications under
the Paycheck Protection Program, for any reason or (ii) if the
application is not processed by Lender. Borrower forever releases
and waives any claims against Lender, its affiliates and their
respective directors, officers, agents and employees concerning
failure to obtain the Loan. This release and waiver applies to, but
is not limited to, any claims concerning Lender’s (i) pace,
manner or systems for processing or prioritizing applications, or
(ii) representations by Lender regarding the application process,
the Paycheck Protection Program, or availability of funding. This
agreement to release and waiver supersedes any prior
communications, understandings, agreements or communications on the
issues set forth herein.





 








3.

Forgiveness of the
Loan is only available for principal that is used for the limited
purposes that expressly qualify for forgiveness under SBA
requirements, and that to obtain forgiveness, Borrower must request
forgiveness from the Lender, provide documentation in accordance
with the SBA requirements, and certify that the amounts Borrower is
requesting to be forgiven qualify under those requirements.
Borrower also understands that Borrower shall remain responsible
under the Loan for any amounts not forgiven, and that interest
payable under the Loan will not be forgiven, but that the SBA may
pay the Loan interest on forgiven amounts.






 







4.

Forgiveness of the
Loan is not automatic and Borrower must request forgiveness of the
Loan from Lender. Borrower is not relying on Lender for its
understanding of the requirements for forgiveness such as eligible
expenditures, necessary records/documentation, or possible
reductions due to changes in number of employees or compensation.
Borrower agrees that will consult the SBA’s program materials
and consult with its own counsel regarding the criteria
forgiveness.






 







5.

The Loan Documents
are subject to review, and Borrower may not receive the Loan. The
Loan also remains subject to availability of funds under the
SBA’s Payment Protection Program, and to the SBA issuing an
SBA loan number.





 







6.

Borrower's
liability under this Note will continue with respect to any amounts
SBA may pay Bank based on an SBA guarantee of this Note. Any
agreement with Bank under which SBA may guarantee this Note does
not create any third party rights or benefits for Borrower and, if
SBA pays Bank under such an agreement, SBA or Bank may then seek
recovery from Borrower of amounts paid by SBA.






 







7.

Lender reserves the
right to modify the Note Amount based on documentation received
from Borrower.






 







8.

Borrower’s
execution of this Note has been duly authorized by all necessary
actions of its governing body. The person signing this Note is duly
authorized to do so on behalf of Borrower.





 







9.

This Note shall not
be governed by any existing or future credit agreement or loan
agreement with Lender. The liabilities guaranteed pursuant to any
existing or future guaranty in favor of Lender shall not include
this Note. The liabilities secured by any existing or future
security instrument in favor of Lender shall not include the
Loan.








 

4








 





 




10.

The proceeds of the
Loan will be used to retain workers and maintain payroll or make
mortgage interest payments, lease payments, and utility payments,
as specified under the Paycheck Protection Program Rule. Borrower
understands that if the funds are knowingly used for unauthorized
purposes, the federal government may hold Borrower legally liable,
such as for charges of fraud.






 






Electronic Execution of Loan Documents.

 





The
words “execution,” “signed,”
“signature” and words of like import in this Note and
any Loan Document shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity and enforceability as a
manually executed signature or the use of a paper-based
recordkeeping systems, as the case may be, to the extent and as
provided for in any applicable law, including, without limitation,
any state law based on the Uniform Electronic Transactions
Act.


 







4.

DEFAULT:






 





Borrower is in
default under this Note if Borrower does not make a payment when
due under this Note, or if Borrower or Operating
Company:


 







A.

Fails to do
anything required by this Note and other Loan
Documents;






 







B.

Defaults on any
other loan with Lender;






 







C.

Does not preserve,
or account to Lender’s satisfaction for, any of the
Collateral or its proceeds;






 







D.

Does not disclose,
or anyone acting on their behalf does not disclose, any material
fact to Lender or SBA;






 







E.

Makes, or anyone
acting on their behalf makes, a materially false or misleading
representation to Lender or SBA;






 







F.

Defaults on any
loan or agreement with another creditor, if Lender believes the
default may materially affect Borrower’s ability to pay this
Note;






 







G.

Fails to pay any
taxes when due;






 







H.

Becomes the subject
of a proceeding under any bankruptcy or insolvency
law;





 







I.

Has a receiver or
liquidator appointed for any part of their business or
property;






 







J.

Makes an assignment
for the benefit of creditors;






 







K.

Has any adverse
change in financial condition or business operation that Lender
believes may materially affect Borrower’s ability to pay this
Note;






 







L.

Reorganizes,
merges, consolidates, or otherwise changes ownership or business
structure without Lender’s prior written consent;
or





 



 

5







 





 





M.

Becomes the subject
of a civil or criminal action that Lender believes may materially
affect Borrower’s ability to pay this Note.






 







5.

LENDER’S
RIGHTS IF THERE IS A DEFAULT.






 





Without
notice or demand and without giving up any of its rights, Lender
may:


 







A.

Require immediate
payment of all amounts owing under this Note;





 







B.

Collect all amounts
owing from any Borrower or Guarantor;






 







C.

File suit and
obtain judgment.






 







D.

Take possession of
any Collateral; or






 







E.

Sell, lease, or
otherwise dispose of, any Collateral at public or private sale,
with or without advertisement.





 







6.

LENDER’S
GENERAL POWERS.






 





Without
notice and without Borrower’s consent, Lender
may:


 







A.

Bid on or buy the
Collateral at its sale or the sale of another lienholder, at any
price it chooses;






 







B.

Incur expenses to
collect amounts due under this Note, enforce the terms of this Note
or any other Loan Document, and preserve or dispose of the
Collateral. Among other things, the expenses may include payments
for property taxes, prior liens, insurance, 
appraisals,environmental
remediation costs, and reasonable attorney’s fees and costs.
If Lender incurs such expenses, it may demand immediate repayment
from Borrower or add the expenses to the principal
balance;





 




C.

Release anyone
obligated to pay this Note;





 




D.

Compromise,
release, renew, extend or substitute any of the Collateral;
and





 




E.

Take any action
necessary to protect the Collateral or collect amounts owing on
this Note.





 




7.

WHEN FEDERAL LAW
APPLIES; GOVERNING LAW; FORUM SELECTION.





 


When
SBA is the holder, this Note will be interpreted and enforced under
federal law, including SBA regulations. Lender or SBA may use state
or local procedures for filing papers, recording documents, giving
notice, foreclosing liens, and other purposes. By using such
procedures, SBA does not waive any federal immunity from state or
local control, penalty, tax, or liability. As to this Note,
Borrower may not claim or assert against SBA any local or state law
to deny any obligation, defeat any claim of SBA, or preempt federal
law.


 




 

6








 





 




8.

SUCCESSORS AND
ASSIGNS.






 


Under
this Note, Borrower and Operating Company includes its successors,
and Lender includes its successors and assigns.


 







9.

GENERAL
PROVISIONS.






 







A.

All individuals and
entities signing this Note are jointly and severally
liable.






 







B.

Borrower waives all
suretyship defenses.






 







C.

Borrower must sign
all documents necessary at any time to comply with the Loan
Documents and to enable Lender to acquire, perfect, or maintain
Lender’s liens on Collateral.






 







D.

Lender may exercise
any of its rights separately or together, as many times and in any
order it chooses. Lender may delay or forgo enforcing any of its
rights without giving up any of them. E. Borrower may not
use an oral statement of Lender or SBA to contradict or alter the
written terms of this Note.






  







E.

If any part of this
Note is unenforceable, all other parts remain in
effect.






 







F.

To the extent
allowed by law, Borrower waives all demands and notices in
connection with this Note, including presentment, demand, protest,
and notice of dishonor. Borrower also waives any defenses based
upon any claim that Lender did not obtain any guarantee; did not
obtain, perfect, or maintain a lien upon Collateral; impaired
Collateral; or did not obtain the fair market value of Collateral
at a sale.






 







10.

STATE-SPECIFIC
PROVISIONS:






 





If the
SBA is not the holder, this Note shall be governed by and construed
in accordance with the laws of the State of California where the
main office of Lender is located. MATTERS REGARDING INTEREST TO BE
CHARGED BY LENDER AND THE EXPORTATION OF INTEREST SHALL BE GOVERNED
BY FEDERAL LAW (INCLUDING WITHOUT LIMITATION 12 U.S.C. SECTIONS 85
AND 1831(u) AND THE LAW OF THE STATE OF CALIFORNIA. Borrower agrees
that any legal action or proceeding with respect to any of its
obligations under this Note may be brought by Lender in any state
or federal court located in the State of California, as Lender in
its sole discretion may elect. Borrower submits to and accepts in
respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of those courts. Borrower waives any
claim that the State of California is not a convenient forum or the
proper venue for any such suit, action or proceeding. The extension
of credit that is the subject of this Note is being made by Lender
in California.


 





 

7








 





 




11.

BORROWER’S
NAME(S) AND SIGNATURE(S).





 





BORROWER CERTIFIES
THAT THE INFORMATION PROVIDED IN THIS APPLICATION AND THE
INFORMATION PROVIDED IN ALL SUPPORTING DOCUMENTS AND FORMS IS TRUE
AND ACCURATE IN ALL MATERIAL RESPECTS. BORROWER UNDERSTANDS THAT
KNOWINGLY MAKING A FALSE STATEMENT TO OBTAIN A GUARANTEED LOAN FROM
SBA IS PUNISHABLE UNDER THE LAW, INCLUDING UNDER 18 USC 1001 AND
3571 BY IMPRISONMENT OF NOT MORE THAN FIVE YEARS AND/OR A FINE OF
UP TO $250,000; UNDER 15 USC 645 BY IMPRISONMENT OF NOT MORE THAN
TWO YEARS AND/OR A FINE OF NOT MORE THAN $5,000; AND, IF SUBMITTED
TO A FEDERALLY INSURED INSTITUTION, UNDER 18 USC 1014 BY
IMPRISONMENT OF NOT MORE THAN THIRTY YEARS AND/OR A FINE OF NOT
MORE THAN $1,000,000.


 





By
signing below, each individual or entity becomes obligated under
this Note as Borrower.

 


Funds
will be credited to your Deposit Account Number ending
in:


 


	
7345

	
 

BORROWER:


	
 

	
 


	
 

	
 By: 



	
 

	
 Name:
Kenneth B.
Spink


	
 

	
 Title: Authorized Signer


	
 

	
 Date: 4/23/2020


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 







 


 


 


 


 


 






 

8