SAN HOLDINGS, INC. FIRST AMENDMENT TO HARRIS LOAN AUTHORIZATION AGREEMENT
EXHIBIT
10.01
SAN
HOLDINGS, INC.
FIRST
AMENDMENT TO
XXXXXX
LOAN AUTHORIZATION AGREEMENT
Xxxxxx
X.X.
Chicago,
Illinois
Ladies
and Gentlemen:
Reference
is hereby made to that certain Xxxxxx Loan Authorization Agreement dated
as of
October 27, 2006 (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 X.X. (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, among other things, 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 amended by deleting the amount of “$1,500,000”
appearing
throughout the document and substituting therefor the amount “$3,000,000.”
1.2. The
Loan
Agreement shall be amended by inserting the following paragraph therein as
Section 14:
14. Security.
The
Loans (both for principal and interest) and the Company’s other obligations
under that certain Secured Demand Note dated as of March 13, 2007
(the“Secured
Note”)
shall
be secured by certain property of Sun Capital Partners II, LP (“Sun II”)
pursuant to that certain Cash Collateral Security Agreement, dated as of
March
13, 2007 (as the same may be amended, modified, restated or supplemented
from
time to time, being herein referred to collectively as the “Security
Agreement”),
and
Sun II shall at all times comply with the terms and conditions of the Security
Agreement. The Bank shall have the right to call for additional security
from
Sun II satisfactory to the Bank should the value of the collateral decline.
SECTION
2. SECURED
NOTE.
In
addition to that certain Demand Note payable to the order of the Bank dated
as
of October 27, 2006 in the principal amount of $1,500,000 (the “Previous
Note”),
the
Borrower shall execute and deliver to the Bank a new secured demand note
in the
amount of $1,500,000, dated as of the date of its issuance and otherwise
in the
form of Exhibit A attached hereto (the “Secured
Note”)
which
shall be given in addition to the Bank’s Previous Note and, together with the
Previous Note, shall evidence the loans outstanding to the Bank. All references
in the Loan Agreement to the “Note”
shall
be
deemed references to the Previous Note together with the Secured Note,
provided
that
(i) the Guaranty from Sun Capital Partners II, LP only guarantees
obligations arising under the Previous Note and (ii) the Cash Collateral
Security Agreement from Sun Capital Partners II, LP only secures obligations
arising under the Secured 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 to the Bank the New
Note.
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. Legal
matters incident to the execution and delivery of this Amendment shall be
satisfactory to the Bank and its counsel.
3.5. Sun
Capital Partners II, LP shall have executed and delivered to the Bank its
consent to this Amendment in the form set forth below and that certain Cash
Collateral Security Agreement dated as of even date herewith.
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.
-2-
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]
-3-
This
First Amendment to Xxxxxx Loan Authorization Agreement is entered into as
of
this 13th day of March, 2007.
| SAN HOLDINGS, INC. | ||
| |
|
|
| By | /s/ Xxxxxx X. Xxxxx | |
|
Name Xxxxxx X. Xxxxx |
||
| Title CFO and Secretary | ||
Accepted
and agreed
to.
| XXXXXX X.X | ||
| |
|
|
| By | /s/ Xxxxxx Sidelow | |
|
Name Xxxxxx Sidelow |
||
| 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 October 27, 2006 (as may be amended from time to
time,
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: | /s/ Xxxx X. Xxxxx | |
|
Name: Xxxx X. Xxxxx |
||
| Its: CO-CEO | ||
EXHIBIT
A
SECURED
DEMAND NOTE
|
$1,500,000
|
March
13, 2007
|
ON
DEMAND,
for
value received, the undersigned, SAN
HOLDINGS, INC.,
a
Colorado corporation, promises to pay to the order of XXXXXX
X.X.
(the
“Bank”)
at its
offices at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, the principal sum of
One
Million Five Hundred Thousand Dollars ($1,500,000) or, if less, the amount
outstanding hereunder, 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 part of the borrowings by the undersigned under that certain Xxxxxx
Loan Authorization Agreement dated as of October 27, 2006, 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, excluding, however, the benefits of the Guaranty from Sun
Capital Partners II LP. 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.
The
Loans
(both for principal and interest) and the undersigned’s other obligations under
this Note shall be secured by certain property of Sun Capital Partners II,
LP
pursuant to that certain Cash Collateral Security Agreement, dated of even
date
herewith (as the same may be amended, modified, restated or supplemented from
time to time, being herein referred to collectively as the “Security
Agreement”),
and
Sun Capital Partners II, LP shall at all times comply with the terms and
conditions of the Security Agreement.
|
SAN
HOLDINGS, INC.
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Its | ||
