SAN HOLDINGS, INC. EIGHTH AMENDMENT TO HARRIS LOAN AUTHORIZATION AGREEMENT
Exhibit
10.01
SAN
HOLDINGS, INC.
EIGHTH
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
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 X.X., as successor to Xxxxxx Trust and Savings Bank due to merger (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”).
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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 by
deleting the amount of “$11,500,000” appearing
throughout the document and substituting therefor the amount
“$13,000,000.”
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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 Trust and
Savings Bank dated as of June 3, 2005 in the principal amount of
$11,500,000 (the “Previous
Note”),
the
Borrower shall execute and deliver to the Bank a new demand note in the amount
of $13,000,000, 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.
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SECTION 3.
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CONDITIONS
PRECEDENT.
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3.1.
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The
Borrower and the Bank shall have executed and delivered this
Amendment.
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3.2.
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The
Borrower shall have executed and delivered the New Note to the
Bank.
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3.3.
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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.
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3.4.
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The
Borrower shall have paid to the Bank a non-refundable closing
fee in the
amount of $3,750 which fee shall be fully earned upon the Bank’s execution
of this Amendment.
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3.5.
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Legal
matters incident to the execution and delivery of this Amendment
shall be
satisfactory to the Bank and its counsel.
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3.6.
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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 an
amendment to
the Guaranty.
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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.
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SECTION 5.
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MISCELLANEOUS.
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5.1.
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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.
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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.
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[SIGNATURE
PAGE TO FOLLOW]
-2-
| SAN HOLDINGS, INC. | ||
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| By: | /s/ Xxxxxx X. Xxxxx | |
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Chief Financial Officer |
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Accepted
and agreed to.
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| XXXXXX X.X. | ||
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| By: | /s/ Xxx X. Xxxxxxx | |
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Director |
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-3-
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 | ||
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| By: | Sun Capital Advisors II, LP | |
| Its: | General Partner | |
| By: Sun Capital Partners, LLC | ||
| Its: General Partner | ||
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By: /s/ Xxxx X. Xxxxx
Co-CEO |
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EXHIBIT
A
DEMAND
NOTE
| $13,000,000 |
October
4, 2005
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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.,
as
successor to Xxxxxx Trust and Savings Bank due to merger (the “Bank”)
at its
offices at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, the principal sum of
Thirteen Million Five Hundred Thousand Dollars ($13,000,000) 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
June 3, 2005, payable to the Bank in the face principal amount of
$11,500,000.
| SAN HOLDINGS, INC. | ||
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| By: | /s/ Xxxxxx X. Xxxxx | |
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Chief Financial Officer |
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