EXHIBIT 10.1 (h)
AMENDMENT TO FIRST AMENDED AND RESTATED FINANCING AGREEMENT AND FIRST AMENDED
AND RESTATED LOAN AGREEMENT
This Amendment to First Amended and Restated Financing Agreement and
First Amended and Restated Loan Agreement (the "Amendment") dated as of January
3, 2002, by and between FIRST UNION NATIONAL BANK, a national banking
association (successor-in-interest to First Union National Bank of Tennessee)
(the "Bondholder"), and ADTRAN, Inc., a Delaware corporation (the "Borrower").
WHEREAS, the Bondholder, the Borrower and State Industrial Development
Authority (the "Issuer") are parties to a certain First Amended and Restated
Financing Agreement dated as of April 25, 1997 (as amended, modified and/or
supplemented from time to time, the "Existing Financing Agreement"), and the
Borrower and Issuer are parties to a certain First Amended and Restated Loan
Agreement dated as of April 25, 1997 (as amended, modified and/or supplemented
from time to time, the "Existing Loan Agreement"), pursuant to which the Issuer
agreed to issue a certain Amended and Restated Taxable Revenue Bond, Series 1995
(ADTRAN, Inc. Project) in the authorized principal amount of $50,000,000.00 (as
amended, modified and/or supplemented from time to time, the "Bond"), the
proceeds of which the Bondholder agreed to loan to the Borrower, which loan is
evidenced by a certain First Amended and Restated Note dated as of even date
therewith by the Borrower in favor of the Bondholder in the maximum original
principal amount of $50,000,000.00 (as amended, modified and/or supplemented
from time to time, the "Note"); and
WHEREAS, pursuant to the Existing Financing Agreement, the Issuer
assigned to the Bondholder all of its right, title and interest in and to the
Bond, the Existing Loan Agreement and the other Financing Documents; and
WHEREAS, the Borrower has requested the Bondholder, and the Bondholder
has agreed, to modify the interest rate applicable to the Note pursuant to the
Existing Financing Agreement, and to modify certain terms and conditions of the
Existing Loan Agreement, all on the terms and conditions contained in this
Amendment.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Definitions.
a. All defined terms used herein and not defined herein shall
have the meanings ascribed thereto in the Existing
Financing Agreement.
b. As used herein and hereafter as used in the Financing
Documents, the term "Financing Agreement", "Amended and
Restated Financing Agreement" or any other term referring to
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the Existing Financing Agreement on or after the date
hereof, shall mean the Existing Financing Agreement as
amended by this Amendment.
c. As used herein and hereafter as used in the Financing
Documents, the term "Loan Agreement", "Amended and
Restated Loan Agreement" or any other term referring to
the Existing Loan Agreement on or after the date hereof,
shall mean the Existing Loan Agreement as amended by
this Amendment.
2. Amendment to Existing Financing Agreement.
a. The definition of "Money Market Account-Based Rate"
in Section 1.01 of the Financing Agreement is hereby
deleted in its entirety and replaced with the following:
"Money Market Account-Based Rate shall mean a rate 45
basis points in excess of the Money Market Account Rate,
as determined on the date of initial issuance of the
Amended and Restated Bond and each Interest Payment Date
thereafter; provided, however, that commencing on
January 3, 2002 the Money Market Account-Based Rate
shall mean a fixed rate 20 basis points in excess of the
5-year CD rate (as hereinafter defined), as determined
on January 3, 2002. For the purposes hereof, "CD Rate",
means the rate for U.S. dollar certificates of deposit
with a maturity date equal to the number of years set
forth above, as published in the Federal Reserve
publication H.15 under the caption "CDs (secondary
market)" on the date of determination thereof, or if no
such rate is reported, then as determined by the Bank
from another recognized source of interbank quotation."
3. Conditions to Amendment. Unless otherwise agreed to by the
Bondholder in writing, concurrently with the execution of
this Amendment, and as a condition of its effectiveness:
a. The Borrower shall have duly executed and delivered
to the Bondholder that certain Amended and Restated
Investment Agreement dated as of the date hereof (the
"Investment Agreement");
b. The Borrower shall have duly executed and delivered
to the Bondholder that certain letter agreement dated as
of the date hereof relating to Section 4.03 of the
Financing Agreement (the "Letter Agreement");
c. The Borrower shall have duly established the
certificate of deposit with the Bondholder as required
by Section 1 of the Investment Agreement; and
d. The Borrower shall have paid any fees due and payable
in connection with this Amendment and the other
Modification Documents (as hereinafter defined) and all
costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by the Bondholder
in connection with this Amendment.
4. The Borrower's Representations and Warranties. The Borrower
hereby represents and warrants to the Bondholder as follows:
a. All of the representations and warranties made by the
Borrower in the Existing Financing Agreement, the
Existing Loan Agreement and the other Financing
Documents remain true, complete and accurate as of the
date hereof and as applied to this Amendment and the
Financing Documents, except to the extent that the
Borrower has advised the Bondholder otherwise in writing.
b. No Event of Default and no default exists, and no
event has occurred which with notice or lapse of time or
both would constitute a default or an Event of Default
under the Existing
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Financing Agreement or the Existing Loan Agreement,
except to the extent that the Borrower has previously
advised the Bondholder otherwise in writing and the
Bondholder has waived such default in writing, which the
Bondholder hereby waives, and the Bondholder
acknowledges that it is not aware of any existing
defaults under the Financing Documents; and the Borrower
has no claims, defenses or set-offs to its obligations
under the Financing Documents.
c. As of the date hereof, there has been no material
adverse change in the financial condition of the
Borrower from that reflected in the most recent
financial statements of the Borrower delivered to the
Bondholder.
d. The execution and performance by the Borrower of this
Amendment, the Investment Agreement, the Letter
Agreement and any other documents and agreements in
connection herewith (collectively, the "Modification
Documents"), have been duly authorized by all necessary
corporate action, will not violate any provision of law
applicable to the Borrower or any provision of its
charter or by-laws, will not result in a breach of or
constitute a default or require any consent under, or
result in the creation of any lien, charge or
encumbrance upon any property or assets of the Borrower
pursuant to any indenture or other agreement or
instrument by which the Borrower or any of its
properties may be bound or affected. This Amendment and
the other Modification Documents constitute legal, valid
and binding agreements of the Borrower, enforceable in
accordance with their respective terms, except as
enforceability may be affected by bankruptcy,
insolvency, moratorium or other laws affecting
creditors' rights generally.
5. Events of Default. A breach of any covenant, representation
or warranty set forth in this Amendment or any other
Modification Document by the Borrower shall constitute an
Event of Default under the Financing Agreement and the Loan
Agreement.
6. Effect of Amendment. Except as expressly amended and
supplemented hereby, the Existing Financing Agreement, the
Existing loan Agreement, the Bond and all of the Financing
Documents in effect as of the date hereof shall remain in full
force and effect, unmodified, and are enforceable against the
Borrower in accordance with their respective terms.
7. Further Modifications. This Amendment contains all of the
modifications to the Existing Financing Agreement and the
Existing Loan Agreement, and no further or other modifications
to the Existing Financing Agreement or the Existing Loan
Agreement shall be effective unless in writing executed by the
Bondholder and the Borrower.
8. Binding Effect. This Amendment shall extend to and bind the
parties hereto and their respective successors and permitted
assigns.
9. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the jurisdiction
applicable pursuant to the Loan Agreement.
10. Counterparts. This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute
one and the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to First
Amended and Restated Financing Agreement and First Amended and Restated Loan
Agreement to be duly executed as of the date first above written.
FIRST UNION NATIONAL BANK
By: /s/ Robyn G. Beh
--------------------
Robyn G. Beh
Vice President
ATTEST: ADTRAN, Inc.
/s/ Luzma Doughty By: /s/ Howard A. Thrailkill
- ----------------- ----------------------------
Luzma Doughty Howard A. Thrailkill
Executive Assistant President
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CONSENT OF ORIGINAL ISSUER
The State Industrial Development Authority hereby consents to the foregoing
Amendment to the First Amended and Restated Financing Agreement and First
Amended and Restated Loan Agreement dated as of January 2, 2002.
Dated: January 2, 2002.
STATE INDUSTRIAL DEVELOPMENT
AUTHORITY
By:/s/ Henry C. Mabry, III
---------------------------
Henry C. Mabry, III
Secretary
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