CREDIT AGREEMENT
EXHIBIT
10.01
This
CREDIT AGREEMENT (as the same may be amended, restated, supplemented or
otherwise modified from time to time, this "Agreement")
is
made as of May 16, 2007, by and between SAN HOLDINGS, INC., a Colorado
corporation (the "Company"),
and
SUN CAPITAL PARTNERS II, LP, as administrative agent (in such capacity,
“Administrative
Agent”
or
“Agent”)
and as
a lender (in such capacity, the “Lender”).
WHEREAS,
pursuant to the terms of this Agreement, Lender has agreed to extend loans
to
the Company.
In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Section
1. The
Loans; Authorization and Closing.
1.A.
The
Transaction.
All
loans
and advances from the Lender to the Company under this Agreement (the
"Loans")
shall
be made against and evidenced by the Company’s promissory note or notes payable
to the order of the Lender in the aggregate principal amount of $10,000,000.00
(the “Maximum
Credit”),
such
notes to be in the form of Exhibit
A
attached
hereto (collectively, the "Note").
On
the
Closing Date, the Lender shall advance to the Company a Loan in the amount
set
forth in the Initial Notice of Borrowing executed and delivered by the Company
to the Administrative Agent on the date of this Agreement.
Lender
may, in its sole discretion, provide additional Loans to the Company from time
to time up to the Maximum Credit. The Company shall not request any Loan which,
when taken together with the Loans then outstanding, would exceed the Maximum
Credit; provided
that the
Company may re-borrow pursuant to the terms set forth herein any amount that
has
been repaid. Each request by the Company for, and the making by the Lender
of,
any Loan shall constitute a reaffirmation by the Company of the terms hereof
(including, without limitation, a re-making by the Company of the
representations and warranties contained herein). At the time of any additional
Loan made by the Lender to the Company, the Lender shall be entitled to receive,
and the Company shall be obligated to deliver, representations and warranties
in
addition to those contained herein and all other information and documentation
as Lender may reasonably request.
The
Company agrees and acknowledges that the Lender shall have no obligation to
make
additional Loans to the Company.
The
Lender agrees that notwithstanding the fact that the Note is in the principal
amount of the Maximum Credit, it shall evidence only the actual unpaid principal
balance of Loans made under this Agreement. All Loans made against the Note
and
the status of all amounts evidenced by the Note shall be recorded by the Lender
on its books and records or, at its option in any instance, endorsed on a
schedule to the Note and the unpaid principal balance and status so recorded
or
endorsed by the Lender shall be prima
facie
evidence
in any court or other proceeding brought to enforce the Note of the principal
amount remaining unpaid thereon and the status of the Loans evidenced thereby,
absent manifest error; provided that
the
failure of the Lender to record any of the foregoing shall not limit or
otherwise affect the obligation of the Company to repay the principal amount
of
the Note together with accrued interest thereon.
The
Lender agrees that if it transfers or assigns the Note, the Lender will stamp
thereon a statement of the actual principal amount evidenced thereby at the
time
of transfer. The Company agrees that in any action or proceeding instituted
to
collect or enforce collection of the Note, the amount shown as owing to the
Lender on its records shall be prima
facie evidence
of the unpaid balance of principal and interest on the Note, absent manifest
error.
The
Company hereby waives diligence, presentment, protest and demand and notice
of
protest and demand, dishonor and nonpayment of the Loans or the Note, and
expressly agrees that the Loans and the Note, or any payment hereunder or
thereunder, may be extended from time to time and that the Lender may accept
security for the Loans and the Note or release security for the Loans and the
Note, all without in any way affecting the liability of the Company hereunder
and thereunder.
1.B. Interest.
Interest shall accrue on the Loans outstanding at a rate of fifteen percent
(15.0%) per annum. Interest on the Loans shall be payable in kind (i) monthly
in
arrears on the first Business Day of each month, commencing with the month
immediately following the Closing Date, (ii) upon repayment of the Loans in
full
and (iii) upon termination of this Agreement, whether by acceleration or
otherwise. Interest paid in kind shall be added to the outstanding principal
balance of the Note as of any of the foregoing payments dates and thereafter
shall be treated as outstanding principal under the Note.
1.C. Reserved.
1.D. Procedure
for Borrowing and Notice of Borrowing.
(i)
Each
request for a Loan shall be made by notice, given not later than noon (New
York
time) one (1) Business Date prior to the date of the proposed Loan, by the
Company to the Administrative Agent. Each such notice of a requested Loan shall
be by telephone, confirmed immediately in writing (by facsimile or otherwise
as
permitted hereunder), in substantially the form of Exhibit
B
attached
hereto (a “Notice
of Borrowing”),
specifying therein the requested (a) date of such borrowing, which in all events
shall be a Business Day and (b) aggregate principal amount of such Loan,
and containing such representations, warranties and information as the
Administrative Agent shall require, including, without limitation, the following
representations by the Company:
(I) all
representations and warranties contained in this Agreement and the other Loan
Documents shall be true and correct in all material respects on and as of the
date of such Loan as if then made;
-2-
(II) no
Event
of Default shall have occurred and be continuing or would result from the making
of the requested Loan as of the date of such request; and
(III) after
giving effect to such Loan, the aggregate amount of outstanding Loans and shall
not exceed the Maximum Credit.
(ii) The
proceeds of all Loans made pursuant to this Agreement are to be funded by the
Administrative Agent by wire transfer to the account designated by the Company
below (the “Disbursement
Account”):
|
Bank:
|
Xxxxx
Fargo Bank, N.A.
|
|
Bank
Address:
|
MAC
C7300-081
Xxxxx
Xxxxx Xxxxxx, 0xx Xxxxx
0000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxx 00000
|
|
ABA
No.:
|
000-000-000
|
|
Account
No.:
|
2758004514
|
|
Acct.
Name:
|
San
Holdings, Inc.
|
|
Reference:
|
Sun
Loan
|
or
to
such other account as the Company may from time to time specify to the
Administrative Agent by prior written notice, with the consent of the
Administrative Agent to such other account.
(iii)
The
proceeds of any Loan shall be used by the Company solely to lend the proceeds
thereof to Sanz Inc., a Colorado corporation (“Borrower”),
a
wholly-owned subsidiary of the Company, for the Borrower’s working capital
purposes, except for (x) the proceeds of the initial Loan, a portion of which
shall be used by the Company to repay in full all obligations it owes to Xxxxxx
X.X. and (y) a portion of the proceeds of any Loan may be used by the Company
to
pay its reasonable out-of-pocket operating expenses incurred in its ordinary
course of business.
1.E. Payments
of Principal and other Amounts.
The
Company shall pay to the Administrative Agent, for the benefit of the Lender,
the principal amount of all outstanding Loans, together with any accrued
interest and unpaid interest thereon, ON DEMAND, but in no case later May 16,
2012. Any demand for payment shall be made in writing to the Company, except
for
(x) any demand in connection with an Event of Default under 1.F.(ii), which
demand shall occur automatically without any writing or other type of notice
upon the occurrence of any Event of Default set forth in Section 1.F.(ii) or
(y)
any demand on May 16, 2012, which demand shall occur automatically without
any
writing or other type of notice.
The
Company may, at any time and from time to time without premium or penalty,
pay
all or any portion of the outstanding principal amount of, or interest on,
the
Loans.
-3-
In
the
absence of an Event of Default, payments in connection with the Loans shall
be
applied (i) first, to the payment of accrued interest on the Loans until all
such interest is paid, (ii) second, to the repayment of the principal amount
of
the Loans outstanding and (iii) third, to the payment of Fees and Expenses
(as
defined in Section 3.B. of this Agreement).
During
the existence of an Event of Default, payments in connection with the Loans
shall be applied (i) first, to the payment of Fees and Expenses until such
Fees
and Expenses are paid in full, (ii) second, to the payment of accrued interest
on the Loans until all such interest is paid, and (iii) third, to the repayment
of the principal amount of the Loans outstanding.
1.F. Events
of Default.
For
purposes of this Agreement, an “Event of Default” shall be deemed to have
occurred if:
(i) the
Company fails to pay when due and payable (whether at maturity or otherwise)
the
full amount of interest then accrued, due and payable on the Loans, or the
full
amount of any principal payment on the Loans, or the full amount of any Fees
and
Expenses, and such failure to pay is not cured within five (5) business days
after the occurrence thereof;
(ii) the
Company makes an assignment for the benefit of creditors or admits in writing
its inability to pay its debts generally as they become due; or an order,
judgment or decree is entered adjudicating the Company bankrupt or insolvent;
or
any order for relief with respect to the Company is entered under the Federal
Bankruptcy Code; or the Company petitions or applies to any tribunal for the
appointment of a custodian, trustee, receiver or liquidator of the Company,
or
of any substantial part of the assets of the Company, or commences any
proceeding relating to the Company under any bankruptcy reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law
of
any jurisdiction; or any such petition or application is filed, or any such
proceeding is commenced, against the Company and either (A) the Company by
any
act indicates its approval thereof, consent thereto or acquiescence therein
or
(B) such petition, application or proceeding is not dismissed within 60 days;
(iii) reserved;
(iv) there
is
a default in any agreement with respect to indebtedness of $100,000 or more
to
which the Company is a party and such default (i) occurs at the final maturity
of the obligations thereunder, or (ii) results in a right by the other party
thereto, irrespective of whether exercised, to accelerate the maturity of such
person’s obligations thereunder, to terminate such agreement, or to refuse to
renew such agreement pursuant to an automatic renewal right therein,
provided
that, if
the Senior Lender waives any “event of default” under the Senior Loan Agreement,
such waiver shall be effective for purposes of this clause (iv);
(iv) the
Company is sold to a third party or group of third parties pursuant to which
such party or parties acquire (i) capital stock of the Company possessing
the voting power to elect a majority of the board of directors of the Company
(whether by merger, consolidation, sale, or transfer of the Company's capital
stock) or (ii) all or substantially all the Company's assets determined on
a consolidated basis;
-4-
(v)
any
of
the following shall have occurred: (a) a material adverse change in the business
prospects, operations, results of operations, assets, liabilities or condition
(financial or otherwise) of the Company, (b) a material impairment of the
Company’s ability to perform its obligations under this Agreement or the Note,
or of the Lender's ability to enforce the Company's obligations under this
Agreement or the Note;
(vi) any
representation or warranty made by the Company in any Loan Document is untrue
or
incorrect in any material respect as of the date when made or deemed made;
or
(vii) the
Company shall fail to perform, keep or observe any covenant, agreement,
provision, term or condition contained in any Loan Documents and such failure
shall continue after the expiration of any applicable grace period
therefor.
Any
of
the foregoing shall constitute an Event of Default regardless of the reason
or
cause for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
1.G. Consequences
of Events of Default.
If
any
Event of Default has occurred and is continuing, the interest rate on the Loans
and any other amounts owing under any of the Loan Documents shall increase
immediately by an increment of two percent (2.0%) per annum. Any increase of
the
interest rate resulting from the operation of this subparagraph shall terminate
as of the close of business on the date on which no Events of Default exist
(subject to subsequent increases pursuant to this subparagraph).
If
an
Event of Default under Section 1.F.(ii) has occurred and is continuing, the
aggregate principal amount of the Loans (together with all accrued interest
and
unpaid interest thereon and all other amounts due and payable with respect
thereto, including, without limitation, the Fees and Expenses) shall become
immediately due and payable without any action on the part of the Administrative
Agent or the Lender, and the Company shall immediately pay to the Administrative
Agent all amounts due and payable with respect to the Loans, all accrued
interest and unpaid interest thereon and all other amounts due and payable
with
respect thereto, including, without limitation, the Fees and
Expenses.
If
any
Event of Default other than one arising under 1.F.(ii) has occurred and is
continuing, the aggregate principal amount of the Loans (together with all
accrued interest and unpaid interest thereon and all other amounts due and
payable with respect thereto, including, without limitation, the Fees and
Expenses) shall become immediately due and payable at the option of the
Administrative Agent or the Lender, and if such option is elected, the Company
shall immediately pay to the Administrative Agent all amounts due and payable
with respect to the Loans, all accrued interest and unpaid interest thereon
and
all other amounts due and payable with respect thereto, including, without
limitation, the Fees and Expenses.
-5-
The
Administrative Agent and the Lender shall also have any other rights which
any
such person may have been afforded under any contract or agreement at any time
and any other rights which any such person may have pursuant to applicable
law.
1.H. Conditions
to Lender's Obligations.
The
obligations of the Lender under this Agreement are, at the option of the Lender,
subject to satisfaction of the following conditions precedent on or before
the
Closing Date:
(i) the
Company shall duly authorize, execute and deliver to the Administrative Agent
this Agreement, the Note and such other documents, agreements, certificates
and/or assignments as the Administrative Agent may request;
(ii)
the
Company shall deliver to the Administrative Agent such other documents relating
to the transactions contemplated by this Agreement as the Administrative Agent
or its counsel may request; and,
(iii) the
representations and warranties of the Company contained herein shall be true
in
correct in all material respects on the Closing Date.
1.I. The
Closing.
The
closing of the transactions contemplated by this Agreement (the "Closing")
shall
take place at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx at 1:00 p.m. (Chicago time) on the date hereof, or at such
other place or on such other date as may be mutually agreeable to the Company
and the Administrative Agent.
Section
2. Representations
and Warranties of the Company.
As a
material inducement to the Administrative Agent and the Lender to enter into
this Agreement and to make the Loans hereunder, the Company hereby represents
and warrants that:
2.A. Organization
and Corporate Power.
The
Company is a corporation company duly organized, validly existing and in good
standing under the laws of the State of Colorado and is qualified to do business
in every jurisdiction in which its ownership of property or conduct of business
requires it to qualify. The Company has all requisite corporate power and
authority and all material licenses, permits and authorizations necessary to
own
and operate its properties, to carry on its businesses as now conducted and
presently proposed to be conducted and to carry out the transactions
contemplated by this Agreement.
2.B. Authorization;
No Breach.
The
execution, delivery and performance of this Agreement and all other agreements
and instruments (including, without limitation, the Note) contemplated hereby
to
which the Company is a party (the "Loan
Documents")
have
been duly authorized by the Company. Each of the Loan Documents constitutes
a
valid and binding obligation of the Company, enforceable in accordance with
its
terms. The execution and delivery by the Company of the Loan Documents, the
issuance of the Note hereunder, and the fulfillment of and compliance with
the
respective terms hereof and thereof by the Company, do not and shall not
(i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the
creation of any lien, security interest charge or encumbrance upon the Company’s
securities or assets pursuant to, (iv) give any third party the right to
modify, terminate or accelerate any obligation under, (v) result in a
violation of, or (vi) require any authorization, consent, approval, exemption
or
other action by or notice to any court or administrative or governmental body
pursuant to, the Loan Documents, or any material law, statute, rule or
regulation to which the Company is subject, or any material agreement,
instrument, order, judgment or decree to which the Company is subject, except
for those that have already been obtained as of the date hereof.
-6-
2.C. Litigation.
There
is
no pending or, to the Company's knowledge, threatened action or proceeding
affecting the Company before any court, governmental agency or arbitrator,
which
may materially adversely affect the Company’s financial condition or operations
or which purports to affect the legality, validity, or enforceability of this
Agreement, the Note or any of the other Loan Documents.
2.D. Reserved.
2.E. No
Encumbrances.
The
Company has good and indefeasible title to its assets, free and clear of all
liens, security interests or other types of encumbrances or security
arrangements.
2.F. Insurance.
The
Company maintains the insurance required under the Senior Loan Agreement as
in
effect on the Closing Date.
Section
3. Miscellaneous.
3.A. Remedies.
The
Administrative Agent and the Lender shall have all rights and remedies set
forth
in this Agreement and all rights and remedies which such person has been granted
at any time under any other agreement or contract and all of the rights which
it
has under any law. The Administrative Agent and the Lender shall be entitled
to
enforce any rights under any provision of this Agreement specifically (without
posting a bond or other security) to recover damages by reason of any breach
of
any provision of this Agreement and to exercise all other rights granted by
law.
3.B.Fees
and Expenses.
The
Company agrees to pay to the Administrative Agent on demand each of the
following (collectively, the “Fees
and Expenses”):
all
out-of-pocket costs and expenses (including, without limitation, attorneys
fees
and expenses) of the Administrative Agent and the Lender in connection with
the
preparation, execution, delivery and administration of this Agreement, the
other
Loan Documents and all other documents
provided for herein or delivered or to be delivered hereunder or in connection
herewith (including any proposed or actual amendment, supplement or waiver
to
any Loan Document), and all out-of-pocket costs and expenses (including, without
limitation, attorneys fees and expenses) incurred by the Administrative Agent
and the Lender after an Event of Default in connection with the collection
of
the Loans and/or the enforcement of this Agreement, the other Loan Documents
or
any such other documents. In addition, the Company agrees to pay, and to save
the Administrative Agent and the Lender harmless from all liability for, any
fees of the Company's auditors in connection with any exercise by the
Administrative Agent and the Lender of their rights under this Agreement and
any
of the other Loan Documents. The obligations of the Company provided for in
this
Section shall
survive
repayment of the Loans and the termination of this Agreement.
-7-
0.X.Xxxxx
of Payments with Respect to the Note.
All
payments to be made to the Administrative Agent, for the benefit of the Lender,
with respect to the Note shall be delivered to the Administrative Agent via
wire
transfer to the following account of the Administrative Agent at:
|
Bank:
|
Wachovia
Bank
|
|
Bank
Address:
|
Boca
Raton, Florida
|
|
ABA
No.:
|
000-000-000
|
|
Account
No.:
|
2000029360240
|
|
Reference:
|
Sun
Capital Partners II, LP loan to SAN Holdings,
Inc.
|
or
to
such other person or account as the Administrative Agent may from time to time
specify to the Company by prior written notice. All such payments shall be
made
in the lawful money of the United States of America in immediately available
funds.
3.D.Amendments.
The
provisions of this Agreement may be amended and waived only with the prior
written consent of the Company, the Adminstrative Agent and the
Lender.
3.E. Survival
of Representations and Warranties.
All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by the Administrative Agent, the Lender
or
on such person’s behalf.
3.F. Successors
and Assigns.
This
Agreement and any other document referred to herein shall be binding upon and
inure to the benefit of and be enforceable by the Administrative Agent, the
Lender, the Company and their respective successors and assigns, except that
the
Company may not assign its rights under this Agreement and any other Loan
Document without the prior written consent of the Administrative Agent. The
Lender or the Administrative Agent may, without the Company’s consent, assign
its rights and delegate its obligations under this Agreement and any other
Loan
Document and further may assign, or sell participations in, all or any part
of
the Loans or any other interest herein to another financial institution or
other
person, in which event, the assignee or participant shall have, to the extent
of
such assignment or participation, the same rights and benefits as it would
have
if it were Lender, except as otherwise provided by the terms of such assignment
or participation.
3.G. Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition
or
invalidity, without invalidating the remainder of this Agreement.
3.H. Counterparts;
Facsimile Signature.
This
Agreement may be executed in two or more counterparts, any one of which need
not
contain the signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement. This Agreement may be
executed by facsimile signature.
-8-
3.I. Descriptive
Headings; Interpretation.
The
descriptive headings of this Agreement are inserted for convenience only and
do
not constitute a part of this Agreement. The use of the word "including" in
this
Agreement shall be by way of example rather than by limitation.
3.J. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the exhibits and schedules hereto shall be governed by,
and construed in accordance with, the laws of the State of Delaware, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware.
3.K. Notices.
Any
notice, request, instruction or other document to be given hereunder by a party
hereto shall be in writing and shall be deemed to have been given, (a) when
received if given in person, (b) on the date of transmission if sent by
telex, telecopy or other wire transmission (with answer back confirmation of
such transmission), (c) upon delivery, if delivered by a nationally known
commercial courier service providing next day delivery service (such as Federal
Express), or (d) upon delivery, or refusal of delivery, if deposited in the
U.S.
mail, certified or registered mail, return receipt requested, postage
prepaid:
| To the Company: | SAN Holdings, Inc. |
| 0000 Xxxxxxx Xxxxx, Xxxxx 000 |
| Xxxxxxxxx, Xxxxxxxx 00000 |
| Attention: Chief Executive Officer and Controller |
| Facsimile: (000) 000-0000 |
|
With
a copies to:
|
Sun
Capital Partners, Inc.
|
| 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxx Xxxxx, Xxxxxxx 00000 |
| Attention: C. Xxxxx Xxxxx and Xxxxx Xxxxxxx |
| Facsimile: (000) 000-0000 |
| and |
|
Xxxxxxxx
& Xxxxx LLP
|
|
000
Xxxx Xxxxxxxx Xxxxx
|
|
Xxxxxxx,
Xxxxxxxx 00000
|
|
Attention:
Xxxxxxx X. Xxxxxxx, P.C. and Xxxxx X.
Xxxxxxxx
|
|
Facsimile:
(000) 000-0000
|
-9-
To
Administrative
Agent
or
the
|
Lender,
to:
|
Sun
Capital Partners II, LP
|
c/o
Sun
Capital Partners, Inc.
0000
Xxxx
Xxxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
Attention: C.
Xxxxx
Xxxxx and Xxxxx Xxxxxxx
Facsimile: (000)
000-0000
|
With
a copies to:
|
Xxxxxxxx
& Xxxxx LLP
|
|
000
Xxxx Xxxxxxxx Xxxxx
|
|
Xxxxxxx,
Xxxxxxxx 00000
|
|
Attention:
Xxxxxxx X. Xxxxxxx, P.C. and Xxxxx X.
Xxxxxxxx
|
Facsimile:
(000) 000-0000
or
to
such other individual or address as a party hereto may designate for itself
by
notice given as herein provided.
3.L. Usury
Laws.
It is
the intention of the Company and the Lender to conform strictly to all
applicable usury laws now or hereafter in force, and any interest payable under
this Agreement shall be subject to reduction to the amount not in excess of
the
maximum legal amount allowed under the applicable usury laws as now or hereafter
construed by the courts having jurisdiction over such matters. If the maturity
of the Loans is accelerated by reason of an Event of Default or otherwise,
then
earned interest may never include more than the maximum amount permitted by
law,
computed from the date hereof until payment, and any interest in excess of
the
maximum amount permitted by law shall be canceled automatically and, if
theretofore paid, shall at the option of the Lender either be rebated to the
Company or credited on the principal amount of the Loans, or if the Loans have
been paid, then the excess shall be rebated to the Company. The aggregate of
all
interest (whether designated as interest, service charges, points or otherwise)
contracted for, chargeable, or receivable under this Agreement shall under
no
circumstances exceed the maximum legal rate upon the unpaid principal balance
of
the Loans remaining unpaid from time to time. If such interest does exceed
the
maximum legal rate, it shall be deemed a mistake and such excess shall be
canceled automatically and, if theretofore paid, rebated to the Company or
credited on the principal amount of the Loans, or if the Loans have been repaid,
then such excess shall be rebated to the Company.
3.M. Reserved.
Section
4. Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
“Business
Day”
means
any day other than a Saturday, a Sunday or any other day on which commercial
banks in New York, New York are required or permitted by law to
close.
“Closing
Date”
means
May 16, 2007.
-10-
“Loan
Documents”
means
this Agreement, the Note and all other documents, agreements, certificates,
notices and instruments executed and/or delivered by the Company in connection
with the Loans or this Agreement.
“Senior
Lender”
means
Xxxxx Fargo Business Credit, Inc..
“Senior
Loan Agreement”
means
that certain Credit and Security Agreement dated May 31, 2001, by and between
the Borrower and the Senior Lender, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
[remainder
of this page intentionally left blank; signature page follows]
-11-
IN
WITNESS WHEREOF, the parties hereto have executed this Credit Agreement on
the
date first written above.
SAN
HOLDINGS, INC.
By:
/s/
Xxxxxx
Xxxxx
Name:
Xxxxxx
Xxxxx
Title:
CFO
SUN
CAPITAL PARTNERS II, LP, as
Administrative
Agent and the Lender
By: Sun
Capital Advisors II, LP, its
general
partner
By: Sun
Capital Partners, LLC, its
general
partner
By:
/s/
Xxxxxxx
XxXxxxxxx
Name:
Xxxxxxx
XxXxxxxxx
Title:
Vice
President
Exhibit
A
FORM
OF PROMISSORY NOTE
SAN
HOLDINGS, INC.
PROMISSORY
NOTE
| May 16, 2007 |
$10,000,000.00
|
ON
DEMAND, SAN HOLDINGS, INC., a Colorado corporation (the "Company"),
hereby promises to pay to the order of SUN CAPITAL PARTNERS II, LP (the
"Lender"),
the
principal amount of $10,000,000.00, or if less, the amount outstanding under
the
Credit Agreement referred to below, together with interest thereon payable
at
the times and at the rates and in the manner set forth in the Credit Agreement.
This
Promissory Note (this "Note")
is
issued pursuant to that certain Credit Agreement of even date herewith (as
the
same may be amended, restated, supplemented or otherwise modified from time
to
time, the "Credit
Agreement"),
by
and among the Company and the Lender. The Credit Agreement contains terms
governing the rights of the Lender, and all provisions of the Credit Agreement
are hereby incorporated herein by reference. 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 Delaware.
Upon
the
payment in full of all principal and accrued interest and unpaid interest owed
on this Note and the termination of the Credit Agreement, this Note shall be
surrendered to the Company for cancellation and shall not be reissued.
The
Company hereby waives presentment for payment, protest, demand, notice of
protest, notice of nonpayment and diligence with respect to this Note, and
waives and renounces all rights to the benefits of any statute of limitations
or
any moratorium, appraisement, exemption, or homestead now provided or that
hereafter may be provided by any federal or applicable state statute, including
but not limited to exemptions provided by or allowed under the Federal
Bankruptcy Code, both as to itself and as to all of its property, whether real
or personal, against the enforcement and collection of the obligations evidenced
by this Note and any and all extensions, renewals, and modifications
hereof.
*
* * *
*
IN
WITNESS WHEREOF, the Company has executed and delivered this Promissory Note
on
the date first above written.
SAN
HOLDINGS, INC., a Colorado corporation
By:
__________________________
Name:________________________
Title:_________________________
Exhibit
B
SAN
HOLDINGS, INC.
FORM
OF NOTICE OF BORROWING
Reference
is made to that certain Credit Agreement dated as of May 16, 2007 (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "Credit
Agreement"),
by
and between the undersigned (the "Company"),
the
lenders party thereto from time to time, and Sun Capital Partners II, LP, as
the
Administrative Agent and the Lender. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Credit
Agreement. This notice is given pursuant to Section 1.D of the Credit Agreement.
The Company hereby requests a Loan under the Credit Agreement as
follows:
The
amount of the proposed Loan is $______________.
The
requested borrowing date for the proposed Loan (which is a Business Day) is
_____________, 200__.
In
connection with the proposed Loan, the Company hereby makes the representations
set forth in Section 1.D. to the Administrative Agent and the
Lender.
The
Company has caused this Notice of Borrowing to be executed and delivered by
its
officer thereunto duly authorized on _____________, 200__.
|
SAN
HOLDINGS, INC.
By:_________________________________
Name:_______________________________
Title:________________________________
|
|
