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ELEVENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT AND WAIVER OF DEFAULTS

Forbearance Agreement

ELEVENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT AND WAIVER OF DEFAULTS | Document Parties: SAN HOLDINGS INC | SANZ INC | WELLS FARGO BANK | SOLUNET STORAGE, INC You are currently viewing:
This Forbearance Agreement involves

SAN HOLDINGS INC | SANZ INC | WELLS FARGO BANK | SOLUNET STORAGE, INC

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Title: ELEVENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT AND WAIVER OF DEFAULTS
Date: 5/15/2006
Industry: Software and Programming    

ELEVENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT AND WAIVER OF DEFAULTS, Parties: san holdings inc , sanz inc , wells fargo bank , solunet storage  inc
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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%).

 

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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):

 

Period

 

Minimum Net Income

Three months ending March 31, 2006

 

($600,000)

Six months ending June 30, 2006

 

($935,759)

Nine months ending September 30, 2006

 

$350,000

Twelve months ending December 31, 2006

 

$1,000,000

 

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:

 

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(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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Period

 

Minimum Book Net Worth Plus Subordinated Debt

March 31, 2006

 

$19,497,403

April 30, 2006

 

$19,354,065

May 31, 2006

 

$19,051,863

June 30, 2006

 

$19,704,162

July 31, 2006

 

$19,992,421

August 31, 2006

 

$20,000,157

September 30, 2006

 

$21,229,921

October 31, 2006

 

$21,457,194

November 30, 2006

 

$21,459,894

December 31, 2006 and each month thereafter

 

$22,119,921”

 

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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