San Holdings, Inc. Sixth Amendment To Harris Loan Authorization Agreement
EXHIBIT
10.01
San
Holdings, Inc.
Sixth
Amendment To
Xxxxxx
Loan Authorization Agreement
Xxxxxx
Trust and Savings Bank
Chicago,
Illinois
Ladies
and Gentlemen:
Reference
is hereby made to that certain Xxxxxx Loan Authorization Agreement dated as of
May 16, 2003 (the Xxxxxx Loan Authorization Agreement, as the same may be
amended from time to time, being referred to herein as the “Loan
Agreement”),
between the undersigned, SAN Holdings, Inc., a Colorado corporation (the
“Borrower”), and
Xxxxxx Trust and Savings Bank (the “Bank”). All
capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Loan Agreement.
The
Borrower has requested that the Bank increase the available maximum amount of
credit available to the Borrower under the Loan Agreement, and the Bank is
willing to do so under the terms and conditions set forth in this agreement
(herein, the “Amendment”).
|
Section 1. |
Amendment. |
Subject to
the satisfaction of all of the conditions precedent set forth in Section 3
below, the Loan Agreement shall be and hereby is amended as
follows:
1.1 The Loan
Agreement shall be and hereby is amended by deleting the amount of “$6,800,000”
appearing
throughout the document and substituting therefor the amount “$10,000,000.”
1.2 The
paragraph entitled “Maturity Date” of the Loan Agreement shall be amended and
restated in its entirety with the following:
“Maturity Date: The Loan Account
terminates, and Loans are payable ON DEMAND (but if no demand, no later than
February 16, 2006).”
1.3 The
parenthetical immediately following the term “ON DEMAND” set forth in each of
Section 5 (Maturity Date; Payments) and Section 10 (Termination; Renewal)
shall be deleted and replaced with the following:
“(but if
no demand, no later than February 16, 2006)”
|
Section 2. |
New
Note. |
In
replacement for that certain Note payable to the order of Xxxxxx Trust and
Savings Bank dated as of February 27, 2004 in the principal amount of $6,800,000
(the “Previous
Note”), the
Borrower shall execute and deliver to the Bank a new demand note in the amount
of $10,000,000, dated as of the date of its issuance and otherwise in the form
of Exhibit A attached hereto (the “New
Note”) which
shall substitute for the Bank’s Previous Note and shall evidence the loans
outstanding to the Bank. All references in the Loan Agreement to the Note shall
be deemed references to the New Note.
|
Section 3. |
Conditions
Precedent. |
3.1. The
Borrower and the Bank shall have executed and delivered this
Amendment.
3.2. The
Borrower shall have executed and delivered the New Note to the
Bank.
3.3. The Bank
shall have received copies (executed or certified, as may be appropriate) of all
legal documents or proceedings taken in connection with the execution and
delivery of this Amendment to the extent the Bank or its counsel may reasonably
request.
3.4. The
Borrower shall have paid to the Bank a non-refundable closing fee in the amount
of $14,800.
3.5. Legal
matters incident to the execution and delivery of this Amendment shall be
satisfactory to the Bank and its counsel.
3.6. Sun
Capital Partners II, LP shall have executed and delivered to the Bank their
consent to this Amendment in the form set forth below and an amendment to the
Guaranty.
|
Section 4. |
Representations. |
In order
to induce the Bank to execute and deliver this Amendment, the Borrower hereby
represents to the Bank that as of the date hereof the representations and
warranties set forth in the Loan Agreement are and shall be and remain true and
correct and the Borrower is in compliance with the terms and conditions of the
Loan Agreement.
|
Section 5. |
Miscellaneous. |
5.1. Except as
specifically amended herein, the Loan Agreement shall continue in full force and
effect in accordance with its original terms. Reference to this specific
Amendment need not be made in the Loan Agreement, the Note, or any other
instrument or document executed in connection therewith, or in any certificate,
letter or communication issued or made pursuant to or with respect to the Loan
Agreement, any reference in any of such items to the Loan Agreement being
sufficient to refer to the Loan Agreement as amended hereby.
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-
5.2. This
Amendment may be executed in any number of counterparts, and by the different
parties on different counterpart signature pages, all of which taken together
shall constitute one and the same agreement. Any of the parties hereto may
execute this Amendment by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original. This Amendment
shall be governed by the internal laws of the State of Illinois.
[Signature
Page to Follow]
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This
Sixth Amendment to Xxxxxx Loan Authorization Agreement is entered into as of
this 16th day of February, 2005.
| Accepted and agreed to. | San
Holdings, Inc.
By
Name
/s/
Xxxxxxx Xxxxx
Title
VP
& Assistant Secretary
Xxxxxx
Trust And Savings Bank
By
Name
/s/
Xxxxxxxx X. Xxxxxxx
Title
Vice
President |
- 4
-
Guarantor’s
Acknowledgement and Consent
The
undersigned, Sun Capital Partners II, LP, heretofore executed and delivered to
the Bank a Guaranty dated May 16, 2003, as amended (the “Guaranty”). The
undersigned hereby consents to the Amendment to the Loan Agreement as set forth
above and confirms that the Guaranty and all of the undersigned’s obligations
thereunder remain in full force and effect. The undersigned further agrees that
the consent of the undersigned to any further amendments to the Loan Agreement
shall not be required as a result of this consent having been obtained, except
to the extent, if any, required by the Guaranty.
| Sun
Capital Partners II, LP
By: Sun
Capital Advisors II, LP
Its: General
Partner
By: Sun
Capital Partners, LLC
Its: General
Partner
By:
____________________________
Name:
_______________________
Its:
_________________________ |
Exhibit
A
Demand
Note
| $10,000,000 |
February __,
2005 |
On Demand, for
value received, the undersigned, SAN
Holdings, Inc., a
Colorado corporation, promises to pay to the order of Xxxxxx Trust And Savings Bank (the
“Bank”) at its
offices at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, the principal sum of Ten
Million Dollars ($10,000,000) or, if less, the amount outstanding under the
Xxxxxx Loan Authorization Agreement referred to below together with interest
payable at the times and at the rates and in the manner set forth in the Xxxxxx
Loan Authorization Agreement referred to below.
This Note
evidences borrowings by the undersigned under that certain Xxxxxx Loan
Authorization Agreement dated as of May 16, 2003, between the undersigned
and the Bank, as the same may be amended from time to time; and this Note and
the holder hereof are entitled to all the benefits provided for under the Xxxxxx
Loan Authorization Agreement, to which reference is hereby made for a statement
thereof. The undersigned hereby waives presentment and notice of dishonor. The
undersigned agrees to pay to the holder hereof all court costs and other
reasonable expenses, legal or otherwise, incurred or paid by such holder in
connection with the collection of this Note. It is agreed that this Note and the
rights and remedies of the holder hereof shall be construed in accordance with
and governed by the laws of the State of Illinois.
This Note
is issued in substitution and replacement for, and evidences indebtedness
previously evidenced by, that certain Note of SAN Holdings, Inc. dated
February 27, 2004, payable to the Bank in the face principal amount of
$6,800,000.
| SAN
Holdings, Inc.
By:
____________________________
Name:
_______________________
Its:
_________________________ |
