San Holdings, Inc. Ninth Amendment To Loan Authorization Agreement
Exhibit
10.01
San
Holdings, Inc.
Ninth
Amendment To
Sun
Solunet, LLC, as Assignee of Xxxxxx X.X.
0000
Xxxx
Xxxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
Ladies
and Gentlemen:
Reference
is hereby made to that certain Loan Authorization Agreement dated as of
May 16, 2003 (the 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
Sun Solunet, LLC, as assignee of Xxxxxx X.X., as successor to Xxxxxx Trust
and
Savings Bank due to merger (the “Bank
Assignee”).
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 Assignee increase the amount of the loan
from $13,000,000 to $14,000,000, change the Maturity Date to December 31, 2006,
and to replace its obligation to pay current interest payments to having the
loan accrue interest until the loan is paid, and the Bank Assignee is willing
to
do so under the terms and conditions set forth in this agreement (herein, the
“Amendment”).
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Section 1.
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Amendment.
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1.1. The
Loan
Agreement shall be and hereby is amended by deleting the amount of “$13,000,000”
appearing throughout the document and substituting therefor the amount
“$14,000,000.”
1.2. The
paragraph in the introductory section of the Loan Agreement entitled “Maturity
Date” of the Loan Agreement shall be deleted in its entirety and replaced with
the following:
“Maturity
Date: The Loan Account terminates, and Loans are payable, on December 31,
2006.”
1.3. The
sentence in the introductory section of the Loan Agreement beginning with
“Periodic Statement reflecting accrued interest will be sent…” shall be
deleted.
1.4. The
parenthetical, “but if no demand, no later than February 16, 2006”, immediately
following the term “ON DEMAND” set forth in each of Section 5 (Maturity Date;
Payments) and Section 10 (Termination; Renewal) shall be deleted.
1.5. The
paragraph in the introductory section of the Loan Agreement entitled “Variable
Interest Rate” shall be deleted in its entirety and replaced with the
following:
-1-
“Variable
Interest Rate: The interest rate applicable prior to the Maturity Date equals
the rate per annum announced by the Bank from time to time as its prime
commercial rate (the “Prime
Rate”)
plus:
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FROM
|
THROUGH
|
RATE
|
|
February
17, 2005 to
|
Maturity
Date
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1.0%
|
|
(the
“Applicable
Margin”)
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1.6. The
sixth
sentence of Section 1 (beginning with “Upon each request for a Loan…”) shall be
deleted.
1.7. Section
4
shall be deleted and replaced with the following:
“4. Reserved.”
1.8 Sections
7(c), 7(d) and 7(e) shall be deleted.
1.9. Section
2
(Interest) of the Loan Agreement shall be deleted and replaced with the
following:
“Interest.
The
Company shall pay the Bank interest on the unpaid principal balance of Loans
in
accordance with the terms of this Agreement. Interest shall be computed by
applying a daily periodic rate based on the Bank’s Prime Rate plus the
Applicable Margin to the sum of (a) each day’s ending Loan balance and (b) all
interest which was accrued and unpaid as of the immediately preceding day after
taking into account any cash payment of interest made. Interest shall be
computed on the basis of a year of 360 days for the actual number of days
elapsed. The Bank’s Prime Rate reflects market rates of interest as well as
other factors, and it is not necessarily the Bank’s best or lowest rate. The
daily Loan balance shall be computed by taking the principal balance of Loans
at
the beginning of each day, adding any Loans posted to the Loan Account that
day,
and subtracting any principal payments posted to the Loan Account as of that
day. Interest begins to accrue on the date a Loan is posted to the Loan Account.
Any accrued interest which for any reason has not been paid prior to the
Maturity Date shall be paid in full on the date on which the final principal
payment on the Loan is made. The principal balance of Loans and all accrued
interest which remains unpaid after demand for repayment shall bear interest
until paid in full at a post-maturity rate of 2% per annum above the interest
rate otherwise applicable to the Loans (determined as aforesaid). The interest
rate payable under this Agreement shall be subject, however, to the limitation
that such interest rate shall never exceed the highest rate which the Company
may contract to pay under applicable law.”
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Section 2.
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New
Note.
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In
replacement for that certain Note payable to the order of Xxxxxx X.X., as
successor to Xxxxxx Trust and Savings Bank due to merger dated as of October
4,
2005 in the principal amount of $13,000,000 (the “Previous
Note”)
(later
assigned to the Bank Assignee), the Borrower shall execute and deliver to the
Bank Assignee a new demand note in the amount of $14,000,000, 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 Assignee’s Previous Note and shall evidence the
loans outstanding to the Bank Assignee. All references in the Loan Agreement
shall be deemed references to the New Note.
-2-
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Section 3.
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Conditions
Precedent.
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3.1. The
Borrower and the Bank Assignee shall have executed and delivered this
Amendment.
3.2. The
Borrower shall have executed and delivered the New Note to the Bank
Assignee.
3.3. The
Bank
Assignee 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 Assignee 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 Assignee and its counsel.
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Section 4.
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Representations.
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In
order
to induce the Bank Assignee to execute and deliver this Amendment, the Borrower
hereby represents to the Bank Assignee 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.
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Section 5.
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Miscellaneous.
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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.
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
Ninth Amendment to Loan Authorization Agreement is entered into as of this
6th
day of
February, 2006.
San
Holdings, Inc.
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
CFO
Accepted
and agreed to.
Sun
Solunet, LLC, as Assignee of Xxxxxx
X.X.
X.X.
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
-4-
Exhibit
A
Note
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$14,000,000
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February
6, 2006
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Maturity
Date: December 31, 2006
For
value
received, the undersigned, San
Holdings, Inc.,
a
Colorado corporation, promises to pay to the order of Sun
Solunet, LLC,
as
assignee of Xxxxxx X.X. (the
“Bank
Assignee”)
at its
offices at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, the
principal sum of Fourteen Million Dollars and no/100 ($14,000,000) or, if less,
the amount outstanding under the 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 Loan Authorization Agreement referred to below.
This
Note
evidences borrowings by the undersigned under that certain Loan Authorization
Agreement dated as of May 16, 2003, between the undersigned and the Bank
Assignee, 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 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 October
4, 2005 payable to the Bank Assignee in the face principal amount of
$13,000,000.
San
Holdings, Inc.
By:____________________________
Name:_______________________
Title:________________________
Note
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$14,000,000
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February
6, 2006
|
Maturity
Date: December 31, 2006
For
value
received, the undersigned, San
Holdings, Inc.,
a
Colorado corporation, promises to pay to the order of Sun
Solunet, LLC,
as
assignee of Xxxxxx X.X. (the
“Bank
Assignee”)
at its
offices at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, the
principal sum of Fourteen Million Dollars and no/100 ($14,000,000) or, if less,
the amount outstanding under the 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 Loan Authorization Agreement referred to below.
This
Note
evidences borrowings by the undersigned under that certain Loan Authorization
Agreement dated as of May 16, 2003, between the undersigned and the Bank
Assignee, 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 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 October
4, 2005 payable to the Bank Assignee in the face principal amount of
$13,000,000.
San
Holdings, Inc.
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
CFO
