SAN HOLDINGS, INC. SECOND AMENDMENT TO HARRIS LOAN AUTHORIZATION AGREEMENT
EXHIBIT
10.01
SAN
HOLDINGS, INC.
SECOND
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”).
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SECTION 1.
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AMENDMENT.
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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 “$3,000,000”
appearing
throughout the document and substituting therefor the amount “$4,500,000.”
1.2. Section 14
of the Loan Agreement shall be amended and restated as follows:
14. Security.
The
Loans (both for principal and interest) and the Company’s other obligations
under that certain Replacement Secured Demand Note dated as of March 23,
2007 (the“Secured
Note”)
shall
be secured by certain property of Sun Capital Partners II, LP (“Sun II”)
pursuant to that certain Amended and Restated Cash Collateral Security
Agreement, dated as of March 23, 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.
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SECTION 2.
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SECURED
NOTE.
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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”)
and in
replacement of and substitution for that certain Secured Demand Note dated
as of
March 13, 2007 in the principal amount of $1,500,000 (the “Previous
Secured Note”),
the
Borrower shall execute and deliver to the Bank a replacement secured demand
note
in the amount of $3,000,000, dated as of the date of its issuance and otherwise
in the form of Exhibit A attached hereto (the “Replacement
Secured Note”)
which
shall be given in replacement of and substitution for the Bank’s Previous
Secured Note and in addition to the Bank’s Previous Note, and which Replacement
Secured Note, 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 Replacement Secured
Note, provided
that
(i) the Guaranty from Sun Capital Partners II, LP only guarantees
obligations arising under the Previous Note and (ii) the Amended and
Restated Cash Collateral Security Agreement from Sun Capital Partners II, LP
only secures obligations arising under the Replacement Secured
Note.
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SECTION 3.
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CONDITIONS
PRECEDENT.
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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 Replacement Secured
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 Amended
and Restated Cash Collateral Security Agreement dated as of even date
herewith.
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SECTION 4.
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REPRESENTATIONS.
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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.
-2-
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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
Second Amendment to Xxxxxx Loan Authorization Agreement is entered into as
of
this 23rd day of March, 2007.
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SAN
HOLDINGS, INC.
By
/s/ Xxxxxx X. Xxxxx
Name
Xxxxxx X.
Xxxxx
Title
CFO and
Secretary
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Accepted
and agreed to.
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XXXXXX
X.X.
By
/s/ Xxxxx X. Xxxxx
Name
Xxxxx X.
Xxxxx
Title
Managing
Director
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-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.
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SUN
CAPITAL PARTNERS II, LP
By: Sun
Capital Advisors II, LP
Its: General
Partner
By: Sun
Capital Partners, LLC
Its: General
Partner
By:
/s/
Xxxxxx X.
Xxxxxx
Name:
Xxxxxx X.
Xxxxxx
Its:
CO-CEO
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EXHIBIT
A
REPLACEMENT
SECURED DEMAND NOTE
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$3,000,000
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March
23, 2007
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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
Three
Million Dollars ($3,000,000) 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 Amended and Restated 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.
This
Note
is issued in replacement of and substitution for, and shall evidence the
indebtedness as evidenced by, that certain Secured Demand Note of the
undersigned payable to the Bank dated as of March 13, 2007.
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SAN
HOLDINGS, INC.
By:
__________________________________
Name:
____________________________
Its
_______________________________
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