Exhibit 10.01
ELEVENTH AMENDMENT TO CREDIT
AND SECURITY AGREEMENT
AND WAIVER OF
DEFAULTS
This Amendment, dated as of April 17, 2006, is
made by and among SANZ INC., formerly known as Storage Area
Networks, Inc., a Colorado corporation (“SANZ” or a
“Borrower”), SOLUNET STORAGE, INC., a Delaware
corporation (“Solunet” or a “Borrower”),
and WELLS FARGO BANK, NATIONAL ASSOCIATION (the
“Lender”), acting through its WELLS FARGO BUSINESS
CREDIT operating division.
Recitals
The Borrowers and the Lender are parties to a
Credit and Security Agreement dated as of May 31, 2001, as amended
by (i) the First Amendment to Credit and Security Agreement and
Waiver of Defaults dated as of January 17, 2002; (ii) the Second
Amendment to Credit and Security Agreement dated as of July 1,
2002; (iii) the Third Amendment to Credit and Security Agreement
dated as of August 15, 2002; (iv) the Fourth Amendment to Credit
and Security Agreement and Waiver of Defaults dated as of March 31,
2003; (v) the Fifth Amendment to Credit and Security Agreement and
Waiver of Defaults dated as of September 22, 2003; (vi) the Sixth
Amendment to Credit and Security Agreement dated as of February 12,
2004; (vii) the Seventh Amendment to Credit and Security Agreement
and Waiver of Defaults dated as of September 3, 2004; (viii) the
Eighth Amendment to Credit and Security Agreement and Waiver of
Defaults dated as of October 29, 2004; (ix) the Ninth Amendment to
Credit and Security Agreement and Waiver of Defaults dated as of
March 29, 2005; and (x) the Tenth Amendment to Credit and Security
Agreement and Waiver of Defaults dated as of November 11, 2005 (as
so amended, the “Credit Agreement”). Capitalized terms
used in these recitals have the meanings given to them in the
Credit Agreement unless otherwise specified.
The Borrowers have requested that certain
amendments be made to the Credit Agreement, which the Lender is
willing to make pursuant to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants and agreements herein contained, it is
agreed as follows:
1.
Defined Terms
. Capitalized terms used in this
Amendment which are defined in the Credit Agreement shall have the
same meanings as defined therein, unless otherwise defined herein.
In addition, Section 1.1 of the Credit Agreement is amended by
adding or amending as the case may be, the following
definitions:
“Book Net Worth” means the aggregate
of the common and preferred stockholders’ equity in the
Borrower, determined in accordance with GAAP, and calculated
without regard to (i) any change in the valuation of goodwill made
in accordance with FASB Accounting Standard 142, and (ii) any
non-cash effects of accounting for stock based compensation in
accordance with FASB pronouncement SFAS 123(r).
“Cash Flow” means for a given
period, the sum of (i) Net Income and (ii) depreciation and
amortization, each as determined for such period in accordance with
GAAP.
“Eligible Accounts” means all unpaid
Accounts, net of any credits, except the following shall not in any
event be deemed Eligible Accounts:
(xii) Accounts owed by an account debtor, other than
the U.S. Department of Defense (U.S. Department of Navy, U.S.
Marine Corp., Defense Logistic Agency, etc.) and All Points
Logistics, regardless of whether otherwise eligible, to the extent
that the aggregate balance of such Accounts exceeds 15% of the
aggregate of all Accounts;
(xviv) Accounts owed by All Points Logistics,
regardless of whether otherwise eligible, to the extent that the
aggregate balance of such Accounts exceeds 20% of the aggregate
amount of all Accounts.
“Interest Rate Margin” means,
effective as of January 1, 2006, five percent (5.0%), provided,
however, that, if no Event of Default then exists:
(i) if the Borrower’s Cash Flow for the three
months ending March 31, 2006 is equal to or greater than $0, then
the Interest Rate Margin shall equal four percent
(4.0%);
(ii) if the Borrower’s Cash Flow for the six
months ending June 30, 2006 is equal to or greater than $0, then
the Interest Rate Margin shall equal four percent
(4.0%);
(iii) if the Borrower’s Cash Flow for the nine
months ending September 30, 2006 is (a) equal to or greater than
$1,467,830, then the Interest Rate Margin shall equal three percent
(3.0%) and (b) equal to or greater than $0 but less than
$1,467,830, then the Interest Rate Margin shall equal four percent
(4.0%); and
(iv) if the Borrower’s Cash Flow for the
twelve months ending December 31, 2006 is (a) equal to or greater
than $2,794,162, then the Interest Rate Margin shall equal one and
one half percent (1.5%), (b) equal to or greater than $2,394,162
but less than $2,794,162, then the Interest Rate Margin shall equal
two percent (2.0%), (c) equal to or greater than $1,467,830 but
less than $2,394,162, then the Interest Rate Margin shall equal
three percent (3.0%), and (d) equal to or greater than $0 but less
than $1,467,830, then the Interest Rate Margin shall equal four
percent (4.0%).
Any increase in the Interest Rate Margin shall
be effective on the first day of the month in which the Lender
receives the Borrower’s monthly financial statements. Any
decrease in the Interest Rate Margin shall be effective on the
first day of the month following the month in which the Lender
receives the Borrower’s monthly financial statements. If the
Lender does not receive the Borrower’s monthly financial
statements on the date that they are due, then the Interest Rate
Margin shall equal five percent (5.0%), and shall be effective on
the first day of that month.
If at any time the Interest Rate Margin has been
decreased and any of the Borrower’s financial statements show
that the Borrower was not entitled to such decrease, then the
Interest Rate Margin shall be increased to the Interest Rate Margin
to which the Borrower is entitled, such increase to be effective
retroactively to the date of such decrease. If at any time the
Interest Rate Margin has been decreased and an Event of Default
occurs, then the Interest Rate Margin shall equal five percent
(5.0%), and shall be effective on the first day of the month in
which the Event of Default occurs.
“Net Income” means fiscal
year-to-date before-tax net income from continuing operations, as
determined in accordance with GAAP, but excluding (i) any
extraordinary gains as determined in accordance with GAAP, (ii) any
change in the valuation of goodwill made in accordance with FASB
Accounting Standard 142, and (iii) any non-cash effects of
accounting for stock based compensation in accordance with FASB
pronouncement SFAS 123(r).
2.
Section 6.12
. Section 6.12 of the Credit
Agreement is amended and restated in its entirety to read as
follows:
“Section 6.12 Minimum Net Income .
The Borrower will maintain, during each period described below, its
Net Income, determined as at the end of each quarter, at an amount
not less than the amount set forth opposite such period (numbers
appearing between “( )” are negative):
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Three months ending March 31,
2006
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Six months ending June 30,
2006
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Nine months ending September 30,
2006
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Twelve months ending December 31,
2006
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If quarterly
Net Income, determined as at the end of each quarter is negative,
then the Borrower shall provide the Lender evidence, in form and
substance acceptable to the Lender in its sole discretion, that it
has received a cash infusion (in the form of equity or Subordinated
Debt) in an amount equal to or greater than the absolute value of
the negative quarterly Net Income, such cash infusion to be made no
later than 30 days after the monthly financial statements for such
quarter are due to the Lender, provided, however, that:
(a) if year-to-date Net Income, determined as at the
end of such quarter, is positive, no such cash infusion shall be
required, and
(b) if quarterly Net Income and year-to-date Net
Income, determined as at the end of such quarter, are both
negative, then the Borrower shall provide the Lender evidence, in
form and substance acceptable to the Lender in its sole discretion,
that it has received a cash infusion (in the form of equity or
Subordinated Debt) in an amount equal to or greater than the lesser
of:
(i)
the absolute value of the negative
quarterly Net Income, and
(ii)
the absolute value of the negative
year-to-date Net Income
such cash
infusion to be made no later than 30 days after the monthly
financial statements for such quarter are due to the Lender,
provided, further, however, that if the Borrower shall provide the
Lender evidence, in form and substance acceptable to the Lender in
its sole discretion, that it has received prior cash infusions (in
the form of equity or Subordinated Debt) for such fiscal year in an
amount equal to or greater than the absolute value of the negative
year-to-date Net Income, no additional cash infusion shall be
required.
If the Borrower shall provide the Lender
evidence, in form and substance acceptable to the Lender in its
sole discretion, that it has received the cash infusion (in the
form of equity or Subordinated Debt) in the amounts and in the time
periods required pursuant to this Section 6.12, then (i) any
default under this Section 6.12 for such quarter shall be deemed to
have been automatically waived by the Lender and (ii) any default
under Section 6.13 due solely to such negative quarterly Net Income
for such quarter shall be deemed to have been automatically waived
by the Lender.”
3.
Section 6.13
. Section 6.13 of the Credit
Agreement is amended and restated in its entirety to read as
follows:
“Section 6.13 Minimum Book Net Worth
Plus Subordinated Debt . The Borrower will maintain, during
each period described below, its Book Net Worth plus Subordinated
Debt, determined as at the end of each month, at an amount not less
than the amount set forth opposite such period:
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Minimum Book Net Worth Plus
Subordinated Debt
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December 31, 2006 and each month
thereafter
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4.
Section 6.14
. Section 6.14 of the Credit
Agreement is amended and restated in its entirety to read as
follows:
“Section 6.14 Minimum Average
Availability . The Borrower will maintain during each month,
determined as at the end of each month, average Availability (which
calculation will be based on a trailing three-month average) during
the month of not less than $500,000, which amount may be adjusted
at the sole discretion of the Lender.”
5.
Section 6.15
. Section 6.15 of the Credit
Agreement is amended and restated in its entirety to read as
follows:
“Section 6.15 New Covenants . On or
before November 30, 2006, the Borrower and the Lender shall agree
on new covenant levels for Sections 6.12, 6.13, 6.14, 7.4(c) and
7.10 for periods after such date. The new covenant levels
wi
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