Exhibit 10.24
ELEVENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT AND WAIVER
THIS ELEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AND WAIVER (the "Amendment") is dated as of August 31, 1998, and is by and among
AMERICABLE, INC., a Minnesota corporation ("Americable"), CABLE DISTRIBUTION
SYSTEMS, INC., a Georgia corporation ("Cable"), (Americable and Cable are
hereinafter each individually referred to as an "Original Borrower" and
collectively as the "Original Borrowers") ENSTAR NETWORKING CORPORATION, a
Minnesota corporation ("ENC") (Americable, Cable, and ENC are hereinafter each
individually referred to as a "Borrower" and collectively as the "Borrowers")
and U.S. BANK NATIONAL ASSOCIATION, a national banking association and the
successor by merger with First Bank National Association, (the "Bank").
Capitalized terms not otherwise expressly defined herein shall have the meanings
set forth in the Loan Agreement hereinafter described.
RECITALS
WHEREAS, the Original Borrowers and the Bank are parties to an Amended and
Restated Loan and Security Agreement, dated as of June 1, 1993, as amended by a
First Amendment dated as of November 29, 1993, a Waiver, a Second Amendment
dated March 3, 1995, a Third Amendment dated May 31, 1996, a letter amendment
dated June 28, 1996, a letter amendment dated July 31, 1996, a Sixth Amendment
dated as of August 9, 1996, a Seventh Amendment dated as of May 29, 1997, an
Eighth Amendment dated as of September 30, 1997, a Ninth Amendment dated as of
March 5, 1998, and a Tenth Amendment dated as of June 30, 1998 (as so amended,
the "Loan Agreement");
WHEREAS, the Borrows have requested and the Bank has agreed further to
amend the Loan Agreement;
WHEREAS, the Bank desires to waive the Borrowers' compliance with certain
provisions of the Loan Agreement,
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE 1 - AMENDMENTS TO LOAN AGREEMENT
1.1 Amendments to Loan Agreement. As of the effective date of this
Amendment, Section 5.4 of Supplement A attached to the Assumption Agreement and
Ninth Amendment to Amended and Restated Loan and Security Agreement and Waiver
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is hereby amended in its entirety to read as follows:
"5.4 Capital Expenditures. Make Capital Expenditures in an amount
exceeding $1,000,000 determined on a consolidated basis for the Borrowers
only (excluding Transition) during Americable's fiscal year ending
December 31, 1998."
1.2 Construction. All references in the Loan Agreement to "this
Agreement," "herein" and similar references shall be deemed to refer to the Loan
Agreement as amended by this Amendment.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Amendment and to make and maintain
the Loans under the Loan Agreement as amended hereby, the Borrowers hereby
warrant and represent to the Bank that: (a) The execution, delivery and
performance by the Borrowers of this Amendment and any other documents to which
any Borrower is a party have been duly authorized by all necessary corporate or
partnership action, do not require any approval or consent of, or any
registration, qualification or filing with, any government agency or authority
or any approval or consent of any other person (including, without limitation,
any stockholder or partner), do not and will not conflict with, result in any
violation of or constitute any default under, any provision of such Borrower's
articles of incorporation or bylaws, any agreement binding on or applicable to
such Borrower or any of its property, or any law or governmental regulation or
court decree or order, binding upon or applicable to such Borrower or of any
of its property and will not result in the creation or imposition of any
security interest or other lien or encumbrance in or on any of its property
pursuant to the provisions of any agreement applicable to the such Borrower
or any of its property; (b) The Loan Agreement as amended by this Amendment
is the legal, valid and binding obligations of each Borrower and is enforceable
in accordance with its terms, subject only to bankruptcy, insolvency,
reorganization, moratorium or similar laws, rulings or decisions at the time in
effect affecting the enforceability of rights of creditors generally and to
general equitable principles which may limit the right to obtain equitable
remedies.
ARTICLE III - CONDITIONS AND EFFECTIVENESS
This Amendment shall become effective on the date first set forth above,
provided, however, that the effectiveness of this Amendment is subject to the
satisfaction of each of the following conditions:
3.1 Before and after giving effect to this Amendment, the representations
and warranties in ARTICLE IV of the Loan Agreement shall be true and correct as
though made on the date hereof except for changes that are permitted by the
terms of the Loan Agreement. The execution by the Borrowers of this Amendment
shall be deemed a representation that the Borrowers have complied with the
foregoing condition.
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3.2 Before and after giving effect to this Amendment, no Event of Default
or no Default, shall have occurred and be continuing under the Loan Agreement
except for those expressly waived by the terms hereof. The execution by the
Borrowers of this Amendment shall be deemed a representation that the
Borrowers have complied with the foregoing condition.
3.3 The Bank shall have received the following documents appropriately
completed and duly executed by the Borrowers and the other Obligors where
appropriate:
(a) This Amendment appropriately completed and duly executed by
the Borrowers, together with a resolution of each of the Borrowers
authorizing the execution and delivery of this Amendment in form and
substance satisfactory to the Bank;
(b) An Acknowledgment and Consent duly executed by ENStar in form
and substance satisfactory to the Bank; and
(c) Such other approvals, opinions or documents, as the Bank may
reasonably request.
ARTICLE IV - GENERAL
4.1 Expenses. The Borrowers jointly and severally agree to reimburse the
Bank upon demand for all reasonable expenses, including reasonable fees of
attorneys (who may be employees of the Bank) and legal expenses incurred by the
Bank in the preparation, negotiation and execution of this Amendment and any
other document required to be furnished herewith, and in enforcing the
obligations of the Borrowers hereunder, and to jointly and severally pay and
save the Bank harmless from all liability for, any stamp or other taxes which
may be payable with respect to the execution or delivery of this Amendment,
which obligations of the Borrowers shall survive any termination of the Loan
Agreement.
4.2 Counterparts. This Amendment may be executed in as many counterparts
as may be deemed necessary or convenient, and by the different parties hereto
on separate counterparts, each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
instrument.
4.3 Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
4.4 Law. This Amendment shall be a contract made under the laws of the
State of Minnesota, which laws shall govern all the rights and duties hereunder.
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4.5 Successors: Enforceability. This Amendment shall be binding upon the
Borrowers and the Bank and their respective successors and assigns, and shall
inure to the benefit of the Borrowers and the Bank and the successors and
assigns of the Bank. Except as hereby amended, the Loan Agreement shall remain
in full force and effect and is hereby ratified and confirmed in all respects.
4.6 Recitals. The recitals hereto are incorporated herein by reference
and constitute an integral part of this Amendment.
4.7 Acknowledgement and Release. In order to induce the Bank to enter
into this Amendment, the Borrowers: (a) represent and warrant to the Bank that
no events have taken place and no circumstances exist at the date hereof which
would give the Borrowers the right to assert a defense, offset or counterclaim
to any claim by the Bank for payment of the Obligations; and (b) hereby release
and forever discharge the Bank and its successors, assigns, directors, officers,
agents, employees and participants from any and all actions, causes of action,
suits, proceedings, debts, sums of money, covenants, contracts, controversies,
claims and demands, at law or in equity, which the Borrowers ever had or now
have against the Bank or its successors, assigns, directors, officers, agents,
employees or participants by virtue of their relationship to the Borrowers in
connection with the Loan Documents and the transactions related thereto.
ARTICLE V - WAIVER
5.1 Waiver. On the date on which this Amendment becomes effective in
accordance with ARTICLE III hereof, the Lender agrees to waive Event of Default
arising under Section 7.1(g)(i) of the Loan Agreement because of the Borrowers'
violation of Section 5.4 of Supplement A at any time during Americable's 1998
fiscal year prior to August 31, 1998. The waiver granted herein is limited to
the specific Events of Default arising under the Loan Agreement described above
and is not intended, and shall not be construed, to be a general waiver of any
term or provision of the Loan Agreement or a waiver of any other existing or
future Unmatured Event of Default or Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
AMERICABLE, INC., a Minnesota corporation
By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Vice President, Finance
CABLE DISTRIBUTION SYSTEMS, INC.,
a Georgia corporation
By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Vice President, Finance
ENSTAR NETWORKING CORPORATION,
a Minnesota corporation
By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Vice President, Finance
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
and the successor by merger with
First Bank National Association
By: /s/
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Xxx Xxxxxxxx
Assistant Vice President
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