SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 For the Quarterly
Period Ended March 31, 1997
OR
[ ] Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 For the Transition
Period from ______ to ______
Commission File Number 0-24612
ADTRAN, INC.
(Exact name of Registrant as specified in its charter)
Delaware 63-0918200
(State of Incorporation) (I.R.S. Employer
Identification No.)
901 Explorer Boulevard, Huntsville, Alabama 35806-2807
(Address of principal executive offices, including zip code)
(205) 963-8000
(Registrant's telephone number, including area code)
---------------
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes x No
Indicate the number of shares outstanding of each of the issuer's classes of
Common Stock as of the latest practicable date:
Class Outstanding at April 30, 1997
Common Stock, $.01 Par Value 39,209,139 shares
Page 1 of 16
Index of Exhibits on Page 14
<PAGE>
ADTRAN, INC.
Quarterly Report on Form 10-Q For the Quarter
Ended March 31, 1997
Table of Contents
Item Number PART I. FINANCIAL INFORMATION Page Number
1 Financial Statements:
Condensed Balance Sheets as of December 31, 1996
and March 31, 1997 3
Condensed Statements of Income for the three
months ended March 31, 1996 and 1997 4
Condensed Statements of Cash Flows for the three
months ended March 31, 1996 and 1997 5
Notes to Condensed Financial Statements 6
2 Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
PART II. OTHER INFORMATION
6 Exhibits and Reports on Form 8-K 12
SIGNATURE 13
INDEX OF EXHIBITS 14
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ADTRAN, INC.
CONDENSED BALANCE SHEETS
<TABLE>
<CAPTION>
ASSETS
December 31, March 31,
1996 1997
(Unaudited)
<S> <C> <C>
Current assets:
Cash and cash equivalents................ $44,839,131 $49,542,844
Short-term investments................... 32,555,930 30,550,210
Accounts receivable, less allowance for
doubtful accounts of $872,724 and
$870,842 in 1996 and 1997,
respectively........................ 33,825,560 32,704,720
Other receivables....................... 362,578 295,595
Inventory............................... 40,792,646 48,082,345
Prepaid expenses........................ 2,261,338 1,965,379
Deferred tax assets..................... 1,598,750 1,598,750
------------ ------------
Total current assets 156,235,933 164,739,843
Property, plant and equipment, less accumulated
depreciation of $13,637,007 and $15,350,751
in 1996 and 1997, respectively......... 53,971,213 59,779,483
------------ ------------
$210,207,146 $224,519,326
============ ============
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Accounts payable...................... $9,350,266 $10,909,111
Accrued salaries...................... 2,454,194 1,494,429
Accrued income taxes.................. 1,803,706 5,609,550
Accrued taxes other than income taxes. 338,997 337,318
Accrued interest payable.............. 59,594 59,594
Warranty payable...................... 1,026,156 1,026,156
Accrued vacation...................... 693,218 859,804
----------- -----------
Total current liabilities 15,726,131 20,295,962
Long term liabilities:
Long term debt........................ 20,000,000 20,000,000
Deferred income taxes................. 1,602,116 1,602,116
----------- -----------
Total liabilities 37,328,247 41,898,078
----------- ----------
Stockholders' equity:
Common stock, par value $.01 per share
60,000,000 shares authorized:
38,769,514 and 39,202,689 shares
issued in 1996 and 1997, respectively 387,695 392,027
Additional paid-in capital............ 90,172,863 90,388,612
Retained earnings..................... 82,318,341 91,840,609
----------- ------------
Total stockholders' equity............. 172,878,899 182,621,248
------------ ------------
$210,207,146 $224,519,326
============ ============
</TABLE>
See notes to condensed financial statements
<PAGE>
ADTRAN, INC.
CONDENSED STATEMENTS OF INCOME
Unaudited
<TABLE>
<CAPTION>
Three Months Ended
March 31,
1996 1997
<S> <C> <C>
Sales................................... $54,544,441 61,230,184
Cost of sales........................... 28,809,326 29,438,797
------------ -----------
Gross profit.................. 25,735,115 31,791,387
Selling, general and administrative
expenses.............................. 7,257,687 10,537,516
Research and development expenses....... 5,501,374 6,995,257
----------- ----------
Income from operations........ 12,976,054 14,258,614
Interest expense........................ (280,036) (242,534)
Other income, net....................... 411,427 862,465
------------ -----------
Income before income taxes............... 13,107,445 14,878,545
Provision for income taxes............... (4,484,057) (5,356,277)
------------ ------------
Net income..................... $8,623,388 $9,522,268
========== ==========
Net income per common and common
equivalent share............... $ .22 $ .24
----------- ----------
Weighted average common and common
equivalent shares outstanding.. 39,549,106 39,557,130
=========== ===========
</TABLE>
See notes to condensed financial statements
<PAGE>
ADTRAN, INC.
CONDENSED STATEMENTS OF CASH FLOWS
Unaudited
<TABLE>
<CAPTION>
Three Months Ended
March 31,
1996 1997
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income............................................... $8,623,388 $9,522,268
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation.......................................... 975,566 1,716,073
Provision for losses on accounts receivable........... (1,191) 0
Provision for losses on inventory..................... 596,741 211,975
(Gain) loss on sale of property, plant and equipment.. (329) (2,197)
(Gain) loss on short-term investments................. 316,165 5,720
Change in operating assets:
Accounts receivable.............................. 118,515 1,120,839
Inventory........................................ (6,879,727) (7,501,674)
Other receivables................................ 664,771 66,984
Prepaid expenses................................. (510,232) 295,959
Change in operating liabilities:
Accounts payable................................. (1,276,277) 1,558,845
Accrued salaries................................. (482,505) (959,765)
Accrued income taxes............................. 4,039,760 3,805,845
Accrued taxes other than income taxes............ 2,197 (1,679)
Accrued interest payable......................... 226,633 0
Accrued vacation................................. 149,702 166,586
---------- ---------
Net cash provided by operating activities............... 6,563,177 10,005,779
----------- -----------
Cash flows from investing activities:
Expenditures for property, plant and equipment........... (5,967,221) (7,536,817)
Proceeds from the disposition of property, plant and
equipment 4,602 14,671
Net (purchase) sale of short-term investments............ (2,513,100) 2,000,000
----------- -----------
Net cash provided by (used in) investing activities...... (8,475,720) (5,522,146)
----------- -----------
Cash flows from financing activities:
Proceeds from issuance of common stock................... 187,316 220,080
----------- ----------
Net cash provided by financing activities................ 187,316 220,080
----------- ----------
Net increase (decrease) in cash and cash equivalents..... (1,725,227) 4,703,713
Cash and cash equivalents, beginning of period................ 35,027,609 44,839,131
----------- ----------
Cash and cash equivalents, end of period...................... $33,302,382 $49,542,844
=========== ===========
Supplemental disclosure of cash flow information:
Cash paid during the period for interest, net of
$393,096 and $72,966 of capitalized interest in
1996 and 1997, respectively........................ $ 111,458 $ 242,534
=========== ===========
Cash paid during the period for taxes.................... $ 500,000 $ 1,714,580
=========== ===========
</TABLE>
See notes to condensed financial statements
<PAGE>
ADTRAN, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited condensed financial statements of ADTRAN,Inc.
(the "Company") have been prepared pursuant to the rules and regulations for
reporting on Form 10-Q. Accordingly, certain information and notes required by
generally accepted accounting principles for complete financial statements are
not included herein. In the opinion of management, all adjustments necessary for
a fair presentation of these interim statements have been included and are of a
normal and recurring nature. Operating results for the three months ended March
31, 1997 are not necessarily indicative of the results that may be expected for
the year ending December 31, 1997.The interim statements should be read in
conjunction with the financial statements and notes thereto included in the
Company's latest Annual Report on Form 10-K.
2. INVENTORY
At December 31, 1996 and March 31, 1997, inventory consisted of the
following:
December 31, March 31,
1996 1997
Raw materials $24,454,251 $26,419,020
Work in progress 2 963,220 4,761,198
Finished goods 13,375,175 16,902,127
----------- -----------
$40,792,646 $48,082,345
=========== ===========
3. THE ALABAMA STATE INDUSTRIAL DEVELOPMENT AUTHORITY
The Company's long-term debt outstanding as of March 31, 1997 consisted of
a loan in the amount of $20,000,000 related to the expansion of the Company's
facilities in Huntsville, Alabama. The Company is continuing a project to expand
its facilities in Huntsville in several phases over the next three years at a
cost of approximately $131,000,000 of which $41,261,967 had been incurred at
March 31, 1997. The debt associated with $50,000,000 of this project has been
approved for participation in an incentive program offered by the Alabama State
Industrial Development Authority (the "Authority"). That program enables
participating companies such as the Company to generate Alabama corporate income
tax credits that can be used to reduce the amount of Alabama corporate income
taxes that would otherwise be payable. In January 1995, the Authority issued
$20,000,000 of its taxable revenue bonds (the "Original Bond"), pursuant to such
program and loaned the proceeds from the sale of the Original Bond to the
Company. The Original Bond was purchased by AmSouth Bank of Alabama, Birmingham,
Alabama (the "Bank"), pursuant to a Financing Agreement dated January 1, 1995
(the "Original Financing Agreement"). First Union National Bank of Tennessee
(the "Bondholder") agreed to purchase the Original Bond from the Bank. On April
21, 1997, the Authority adopted a resolution authorizing the amendment of
documents relating to the $50,000,000 Taxable Revenue Bond, Series 1995 (ADTRAN,
Inc. Project). On April 25, 1997, the Bondholder, pursuant to the First Amended
and Restated Financing Agreement dated April 25, 1997, purchased the Original
Bond from the Bank. The Authority issued an additional $30,000,000 of its
taxable revenue bonds (the "Amended and Restated Bond"), pursuant to such
program and loaned the proceeds form the sale of the Amended and Restaed Bond to
the Company, increasing the Company's long-term debt to $50,000,000 as of April
25, 1997. The Amended and Restated Bond was purchased by the Bondholder. The
Amended and Restated Bond will bear interest, payable monthly, at the rate of 45
basis points over the money market rate of the Bondholder and will mature on
January 1, 2020. The Company has agreed to make payments to the Authority in
amounts necessary to pay the principal of and interest on the Original Bond and
the Amended and Restated Bond. Construction on the project began in March 1995
and certain phases were completed by March 31, 1997. There can be no assurance
that the State of Alabama will continue to make these corporate income tax
credit available in the future, and the Company therefore may not realize the
full benefit of these incentives.
4. RECENT ACCOUNTING DEVELOPMENTS
In February 1997, the Financial Accounting Standards Board Issued Statement
of Financial Accounting Standards No. 128, "Earnings Per Share" (SFAS 128). SFAS
128 supersedes existing generally accepted accounting principles relative to the
calculation of earnings per share, is effective for years ending after December
15, 1997 and requires restatement of all prior period earnings per share
information upon adoption. Generally, SFAS 128 requires a calculation of basic
earnings per share, which takes into consideration income (loss) available to
common shareholders and the weighted average of common shares outstanding. SFAS
128 also requires the calculation of a diluted earnings per share, which takes
into account the impact of all additional common shares that would have been
outstanding if all dilutive potential common shares relating to options,
warrants, and convertible securities had been issued, as long as their effect is
dilutive, with a related adjustment of income available for common shareholders,
as appropriate. SFAS 128 requires dual presentation of basic and diluted
earnings per share on the face of the statement of operations and requires a
reconciliation of the numerator and denominator of the basic earnings per share
computation. The Company does not expect the effect of its adoption of SFAS 128
to be material.
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Overview
ADTRAN, Inc. (the "Company") designs, develops, manufactures, markets and
services a broad range of high speed digital transmission products utilized by
telephone companies ("Telcos") and corporate end-users to implement advanced
digital data services over existing telephone networks. The Company currently
sells its products to Telcos (including all of the Regional Bell Operating
Companies), Original Equipment Manufacturers ("OEMs") and, since 1991, private
end-users in the Customer Premises Equipment ("CPE") market.
The Company's sales have increased each year due primarily to increases in
the number of units sold to both new and existing customers. These annual sales
increases reflect the Company's strategy of increasing unit volume and market
share through the introduction of succeeding generations of products having
lower selling prices and increased functionality as compared to the prior
generation of a product and to the products of competitors. An important part of
the Company's strategy is to engineer the reduction of the product cost of each
succeeding product generation and then to lower the product's price based on the
cost savings achieved. As a part of this strategy, the Company seeks in most
instances to be a low cost, high quality provider of products in its markets.
The Company's success to date is attributable in large measure to its ability to
initially design its products with a view to their subsequent re-design,
allowing efficient enhancements of the product in each succeeding product
generation. This strategy has enabled the Company to sell succeeding generations
of products to existing customers as well as to increase its market share by
selling these enhanced products to new customers.
The Company intends to retain all earnings for use in the development of
its business and does not anticipate paying any cash dividends in the
foreseeable future.
When used in this Form 10-Q, the words "believe," "anticipate," "think,"
"intend," "will be," and similar expression identify forward looking statements.
Such statements are subject to certain risks and uncertainties which could cause
actual results to differ materially from those projected. Readers are cautioned
not to place undue reliance on these forward looking statements which speak only
as of the date hereof. Readers are also urged to carefully review and consider
the various disclosures made by the Company which attempt to advise interested
parties of the factors which affect the Company's business, including the
disclosures made in other periodic reports on Forms 10-K, 10-Q and 8-K filed
with the Securities and Exchange Commission.
<PAGE>
Results of Operations - Three Months Ended March 31, 1996 Compared to Three
Months Ended March 31, 1997
Sales
The Company's sales increased 12.3% from $54,544,441 in the three months
ended March 31, 1996 to $61,230,184 in the three months ended March 31, 1997.
The increased sales resulted from an increase in sales volume to existing
customers and from increased market penetration. Sales to Telcos increased 14.9%
from $32,385,385 in the three months ended March 31, 1996 to $37,208,097 in the
three months ended March 31, 1997. The increase in Telco sales in the 1997
period resulted primarily from increased sales of Integrated Services Digital
Network ("ISDN") products and increased sales of High bit-rate Digital
Subscriber Line ("HDSL") products. Telco sales as a percentage of total sales
increased from 59.4% in the three months ended March 31, 1996 to 60.8% in the
three months ended March 31, 1997. Sales of CPE products increased 16.0% from
$15,143,210 in the three months ended March 31, 1996 to $17,568,943 in the three
months ended March 31, 1997, as a result of increased CPE sales of ISDN products
and T1 Service Unit ("TSU") products. OEM sales decreased 8.0% from $7,015,846
in the three months ended March 31, 1996 to $6,453,144 in the three months ended
March 31, 1997. This decrease was attributable primarily to reduced demand
related to mature programs combined with the low volume normally encountered on
new programs. Additionally, the Company has converted numerous products
originally developed under OEM contract status to ADTRAN standard product
status. This conversion was accomplished with permission from the OEM contract
holders and was done to allow the Company to pursue markets directly that will
no longer support a two tier distribution structure. The financial effect of
the increase in overall unit volume was offset somewhat by lower unit selling
prices for many of the Company's products.
Cost of Sales
Cost of sales increased 2.2% from $28,809,326 in the three months ended
March 31, 1996 to $29,438,797 in the three months ended March 31, 1997,
primarily as a result of the increase in sales. As a percentage of sales, cost
of sales decreased from 52.8% in the three months ended March 31, 1996 to 48.1%
in the three months ended March 31, 1997. An important part of the Company's
strategy is to reduce the product cost of each succeeding product generation and
then to lower the product's price based on the cost savings achieved. This
strategy sometimes results in variations in the Company's gross profit margin
due to timing differences between recognition of cost reductions and the
lowering of product selling prices. In view of the rapid pace of new product
introductions by the Company, this strategy may result in variations in gross
profit margins that,for any particular financial period, can be difficult to
predict.
Selling, General and Administrative Expenses
Selling, general and administrative expenses increased 45.2% from
$7,257,687 in the three months ended March 31, 1996 to $10,537,516 in the three
months ended March 31, 1997. The increase was due to additional sales and
support expenditures necessary as a result of the Company's expanded sales base.
Selling, general and administrative expenses as a percentage of sales increased
from 13.3% in the three months ended March 31, 1996 to 17.2% in the three months
ended March 31, 1997.
Research and Development Expenses
Research and development expenses increased 27.2% from $5,501,374 in the
three months ended March 31, 1996 to $6,995,257 in the three months ended March
31, 1997. The increase was due to increased engineering costs associated with
new product introductions and product cost and feature enhancement activities.
As a percentage of sales, research and development expenses increased from 10.1%
in the three months ended March 31, 1996 to 11.4% in the three months ended
March 31, 1997.
<PAGE>
Interest Expense
Interest expense decreased 13.4% from $280,036 in the three months ended
March 31, 1996 to $242,534 in the three months ended March 31, 1997. This
decrease was due to capitalization of the interest cost incurred as a part of
the cost of acquiring certain assets. The Company paid interest on $20,000,000
of revenue bond proceeds loaned to the Company in January 1995, which proceeds
are being used to expand the Company's facilities in Huntsville, Alabama. See
"Liquidity and Capital Resources" below.
Net Income
As a result of the above factors, net income increased 10.4% from
$8,623,388 in the three months ended March 31, 1996 to $9,522,268 in the three
months ended March 31, 1997. As a percentage of sales, net income decreased
slightly from 15.8% in the three months ended March 31, 1996 to 15.6% in the
three months ended March 31, 1997.
Liquidity and Capital Resources
The Company is continuing a project to expand its facilities in Huntsville
in several phases over the next three years at a cost of approximately
$131,000,000 of which $41,261,967 had been incurred at March 31, 1997. The debt
associated with $50,000,000 of this project has been approved for participation
in an incentive program offered by the Alabama State Industrial Development
Authority (the "Authority"). The Authority issued an additional $30,000,000 of
its taxable revenue bonds (the "Amended and Restated Bond"), pursuant to such
program and loaned the proceeds from the sale of the Amended and Restated
Bond to the Company, increasing the Company's long-term debt to $50,000,000 as
of April 25, 1997. The Company will make payments to the Authority in amounts
necessary to pay the principal of and interest on the Amended and Restated Bond,
which matures on January 1, 2020.
The Company's working capital position improved from $140,509,802 as of
December 31, 1996 to $144,443,881 as of March 31, 1997. This improvement in the
Company's working capital position was due primarily to increased earnings. The
Company has used, and expects to continue to use, the remaining proceeds of
prior public offerings for working capital and other general corporate purposes,
including (i) product development activities to enhance its existing products
and develop new products and (ii) expansion of sales and marketing activities.
Inventory increased 17.9% from December 31, 1996 to March 31, 1997. This
increase was attributable to the Company's desire to ship larger orders to
customers from available stock.
Capital expenditures totaling $29,661,438 in 1996 and $7,536,817 in the
first three months of 1997 were used to expand the Company's headquarters and to
purchase equipment.
At March 31, 1997, the Company's cash on hand of $49,542,844 short-term
investments of $30,550,210 and $10,000,000 available under a $10,000,000 bank
line of credit placed the Company's potential cash availability at $90,093,054,
of which a portion is being used to expand the Company's facilities under the
incentive program described above. The Company's $10,000,000 bank line of credit
bears interest at the rate of 87.5 basis points over the 30 day London
inter-bank offered rate and expires in May 1997. The Company intends to renew
its $10,000,000 bank line of credit upon expiration.
The Company intends to finance its operations in the future with cash flow
from operations, the remaining net proceeds of the public offerings, amounts
available under the bank line of credit, borrowed taxable revenue bond proceeds,
and possible additional public financings. These available sources of funds are
expected to be adequate to meet the Company's operating and capital needs for
the foreseeable future.
<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are being filed with this report.
Exhibit No. Description
10.1 Documents relating to the $50,000,000 Taxable
Revenue Bond, Series 1995 (ADTRAN, Inc.
Project) issued by the State Industrial
Development Authority.
(a) First Amended and Restated Financing
Agreement dated April 25, 1997
among the State Industrial Development
Authority,a public corporation organized
under the laws of the State of Alabama
(the "Authority"), the Company and First
Union National Bank of Tennessee, a
national banking corporation (the
Bondholder);
(b) First Amended and Restated Loan
Agreement dated April 25, 1997
between the Authority and the Company;
(c) First Amended and Restated Specimen
Taxable Revenue Bond, Series 1995
(ADTRAN, Inc. Project);
(d) First Amended and Restated Specimen Note
from the Company the the Bondholder,
dated April 25, 1997;
(e) Investment Agreement dated April 25,
1997 among the Company, the Bondholder
and AmSouth Bank of Alabama, an
Alabama banking corporation;
(f) Resolution of the Authority authorizing
the amendment of certain documents dated
April 25, 1997 relating to the
$50,000,000 Taxable Revenue Bond, Series
1995 (ADTRAN, Inc. Project);
(g) Resolution of the Company authorizing
the First Amended and Restated Financing
Agreement, the First Amended and
Restated Loan Agreement, the First
Amended and Restated Note and the
Investment Agreement.
11 Weighted Average Common and Common Equivalent
Shares Outstanding
27 Financial Data Schedule
(b) Reports on Form 8-K. None
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ADTRAN, INC.
(Registrant)
Date: May 9, 1997 /s/John R. Cooper
-----------------
John R. Cooper
Vice President - Finance and
Chief Financial Officer
<PAGE>
INDEX OF EXHIBITS
Exhibit No. Description Page Number
10.1 Documents relating to the $50,000,000 Taxable
Revenue Bond, Series 1995 (ADTRAN, Inc.Project
issued by the State Industrial Development
Authority.
(a) First Amended and Restated Financing Agreement dated
April 25, 1997, among the State Industrial Development
Authority, a public corporation organized under
the laws of the State of Alabama (the "Authority")
the Company and First Union National Bank of
Tennessee, a national banking corporation (the Bondholder)
(b) First Amended and Restated Loan Agreement dated
April 25, 1997 between the Authority and the Company;
(c) First Amended and Restated Specimen Taxable Revenue
Bond, Series 1995 (ADTRAN, Inc. Project);
(d) First Amended and Restated Specimen Note from the
Company the the Bondholder, dated April 25, 1997;
(e) Investment Agreement dated April 25, 1997 among the
Company, the Bondholder and AmSouth Bank of Alabama,
an Alabama banking corporation;
(f) Resolution of the Authority authorizing the amendment
of certain documents dated April 25, 1997 relating to
the $50,000,000 Taxable Revenue Bond, Series 1995
(ADTRAN, Inc. Project);
(g) Resolution of the Company authorizing the First Amended
and Restated Financing Agreement, the First Amended and
Restated Loan Agreement, the First Amended and Restated
Note and the Investment Agreement.
11 Weighted Average Common and Common Equivalent
Share Outstanding 15
27 Financial Data Schedule 16
THIS FIRST AMENDED AND RESTATED FINANCING AGREEMENT dated as of April 25,
1997 is entered into by the STATE INDUSTRIAL DEVELOPMENT AUTHORITY, a public
corporation organized under the laws of the State of Alabama (the "Issuer"),
ADTRAN, INC., a corporation organized under the laws of the State of Delaware
(the "Company"), and FIRST UNION NATIONAL BANK OF TENNESSEE, a national banking
association, with its principal office in the City of Nashville, Tennessee (the
"Bondholder").
Recitals
The Issuer has heretofore issued its Taxable Revenue Bond, Series 1995
(ADTRAN, Inc. Project) in an authorized principal amount of $50,000,000 (the
"Original Bond") pursuant to that certain Financing Agreement dated as of
January 1, 1995 among the issuer, the Company and AmSouth Bank of Alabama
("AmSouth") (the "Original Financing Agreement").
Pursuant to the Original Financing Agreement, AmSouth agreed to make a loan
or loans ("Advances") to the Issuer in an amount not to exceed $50,000,000 for
the purpose of financing the acquisition, construction and equipping of certain
office, manufacturing, design, engineering, assembling and distribution
facilities referred to as the "Project". An Advance of $20,000,000 was made
pursuant to the Original Financing Agreement.
The Bondholder has now agreed to purchase the Original Bond from AmSouth,
and to make a further Advance to the Issuer in an aggregate amount not to exceed
$50,000,000 total authorized amount (including the advance under the Original
Financing Agreement) in order to complete the financing of the Project. In
connection with the execution and deliver of this Amended and Restated Financing
Agreement, the Issuer will issue its Amended and Restated Taxable Revenue Bond,
Series 1995 (ADTRAN, INC. Project) in an authorized principal amount of
$50,000,000 (the "Amended and Restated Bond") pursuant to this Amended and
Restated Financing Agreement. The Original Bond as amended and restated by the
Amended and Restated Bond is herein referred to as the "Bond". The Original
Financing Agreement as amended and restated by this Amended and Restated
Financing Agreement is herein referred to as the "Financing Agreement". The Bond
will continue to evidence the limited obligation of Issuer to repay Advances.
The Issuer and the Company have heretofore entered into that certain Loan
Agreement dated as of January 1, 1995 (the "Original Loan Agreement"). In
connection with the execution and delivery of this Amended and Restated
Financing Agreement, the Issuer and the Company shall enter into a First Amended
And Restated Loan Agreement dated as of April 25, 1997 (the "Amended and
Restated Loan Agreement"; the Original Loan Agreement as amended and restated by
the Amended and Restated Loan Agreement is herein referred to as the "Loan
Agreement"), whereby the Issuer will agree to loan the proceeds of the Bond to
the Company, and the Company will agree to make loan repayments sufficient to
pay the principal of, premium (if any) and interest on the Bond ("Debt Service")
when due. As evidence of its obligation to make loan repayments with respect to
Debt Service on the Original Bond, the Company has issued its note (the
"Original Note") and, in connection with the execution and delivery of the
Amended and Restated Financing Agreement, will issue its amended and restated
note (the "Amended and Restated Note") as provided in the Amended and Restated
Loan Agreement. The Original Note as amended and restated by the Amended and
Restated Note is herein referred to as the "Note".
The Bond is a limited obligation of the Issuer payable solely out of the
payments by the Company pursuant to the Loan Agreement and the Note (the
"Pledged Revenues").
As security for the payment of Debt Service on the bond, the Issuer shall
assign and pledge to the Bondholder all right, title and interest of the Issuer
in and to the Pledged Revenues, the Loan Agreement and the Note (except for
certain rights personal to the Issuer).
It is contemplated by the parties that in connection with the execution
and delivery of the Amended and Restated Financing Agreement (i) the Bondholder
shall purchase the Original Bond from AmSouth as provided in this Amended and
Restated financing Agreement, (ii) the Issuer shall transfer the Original Bond
to the Bondholder pursuant to the requirements of this Agreement, by issuing the
amended and Restated Bond provided for under this Amended and Restated financing
Agreement, (iii) an Advance will be made pursuant to this Amended and Restated
Financing Agreement in the principal amount of $30,000,000, (iv) the Company
shall issue the Amended and Restated Note to the Bondholder under the terms of
the Amended and Restated Loan Agreement and (v) the Bondholder will sell a
participation interest in the Bond evidencing the outstanding Advances to
AmSouth pursuant to a Participation Agreement dated April 25, 1997, between the
Bondholder and AmSouth. Upon completion of the transaction described in these
recitals, Advances in the total authorized amount of $50,000,000 will be
outstanding under this Financing Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto covenant, agree and bind
themselves as follows:
GRANTING CLAUSES
The Issuer, in consideration of the premises and the purchase and
acceptance of the Bond by the Bondholder, and of the sum of one dollar, lawful
money of the United States of America, to it duly paid by the Bondholder at or
before the execution and delivery of these presents, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, in order to
secure the Indebtedness and to secure the performance and observance by the
issuer of all the covenants expressed herein and in the Bond, does hereby assign
and grant a security interest in the following to the Bondholder, and its
successors and assigns forever, for the securing of the performance of the
obligations of the Issuer hereinafter set forth:
GRANTING CLAUSE FIRST
All right, title and interest of the Issuer in and to the Loan Agreement,
the Note, the Investment Agreement and the Pledged Revenues, and the Issuer
further hereby expressly assigns and grants to the Bondholder the exclusive,
present and continuing right to make claim for, collect, receive and give
receipt for any of the amounts payable or receivable under the Loan Agreement
and the Note (except for amounts payable to the Issuer as Additional Loan
Payments), to bring actions and proceedings under and otherwise enforce the Loan
Agreement, the Note and the Investment Agreement, and to generally do any and
all things which the Issuer would or would become entitled to do under the Loan
Agreement, the Note and the Investment Agreement in the absence of the grant to
the bondholder provided herein, whether or not an Event of Default exists under
the Loan Agreement, the Note or the Investment Agreement or be regarded, and may
act with respect to the Note, Loan Agreement and Investment Agreement, as though
the Bondholder were the holder and absolute owner thereof free of any other
claim whatsoever, except only for the rights expressly reserved by the Issuer
herein as to Additional Loan Payments and the Issuer's right of notice under
Section 10.2 hereof.
GRANTING CLAUSE SECOND
All right, title and interest of the Issuer in and to all moneys and
securities (if any) from time to time held by the Bondholder under the terms of
this financing Agreement.
GRANTING CLAUSE THIRD
Any and all other property rights and interests of every kind and nature
from time to time hereafter by delivery or by writing of any kind granted,
bargained, sold, alienated, demised, released, conveyed, assigned, transferred,
mortgaged, pledged, hypothecated or otherwise subjected hereto, as and for
additional security herewith, by the Company or any other person on its behalf
or with its written consent or by the Issuer or any other person on its behalf
or with its written consent, and the Bondholder is hereby authorized to receive
any and all such property at any and all times and to hold and apply the same
subject to the terms hereof.
TO HAVE AND TO HOLD all and singular the interests and property covered by
the foregoing, upon the terms herein set forth;
PROVIDED, HOWEVER, that if the issuer, its successors or assign shall well
and truly pay, or cause to be paid, the Debt Service on the Bond due or to
become due thereon, at the times and in the manner set forth in the bond
according to the true intent and meaning thereof, and shall well and truly cause
to be kept, performed and observed all of its covenants and conditions pursuant
to the terms of this financing Agreement, then upon the final payment thereof
this Financing Agreement and the rights hereby granted shall cease, determine
and be void; otherwise this financing Agreement shall remain in full force and
effect.
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.01. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(1) The terms defined in this Article shall have the meanings assigned
to them in this Article. Singular terms shall include the plural as
well as the singular, and vice versa.
(2) All references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and subdivisions of the instrument as originally executed.
(3) All accounting terms not otherwise defined herein have the
meanings assigned to them, and all computations herein provided for
shall be made, in accordance with generally accepted accounting
principles. All references herein to "generally accepted accounting
principles" refer to such principles as they exist at the date of
application thereof.
(4) The terms "herein", "hereof", and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
(5) The term "person" shall include and individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization and any government or agency or political subdivision
thereof.
Acquisition Costs shall have the meaning assigned to that term in the Loan
Agreement.
Additional Loan Payments shall mean the amounts payable by the Company
pursuant to Section 4.2(b), Section 7.2 and Section 8.4 of the Loan Agreement.
Advances shall mean the loans provided for in Section 3.01 of this
Financing Agreement.
Aggregate Advances shall mean the total principal amount of the Advances
made under the Financing Agreement.
Amended and Restated Bond shall mean the amended and restated bond
delivered pursuant to this Amended and Restated Financing Agreement.
Amended and Restated Financing Documents shall mean the Amended and
Restated Financing Agreement, the Amended and Restated Loan Agreement and the
Amended and Restated Note.
Amended and Restated Loan Agreement shall mean the First Amended and
Restated Loan Agreement dated as of April 25, 1997 between the Issuer and the
Company.
Amended and Restated Note shall mean the promissory note in the principal
amount of $50,000,000 delivered to the Company pursuant to the Amended and
Restated Loan Agreement.
AmSouth shall mean AmSouth Bank of Alabama, a state banking corporation
under the laws of the State of Alabama, with its principal place of business in
Birmingham, Alabama.
Authorized Company Representative shall mean the President, the Vice
President or the Secretary of the Issuer.
Authorized Issuer Representative shall mean the President, the Vice
President or the Secretary of the Issuer.
Basic Loan Payments shall mean the amounts payable by the Company pursuant
to Section 4.2(a) of the Loan Agreement.
Bond shall mean the Original Bond, as amended and restated by the Amended
and Restated Bond delivered pursuant to this Amended and Restated Financing
Agreement.
Bond Payment Date shall mean each date on which Debt Service is payable on
the Bond.
Bondholder shall mean First Union National Bank of Tennessee, an national
banking association with its principal office in the City of Nashville,
Tennessee, and its successors and assigns.
Business Day shall mean any day other than a Saturday, a Sunday or a day
in which banking institutions are required or authorized to remain closed in the
city where the bondholder maintains its place of business for performance of its
obligations under this Agreement.
Change of Control means the occurrence, after the date of this Financing
Agreement, of (i) any Person or two or more Persons acting in concert acquiring
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended) or
control, directly or indirectly, of securities of the Company (or other
securities convertible into such securities) representing 51% or more of the
combined voting power of all securities of the Company entitled to vote in the
election of directors; or (ii) during any period of up to 12 consecutive months,
commencing before of after the date of this Agreement, individuals who at the
beginning of such 12-month period were directors of the Company ceasing for any
reason to constitute a majority of the Board of Directors of the Company unless
the Persons replacing such individuals were nominated by the Board of Directors
of the Company.
Commitment shall mean $50,000,000 (subject to reductions as provided in
Section 3.01(e) hereof).
Company shall mean ADTRAN, Inc., a corporation organized under the laws of
the State of Delaware, until a successor corporation shall have become such
pursuant to the applicable provisions of the Financing Documents, and thereafter
"the Company" shall mean such successor corporation.
Costs of Issuance shall mean the expenses incurred by the Issuer or the
Company in connection with the issuance of the Bond, including legal, consulting
and accounting fees and expenses.
Debt Service shall mean the principal, premium (if any) and interest
payable on the Bond.
Enabling Law shall mean Articles 2 and 2A, Chapter 10, Title 41 of the Code
of Alabama 1975, as amended.
Environmental Laws means the Environmental Protection Act, the Resource
Conservation and Recovery Act of 1976, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Hazardous Materials Transportation
Act and any other federal, state or municipal law, rule or regulation relating
to air emissions, water discharge, noise emissions, solid or liquid waster
disposal, hazardous or toxic waster or materials, or other environmental or
health matters.
Event of Default shall have the meaning state in article 5 hereof. An
Event of Default shall "exist" if an event of default shall have occurred and be
continuing.
Financing Agreement shall mean the Original Financing Agreement, as
amended and restated by this First Amended and Restated Financing Agreement.
Financing Documents shall mean this Financing Agreement, the Loan Agreement
and the Note.
Indebtedness shall mean all indebtedness of the Issuer at the time secured
by the Pledged Revenues, including without limitation (i) all Debt Service on
the Bond and (ii) all reasonable and proper charges and disbursements by the
Bondholder made under the Financing Agreement.
Interest Payment Date shall mean the first Business Day of each month
beginning May 1, 1997.
Interest Period shall mean the 30-day period beginning on one Interest
Payment Date and ending on the next Interest Payment Date.
Investment Agreement shall mean the agreement described in Section
3.04(b)(3) hereof.
Issuer shall mean the State industrial Development authority, a public
corporation organized under the laws of the State of Alabama.
Loan Agreement shall mean the Original Loan Agreement as amended and
restated by the Amended and Restated Loan Agreement.
Loan Default shall mean a "Default" within the meaning state in Article 8
of the Loan Agreement. A Loan Default shall "exist" if such a Default shall have
occurred and be continuing.
Material Adverse Effect means any event or condition which, singly or in
the aggregate with other events or conditions, material and adversely affects
the business, properties, or operations of the Company.
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 Restate Bond and each Interest Payment Date
thereafter. The Money Market Account-Based Rate determined on each Interest
Payment Date shall remain in effect until the following Interest Payment Date.
Money Market Account Rate shall mean, with respect to any time at which
the Money Market Account-Based Rate is to be determined, the rate of interest
announced by the Bondholder as its interest rate applicable to Commercial Money
Market Investment Accounts or, if such accounts are no longer offered by the
Bondholder, the rate applicable to the interest-bearing demand deposit account
type used by commercial customers of the Bondholder which, in Bondholder's
judgment, most nearly approximates the product known as of the date hereof as
the Commercial Money Market Investment Account.
Note shall mean the Original Note as amended and restated by the Amended
and Restated Note.
Opinion of Counsel shall mean a written opinion of counsel who shall be
acceptable to the Bondholder.
Original Bond shall mean the bond delivered pursuant to the Original
Financing Agreement.
Original Financing Agreement shall mean that certain Financing Agreement
dated as of January 1, 1995 among the Issuer, the Company and AmSouth.
Original Financing Documents shall mean the Original
Financing Agreement, the Original Loan Agreement and the Original
Note.
Original Loan Agreement shall mean that certain Loan Agreement dated as of
January 1, 1995 between the Issuer and the Company.
Original Note shall mean the promissory note in the principal amount of
$50,000,000 delivered by the Company pursuant to the Original Loan Agreement.
Person shall include any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization and any government or
any agency or political subdivision thereof.
Pledged Revenues shall mean all amounts payable by the Company under the
Loan Agreement, except for Additional Loan Payments.
Post-Default Rate shall mean (i) in respect of any Debt Service on the
Bond which is not paid when due and, (ii) with respect to any other amount
payable under the Financing Documents which is not paid when due, a rate equal
to the then effective interest rate on the Bond, plus 200 basis points.
Preliminary Agreement shall mean that certain Preliminary Agreement dated
as of November 16, 1994, between the Issuer and the Company relating to the
financing of the Project.
Principal Office of the Bondholder shall mean the principal place of
business of the Bondholder, presently located at 150 Fourth Avenue North,
Nashville, Tennessee 37219.
Project shall mean (I) the Project Site, (ii) the Project Building and
(iii) the Project Equipment, as such terms are defined in the Loan Agreement.
Section 1.02. Effect of Headings and Table of Contents. The Article and
Section headings herein and in the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.03. Date of Agreement. The date of this Financing Agreement is
intended as and for a date for the convenient identification of this Financing
Agreement and is not intended to indicate that this Financing Agreement was
executed and delivered on said date.
Section 1.04. Severability Clause. If any provision in this Financing
Agreement shall be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.05. Governing Law. This Financing Agreement
shall be construed in accordance with and governed by the laws of
the State of Alabama.
Section 1.06. Counterparts. This instrument may be executed
in any number of counterparts, each of which so executed shall be
deemed an original, but all such counterparts shall together
constitute but one and the same instrument.
ARTICLE 2
Representations, Warranties and Covenants
Section 2.01. Representation and Warranties of the Issuer. The Issuer
makes the following representations and warranties as the basis for the
undertakings on its part herein contained:
(1) It is duly organized as a public corporation under the provision
of the Enabling Law and is not in default under any of the provisions
contained in its certificate of incorporation or in the laws of the State
of Alabama.
(2) Under the provisions of the Enabling Law and its certificate of
incorporation, it has the power to consummate the transactions contemplated
by the Financing Documents to which it is a party.
(3) By proper corporate action it has duly authorized the execution
and delivery of the Financing Documents to which it is a party and the
consummation of the transactions contemplated therein.
(4) It has obtained all consents, approvals, authorizations and
order of governmental authorities that are required to be obtained by it as
a condition to the delivery of the Financing Documents to which it is a
party.
(5) The execution and delivery by it of the Financing Documents to
which it is a party and the consummation by it of the transactions
contemplated therein will not conflict which, be in violation of, or
constitute (upon notice or lapse of time, or both) a default under its
certificate of incorporation, and to its knowledge, any indenture,
mortgage, deed of trust or other contract, agreement or instrument to which
it is a part or is subject, or any resolution, order, rule, regulation,
writ, injunction, decree or judgment of any governmental authority or court
having jurisdiction over it.
(6) The Financing Documents to which it is a party constitute legal,
valid and binding obligations and are enforceable against it in accordance
with the terms of such instruments, except as enforcement thereof may be
limited by (I) bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights and (ii) general principles of equity,
including the exercise of judicial discretion in appropriate cases.
Section 2.20 Representations and Warranties of the Company. The Company
makes the following representations and warranties as the basis for the
undertakings on its part herein contained:
(1) It is duly organized as a corporation under the laws of the state
of its incorporation and is not in default under any of the provisions
contained in its certificate of incorporation or bylaws or in the laws of
the state of its incorporation.
(2) It has the corporate power and authority to own its properties
and assets and to carry on its business as now being conducted and is duly
qualified to do business in every jurisdiction where the character of its
properties or the nature of its activities makes such qualification
necessary.
(3) Its financial statements that have been furnished to the
Bondholder are complete and correct and fairly present its financial
condition as of the date or dates indicated and for the periods involved in
accordance with generally accepted accounting principles applied on a
consistent basis. There has been no materially adverse change in its
financial condition or operations since the date of its most recent
financial statements furnished to the Bondholder.
(4) It has good and marketable title to all its properties and assets
reflected on its most recent balance sheet furnished to the Bondholder,
except for such properties and assets as have been dispose of since the
date of such balance sheet as no longer used or useful in the conduct of
its business or as have been disposed of in the ordinary course of its
business. All such properties and assets are free and clear of liens of any
nature, except as disclosed in such financial statements.
(5) It has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it, and has paid or caused to
be paid all taxes as shown on such returns or on any assessments received
by it to the extent that such taxes have become due and payable.
(6) It does not intend to use any part of the proceeds of the Bond,
and has not incurred any indebtedness to be reduced, retired or purchased
by it out of such proceeds, for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System, and it does not own and has no intention of
acquiring any such margin stock.
(7) The execution and delivery of the Financing Documents to which it
is a party will not involve any prohibited transaction within the meaning
of the Employee Retirement Income Security Act of 1974, as amended (ERISA),
or the Internal Revenue Code. It has fulfilled its obligations under
minimum funding standards of ERISA and is in compliance in all material
respects with the applicable provisions of ERISA.
(8) It has the power to consummate the transactions contemplated by
the Financing Documents to which it is a party.
(9) By proper corporate action it has duly authorized the execution
and delivery of the Financing Documents to which it is a party and the
consummation of the transactions contemplated therein.
(10) It has obtained all consents, approvals, authorizations and
orders of governmental authorities that are required to be obtained by it
as a condition to the execution and delivery of the Financing Documents to
which it is a party.
(11) The execution and delivery by it of the Financing Documents to
which it is a party and the consummation by it of the transactions
contemplated therein will not (I) conflict with, be in violation of, or
constitute (upon notice or lapse of time or both) a default under its
certificate of incorporation or bylaws, any indenture, mortgage, deed of
trust or other contract, agreement or instrument to which it is a party or
is subject, or any resolution, order, rule, regulation, writ, injunction,
decree or judgment of any governmental authority or court having
jurisdiction over it or (ii) result in or require the creation or
imposition of any lien of nay nature upon or with respect to any of its
properties no owned or hereafter acquired, except as contemplated by the
Financing Documents.
(12) The Financing Documents to which it is a party constitute legal,
valid and binding obligations and are enforceable against it in accordance
with the terms of such instruments, except as enforcement thereof may be
limited by (I) bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights and (ii) general principles of equity,
including the exercise of judicial discretion in appropriate cases.
(13) There is not action, suit, proceeding, inquiry or investigation
pending before any court or governmental authority, or threatened against
it or affecting it or its properties, that (I) involves the consummation of
the transactions contemplated by, or the validity or enforceability of, any
of the Financing Documents or (ii) could have a materially adverse impact
upon its financial condition or operations.
(14) The Project constitutes a "project" of the type authorized and
permitted by the Enabling Law.
(15) The Company is duly qualified and authorized to transact
business in the State of Alabama.
(16) No investment bankers or underwriters are providing services of
any nature in connection with the issuance and sale of the Bond and the
various transactions associated therewith.
Section 2.03. Representations and Warranties of the
Bondholder.
(a) Enforcement of this Agreement. The Bondholder represents and warrants
that this Financing Agreement constitutes a legal, valid and binding obligation
of the Bondholder and is enforceable against the Bondholder in accordance with
the terms of this instrument, except as enforcement hereof may be limited by (I)
bankruptcy, insolvency, or other similar laws affecting the enforcement of
creditors' rights and (ii) general principles of equity, including the exercise
of judicial discretion in appropriate cases.
(b) Company's Credit. The Bondholder represents and warrants that it has
made its own investigation of the Company's credit and the adequacy of the
Pledged Revenues to pay Debt Service and the Bondholder does not rely on any
representation of the Issuer with respect to the creditworthiness of the
Company, the amount or adequacy of the Pledged Revenues or the investment
quality of the Bond.
Section 2.04 Reporting Requirements of Company.
(a) Quarterly Financial Reports. As soon as available, and in any event by
the 45h. day of each fiscal quarter end other than the fiscal quarter ending a
fiscal year, the Company shall deliver to the Bondholder a balance sheet, income
statement and statement of cash flows of the Company for and as of the end of
the preceding fiscal quarter, all prepared by the Company on a consistent basis
and certified by the Company's president or chief financial officer to be
complete and correct and to present fairly, in accordance with GAAP (excluding
year-end adjustments and required footnote disclosures), the financial condition
of the Company and its consolidated affiliates, if any, as of the date of such
statements and the results of its operations for such period. The quarterly
financial information shall include a compliance certificate executed by the
President or Chief Financial Officer of the Company.
(b) Annual Financial Reports. As soon as available, and in any event within
90 days after the end of each fiscal year, the Company shall deliver to the
Bondholder the audited balance sheet of the Company as of the end of such year
and the related statements of income, retained earnings and cash flows for such
year, together with supporting schedules and management letters or similar
communications from the accountants, all such statements prepared in accordance
with GAAP on a consolidated and consolidating basis by an independent certified
public accountant acceptable to the Bondholder showing the financial condition
of the Company and its consolidated affiliates at the close of such year and the
results of its operations during such year. The annual financial information
shall include a compliance certificate executed by the President or Chief
Financial Officer of the Company.
(c) Other Information. The Company shall provide the Bondholder with such
additional information regarding the financial condition, properties, operations
and prospects of the Company and its consolidated entities as the Bondholder may
reasonably require.
The Company further covenants with the Bondholder as follows:
(1) Compliance with Laws. The Company is not in violation of any law or
regulation to which the Company, its business or any of its properties are
subject, the violation of which would likely have a Material Adverse Effect, and
there are no outstanding citations, notices or orders of noncompliance issued to
the Company under any such law or regulation, the violation of which would
likely have a Material Adverse Effect. The Company has obtained all licenses,
permits, franchises, or other governmental authorizations necessary to the
ownership of its properties or to the conduct of its business.
(2) Full Disclosure of Material Facts. The Company has fully advised the
Bondholder of all matters involving the Company's financial condition, business,
operations, properties or industry that would be reasonably expected to have a
Material Adverse Effect. No information, exhibit, or report furnished or to be
furnished by the Company to the Bondholder in connection with the Agreement
contains, as of the date thereof, any misrepresentation of fact or failed or
will fail to state any material fact, the omission of which would render the
statements therein materially false or misleading.
(3) Environmental Compliance. The Company has duly complied with, and its
properties are owned and operated in compliance with, all Environmental Laws,
the violation of which would have Material Adverse Effect. The Company has
obtained all required federal, state and local licenses, certificates or permits
relating to it and its properties that are required by applicable Environmental
Laws.
(4) Maintenance of Existence and Business. The Company shall maintain its
corporate existence, name, rights, and franchises and shall continue to operate
primarily in the same type of business as it engages in as of the date hereof.
(5) Notice of Litigation. The Company shall give the Bondholder prompt
written notice of any litigation, arbitration, tax audit, administrative
proceeding or investigation that may hereafter be instituted or threatened in
writing in which the Company would be a party or which otherwise any affect the
Company or any of its business, operations or properties, except for actions
which, if adversely determined, would not have a Material Adverse Effect.
(6) Other Notices. The Company shall promptly notify the Bondholder in
writing if the Company learns of the occurrence of (I) any event that
constitutes and Event of Default, together with a detailed statement of the
steps being taken as a result thereof, or (ii) any other event or condition that
has a Material Adverse Effect.
(7) Taxes. The Company shall make due and timely payment or deposit of all
federal, state and local taxes, assessments or contributions required of it by
law, and execute and deliver to the Bondholder, on demand, appropriate
certificates attesting to the payment or deposit thereof; provided, however,
that the Company shall not be required to pay or discharge any such tax,
assessment, charge or claim for as long as it is being diligently contested in
good faith by proper proceedings and for which appropriate reserves are being
maintained.
(8) Compliance with Laws. The Company shall observe and comply with all
laws and regulations, and shall maintain all certificates, franchises, permits,
licenses, and authorizations necessary to the conduct of its business or the
operation of its properties.
(9) Accounts and Records. The Company shall maintain current books of
record and account, in which, full, true, and correct entries will be made of
all transactions.
(10) Environmental Matters
(a) COMPLIANCE WITH ENVIRONMENTAL LAWS. The Company will (i) employ
in connection with its operations, appropriate technology and compliance
procedures to maintain compliance with any applicable Environmental Laws,
(ii) obtain and maintain any and all materials permits or other permits
required by applicable Environmental Laws in connection with its operations
and (iii) dispose of any and all Hazardous Substances (as so treated in
Environmental Laws) only at facilities and with carriers reasonably
believed to possess valid permits under Environmental Laws. The Company
shall use its best efforts to obtain all certificates required by law to be
obtained by the Company from all contractors employed by the Company in
connection with the transport or disposal of any Hazardous Substances.
(b) REMEDIAL WORK. If any investigation, site monitoring,
containment, clean-up, removal, restoration or other remedial work of any
kind or nature with respect to the Company's properties is required to be
performed by the Company under any applicable local, state or federal law
or regulation, any judicial order, or by any governmental or
non-governmental entity or Person because of, or in connection with, the
current or future presence, suspected presence, release or suspected
release of a Hazardous Substance in or into the air, soil, groundwater,
surface water or soil vapor at, on, about, under or within any of the
Company's property (or any portion thereof),the Company shall within 30
days after written demand for performance thereof (or such shorter period
of time as may be required under applicable law, regulation, order or
agreement) commence and thereafter diligently prosecute to completion, all
such remedial work.
(c) INDEMNIFICATION OF THE BONDHOLDER. The Company agrees to
indemnify, defend (with counsel satisfactory to the Bondholder) and hold
harmless Bondholder against any loss, liability, claim or expense,
including attorney's fees, that Bondholder may incur as a result of the
violation or alleged violation of any Environmental Law by the Company or
with respect to any other violation of Environmental Laws with respect to
the Company's properties. This covenant shall survive the repayment of the
Bond.
(11) Change of Control. The Company shall not suffer or
permit the occurrence of a Change of Control.
ARTICLE 3
Agreement to Make Advance and Purchase Bond
Section 3.01. Advance. The Bondholder agrees, on the terms of this Amended
and Restated Financing Agreement, to make a loan (the "Advance") to the Issuer
in an aggregate amount at any one time outstanding up to but not exceeding the
amount of the Commitment then in effect. The Advance made pursuant to the
Original Financing Agreement in the amount of $20,000,000 was loaned to the
Company contemporaneously with the execution and delivery of the Original
Financing Agreement. In connection with the execution and delivery of this
Amended and Restated Financing Agreement, the Bondholder will purchase the
Original Bond from AmSouth and the Issuer will transfer the Original Bond to the
Bondholder pursuant to the terms hereof by issuing the Amended and Restated
Bond. In addition, an Advance under this Amended and Restated Financing
Agreement shall be made in the amount of $30,000,000 and shall be loaned to the
Company contemporaneously with the execution and delivery of this Agreement,
raising the Aggregate Advances as of the date of execution and delivery hereof
to the Commitment amount of $50,000,000.
Section 3.02. Purchase of Bond. Contemporaneously with the execution and
delivery of this Amended and Restated Financing Agreement the Bondholder shall
purchase the Original Bond From AmSouth at a purchase price equal to Advances
under the Original Financing Agreement plus accrued interest (if any) on the
Original Bond. The Aggregate Advances shall be evidenced by the Amended and
Restated Bond in substantially the form contained in Article 4 hereof. The
obligation of the Bondholder to make the Advances shall constitute the purchase
price of the Bond.
Section 3.03. Use of Proceeds of Advances. The Advance hereunder shall be
used to fund an identical and contemporaneous loan by the Issuer to the Company
under the Loan Agreement. Accordingly, not later than 12:00 noon (Birmingham,
Alabama time) on the date specified for the Advance, the Bondholder shall,
subject to the terms and conditions of this Financing Agreement, make available
the amount of the Advance to be made on such date by delivering the same, in
immediately available funds, to the Company. The Company shall use the proceeds
of the Advance and the corresponding loan solely to pay or reimburse Acquisition
Costs or Costs of Issuance.
Section 3.04 Conditions Precedent to the Advance.
(a) The Advance. The obligation of the Bondholder to make the Advance
hereunder in the amount of $30,000,000 is subject to the receipt by the
Bondholder of the following documents, each of which shall be satisfactory to
the Bondholder in form and substance:
(1) Original Financing Documents and Original Bond. A
specimen copy
of the duly executed Original Bond and a counterpart of each of
the
Original Financing Documents, duly executed.
(2) Amended and Restated Bond. The Amended and Restated
Bond, duly
executed.
(3) Amended and Restated Financing Documents. A
counterpart of each
of the Amended and Restated Financing Documents, duly executed.
(4) Opinion of Bond Counsel. An opinion of bond counsel
(Maynard,
Cooper & Gale, P.C., Birmingham, Alabama) in form and substance
satisfactory to the Bondholder.
(5) Opinion of Company Counsel. An opinion of counsel for
Company (James L. North, Esq., Birmingham, Alabama) in form and
substance satisfactory to the Bondholder.
(6) Organization of Issuer and Approvals. Certificates with respect to the
certificate of incorporation of the Issuer and all corporate action taken by the
Issuer approving the Financing Documents and the consummation of the
transactions contemplated thereby (including, without limitation, a certificate
setting forth the resolutions of the board of directors of the Issuer for such
purpose).
(7) Organization of the Company and Approvals. Certified copies of the
charter and bylaws of the Company and all corporate action taken by the Company
approving the Financing Documents and the consummation of the transactions
contemplated thereby (including, without limitation, acertificate setting forth
the resolutions of the board of directors of the Company for such purpose and a
certificate of incumbency identifying all officers of the Company who execute
any of the Financing Documents or any other document executed in connection
therewith).
(8) No Litigation Certificates. Execution and delivery of a certificate by
the Issuer and the Company stating that there is no litigation presently pending
or to their knowledge threatened against the Issuer or the Company (or if so,
describing the same) which, in the opinion of the Bondholder or its counsel,
might adversely affect the Bond or the Bondholder's security.
(9) Certificate of the Issuer. Execution and delivery of a certificate of
the Issuer certifying that as of the date of the Advance: the Issuer has not
made any assignment for the benefit of creditors, nor has a receiver, liquidator
or trustee of the Issuer or any of the Issuer's property been appointed nor has
any petition for bankruptcy reorganization or other arrangement of the Issuer
pursuant to the Federal Bankruptcy Code, been filed, nor has the Issuer been
adjudicated a bankrupt or insolvent, nor is any voluntary or involuntary
petition by or against the Issuer as debor seeking an order for relief pursuant
to the United States Bankruptcy Code, or any similar statute, pending, nor been
filed nor has a state court entered an order for relief for the Issuer nor has
the Issuer been liquidated or dissolved or its articles of incorporation or
charter expires or been revoked.
(10) Certificate of the Company. Execution and delivery of a certificate of
the Company certifying that as of the date of the Advance: the Company has not
made any assignment for the benefit of creditors, not has a receiver, liquidator
or trustee of the Company or any of the Company's property been appointed nor
has any petition for bankruptcy reorganization or other arrangement of the
Company pursuant to the Federal Bankruptcy Code, been filed, nor has the Company
been adjudicated a bankrupt or insolvent, nor is any voluntary or involuntary
petition by or against the Company as debtor seeking an order for relief
pursuant to the United States Bankruptcy Code, or any similar statute, pending,
nor been filed nor has a state court entered an order for relief for the Company
nor has the Company been liquidated or dissolved or its articles of
incorporation or charter expired or been revoked.
(11) Schedule of Expenses. A schedule (in summary form) of all expenses
incurred in connection with the Original Financing Agreement to date, together
with certification by an officer of the Company that all such expenditures have
been made in accordance with the requirements of the Original Financing
Documents and applicable law.
(b) Other Conditions. The obligation of the Bondholder to
make the Advance under this Amended and Restated Financing
Agreement is subject to the further conditions precedent that:
(1) No Default and Accuracy of Representations. As of the date of the
Advance and after giving effect thereto: (I) no Event of Default shall have
occurred and to be continuing; (ii) no event shall have occurred and be
continuing which, with notice or lapse of time or both, would constitute an
Event of Default under this Financing Agreement, and (iii) the representations
and warranties made by the Company in Section 2.02 hereof shall be true on and
as of the date of the making of such Advance with the same force and effect as
if made on and as of such date.
(2) Security. On the date of the Advance under this Amended and
Restated Financing Agreement the Company shall establish money market deposit
accounts with the Bondholder and any Participant in the Bond (collectively, the
"Money Market Account") and shall enter into an Investment Agreement dated April
25, 1997, with the Bondholder and any such Participant. Pursuant to the
Investment Agreement, the Company shall grant as security for the payment of the
Note a first priority right of setoff against and first priority perfected lien
security interest in the Money Market Account. The pledge of the Money Market
Account shall be pursuant to documentation satisfactory to the Bondholder. The
Company may not use the proceeds of any Advance pursuant to this Agreement to
make such deposit or to otherwise effect the pledge required by this Agreement.
Additional Evidence. The Bondholder may require the delivery of such additional
legal opinions, certificates, proceedings, instruments and other documents as
the Bondholder or its counsel may reasonably request to evidence (I) compliance
by the Issuer and the Company with laws and legal requirements, (ii) the truth
and accuracy, as of the date of the Advance, of the respective representations
of the Issuer and the Company contained in the Financing Documents or the
documentation required by this Section, and (iii) the due performance or
satisfaction by the Issuer and the Company at or prior to the date of such
Advance, of all agreements then required to be performed and all conditions then
required to be satisfied by the Issuer and the Company pursuant to the Financing
Documents.
ARTICLE 4
The Bond
Section 4.01. General Terms of the Bond.
(a) The Bond shall be issued to evidence the obligation of the Issuer to
repay the Aggregate Advances made under the Financing Agreement. The Bond shall
be entitled "Taxable Revenue Bond, Series 1995 (ADTRAN, Inc. Project)" and shall
be dated January 13, 1995.
(b) The principal amount of the Bond shall mature and be payable on
January 1, 2020.
(c) Except as otherwise provided below, the outstanding unpaid Advances
and the Bond shall bear interest during each Interest Period as the Money Market
Account-Based Rate for such Interest Period. The Money Market Account-Based Rate
applicable to the outstanding unpaid Advances for the initial Interest Period
shall be determined as the date of delivery of this Amended and Restated
Financing Agreement and thereafter shall be determined on the first day of each
succeeding Interest Period.
Interest accrued on the outstanding unpaid Advances and on the Bond shall
be computed on the basis of an assumed year of 360 days for the actual number of
days elapsed, payable on each Interest Payment Date. At least ten (10) days
prior to each Interest Payment Date, the Bondholder shall provide the Company a
written statement calculating the amount due as interest on the Bond on such
Interest Payment Date based upon the interest rate option in effect since the
prior Interest Payment Date.
(d) Interest on overdue principal and premium, if any, and (to the extent
legally enforceable) on any overdue installment of interest on the Bond shall be
payable at the Post-Default Rate.
(e) Debt Service on the Bond payable on any Bond Payment Date shall be
paid to the person in whose name the Bond is registered on such Bond Payment
Date (or, if such Debt Service is not paid on the due date, to the person in
whose name the Bond is registered on the date that the Issuer makes payment of
such Debt Service).
(f) Debt Service on the Bond shall be paid by wire transfer or other
same-day funds to the account designated by the Bondholder by notice to the
Issuer and to the Company, except for Debt Service payable on the Bond Payment
Date on which the outstanding principal balance of the Bond is to be paid in
full, which shall be paid only upon surrender of the Bond to the Issuer. All
such payments shall be made in such coin or currency of the United States of
America as of the time of payment is legal tender for the payment of public and
private debts.
Section 4.02. Redemption
(a) The issuer shall have the right (exercised upon the direction of the
Company if no Loan Default exists) to redeem, without penalty, all or any
portion of the unpaid principal amount of the Bond (in integral multiples of
$5,000) at any time at a redemption price equal to 100 % of the principal amount
to be redeemed plus accrued interest thereon to the redemption date.
(b) Notice of redemption having been given as provided in this Financing
Agreement, the principal of the Bond to be redeemed shall, on the redemption
date, become due and payable at the redemption price specified in subsection (a)
of this Section, and from and after such date (unless the Issuer shall default
in the payment of the redemption price) such principal shall cease to bear
interest.
Section 4.03. Optional Tender
(a) The Bondholder shall have the option to tender the Bond for purchase in
whole on April 25, 1999. If not exercised, the Bondholder's right of optional
tender shall be extended as follows. Unless the Bondholder notifies the Issuer
and the Company to the contrary in writing prior to February 1 of any year, the
optional tender date shall be automatically extended for an additional year,
with no further action required of the Bondholder, the Issuer or the Company.
The optional tender date may not be extended in this automatic manner beyond the
date 5 years from the date of the Advance under this Amended and Restated
Financing Agreement unless the Bondholder, at its sole option, reinstates the
automatic renewal provision for an additional 5 years by giving written notice
to that effect. The automatic optional tender extension provision may similarly
operate into the future, with the Bondholder's affirmative written reinstatement
being necessary to continue the automatic renewal feature for successive 5 year
periods.
(b) The election of the Bondholder to exercise any right of optional
redemption shall be evidenced by written notice to the Company and the Issuer
dated at least 30 days prior to the optional tender date.
Section 4.04. Form of Bond. The Bond shall be substantially in the
following form, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Financing Agreement:
[Form of Amended and Restated Bond]
State Industrial Development Authority (Alabama)
Taxable Revenue Bond, Series 1995
(ADTRAN, Inc. Project)
The STATE INDUSTRIAL DEVELOPMENT AUTHORITY, a public corporation organized
under the laws of the State of Alabama (the "Issuer"), for value received,
hereby promises to pay to the registered owner identified below, or its
registered assigns, the principal sum of FIFTY MILLION DOLLARS ($50,000,000), or
such lesser amount as shall equal the aggregate unpaid principal amount of the
Advances made by the Bondholder to the Issuer under the Financing Agreement
referred to below, on January 1, 2020, and to pay interest on the unpaid
principal amount of each such Advance from the date of such Advance until such
Advance is paid in full, at the rate per annum and on the dates provided in the
Financing Agreement. All payments of principal and interest on this bond shall
be made in lawful money of the United States of America by wire transfer or
other same-day funds to the account designated by the Bondholder, except for the
final payment of principal and interest which shall be made only upon surrender
of this bond to the Issuer.
This bond is issued under and pursuant to that certain Financing Agreement
dated as of January 1, 1995, as amended and restated by an Amended and Restated
Financing Agreement dated as of April 25, 1997 (the "Financing Agreement"),
among the Issuer, First Union National Bank of Tennessee, a national banking
association, with its principal office in the City of Nashville, TN (the
"Bondholder"), and ADTRAN, Inc., a corporation organized under the laws of the
State of Delaware (the "Company"). Capitalized terms not other wise defined
herein shall have the meanings assigned in the Financing Agreement.
Pursuant to the Financing Agreement, the Bondholder has agreed to make a loan or
loans (the "Advances") to the Issuer in an aggregate amount not to exceed,
$50,000,000 for the purpose of financing the costs of acquiring, constructing
and equipping of certain office, manufacturing, design, engineering, assembling
and distribution facilities refereed to in the Financing Agreement as the
"Project". As evidence of its repayment obligation with respect to such
Advances, the Issuer has issued this bond.
Pursuant to a Loan Agreement dated as of January 1, 1995, as amended and
restated as of April 25, 1997 (the "loan Agreement"), between the Issuer and the
Company, the amounts received as Advances by the Issuer and the Company, the
amounts received as Advances by the Issuer have and will be loaned by the Issuer
to the Company and the Company has agreed to repay such loan or loans at times
and in amounts which will be sufficient to pay Debt Service on this bond when
due. The Company's repayment obligations under the Loan Agreement are evidenced
by the Note.
Debt services on this bond is payable solely out of the amounts payable by
the Company pursuant to the Loan Agreement. As security for the payment of Debt
Service on this bond, the Issuer has assigned and pledged to the Bondholder all
right, title and interest of the Issuer in and to the Loan Agreement and the
Note (except for certain rights personal to the Issuer).
THIS BOND IS A LIMITED OBLIGATION OF THE ISSUER PAYABLE SOLELY FROM
AMOUNTS PAYABLE BY THE COMPANY UNDER THE LOAN AGREEMENT AND THE NOTE AND SECURED
SOLELY BY THE PLEDGED REVENUES. THIS BOND WILL NOT CONSTITUTE AN INDEBTEDNESS OR
OTHER LIABILITY OF THE STATE OF ALABAMA OR OF ANY POLITICAL SUBDIVISION THEREOF.
NEITHER THE FAITH OR CREDIT OF THE STATE OF ALABAMA NOR ANY POLITICAL
SUBDIVISION THEREOF SHALL BE PLEDGED TO THE PAYMENT OF THIS BOND OR THE INTEREST
THEREON AND THE ISSUANCE OF THIS BOND SHALL NOT DIRECTLY, INDIRECTLY OR
CONTINGENTLY OBLIGATE THE STATE OF ALABAMA OR ANY POLITICAL SUBDIVISION THEREOF
TO APPLY MONEY FOR, OR LEVY OR PLEDGE ANY FORM OF TAXATION WHATEVER TO THE
PAYMENT OF, THE PRINCIPAL OF, PREMIUM, IF ANY, OR THE INTEREST OF THIS BOND, THE
ISSUER HAS NO TAXING POWER.
The Issuer may at is option (exercised at the direction of the
Company)redeem all or any portion of the principal of this bond (in integral
multiples of $5,000) at any time prior to maturity, upon the terms provided in
the financing Agreement.
The Bondholder shall have the option to tender this Bond for purchase in
whole on April 25, 1999 (or such later date as provided under the terms of the
Financing Agreement). If not exercised, the Bondholder's right of optional
tender shall be extended upon there terms provided in the Financing Agreement.
If an "Event of "Default" as defined in the Financing Agreement shall
occur, the principal of this bond may become or de declared due and payable in
the manner and with the effect provided in the Financing Agreement.
This bond is transferable on the Bond Register maintained by the Issuer,
upon surrender of this bond for transfer at the office of the Issuer, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer duly executed by, the registered holder hereof or his
attorney duly authorized in writing, and thereupon evidence of such transfer
shall be endorsed by the Issuer on the certificate of registration attached
hereto.
No service charge shall be made for any transfer hereinbefore referred to,
but the Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Issuer, the Company and any agent of the Issuer or the Company may
treat the person in whose name this bond is registered as the owner of this bond
for the purpose of receiving payment of Debt Service on this bond and for all
other purposes whatsoever, whether or not any payment on this bond is overdue,
and, to the extent permitted by law, neither the Issuer, the Company nor nay
such agent shall be affected by notice to the contrary.
No covenant or agreement contained in this bond or the Financing Agreement
shall be deemed to be a covenant or agreement of any officer, agent or employee
of the Issuer, and neither any member of the board of directors of the Issuer
nor any officer executing this bond shall be liable personally on this bond or
be subject to any personal liability or accountability by reason of the issuance
of this bond.
It is hereby certified, recited and declared that all acts, conditions and
things required to be performed by the Issuer precedent to and in the execution
and delivery of the Financing Agreement and issuance of this bond do exist, have
happened and have been performed in due time, form and manner as required by
law.
IN WITNESS WHEREOF, the Issuer has caused this bond to be duly executed
under its corporate seal.
Dated: January 13, 1995.
STATE INDUSTRIAL DEVELOPMENT
AUTHORITY
By:_______________________________________
Its President
(S E A L)
Attest________________________
Secretary
Certificate of Registration
This bond is registered on the Bond Register in the name of the
person listed below:
Date of Name of Signature of
Registration Registered Holder Authorized
Officer of Issuer
January 13, 1995 AmSouth Bank of
Alabama
First Union National
Bank of Tennessee
Section 4.05. Registration and Transfer.
(a) The Bondholder, as designee of the Issuer shall cause to be kept at its
principal place of business a register (herein sometimes referred to as the
"Bond Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of the Bond and the
registration of transfers of the Bond as herein provided.
(b) Upon surrender for transfer of the Bond at the office of the
Bondholder, as designee of the Issuer shall cause to be noted such transfer in
the Bond Register and shall record such transfer in the certificate of
registration attached to the Bond.
c Upon presentation or surrender for transfer, the Bond shall (if so
required by the Issuer) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer duly executed, the
registered holder thereof or his history attorney duly authorized in writing.
(d) No service charge shall be made for any transfer or exchange of the
Bond, but the Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer or
exchange of the Bond.
(e) The Issuer, the Company and any agent of the Issuer or the Company
may treat the person in whose name the Bond is registered as the owner of
the purpose of receiving payment of Debt Service on the Bond and for all
other purposes whatsoever whether or not any payment on the Bond is overdue
and, to the extent permitted by law, neither the Issuer, the Company nor
any such agent shall affected by notice to the contrary.
Section 4.06. Execution. The Bond shall be executed on
behalf of the Issuer by it President or Vice President under its
corporate seal and attested by its Secretary.
ARTICLE 5
Defaults and Remedies
Section 5.01. Events of Default. Any one or more of the following shall
constitute an Event of Default under this Financing Agreement (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court to any order, rule or regulation of any administrative or government
body):
(1) default in the payment of interest upon the Bond when such
interest becomes due and payable; or
(2) default in the payment of the principal of (or premium, if any, on) the
Bond when such principal ( or premium, if any) becomes due and payable, whether
at its stated maturity, by declaration or acceleration or call for redemption or
otherwise; or
(3) default in the purchase of the Bonds as required pursuant to
Section 4.03: or
(4) default in the performance, or breach, of any covenant or warranty of
the Issuer or the Company in this Financing Agreement (other than a covenant or
warranty, a default in the performance or breach of which is elsewhere in this
Section specifically dealt with), and continuance of such default or breach
period of 30 days after there has been given, registered or certified mail, to
the Issuer and the Company by the Bondholder a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "notice of default: hereunder; or
(5) any representation or warranty made by the Issuer or the Company herein
or in any document, instrument or certificate furnished to the Bondholder in
connection with the transactions contemplated by this Financing Agreement shall
at any time prove to have been false or incorrect in any material respect as of
the time made; or
(6) the occurrence of any event default, as therein defined, under any
other Financing Document, and the expiration of the applicable grace period, if
any, specified therein;
(7) the occurrence of an event of default under any other agreement
evidencing or securing the Company's obligation for repayment of money borrowed
from the Bondholder or AmSouth, and the expiration of the applicable grace
period, if any, specified therein; or
(8) the occurrence of an event of default under the Investment Agreement
described in Section 3.04(b)(3) of this Agreement.
Section 5.02. Acceleration of Maturity. If an event of Default exists,
then and in every such case the Bondholder may declare the principal of the Bond
and the interest accrued thereon to be due and payable immediately, by a notice
in writing to the Issuer and the Company and upon any such declaration such
principle and the interest accrued thereon shall become immediately due and
payable.
Section 5.03. Rights and Remedies Cumulative. No right or remedy herein
conferred upon reserved to the Bondholder is intended to be exclusive of any
other right or remedy and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given here
under or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.04. Delay or Omission Not Waiver. No delay or omission of the
Bondholder to exercise any right or remedy accruing upon an Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Bondholder may be exercised from time to time, as often
as may demand expedient, by the Bondholder.
Section 5.05. Waiver of Appraisement and other Laws.
(a) To the full extent that they may lawfully so agree, the Issuer and the
Company will not at any time insist upon, plead, claim or take the benefit or
advantage of, any appeasement, valuation, stay, extension or redemption law now
or hereafter in force in order to prevent or hinder the enforcement of this
Financing Agreement; and the Issuer and the Company, for themselves and all who
may claim under them, so far as they now or hereafter may lawfully do so, hereby
waive the benefit of all such laws.
(b) If any law in this Section referred to and now in force, of which the
Issuer or the Company or their respective successors might take advantage
despite this Section, shall hereafter be repealed or cease to be in force, such
law shall not thereafter be deemed to constitute any part of the contract herein
contained or to preclude of this Section.
Section 6.01. Payments.
(a) Except to the extent otherwise provided herein, all payments under this
Financing Agreement (including Debt Service on the Bond) shall be made in
immediately available funds to the Bondholder at the Principal Office if the
Bondholder, not later than 1:00 P.M. (Birmingham, Alabama time) on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day).
(b) If any payment under this Financing Agreement is due on a day which is
not a Business Day, such payment may be made on the first succeeding day which
is a Business Day with the same effect as if made on the day such payment was
due.
Section 6.02. Company Appointed as Agent. The Issuer hereby appoints the
Company as its agent for the purpose of giving the required notices for
redemption's under this Financing Agreement; provided, however, that the Company
shall have no authority it obligate the Issuer for payment from any source other
than the Pledged Revenues, it being understood that the Issuer's liability under
this Financing Agreement is limited as provided in Section 6.03.
Section 6.03. Limitation of Liability of Issuer.
(a) The liability of the Issuer for the payment of any money due under this
Financing Agreement and the Bond shall be limited solely to the Pledged
Revenues.
(b) The Bond shall not be a general obligation of the Issuer but shall be
a limited and special obligation payable solely out so payments by the Company
pursuant to the Loan Agreement and the Note. THE BOND WILL NOT CONSTITUTE AN
INDEBTEDNESS OR OTHER LIABILITY OF THE STATE OF ALABAMA OR OF ANY POLITICAL
SUBDIVISION THEREOF. NEITHER THE FAITH OR CREDIT OF THE STATE OF ALABAMA NOR ANY
POLITICAL SUBDIVISION THEREOF SHALL BE PLEDGED TO THE PAYMENT OF DEBT SERVICE ON
THE BOND AND THE ISSUANCE OF THE BOND SHALL NOT BE DIRECTLY, INDIRECTLY OR
CONTINGENTLY OBLIGATE THE STATE OF ALABAMA OR ANY POLITICAL SUBDIVISION THEREOF
TO APPLY MONEY FOR, OR LEVY OR PLEDGE ANY FORM OF TAXATION WHATEVER TO THE
PAYMENT OF, DEBT SERVICE ON THE BOND. THE ISSUER HAS NO TAXING POWER.
(c) No recourse under or upon any covenant or agreement of this Financing
Agreement shall be had against any past, present or future incorporator, agent,
officer or member of the Board of Directors of the Issuer, or of any successor
corporation, either directly or through the Issuer, whether by virtue of any
constitution, statue or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Financing
Agreement is solely a corporate obligation, and that no personal liability
whatever shall attach to, or is or shall be incurred by, any incorporator,
agent, officer or member of the Board of Directors of the Issuer or any
successor corporation, or any of them, under or by reason of the covenants or
agreements contained in this Agreement.
Section 6.04. Purchase for Investment
(a) Except as described in subsection (b) below, the Bondholder is
purchasing the Bond solely for its own account and for the purpose of investment
and not for resale, and the Bondholder has no present intention of distributing
or reselling the Bond, but subject, nevertheless, to the disposition of the Bond
being at all times within the Bondholder's control.
(b) When the Advance is made under this Amended and Restated Financing
Agreement, the Bondholder will sell a participation interest in the Bond to
AmSouth. AmSouth shall execute and deliver to the Bondholder, the Issuer and the
Company an investment letter stating in effect that it is purchasing such
participation interest for its own account and will not sell or otherwise
distribute such interest without the consent of the Company and the Bondholder
and compliance with the Issuer's rules and regulations regarding the purchase or
distribution of securities issued by the Issuer.
Section 6.05. Consent of Bondholder. Except as otherwise expressly
provided in this Financing Agreement, any consent by the Bondholder required
pursuant to this Financing Agreement may be withheld by the Bondholder for any
reasonable cause.
Section 6.06. Form and Effective Date of Notice. Any request, demand,
authorization, direction, notice, consent, waiver or other document provided or
permitted by this Financing Agreement to be made upon, given or furnished to, or
filed with the, the Issuer, the Bondholder or the Company shall be sufficient
for every purpose hereunder if in writing and (except as otherwise provided in
this Financing Agreement) either (I) delivered personally to the party or, if
such party is not an individual, to an officer, partner or legal representative
of the party to whom the same is directed (provided that any such document
delivered personally to the Bondholder must be delivered at its Principal Office
during normal business hours), or (ii) mailed by certified mail, postage prepaid
and addressed as follows:
(1) if to the Issuer, at 105-N State Capitol,
Montgomery, Alabama 36130, Attention: Finance Director;
(2) if to the Bondholder, at 150 Fourth Avenue North,
Nashville, Tennessee 37219, Attention: Timothy B. Fouts and
Gregory Bowers; and
(3) if to the Company, at 901 Explorer Boulevard,
Huntsville, Alabama 35806-2807, Attention:
Chairman of the Board.
The Issuer, the Bondholder and the Company may specify a different address for
the receipt of such documents by mail by giving notice of the change in address
to the other parties named in this Section.
Section 6.07. Payment of Expenses. The Company agrees to pay all expenses
of the Bondholder (including reasonable fees and expenses of its counsel) in
connection with the preparation of the Financing Documents and the related
documentation and the consummation of the transactions contemplated by the
Financing Documents.
Section 6.08. Termination. This Financing Agreement shall
terminate when all amounts due to the Bondholder hereunder and
under the Bond have been fully paid.
Section 6.09. Successors and Assigns. All covenants and agreements in this
Financing Agreement by the Issuer, the Company or the Bondholder shall bind
their respective successors and assigns, whether so expressed or not.
Section 6.10. Assignment. The Company may not assign its
rights or obligations under this Financing Agreement without the
prior written consent of the Bondholder.
Section 6.11. Benefits of Agreement. Nothing in this Financing Agreement,
express or implied, is intended to give any person, other than the parties
hereto and their successors and (subject to the requirements of Section 6.09)
assigns hereunder, any benefit or any legal or equitable right, remedy or claim
under this Financing Agreement.
Section 6.12. Limitation of Liability of Bondholder. The Company agrees to
indemnify, defend (with counsel satisfactory to the Bondholder) and hold
harmless the Bondholder against any loss, liability, claim or expense, including
attorneys' fees, that the Bondholder may incur in connection with its
relationship with the Company hereunder, except for such losses as may result
from the gross negligence or willful misconduct of the Bondholder regarding
Advances hereunder. The bondholder shall not be liable to the Company except for
matters resulting from the Bondholder's gross negligence or willful misconduct,
and liability for all other matters in connection therewith is hereby waived.
The Bondholder and the Company shall not in any event be liable to the other for
special, consequential, exemplary or punitive damages with respect to the
Advances.
Section 6.13. No Warranties. The Company recognizes that the plans and
specifications for the Project will be furnished, prepared, revised and/or
implemented substantially to the Company's requirements; therefore, THE ISSUER
MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE
PROJECT INCLUDING, BUT NOT LIMITED TO, THE MERCHANTABILITY THEREOF OR THE
FITNESS THEREOF FOR ANY PARTICULAR PURPOSES; THE DESIGN OR CONDITION THEREOF;
THE WORKMANSHIP, QUALITY OR CAPACITY THEREOF; COMPLIANCE THEREOF WITH THE
REQUIREMENTS OF ANY LAW, RULE SPECIFICATIONS, OR CONTRACT PERTAINING THERETO;
PATENT INFRINGEMENT; LATENT DEFECTS; OR THAT THE PROCEEDS DERIVED FROM THE SALE
OF THE BOND WILL BE SUFFICIENT TO PAY IN FULL FOR SAME.
<PAGE>
THIS FIRST AMENDED AND RESTATED LOAN AGREEMENT, dated as of April 25,
1997, between the STATE INDUSTRIAL DEVELOPMENT AUTHORITY, a public corporation
organized under the laws of the State of Alabama (the "Issuer") and ADTRAN,
INC., a corporation organized and existing under the laws of the State of
Delaware (the "Company");
WITNESSETH:
That the parties hereto, intending to be legally bound hereby, and for and
in consideration of the premises and the mutual covenants hereinafter contained,
do hereby covenant, agree and bind themselves as follows:
ARTICLE 1
Definitions
All capitalized, undefined terms used herein shall have the same meanings
as used in Article 1 of the hereinafter defined Financing Agreement. In
addition, the following words and phrases shall have the following meanings:
Acquisition Costs shall have the meaning set forth in Section 5.1(d)
hereof.
Amended and Restated Financing Agreement shall mean the First Amended and
Restated Financing Agreement dated as of April 25, 1997 among the Issuer, the
Company and the Bondholder.
Default means any Default under this Agreement as specified in and defined
by Section 8.1 hereof.
Financing Agreement means the Original Financing Agreement as amended and
restated by the Amended and Restated Financing Agreement.
Note means the promissory note delivered by the Company pursuant to this
Agreement.
Original Financing Agreement shall mean that certain Financing Agreement
dated as of January 1, 1995 among the Issuer, the Company and AmSouth Bank of
Alabama.
Project means the Project Site, the Project Building and the Project
Equipment, as they may at any time exist.
Project Building means those certain buildings and structures constructed
on the Project Site, described generally in Exhibit "B" hereto.
Project Equipment means the personal property and fixtures acquired by the
Company and installed in the Project Building, described generally in Exhibit
"C" hereto.
Project Site means the real property described in Exhibit "A" hereto.
State means the State of Alabama.
ARTICLE 2
Representations, Covenants and Warranties
Section 2.1. Representations, Covenants and Warranties of
the Issuer. The Issuer represents, covenants and warrants that:
(1) It is duly organized as a public corporation under the provisions
of the Enabling Law and is not in default under any of the provisions
contained in its certificate of incorporation or in the laws of the State.
(2) Under the provisions of the Enabling Law and its certificate of
incorporation, it has the power to consummate the transactions contemplated
by the Financing Documents to which it is a party.
(3) By proper corporate action it has duly authorized the execution
and delivery of the Financing Documents to which it is a party and the
consummation of the transactions contemplated therein.
(4) It has obtained all consents, approvals, authorizations and
orders of governmental authorities that are required to be obtained by it
as a condition to the execution and delivery of the Financing Documents to
which it is a party.
(5) The execution and delivery by it of the Financing Documents to
which it is a party and the consummation by it of the transactions
contemplated therein will not conflict with, be in violation of, or
constitute (upon notice or lapse of time, or both) a default under its
certificate of incorporation, and, to its knowledge, any indenture,
mortgage, deed of trust or other contract, agreement or instrument to which
it is a party or is subject, or any resolution, order, rule, regulation,
writ, injunction, decree or judgment of any governmental authority or court
having jurisdiction over it.
(6) The Financing Documents to which it is a party constitute legal,
valid and binding obligations and are enforceable against it in accordance
with the terms of such instruments, except as enforcement thereof may be
limited by (i) bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights and (ii) general principles of equity,
including the exercise of judicial discretion in appropriate cases.
Section 2.2. Representations, Covenants and Warranties of
the Company. The Company represents, covenants and warrants
that:
(1) It is duly organized as a corporation under the laws of the state
of its incorporation and is not in default under any of the provisions
contained in its certificate of incorporation or bylaws or in the laws of
the state of its incorporation.
(2) It has the corporate power and authority to own its properties
and assets and to carry on its business as now being conducted and is duly
qualified to do business in every jurisdiction where the character of its
properties or the nature of its activities makes such qualification
necessary.
(3) Its financial statements that have been furnished to the
Bondholder are complete and correct and fairly present its financial
condition as of the date or dates indicated and for the periods involved in
accordance with generally accepted accounting principles applied on a
consistent basis. There has been no materially adverse change in its
financial condition or operations since the date of its most recent
financial statements furnished to the Bondholder.
(4) It has good and marketable title to all its properties and assets
reflected on its most recent balance sheet furnished to the Bondholder,
except for such properties and assets as have been disposed of since the
date of such balance sheet as no longer used or useful in the conduct of
its business or as have been disposed of in the ordinary course of its
business. All such properties and assets are free and clear of liens of any
nature, except as disclosed in such financial statements.
(5) It has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it, and has paid or caused to
be paid all taxes as shown on such returns or on any assessments received
by it to the extent that such taxes have become due and payable.
(6) It does not intend to use any part of the proceeds of the Bond,
and has not incurred any indebtedness to be reduced, retired or purchased
by it out of such proceeds, for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System, and it does not own and has no intention of
acquiring any such margin stock.
(7) The execution and delivery of the Financing Documents to which it
is a party will not involve any prohibited transaction within the meaning
of the Employee Retirement Income Security Act of 1974, as amended (ERISA),
or the Internal Revenue Code. It has fulfilled its obligations under
minimum funding standards of ERISA and is in compliance in all material
respects with the applicable provisions of ERISA.
(8) It has the power to consummate the transactions contemplated by
the Financing Documents to which it is a party.
(9) By proper corporate action it has duly authorized the execution
and delivery of the Financing Documents to which it is a party and the
consummation of the transactions contemplated therein.
(10) It has obtained all consents, approvals, authorizations and
orders of governmental authorities that are required to be obtained by it
as a condition to the execution and delivery of the Financing Documents to
which it is a party.
(11) The execution and delivery by it of the Financing Documents to
which it is a party and the consummation by it of the transactions
contemplated therein will not (i) conflict with, be in violation of, or
constitute (upon notice or lapse of time, or both) a default under its
certificate of incorporation or bylaws, any indenture, mortgage, deed of
trust or other contract, agreement or instrument to which it is a party or
is subject, or any resolution, order, rule, regulation, writ, injunction,
decree or judgment of any governmental authority or court having
jurisdiction over it or (ii) result in or require the creation or
imposition of any lien of any nature upon or with respect to any of its
properties now owned or hereafter acquired, except as contemplated by the
Financing Documents.
(12) The Financing Documents to which it is a party constitute legal,
valid and binding obligations and are enforceable against it in accordance
with the terms of such instruments, except as enforcement thereof may be
limited by (i) bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights and (ii) general principles of equity,
including the exercise of judicial discretion in appropriate cases.
(13) There is no action, suit, proceeding, inquiry or investigation
pending before any court or governmental authority, or threatened against
it or affecting it or its properties, that (i) involves the consummation of
the transactions contemplated by, or the validity or enforceability of, any
of the Financing Documents or (ii) could have a materially adverse impact
upon its financial condition or operations.
(14) The Project constitutes a "project" of the type authorized and
permitted by the Enabling Law.
(15) The Company is duly qualified and authorized to transact
business in the State of Alabama.
(16) No investment bankers or underwriters are providing services of
any nature in connection with the issuance and sale of the Bond and the
various transactions associated therewith.
ARTICLE 3
Issuance of the Bond
Section 3.1. Agreement to Issue the Bond; Loan of Bond
Proceeds.
The Issuer, concurrently with the execution of this Agreement, will
issue, sell, and deliver the Bond in accordance with the provisions of Article 4
of the Financing Agreement and will loan the proceeds thereof to the Company in
accordance with the provisions of Article 4 of this Agreement.
ARTICLE 4
The Loan
Section 4.1. Loan of Bond Proceeds. The Issuer does hereby loan and agree
to loan the principal amount of the Advances with respect to the Bond to the
Company, and the Company does hereby borrow and agree to borrow such amount from
the Issuer. The Company shall execute and deliver the Note in the form of
Exhibit D hereto in evidence of such loan. The Issuer shall cause the Bondholder
to deliver the proceeds of the Advances directly to the Company, whereupon the
amount of the Advances shall be deemed to have been loaned by the Issuer to the
Company under this Agreement. The proceeds of the Advance under this Amended and
Restated Loan Agreement (in addition to the Advance under the Original Financing
Documents) shall be $30,000,000, and the Issuer will cause the Bondholder to
deliver such proceeds to the Company contemporaneously with the execution and
delivery hereof.
Section 4.2. Loan Payments.
(a) The Company hereby covenants and agrees that on or before each
Interest Payment Date and on or before each Bond Payment Date for the Bond or
any other date on which Debt Service on the Bond is required to be paid pursuant
to the Financing Agreement, until the principal of, premium, if any, and
interest on the Bond shall have been fully paid or provision for the payment
thereof shall have been made, the Company shall pay, in immediately available
funds, to the Bondholder as assignee of the Issuer, amounts which will at all
times be sufficient to pay the amount payable on each such date as principal of
(whether at maturity, upon redemption or acceleration or otherwise), premium, if
any, and interest on the Bond as provided in the Financing Agreement. It is
understood and agreed that all payments payable by the Company under subsection
(a) of this Section 4.2 have been assigned by the Issuer to the Bondholder. The
Company assents to such assignment. The Issuer hereby directs the Company and
the Company hereby agrees to pay to the Bondholder all payments payable by the
Company pursuant to this subsection by wire transfer or other same-day funds to
an account designated by the Bondholder.
(b) The Company will also pay, as additional payments, the reasonable
expenses of the Issuer related to the issuance of the Bond. The Issuer reserves
the right to adopt and impose an administrative fee to be paid annually by the
Company to the Issuer during the term of the Bond (such fee not to exceed 1/10th
of 1% of the principal amount of Bond outstanding), and the Company agrees to
pay such administrative fee to the Issuer if, as and when, requested.
(c) If the Company should fail to make any of the payments required in
this Section 4.2, the item or installment so in default shall continue as an
obligation of the Company until the amount in default shall have been fully
paid, and the Company agrees to pay the same with interest thereon, to the
extent permitted by law, from the date when such payment was due, at the
applicable Post Default Rate.
Section 4.3. Obligations of Company Unconditional. The obligations of the
Company to make the payments required in Section 4.2 and to perform and observe
the other agreements contained herein shall be absolute and unconditional and
shall not be subject to any defense or any right of setoff, counterclaim or
recoupment arising out of any breach by the Issuer or the Bondholder of any
obligation to the Company, whether hereunder or otherwise, or out of any
indebtedness or liability at any time owing to the Company by the Issuer or the
Bondholder, and shall not be affected by the occurrence of any event which might
otherwise give rise to a claim of failure of consideration or frustration of
purpose. Until such time as the principal of, premium, if any, and interest on
the Bond shall have been fully paid, the Company (i) will not suspend or
discontinue any payments provided for in Section 4.2 hereof, (ii) will perform
and observe all other agreements contained in this Agreement and (iii) except as
otherwise provided herein, will not terminate this Agreement for any cause.
Nothing contained in this Section shall be construed to release the Issuer from
the performance of any of the agreements on its part herein contained, and in
the event the Issuer should fail to perform any such agreement on its part, the
Company may institute such action against the Issuer as the Company may deem
necessary to compel performance so long as such action does not abrogate the
obligations of the Company contained in the first sentence of this Section.
Section 4.4. Delivery of Note. Simultaneously with the delivery of the
Bond, the Company shall execute and deliver the Note to the Bondholder, as
assignee of the Issuer, in a principal amount equal to $50,000,000 (or such
lesser amount as shall equal the aggregate unpaid principal amount of the
Advances), and payable at times and in amounts corresponding to the required
payments of Debt Service on the Bond. The Note shall be considered evidence of
and security for the Company's obligation to make loan payments under Section
4.2(a) of this Agreement. All loan payments made pursuant to Section 4.2(a) of
this Agreement with respect to the Bond shall be credited against the required
payments under the Note, all to the end that the unpaid principal amount of the
Bond shall be equal to the unpaid principal amount of the Note. Whenever all
Debt Service on the Bond has been fully paid, the Note shall be deemed fully
paid, and the Issuer shall cause the Bondholder to surrender the Note to the
Company.
ARTICLE 5
The Project
Section 5.1. Acquisition, Construction and Installation of
the Project.
(a) The real property, building(s), structure(s) and equipment to be
acquired, constructed and installed by the Company as part of the Project are
described in Exhibits A, B and C.
(b) The Company may cause changes or amendments to be made in the
description of the Project, provided that such changes or amendments will not
change the nature of the Project to the extent that it would not qualify for
financing under the Enabling Law.
(c) The Issuer shall cause the Advance of $30,000,000 to be made by the
Bondholder with respect to the Bond and will loan the proceeds thereof to the
Company under the provisions of Article 4 of this Agreement contemporaneously
with the execution and delivery hereof. The proceeds of the Advance and of the
corresponding loan hereunder shall be applied solely to the payment or
reimbursement of Acquisition Costs and Costs of Issuance.
(d) For purposes of this Agreement, the term "Acquisition Costs" shall
mean all costs of acquiring, constructing and installing the Project, including
without limitation:
(1) all costs related to the acquisition of real
property or any interest therein,
(2) the cost of labor, materials and supplies
furnished or used in the construction, installation,
renovation, or rehabilitation of buildings and structures,
(3) acquisition, transportation and installation costs
for personal property and fixtures,
(4) fees for architectural, engineering, legal and
supervisory services,
(5) expenses incurred in the enforcement of any remedy
against any contractor, subcontractor, materialman, vendor,
supplier or surety,
(6) interest accruing on indebtedness incurred by the Issuer or the
Company (including the Bond) in connection with the acquisition and
construction of, or other work on, the Project for the period ending on the
date the Project is placed in service,
(7) fees for an appraisal of the Project,
(8) insurance premiums and taxes incurred until the
Project is (or was) placed in service, and
(9) any fee payable to the Bondholder in connection
with its commitment to purchase the Bond.
Section 5.2. Requests for Advances. [This Section
intentionally omitted.]
Section 5.3. Completion of the Project. The completion of
the Project shall be evidenced by a certificate delivered to the
Bondholder and the Issuer and signed by an Authorized Company
Representative stating that
(1) the acquisition, construction and installation of the Project has
been completed in accordance with the plans and specifications therefor
(including any changes or amendments to such plans and specifications
pursuant to Section 5.1), and
(2) all amounts due for labor, materials, supplies and other costs
incurred in connection with the acquisition, construction and installation
of the Project have been paid.
ARTICLE 6
Special Covenants
Section 6.1. Further Assurances and Corrective Instruments. The Issuer and
the Company agree that they will, from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such supplements
hereto and such further instruments as may reasonably be required for carrying
out the expressed intention of this Agreement.
Section 6.2. Issuer and Company Representatives. Whenever under the
provisions of this Agreement the approval of the Issuer or the Company is
required or the Issuer or the Company is required to take some action at the
request of the other, such approval or such request shall be given for the
Issuer by an Authorized Issuer Representative and for the Company by an
Authorized Company Representative. The Bondholder shall be authorized to act on
any such approval or request.
Section 6.3. Financial Reports. So long as any portion of the Bond remains
outstanding and unpaid, the Company shall furnish or cause to be furnished to
the Issuer and to the Bondholder the information furnished by the Company to its
public shareholders in the forms and at the times so furnished and such other
information as the Issuer or the Bondholder shall reasonably request.
Section 6.4. Eligibility of Project for Financing. The Company makes the
following representations and warranties regarding the eligibility of the
Project for financing under the Enabling Law:
(a) The Project will be used in a trade or business described in SIC
Code Major Group 36.
(b) Either (1) the average hourly wage for full-time hourly wage paid
employees at the Project will be at least $8.00 per hour or (2) the average
total compensation (including benefits) for full-time paid employees at the
Project will be at least equivalent to $10.00 per hour.
(c) The Company expects and agrees to invest approximately
$20,000,000 in the Project within twenty-four (24) months from the
commencement of construction of the Project and anticipates investing not
less than an additional $30,000,000 in the Project by not later than five
years thereafter. In any event, the Company's capital investment in the
Project shall equal or exceed the aggregate Advances.
(d) The Company expects and agrees to employ at least 250 full-time
new employees at the Project within 18 months from the date that the
Project is placed in service. The Company also anticipates employing at
least 500 additional full-time employees within the following five years.
For purposes of this paragraph, the Company will subtract from the number
of new employees employed at the Project the total number of employees who
have been laid off by the Company in Alabama during the two years preceding
the date of delivery of this Agreement. The term "new employees" includes
only those individuals (i) who have not previously been employed by the
Company in Alabama; (ii) will be employed at the Project; and (iii) will be
subject to the personal income tax imposed by Section 40-18-2 of the Code
of Alabama (1975) upon commencement of employment at the Project.
(e) The Company did not commence the acquisition or construction of
the Project prior to the date of the Preliminary Agreement dated November
16, 1994 with respect to the Project. For purposes of this paragraph,
preliminary expenditures not exceeding 10% of the total cost of the Project
for items such as architectural, engineering, surveying, soil testing,
feasibility and similar costs shall not be considered as the commencement
of acquisition or construction.
(f) The amount of Job Development Fees (as defined in the Enabling
Law) assessed by the Company and withheld from the gross wages of its new
employees at the Project shall not exceed the amount permitted by the
Enabling Law and the rules and regulations of the Issuer and the Alabama
Revenue Department.
(g) The Company has complied and will comply with all of the
provisions of the Enabling Law and the Issuer's rules and regulations
applicable to it.
Failure to comply with representations and warranties contained in this
Section shall not constitute a Default under Section 8.1 but shall constitute
grounds for the reduction, suspension or denial by the Alabama Revenue
Department of the job development fee and the credits against corporate income
taxes granted by the Enabling Law.
ARTICLE 7
Assignment; Indemnification; Redemption
Section 7.1. Assignment. This Agreement may not be assigned, as a whole or
in part, without the prior written consent of the Bondholder and the Issuer;
provided, however, that no such assignment shall, in the opinion of Bond
Counsel, violate any provisions of the Enabling Law.
Section 7.2. Release and Indemnification Covenants.
(a) The Company shall and hereby agrees to indemnify and save the Issuer
harmless against and from all claims (including reasonable fees and expenses of
Issuer's counsel) by or on behalf of any person, firm, corporation or other
legal entity arising out of or in connection with the issuance of the Bond, the
acceptance of the Issuer's duties and responsibilities under this Agreement or
the Financing Agreement, the acquisition, construction, operation or occupancy
of the Project or the Issuer's performance or observance of any agreement or
covenant on its part to be observed or performed under this Agreement or the
Financing Agreement, including without limitation (1) the offer and sale of the
Bond or a subsequent sale or distribution of any of the Bond, and (2) the
exercise, or failure to exercise, any right, privilege or power of the Issuer
under this Agreement. The Company shall indemnify and save the Issuer harmless
from any such claim arising as aforesaid, or in connection with any action or
proceeding brought thereon, and upon notice from the Issuer, the Company shall
defend the Issuer in any such action or proceeding.
(b) Notwithstanding the fact that it is the intention of the parties
hereto that the Issuer shall not incur any pecuniary liability by reason of the
terms of this Agreement or the undertakings required of the Issuer hereunder, by
reason of the issuance of the Bond, by reason of the execution of the Financing
Agreement, by reason of the acquisition, construction, operation or occupancy of
the Project or by reason of the performance of any act requested of the Issuer
by the Company, including all claims, liabilities or losses arising in
connection with the violation of any statutes or regulation pertaining to the
foregoing; nevertheless, if the Issuer should incur any such pecuniary
liability, then in such event the Company shall indemnify and hold the Issuer
harmless against all claims, demands or causes of action whatsoever, by or on
behalf of any person, firm or corporation or other legal entity arising out of
the same or out of any offering statement or lack of offering statement in
connection with the sale or resale of the Bond and all costs and expenses
incurred in connection with any such claim or in connection with any action or
proceeding brought thereon, and upon notice from the Issuer, the Company shall
defend the Issuer in any such action or proceeding. All references to the Issuer
in this Section shall be deemed to include its directors, officers, employees,
and agents.
Notwithstanding anything to the contrary contained herein, the Company
shall have no liability to indemnify the Issuer against claims or damages
resulting exclusively from the Issuer's own gross negligence or willful
misconduct.
Section 7.3. Redemption of Bond. The Company shall have and is hereby
granted the option to cause all or a portion of the Bond to be redeemed at the
times permitted by the Financing Agreement. The Issuer, at the request of the
Company, shall forthwith take all steps (other than the payment of the money
required for such redemption) necessary under the applicable redemption
provisions of the Financing Agreement to effect redemption of all or part of the
Bond, as may be specified by the Company, on the date established for such
redemption. So long as no Loan Default exists, the Company shall be authorized
to take all steps necessary on behalf of the Issuer to effectuate redemption of
the Bond.
Section 7.4. Issuer to Grant Security Interest to the Bondholder. The
parties hereto agree that pursuant to the Financing Agreement, the Issuer shall
assign to the Bondholder, in order to secure payment of the Bond, all of the
Issuer's right, title, and interest in and to this Agreement, except for the
Issuer's rights under Sections 4.2(b), 7.2, 8.4 and 10.2 hereof.
ARTICLE 8
Defaults and Remedies
Section 8.1. Defaults Defined. The following shall be "Defaults" under
this Agreement and the term "Default" shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(a) Failure by the Company to pay any amount required to be paid
under subsection (a) of Section 4.2 hereof.
(b) Failure by the Company to observe and perform any covenant,
condition or agreement on its part to be observed or performed, other than
as referred to in Section 8.1(a), for a period of thirty (30) days after
written notice specifying such failure and requesting that it be remedied
shall have been given to the Company by the Issuer or the Bondholder,
unless the Issuer and the Bondholder shall agree in writing to an extension
of such time prior to its expiration; provided, however, if the failure
stated in the notice cannot be corrected within the applicable period, the
Issuer and the Bondholder will not unreasonably withhold their consent to
an extension of such time if corrective action is instituted by the Company
within the applicable period and diligently pursued until such failure is
corrected.
(c) The dissolution or liquidation of the Company, except as
authorized by Section 2.2 hereof, or the voluntary initiation by the
Company of any proceeding under any federal or state law relating to
bankruptcy, insolvency, arrangement, reorganization, readjustment of debt
or any other form of debtor relief, or the initiation against the Company
of any such proceeding which shall remain undismissed for sixty (60) days,
or failure by the Company to promptly have discharged any execution,
garnishment or attachment of such consequence as would impair the ability
of the Company to carry on its operations at the Project, or assignment by
the Company for the benefit of creditors, or the entry by the Company into
an agreement of composition with its creditors or the failure generally by
the Company to pay its debts as they become due.
(d) The occurrence of an Event of Default under the
Financing Agreement.
Section 8.2. Remedies on Default. Whenever any Default referred to in
Section 8.1 hereof shall have happened and be continuing, the Bondholder, or the
Issuer with the written consent of the Bondholder, may take one or any
combination of the following remedial steps:
(a) If the Bondholder has declared the Bond immediately due and
payable pursuant to Section 5.02 of the Financing Agreement, by written
notice to the Company, declare an amount equal to all amounts then due and
payable on the Bond, whether by acceleration of maturity (as provided in
the Financing Agreement) or otherwise, to be immediately due and payable as
liquidated damages under this Agreement and not as a penalty, whereupon the
same shall become immediately due and payable;
(b) Declare the principal of the Note to be due and payable
immediately, and upon any such declaration the same shall become and shall
be immediately due and payable, anything in this Agreement or in the Note
to the contrary notwithstanding; or
(c) Take whatever action at law or in equity may appear necessary or
desirable to collect the amounts then due and thereafter to become due, or
to enforce performance and observance of any obligation, agreement or
covenant of the Company under this Agreement.
Any amounts collected pursuant to action taken under this Section shall be
paid first to the Bondholder to the extent necessary to pay all indebtedness
then outstanding, and thereafter to the Issuer; it being understood, that
notwithstanding any other provision of this Agreement, any amounts collected
upon default, shall be applied first to any amounts due to the Issuer's attorney
for fees and expenses as provided in Section 8.4 hereof.
Section 8.3. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Issuer or the Bondholder is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity. No delay or omission
to exercise any right or power accruing upon any Default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
or power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Issuer or the Bondholder to exercise any
remedy reserved to it in this Article, it shall not be necessary to give any
notice, other than such notice as may be required in this Article. Such rights
and remedies as are given the Issuer hereunder shall also extend to the
Bondholder, and the Bondholder, subject to the provisions of the Financing
Agreement, shall be entitled to the benefit of all covenants and agreements
herein contained.
Section 8.4. Agreement to Pay Attorneys' Fees and Expenses. If the Company
should default under any of the provisions of this Agreement and the Issuer
should employ attorneys or incur other expenses for the collection of payments
required hereunder or the enforcement of performance or observance of any
obligation or agreement on the part of the Company herein contained, the Company
agrees that it will on demand therefor pay to the Issuer the reasonable fee of
such attorneys and such other expenses so incurred by the Issuer.
Section 8.5. No Additional Waiver Implied by One Waiver. If any agreement
contained in this Agreement should be breached by either party and thereafter
waived by the other party, such waiver shall be limited to the particular breach
so waived and shall not be deemed to waive any other breach hereunder.
ARTICLE 9
Prepayment and Redemption
Section 9.1. Prepayment and Redemption. The Company shall have the option
to prepay its obligations hereunder and under the Note at the times and in the
amounts as necessary to exercise its option to cause the Bond to be redeemed as
set forth in Section 4.02 of the Financing Agreement and Section 7.3 of this
Agreement. The Issuer, at the request of the Company, shall forthwith take all
steps (other than the payment of the money required for such redemption)
necessary under the applicable redemption provisions of the Financing Agreement
to effect redemption of all or part of the Bond, as may be specified by the
Company, on the date established for such redemption.
ARTICLE 10
Miscellaneous
Section 10.1. Term of Agreement. This Agreement shall remain in full force
and effect from the date hereof to and including January 1, 2020, or until such
time as all indebtedness, all fees and expenses of the Issuer and all amounts
payable to the Bondholder under the Financing Agreement shall have been fully
paid.
Section 10.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered mail, postage prepaid, addressed as follows:
If to the Issuer: State Industrial Development Authority
105-N State Capitol
Montgomery, Alabama 36130
Attention: Finance Director
If to the Company: ADTRAN, Inc.
901 Explorer Boulevard
Huntsville, Alabama 35806-2807
Attention: Chairman of the Board
If to the Bondholder: First Union National Bank of Tennessee
150 Fourth Avenue North
Nashville, Tennessee 37219
Attention: Timothy B. Fouts and J. Gregory
Bowers
A duplicate copy of each notice, certificate or other communication given
hereunder by the Issuer or the Company shall also be given to the Bondholder.
The Issuer, the Company, and the Bondholder may, by written notice given
hereunder, designate any further or different addresses to which subsequent
notices, certificates or other communications shall be sent.
Section 10.3. Binding Effect. This Agreement shall inure
to the benefit of and shall be binding upon the Issuer, the
Company, the Bondholder and their respective successors and
assigns.
Section 10.4. Severability. If any provision of this Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision hereof.
Section 10.5. Amendments, Changes and Modifications. Subsequent to the
issuance of the Bond and prior to its payment in full, and except as otherwise
herein expressly provided, this Agreement may not be effectively amended,
changed, modified, altered or terminated without the written consent of the
Bondholder.
Section 10.6. Execution in Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 10.7. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State.
Section 10.8. Captions. The captions and headings in this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or Sections of
this Agreement.
IN WITNESS WHEREOF, the Issuer and the Company have caused this Agreement
to be executed in their respective corporate names and their respective
corporate seals to be hereunto affixed and attested by their duly authorized
officers, all as of the date first above written.
STATE INDUSTRIAL DEVELOPMENT
AUTHORITY
By: /s/ Ira J. Silverman
[S E A L]
Title: President
Attest:
By: /s/G. Sage Lyons
Title: Secretary
ADTRAN, INC.
By: /s/Mark C. Smith
[S E A L]
Title: CEO and Chairman of the Board
Attest:
By: /s/Lonnie S. McMillian
Title: Senior Vice President
EXHIBIT A
Project Site
The following described real estate situated in the City of Huntsville,
Madison County, Alabama:
Lot 5, Block 1, according to the map of survey of Replat of Part
of Block 1, Lots 4 & 5, Cummings Research Park West, as recorded in
Plat Book 25 at page 82 in the Office of the Judge of Probate of
Madison County, Alabama.
Lots 7 & 8, Block 1 of the Plat of Part of Blocks 1, 4, 5, and
6, Cummings Research Park West, as recorded in Plat Book 22, page 54
Probate Records of Madison County, Alabama.
EXHIBIT B
Project Building
ADTRAN Phase III is a facilities expansion project to meet ADTRAN's
growing space requirements due to company growth. The building facilities will
be expanded on property already acquired by/for ADTRAN, in Cummings Research
Park West, Huntsville, Alabama, including a 21.68 acre site purchased in 1990
and a 14.2 acre site purchased in 1993.
The Phase III building expansion will include: a 125,000 square foot
(M/L), 5-story building for office and laboratory space; a 35,000 square foot
(M/L), 1-story building for manufacturing/assembly; a 70,000 square foot 1-story
highbay warehouse facility; parking facilities for 1,000 cars; and related site
and utility improvements.
EXHIBIT C
Project Equipment
The Equipment will consist, inter alia, of the following:
(a) All equipment in any of its forms, now or hereafter existing
(including, but not limited to, all industrial machinery, computers and
related equipment, electronic testing equipment, materials handling
equipment, equipment and fixtures, office machinery, furniture, tools,
spare parts and building materials) and all goods and other tangible
personal property of the Company acquired or to be acquired by the Company
in conjunction with the Project.
(b) to the extent not described above, all fixtures of
the Company now or hereafter located on the Project Site;
(c) Any and all accessions and additions now or hereafter made or
added to any of the property described in subparagraphs (a) and (b), above,
any substitutions and replacements therefor, and all attachments and
improvements now or hereafter placed upon or used in connection therewith,
or any part thereof.
EXHIBIT D
First Amended and Restated Note
$50,000,000.00 ______________, ________
____________, 1997
FOR VALUE RECEIVED, ADTRAN, INC., a Delaware corporation (the "Company"),
hereby promises to pay to the order of FIRST UNION NATIONAL BANK OF TENNESSEE, a
national banking association, with its principal office in the City of
Nashville, Tennessee, as assignee under the Financing Agreement described below,
or its assigns, the principal amount of
FIFTY MILLION DOLLARS ($50,000,000.00),
or such lesser amount as may be outstanding hereunder, and to pay interest from
the date hereof until payment in full of the unpaid principal balance hereof at
times and in amounts corresponding to payments due under the Loan Agreement
described below with respect to the Bond described below.
This note is issued to evidence and secure the loan repayment obligations
of the Company under that certain Loan Agreement dated as of January 1, 1995 and
amended and restated as of April 25, 1997 (the "Loan Agreement") between the
State Industrial Development Authority, a public corporation organized under the
laws of the State of Alabama (the "Issuer"), and the Company. The Issuer has
issued its Taxable Revenue Bond, Series 1995 (ADTRAN, Inc. Project) (the "Bond")
pursuant to that certain Financing Agreement dated as of January 1, 1995 (the
"AmSouth Financing Agreement") among the Issuer, ADTRAN, Inc. (the "Company")
and AmSouth Bank of Alabama ("AmSouth"). First Union National Bank of Tennessee
(the "Bondholder") has agreed to purchase the Bond and to make a further advance
to be evidenced by the Bond pursuant to a Financing Agreement dated as of April
25, 1997 (the "Financing Agreement") among the Issuer, the Company and the
Bondholder. Pursuant to the Loan Agreement, the Issuer has loaned the proceeds
of the Bond to the Company, and the Company has agreed to make loan repayments
at times and in amounts sufficient to pay the principal of, premium (if any) and
interest on the Bond. Pursuant to the Financing Agreement the Issuer has
assigned to the Bondholder substantially all its rights under the Loan Agreement
and this note.
The payments due on this note shall correspond to the payments due under
the Loan Agreement with respect to principal of, premium (if any) and interest
on the Bond. The terms of payment of principal, premium and interest with
respect to the Bond issued under the Financing Agreement (and the corresponding
payments under the Loan Agreement) are hereby adopted by reference and made a
part of this note as if set out herein in full. The outstanding principal amount
of the Bond shall be deemed to be the outstanding principal amount of this note.
This note shall be subject to prepayment prior to maturity at times and in
amounts corresponding to the Financing Agreement provisions with respect to the
redemption of the Bond. Any notice of redemption of the Bond shall be deemed to
be a notice of prepayment of this note.
If an event of default occurs and is continuing under the terms of the
Loan Agreement, the principal of this note and the interest accrued hereon may
be declared due and payable in the manner and with the effect provided in the
Loan Agreement.
IN WITNESS WHEREOF, the Company has caused this note to be executed in its
name and on its behalf by the undersigned officer.
ADTRAN, INC.
By:
Title:
<PAGE>
State Industrial Development Authority (Alabama)
Taxable Revenue Bond, Series 1995
(ADTRAN, Inc. Project)
The STATE INDUSTRIAL DEVELOPMENT AUTHORITY, a public corporation
organized under the laws of the State of Alabama (the "Issuer"), for value
received, hereby promises to pay to the registered owner identified below, or
its registered assigns, the principal sum of FIFTY MILLION DOLLARS
($50,000,000), or such lesser amount as shall equal the aggregate unpaid
principal amount of the Advances made by the Bondholder to the Issuer under the
Financing Agreement referred to below, on January 1, 2020, and to pay interest
on the unpaid principal amount of each such Advance from the date of such
Advance until such Advance shall be paid in full, at the rate per annum and on
the dates provided in the Financing Agreement. All payments of principal and
interest on this bond shall be made in lawful money of the United States of
America by wire transfer or other same-day funds to the account designated by
the Bondholder, except for the final payment of principal and interest which
shall be made only upon surrender of this bond to the Issuer.
This bond is issued under and pursuant to that certain Financing Agreement
dated as of January 1, 1995, as amended and restated by an Amended and Restated
Financing Agreement dated as of April 25, 1997 (the "Financing Agreement"),
among the Issuer, First Union National Bank of Tennessee, a national banking
association, with its principal office in the City of Nashville, Tennessee (the
"Bondholder"), and ADTRAN, Inc., a corporation organized under the laws of the
State of Delaware (the "Company"). Capitalized terms not otherwise defined
herein shall have the meanings assigned in the Financing Agreement.
Pursuant to the Financing Agreement, the Bondholder has agreed to make a
loan or loans (the "Advances") to the Issuer in an aggregate amount not to
exceed $50,000,000 for the purpose of financing the costs of acquiring,
constructing and equipping of certain office, manufacturing, design,
engineering, assembling and distribution facilities referred to in the Financing
Agreement as the "Project". As evidence of its repayment obligation with respect
to such Advances, the Issuer has issued this bond.
Pursuant to a Loan Agreement dated as of January 1, 1995, as amended and
restated as of April 25, 1997 (the "Loan Agreement"), between the Issuer and the
Company, the amounts received as Advances by the Issuer have been and will be
loaned by the Issuer to the Company and the Company has agreed to repay such
loan or loans at times and in amounts which will be sufficient to pay Debt
Service on this bond when due. The Company's repayment obligations under the
Loan Agreement are evidenced by the Note.
Debt Service on this bond is payable solely out of the amounts payable by
the Company pursuant to the Loan Agreement. As security for the payment of Debt
Service on this bond, the Issuer has assigned and pledged to the Bondholder all
right, title and interest of the Issuer in and to the Loan Agreement and the
Note (except for certain rights personal to the Issuer).
THIS BOND IS A LIMITED OBLIGATION OF THE ISSUER PAYABLE SOLELY FROM
AMOUNTS PAYABLE BY THE COMPANY UNDER THE LOAN AGREEMENT AND THE NOTE AND SECURED
SOLELY BY THE PLEDGED REVENUES. THIS BOND WILL NOT CONSTITUTE AN INDEBTEDNESS OR
OTHER LIABILITY OF THE STATE OF ALABAMA OR OF ANY POLITICAL SUBDIVISION THEREOF.
NEITHER THE FAITH OR CREDIT OF THE STATE OF ALABAMA NOR ANY POLITICAL
SUBDIVISION THEREOF SHALL BE PLEDGED TO THE PAYMENT OF THIS BOND OR THE INTEREST
THEREON AND THE ISSUANCE OF THIS BOND SHALL NOT DIRECTLY, INDIRECTLY OR
CONTINGENTLY OBLIGATE THE STATE OF ALABAMA OR ANY POLITICAL SUBDIVISION THEREOF
TO APPLY MONEY FOR, OR LEVY OR PLEDGE ANY FORM OF TAXATION WHATEVER TO THE
PAYMENT OF, THE PRINCIPAL OF, PREMIUM, IF ANY, OR THE INTEREST ON THIS BOND. THE
ISSUER HAS NO TAXING POWER.
The Issuer may at its option (exercised at the direction of the Company)
redeem all or any portion of the principal of this bond (in integral multiples
of $5,000) at any time prior to maturity, upon the terms provided in the
Financing Agreement.
The Bondholder shall have the option to tender this Bond for purchase in
whole on April 25, 1999 (or such later date as provided under the terms of the
Financing Agreement). If not exercised, the Bondholder's right of optional
tender shall be extended upon the terms provided in the Financing Agreement.
If an "Event of Default" as defined in the Financing Agreement shall
occur, the principal of this bond may become or be declared due and payable in
the manner and with the effect provided in the Financing Agreement.
This bond is transferable on the Bond Register maintained by the Issuer,
upon surrender of this bond for transfer at the office of the Issuer, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer duly executed by, the registered holder hereof or his
attorney duly authorized in writing, and thereupon evidence of such transfer
shall be endorsed by the Issuer on the certificate of registration attached
hereto.
No service charge shall be made for any transfer hereinbefore referred
to, but the Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The Issuer, the Company and any agent of the Issuer or the Company may
treat the person in whose name this bond is registered as the owner of this bond
for the purpose of receiving payment of Debt Service on this bond and for all
other purposes whatsoever, whether or not any payment on this bond is overdue,
and, to the extent permitted by law, neither the Issuer, the Company nor any
such agent shall be affected by notice to the contrary.
No covenant or agreement contained in this bond or the Financing Agreement
shall be deemed to be a covenant or agreement of any officer, agent or employee
of the Issuer, and neither any member of the board of directors of the Issuer
nor any officer executing this bond shall be liable personally on this bond or
be subject to any personal liability or accountability by reason of the issuance
of this bond.
It is hereby certified, recited and declared that all acts, conditions and
things required to be performed by the Issuer precedent to and in the execution
and delivery of the Financing Agreement and issuance of this bond do exist, have
happened and have been performed in due time, form and manner as required by
law.
IN WITNESS WHEREOF, the Issuer has caused this bond to be duly executed
under its corporate seal.
Dated: January 13, 1995.
STATE INDUSTRIAL DEVELOPMENT
AUTHORITY
By: /s/ Ira J. Silverman
Its President
[S E A L]
Attest: /s/G.Sage Lyons
Secretary
Certificate of Registration
This bond is registered on the Bond Register in the name of the last
person listed below:
Date of Name of Signature of Authorized
Registration Registered Holder Officer of Issuer
January 13, AmSouth Bank of
1995 Alabama
First Union National
Bank of Tennessee
<PAGE>
First Amended and Restated Note
$50,000,000.00 Birmingham, Alabama
April 25, 1997
FOR VALUE RECEIVED, ADTRAN, INC., a Delaware corporation (the "Company"),
hereby promises to pay to the order of FIRST UNION NATIONAL BANK OF TENNESSEE, a
national banking association, with its principal office in the City of
Nashville, Tennessee, as assignee under the Financing Agreement described below,
or its assigns, the principal amount of
FIFTY MILLION DOLLARS ($50,000,000.00),
or such lesser amount as may be outstanding hereunder, and to pay interest from
the date hereof until payment in full of the unpaid principal balance hereof at
times and in amounts corresponding to payments due under the Loan Agreement
described below with respect to the Bond described below.
This note is issued to evidence and secure the loan repayment obligations
of the Company under that certain Loan Agreement dated as of January 1, 1995 and
amended and restated as of April 25, 1997 (the "Loan Agreement") between the
State Industrial Development Authority, a public corporation organized under the
laws of the State of Alabama (the "Issuer"), and the Company. The Issuer has
issued its Taxable Revenue Bond, Series 1995 (ADTRAN, Inc. Project) (the "Bond")
pursuant to that certain Financing Agreement dated as of January 1, 1995 (the
"AmSouth Financing Agreement") among the Issuer, ADTRAN, Inc. (the "Company")
and AmSouth Bank of Alabama ("AmSouth"). First Union National Bank of Tennessee
(the "Bondholder") has agreed to purchase the Bond and to make a further advance
to be evidenced by the Bond pursuant to a Financing Agreement dated as of April
25, 1997 (the "Financing Agreement") among the Issuer, the Company and the
Bondholder. Pursuant to the Loan Agreement, the Issuer has loaned the proceeds
of the Bond to the Company, and the Company has agreed to make loan repayments
at times and in amounts sufficient to pay the principal of, premium (if any) and
interest on the Bond. Pursuant to the Financing Agreement the Issuer has
assigned to the Bondholder substantially all its rights under the Loan Agreement
and this note.
The payments due on this note shall correspond to the payments due under
the Loan Agreement with respect to principal of, premium (if any) and interest
on the Bond. The terms of payment of principal, premium and interest with
respect to the Bond issued under the Financing Agreement (and the corresponding
payments under the Loan Agreement) are hereby adopted by reference and made a
part of this note as if set out herein in full. The outstanding principal amount
of the Bond shall be deemed to be the outstanding principal amount of this note.
This note shall be subject to prepayment prior to maturity at times and in
amounts corresponding to the Financing Agreement provisions with respect to the
redemption of the Bond. Any notice of redemption of the Bond shall be deemed to
be a notice of prepayment of this note.
If an event of default occurs and is continuing under the terms of the
Loan Agreement, the principal of this note and the interest accrued hereon may
be declared due and payable in the manner and with the effect provided in the
Loan Agreement.
IN WITNESS WHEREOF, the Company has caused this note to be executed in its
name and on its behalf by the undersigned officer.
ADTRAN, INC.
By: /s/ John R. Cooper
Title: Vice President and CFO
<PAGE>
INVESTMENT AGREEMENT
This Investment Agreement ("Agreement") is entered into as of
the 25th day of April , 1997, by and among ADTRAN, INC. (the "Borrower"), a
Delaware corporation; FIRST UNION NATIONAL BANK OF TENNESSEE (the "Bondholder"),
a national banking association; and AMSOUTH BANK OF ALABMA (the "Participant"),
an Alabama banking corporation.
W I T N E S S E T H
WHEREAS, concurrently with the execution hereof, the State Industrial
Development Authority for the State of Alabama (the "Issuer") has issued its
Taxable Revenue Bond, Series 1995 (ADTRAN, Inc. Project) in the principal amount
of Fifty Million and No/100 ($50,000,000.00) (the" Bond") to the Bondholder
pursuant to that First Amended and Restated Financing Agreement (the "Financing
Agreement") dated as of April 25, 1997 among the Issuer, the Bondholder and the
Borrower; and
WHEREAS, concurrently with the execution hereof, the Borrower and the
Issuer have entered into that First Amended and Restated Loan Agreement (the
"Loan Agreement") dated as of April 25, 1997, and the Issuer has assigned to the
Bondholder all of the rights of the Issuer under the Loan Agreement with the
intention that the Bondholder enjoy all of the rights of the Issuer therunder
except to the extent of certain rights reserved with respect to certain rights
to notice and "Additional Payments," as defined in the Financing Agreement; and
WHEREAS, concurrently with the execution hereof, as further evidence
of its obligations to the Bondholder arising under the Loan Agreement, the
Borrower has executed that First Amended and Restated Note (the "Note") dated
April 25, 1997 payable to the order of the Bondholder in the maximum principal
amount of Fifty Million and No/100 Dollars ($50,000,000.00); and
WHEREAS, concurrently with the execution hereof, the Participant has
acquired a participation interest in the Bond; and WHEREAS, one condition to the
Bondholder's agreement to purchase the Bond is that the Borrower shall grant a
first priority lien upon certain deposit accounts maintained with the Bondholder
and the Participant to secure the payment of the Note and the Loan Agreement:
and
WHEREAS, it is a further condition to the Bondholder's agreement to
purchase the Bonds that the deposits pledged to secure the Note and the Loan
Agreement be derived from sources other than the proceeds of the Bond; and
WHEREAS, the Borrower desires assurances that, should either the
Bondholder or the Participant fail in its obligation to pay to the Borrower the
amount deposited with them and pledged to secure the payment of the Note and the
Loan Agreement upon the payment in full of those obligations, the Borrower will
have the right to set off the amount of the deposited funds against the balance
due under the Note and the Loan Agreement:
NOW, THEREFORE, as an inducement to cause the Bondholder to purchase
the Bond, as an inducement to cause the Participant to acquire a participation
interest in the Bond, and for other valuable consideration, the receipt and
sufficiency of which are acknowledged, it is agreed as follows:
1. ESTABLISHMENT AND MAINTENANCE OF BONDHOLDER ACCOUNT. Prior to or
concurrently with the execution of this Agreement, the Borrower has established
a commercial money market deposit account with the Bondholder bearing the
account number 2020000174613 (the "Bondholder Account") in the amount of Thirty
Million and No/100 Dollars ($30,000,000.00). The Bondholder Account has been
established in the name of the Borrower and is and shall be subject to the
restriction that the Borrower shall have no access to the deposited funds absent
the consent of the Bondholder. The interest rate on the Bondholder Account shall
change no more often than once per month. The Bondholder shall notify the
Participant as these changes occur.
2. ESTABLISHMENT AND MAINTENANCE OF PARTICIPANT ACCOUNT. Prior to or
concurrently with the execution of this Agreement, the Borrower has established
a certificate of deposit with the Participant bearing the account number
28455029 (together with all subsequent certificates of deposit funded with the
proceeds of the initial certificate of deposit, the "Participant Account") in
the amount of Twenty Million and No/100 Dollars ($20,000,000.00). The
Participant Account has been established in the name of the Borrower and is and
shall be subject to the restriction that the Borrower shall have no access to
the deposited funds absent the consent of the Participant and the Bondholder.
The Participant Account shall bear the same rate of interest as the Bondholder
Account.
3. SOURCE OF DEPOSITED FUND. Funds deposited by the Borrower to
establish the Bondholder Account and the Participant Account (collectively the
"Deposit Accounts") shall not be funds that are proceeds of the Bond.
4. DEFINITION OF SECURED INDEBTEDNESS. As used herein, "Secured
Indebtedness" shall mean all present and future debts and other obligations of
the Borrower evidenced by the Note and the Loan Agreement, as they may hereafter
be amended, modified, extended, renewed or restated, and all obligations arising
hereunder.
5. SECURITY INTEREST; ASSIGNMENT. To secure the payment of the Secured
Indebtedness, the Borrower hereby assigns to the Bondholder and grants the
Bondholder a lien and security interest upon the Deposit Accounts and all
replacement accounts, however, denominated, and all proceeds thereof
(collectively the "Accounts").
6. WARRANTIES. The Borrower warrants and represents to the
Bondholder and the Participant the following:
a. TITLE. The Borrower is the sole legal and equitable owner of
the Accounts.
b. NO ENCUMBRANCES. The Accounts are not subject to any
assignment, lien or other encumbrance other than rights in favor of the
Bondholder and the Participant pursuant to this Agreement.
c. VALID LIEN. This Agreement provides the Bondholder with a
valid first priority assignment of and lien interest in the Accounts.
7. COVENANTS. The Borrower covenants with the Bondholder as follows:
a. NO TRANSFER. The Borrower shall not sell or assign the
Accounts in whole or in part and will not grant or allow any other lien or
encumbrance to attach thereto.
b. NO WITHDRAWAL. The Borrower shall not withdraw any funds from
the Accounts or convert the Accounts to any other savings instrument or account,
in whole or in part, without the prior specific written approval of the
Bondholder; provided, however, (i) in the absence of an Event of Default
hereunder, the Borrower shall be entitled to receive interest accrued on the
Accounts as such interest would normally become payable under the terms and
conditions of the respective account contracts, and (ii) the Borrower may at any
time use funds from the Accounts to prepay the Secured Indebtedness, in whole or
in part.
8. PERFECTION. The Borrower acknowledges and agrees that the
Bondholder Account is a bank deposits that is not presently subject to Article 9
of the Uniform Commercial Code as adopted in either Tennessee or Alabama and
that the Bondholder's security interest therein is duly protected against lien
creditors of the Borrower, bond fide purchasers from the Borrower and the rights
of the Borrower or a Trustee for Borrower under any filing under the Bankruptcy
Code by the absolute control of the Bondholder as to the right of withdrawal
from the Bondholder Account. The Borrower acknowledges and agrees that the
certificate of deposit evidencing the Participant Account is an "instrument"
under Alabama law for the purpose of perfection and that possession of the
certificate evidencing the Participant Account from time to time is the
appropriate means of perfecting a security interest therein. Bondholder hereby
appoints Participant as the agent of Bondholder for the purposes of possessing
the original certificates of deposit issued with respect to the Participant
Account for the purpose of perfecting Bondholder's security interest therein by
possession. Should the Bondholder in the future determine that the filing of a
financing statement or other action is necessary or desirable as further
evidence of the perfection of the interest of the Bondholder in the Accounts,
the Borrower shall bear all costs of the preparation and filing of such
financing statements or the taking of such other action, including the
reasonable fees and expenses of the Bondholder's attorneys.
9. THE BONDHOLDERS' RIGHT OF SETOFF. As a further inducement to the
Bondholder to purchase the Bond, the Borrower hereby grants to the Bondholder
(and acknowledges the existence of) the right of setoff against the Bondholder
Account and grants to the Bondholder (and acknowledges the existence of) a
banker's lien against the Bondholder Account, both of which rights serve as
additional security for the Secured Obligations.
10. THE PARTICIPANT'S RIGHT OF SETOFF. As an inducement to the
Participant to purchase a participation interest in the Bond, the Borrower
hereby grants to the Participant (and acknowledges the existence of) the right
of setoff against the Participant Account and grants to the Participant (and
acknowledges the existence of) a banker's lien against the Participant Account,
both of which rights serve as additional security for the Secured Obligations.
11. THE BORROWER'S RIGHT OF SETOFF AGAINST THE BONDHOLDER. The
Bondholder hereby grants to the Borrower and acknowledges the existence of the
Borrower's right to set off the balance of the Bondholder Account against and to
the reduction of all or part of the balance of the Secured Indebtedness in the
event that the Bondholder should fail to pay to the Borrower the funds in the
Bondholder Account upon the tender of full payment of the Secured Indebtedness
or upon the tender of partial payment thereof, to the extent such partial
payment is then allocated to the Bondholder's interest in the Bond by agreement
with the Participant.
12. THE BORROWER'S RIGHT OF SETOFF AGAINST THE PARTICIPANT. The
Participant hereby grants to the Borrower and acknowledges the existence of the
Borrower's right to set off the balance of the Participant Account against and
to the reduction of all or part of the Participant Account in the event that the
Participant should fail to pay to the Borrower the funds in the Participant
Account upon the tender of full payment of the Secured Indebtedness or upon the
tender of partial payment thereof, to the extent such partial payment is then
allocated to the Participant's interest in the Bond by agreement with the
Bondholder. For this purpose, the parties agree that the funds owed by the
Borrower under the Note and the Loan Agreement shall be regarded as funds owed
directly to the Participant to the extent of the Participant's participation
interest therein and the Bondholder agrees to credit against the Secured
Indebtedness any amount applied thereto through the Participant's exercise of
this right.
13. WARRANTY OF THE BONDHOLDER. The Bondholder represents and warrants
that this Agreement constitutes a legal, valid and binding obligation of the
Bondholder and is enforceable against the Bondholder in accordance with its
terms, except as enforcement hereof may be limited by (i) bankruptcy,
insolvency, or other similar laws affecting the enforcement of creditors' rights
and (ii) general principles of equity, including the exercise of judicial
discretion in appropriate cases.
14. EVENT OF DEFAULT DEFINED. The occurrence of any one or more of the
following events shall constitute an Event of Default under this Agreement.
a. FINANCING AGREEMENTS. The occurrence of an Event of Default
under the Financing Agreement, the Loan Agreement or the Note.
b. MONETARY DEFAULT. The Borrower's failure to pay any amount
due to the Bondholder under this Agreement within five (5) days of demand.
c. BREACH OF COVENANT. The Borrower's failure to perform or
observe any obligation or covenant made herein with respect to the Secured
Indebtedness.
d. BREACH OF WARRANTY. The Borrower's making of any
representation or warranty in connection with this Agreement or the Secured
Indebtedness that is materially false.
15. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Even
of Default hereunder, the Bondholder (and the Participant as to the right of
setoff) may pursue any or all of the following remedies without any notice to
the Borrower except as required below:
a. WITHDRAWAL FROM ACCOUNTS. The Bondholder may withdraw some
or all of the funds in either or both of the Accounts and apply the proceeds
thereof to the Secured Indebtedness. The Borrower hereby appoints the
Bondholder as the Borrower's attorney-in-fact for the purpose of withdrawing
funds from the Accounts in such event.
b. EXERCISE OF SETOFF Either or both of the Bondholder and the
Participant may exercise its right of setoff and lien against the Accounts.
c. OTHER REMEDIES. The Bondholder may pursue any other remedy
that may be available to it under any other document pertaining to the Secured
Indebtedness or that may otherwise be available to the Bondholder at law or
equity.
d. APPLICATION OF PROCEEDS. All amounts received by the
Bondholder for the Borrower's account by exercise of its remedies hereunder
shall be applied as follows: First, to the payment of all expenses incurred by
the Bondholder in exercising its rights hereunder, including attorney's fees,
and any other expenses due the Bondholder from the Borrower; Second, to the
payment of all interest included in the Secured Indebtedness, in such order as
the Bondholder may elect; Third, to the payment of all principal included in the
Secured Indebtedness, in such order as the Bondholder may elect; and Fourth,
surplus to the Borrower or other party entitled thereto.
16. PARTICIPATION AGREEMENT. As between the Bondholder and the
Participant, certain provisions hereof are subject to additional agreements set
forth in that Participation Agreement dated as of the date hereof between the
Bondholder and the Participant,as it may hereafter be amended from time to time.
17. EXPENSES Upon demand, the Borrower will advance to the Bondholder
or, at the Bondholder's option, reimburse the Bondholder for, the following
expenses:
a. TAXES. All taxes that the Bondholder may be required to pay
because of the Secured Indebtedness (excluding taxes based upon the net income
of the Bondholder) or because of the Bondholder's interest in any property
securing the payment of the Secured Indebtedness;
b. ADMINISTRATION. All expenses that the Bondholder may incur in
connection with the preparation, execution, administration or enforcement of
this Agreement or of any other document pertaining to the Secured Indebtedness;
c. PROTECTION OF COLLATERAL. All cost of preserving or disposin
of any collateral securing the Secured Indebtedness;
d. COST OF COLLECTION. All court cost and other cost of
collecting any debt, overdraft or other obligation included in the Secured
Indebtedness, including compensation for time spent by employees of the
Bondholder;
e. LITIGATION. All cost arising from any litigation,
investigation, or administrative proceeding (whether or not the Bondholder is a
party thereto) that the Bondholder may incur as a result of the Secured
Indebtedness or as a result of the Bondholder's association with the Borrower,
including, but not limited to, expenses incurred by the Bondholder in connection
with a case or proceeding involving the Borrower under any chapter of the
Bankruptcy Code or any successor statute thereto;
f. ATTORNEYS FEES. Reasonable attorneys' fees incurred in
connection with any of the foregoing.
If the Bondholder pays any of the foregoing expenses, they shall become a part
of the Secured Indebtedness and shall bear interest at the highest rate
applicable to the Secured Indebtedness from time to time. This paragraph shall
remain in full effect regardless of the full payment of the Secured
Indebtedness, the purported termination of this Agreement, the delivery of the
executed original of this Agreement to the Borrower, or the content or accuracy
of any representation made by the Borrower to the Bondholder; provided, however,
the Bondholder may terminate this paragraph by executing and delivering to the
Borrower a written instrument of termination specifically referring to this
paragraph.
18. CONSENT TO JURISDICTION. The Borrower hereby irrevocably consents
to the jurisdiction of the United States District Court for the Middle District
of Tennessee and of all Tennessee state courts sitting in Davidson County,
Tennessee, for the purpose of any litigation to which the Bondholder may be a
party and which concerns this Agreement or the Secured Indebtedness. It is
further agreed that venue for any such action shall lie exclusively with courts
sitting in Davidson County, Tennessee, unless the Bondholder agrees to the
contrary in writing. This provision shall apply to those matters for which
judicial proceedings are appropriate under the arbitration provision set forth
below, and does not limit the effect of the arbitration provision in any way.
19. NOT PARTNERS; NO THIRD PARTY BENEFICIARIES. Nothing contained
herein or in any related document shall be deemed to render the Bondholder a
partner of the Borrower for any purpose. This Agreement has been executed for
the sole benefit of the Bondholder and the Participant, and no third party is
authorized to rely upon the Bondholder's rights hereunder or to rely upon any
assumption that the Bondholder has or will exercise its rights under this
Agreement or under any document referred to herein.
20. NO MARSHALING OF ASSETS. The Bondholder may proceed against
collateral securing the Secured Indebtedness and against parties liable therefor
in such order as it may elect, and neither the Borrower nor any creditor of the
Borrower shall be entitled to require the Bondholder to marshal assets. The
benefit of any rule of law or equity to the contrary is hereby expressly waived.
21. NOTICES. Any communications concerning this Agreement or the
credit described herein shall be addressed as provided in the Financing
Agreement and further, to the Participant, as follows:
AmSouth Bank of Alabama
200 West Clinton Avenue
Huntsville, Alabama 35801
22. NO RELIANCE ON THE BONDHOLDER'S ANALYSIS. The Borrower
acknowledges and represents that, in connection with the Secured Indebtedness,
the Borrower has not relied upon any financial projection, budget, assessment or
other analysis by the Bondholder or upon any representation by the Bondholder as
to the risks, benefits or prospects of the Borrower's business activities or
present or future capital needs incidental thereto, all such considerations
having been examined fully and independently by the Borrower.
23. LEGAL AND BINDING AGREEMENT. The Borrower warrants that the
execution and performance of this Agreement will not violate any judicial or
administrative order or governmental law or regulation, and that this Agreement
is valid, binding and enforceable in every respect according to its terms,
subject to principles of equity and laws applicable to the rights of creditors
generally, including bankruptcy laws.
24. NO CONSENT REQUIRED. The Borrower warrants that the Borrower's
execution, delivery and performance of this Agreement do not require the consent
of or the giving of notice to any third party including, but not limited to, any
other lender, governmental body or regulatory authority, except for the Issuer,
to whom such notice has been given.
25. INDULGENCE NOT WAIVER. The Bondholder's indulgence in the
existence of an Event of Default hereunder or any other departure from the terms
of this Agreement shall not prejudice the Bondholder's rights to declare an
Event of Default or otherwise demand strict compliance with this Agreement.
26. CUMULATIVE REMEDIES. The remedies provided the Bondholder in this
Agreement are not exclusive of any other remedies that may be available to the
Bondholder under any other document or at law or equity.
27. AMENDMENT AND WAIVER IN WRITING. No provision of this Agreement
can be amended or waived, except by a statement in writing signed by the party
against which enforcement of the amendment or waiver is sought.
28. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the respective heirs, successors and assigns of the parties except
that the Borrower shall not assign any rights or delegate any obligations
arising hereunder without the prior written consent of the Bondholder. Any
attempted assignment or delegation by the Borrower without the required prior
consent shall be void.
29. ENTIRE AGREEMENT. This Agreement and the other written agreements
among the parties represent the entire agreement among the parties concerning
the subject matter hereof, and all oral discussions and prior agreements are
merged herein.
30. SEVERABILITY. Should any provision of this Agreement be invalid
or unenforceable for any reason, the remaining provisions hereof shall remain in
full effect.
31. TIME OF ESSENCE. Time is of the essence of this Agreement, and all
dates and time periods specified herein shall be strictly observed, except that
the Bondholder may permit specific deviations therefrom by its written consent.
32. APPLICABLE LAW. The validity, construction and enforcement of this
Agreement shall be determined according to the laws of Tennessee applicable to
contracts executed and performed entirely within that state. In this regard, it
is acknowledged that the Note, Loan Agreement and Financing Agreement are
governed by the substantive laws of the State of Alabama, and the parties wish
for Tennessee law to apply hereto because the Bondholder Account is located in
the State of Tennessee, where the Bondholder has its places of business and
where all payments on the Secured Indebtedness are due.
33. GENDER AND NUMBER. Words used herein indicating gender or number
shall be read as context may require
34. CAPTIONS NOT CONTROLLING. Captions and headings have been included
in this Agreement for the convenience of the parties, and shall not be construed
as affecting the content of the respective paragraphs.
35. ARBITRATION. Upon demand of any party hereto, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Agreement and any
other of the Financing Documents (as defined in the Financing Agreement)
("Disputes") between or among parties to this Agreement shall be resolved by
binding arbitration as provided herein. Institution of a judicial proceeding by
a party does not waive the right of that party to demand arbitration hereunder.
Disputes may include, without limitation, tort claims, counterclaims, disputes
as to whether a matter is subject to arbitration, claims brough as class
actions, claims arising from Financing Documents executed in the future, or
claims arising out of or connected with the transaction reflected by this
Agreement. Notwithstanding the foregoing, this arbitration provision shall not
apply to any dispute between the Bondholder and the Participant to which the
Borrower is not a substantive party.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rues (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Nashville, Tennessee. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less that $1,000,000. All applicable statutes of
limitation shall apply to any Dispute. A judgment upon the award may be entered
in any court having jurisdiction. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will
be conducted or if such person is not available to serve, the single arbitrator
may be a licensed attorney. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to swap agreements.
Notwithstanding the preceding binding arbitration provisions, the
Bondholder, the Participant and the Borrower agree to preserve, without
diminution, certain remedies that any party hereto may employ or exercise
freely, independently or in connection with an arbitration proceeding or after
an arbitration action is brought. The Bondholder, the Participant and the
Borrower shall have the right to proceed in any court of proper jurisdiction or
by self-help to exercise or prosecute the following remedies, as applicable: (i)
all rights to foreclose against any real or personal property or other security
by exercising a power of sale granted under Financing Documents or under
applicable law or by judicial foreclosure and sale, including a proceeding to
confirm the sale; (ii) all rights of self-help including set-off and peaceful
possession of personal property; (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy proceeding; and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a part in a Dispute.
The Borrower and the Participant each agree with the Bondholder and
the Bondholder agrees with each of the Borrower and the Participant that they
shall not have a remedy of punitive or exemplary damages against the other in
any Dispute and hereby waive any right or claim to punitive or exemplary damages
they have now or which may arise in the future in connection with any Dispute
whether the Dispute is resolved by arbitration or judicially.
Executed as of the date first written above.
ADTRAN, INC.
By: /s/ John R. Cooper
John R. Cooper
Title: Vice President
FIRST UNION NATIONAL BANK
OF TENNESSEE
By: /s/ Timothy B. Fouts
Timothy B. Fouts
Title: Vice President
AMSOUTH BANK OF ALABAMA
By: /s/ Randall S. Phillips
Randall S. Phillips
Title: Vice President
<PAGE>
RESOLUTION AUTHORIZING AMENDMENT OF DOCUMENTS
RELATING TO $50,000,000 TAXABLE REVENUE BOND, SERIES 1995
(ADTRAN, INC. PROJECT)
WHEREAS, the State Industrial Development Authority (the "Authority") has
heretofore issued its Taxable Revenue Bond, Series 1995 (ADTRAN, Inc. Project)
in an authorized principal amount of $50,000,000 (the "Original Bond") pursuant
to that certain Financing Agreement dated as of January 1, 1995 among the
Authority, Adtran, Inc., a corporation organized under the laws of the State of
Delaware (the "Company") and AmSouth Bank of Alabama ("AmSouth") (the "Original
Financing Agreement");
WHEREAS, First Union National Bank of Tennessee, a national banking
association, with its principal office in the City of Nashville, Tennessee (the
"Bondholder") has now agreed to purchase the Original Bond from AmSouth, and to
make a further Advance to the Authority in an aggregate amount not to exceed
$50,000,000 total authorized amount (including the Advance under the Original
Financing Agreement) in order to complete the financing of the Project;
WHEREAS,the Authority, the Bondholder and the Company have agreed to enter
into a First Amended and Restated Financing Agreement dated as of April 25, 1997
whereby the Authority will issue its Amended and Restated Taxable Revenue Bond
Series 1995 (ADTRAN, Inc. Project) in an authorized principal amount of
$50,000,000 (the "Amended and Restated Bond"); the Original Bond as amende and
restated by the Amended and Restated Bond is herein referred to as the "Bond";
the Original Financing Agreement as amended and restated by the Amended and
Restated Financing Agreement is herein referred to as the "Financing Agreement";
the Bond will continue to evidence the limited obligation of the Authority to
repay Advances;
WHEREAS, the Authority and the Company have heretofore entered into that
certain Loan Agreement dated as of January 1, 1995 (the "Original Loan
Agreement"); in connection with the execution and delivery of the Amended and
Restated Financing Agreement, the Authority and the Company have agreed to enter
into a First Amended and Restated Loan Agreement dated as of April 25, 1997 (the
"Amended and Restated Loan Agreement"; the Original Loan Agreement as amended
and restated by the Amended and Restated Loan Agreement is herein referred to as
the "Loan Agreement"), whereby the Authority will agree to loan the proceeds of
the Bond to the Company, and the Company will agree to make loan repayments
sufficient to pay the principal of, premium (if any) and interest on the Bond
("Debt Service") when due; as evidence of its obligation to make loan repayments
with respect to Debt Service on the Original Bond, the Company has issued its
note (the "Original Note") and, in connection with the execution and delivery of
the Amended and Restated Financing Agreement, will issue its amended and
restated note (the "Amended and Restated Note") as provided in the Amended and
Restated Loan Agreement; the Original Note as amended and restated by the
Amended and Restated Note is herein referred to as the "Note"
WHEREAS, the Bond is a limited obligation of the Authority payable solely
out of the payments by the Company pursuant to the Loan Agreement and the Note
(the "Pledged Revenues");
WHEREAS, as security for the payment of Debt Service on the Bond, the
Authority shall assign and pledge to the Bondholder all right, title and
interest of the Authority in and to the Pledged Revenues, the Loan Agreement and
the Note (except for certain rights personal to the Authority);
WHEREAS, it is contemplated by the parties that in connection with the
execution and delivery of the Amended and Restated Financing Agreement (i) the
Bondholder shall purchase the Original Bond from AmSouth as provided in the
Amended and Restated Financing Agreement, (ii) the Authority shall transfer the
Original Bond to the Bondholder pursuant to the requirements of the Agreement,
by issuing the Amended and Restated Bond provided for under the Amended and
Restated Financing Agreement, (iii) an Advance will be made pursuant to the
Amended and Restated Financing Agreement in the principal amount of $30,000,000,
(iv) the Company shall issue the Amended and Restated Note to the Bondholder
under the terms of the Amended and Restated Loan Agreement, (v) the Original
Bond shall be delivered to the Authority and cancelled, (vi) the Bondholder will
sell a participation interest in the Bond evidencing the outstanding Advances to
AmSouth pursuant to a Participation Agreement dated April 25, 1997, between the
Bondholder and AmSouth, and (vii) upon completion of the transaction described
therein and herein, Advances in the total authorized amount of $50,000,000 will
be outstanding under the Financing Agreement;
WHEREAS, copies of the proposed Amended and Restated Financing Agreement
and Amended and Restated Loan Agreement (herein the "Financing Documents") have
been presented to, considered and approved by the Board of Directors of the
Authority; and
WHEREAS, the Board of Directors of the Authority, upon evidence submitted
to and considered by it, has found and determined that the acquisition,
construction and equipping of the Facilities is in furtherance of the objects
and powers of the Authority and the purposes for the existence of the Authority
under the laws of the State of Alabama pursuant to which the Authority is
organized and will promote (i) the increased development and growth of industry
in the state and (ii) the creation of new jobs within the state;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE AUTHORITY,
as follows:
1. The Board of Directors does hereby approve, authorize, ratify and
confirm (i) the issuance of the Amended and Restated Bond, (ii) the
execution and delivery by the Authority of the Financing Documents and
(iii) the consummation of all other transactions described in the recitals
to this resolution and contemplated by the Financing Documents (the "Plan
of Financing").
2. The President or Vice-President of the Authority, is hereby
authorized and directed to execute and deliver the Financing Documents to
which the Authority will be a party in substantially the form presented to
the Board of Directors at this meeting with such changes or additions
thereto or deletions therefrom as the officer executing the same shall
approve, which approval shall be conclusively evidenced by his execution of
such instruments. The Secretary of the Authority, is hereby authorized and
directed to affix the corporate seal of the Authority to such instruments
and to attest the same.
3. The Amended and Restated Bond shall be issued under the Financing
Agreement as therein provided. The Amended and Restated Bond shall be in
the form and shall contain the terms and provisions provided in the
Financing Agreement. To the extent the Financing Agreement provides
alternative methods for execution of the Amended and Restated Bond, the
officers of the Authority executing the Amended and Restated Bond are
hereby authorized to select the method of execution. The President or the
Vice President of the Authority is hereby authorized and directed to
execute the Amended and Restated Bond on behalf of the Authority, and the
Secretary of the Authority is hereby authorized and directed to affix the
official corporate seal of the Authority to the Amended and Restated Bond
and to attest the same. Upon delivery to the Authority of the Original Bond
for cancellation, the officers executing the Amended and Restated Bond are
hereby authorized and directed to deliver the Amended and Restated Bond so
executed to the Bondholder.
4. The Amended and Restated Bond shall be sold to the Bondholder on
the terms and conditions contained in the Financing Agreement.
5. The officers of the Authority and any person or persons designated
and authorized by any officer of the Authority to act in the name and on
behalf of the Authority, or any one or more of them, are authorized to do
and perform or cause to be done and performed in the name and on behalf of
the Authority such other acts, to pay or cause to be paid on behalf of the
Authority such related costs and expenses, and to execute and deliver or
cause to be executed and delivered in the name and behalf of the Authority
such other notices, requests, demands, directions, consents, approvals,
orders, applications, certificates, agreements, further assurances, or
other instruments or communications, under the corporate seal of the
Authority, or otherwise, as they or any of them may deem necessary,
advisable, or appropriate in order to (i) complete the Plan of Financing,
(ii) carry into effect the intent of the provisions of this resolution and
the Financing Documents, and (iii) demonstrate the validity of the Amended
and Restated Bond and the absence of any pending or threatened litigation
with respect to the Bond, the Financing Documents and the Plan of
Financing.
6. Each act of any officer or officers of the Authority or any person
or persons designated and authorized to act by the Board of Directors or
any officer of the Authority, which act would have been authorized by the
foregoing provisions of this resolution except that such action was taken
prior to the adoption of this resolution, is hereby ratified, confirmed,
approved and adopted.
7. The firm of Maynard, Cooper & Gale,P.C. is hereby confirmed as bond
counsel and the firm of Hand Arendall, L.L.C.is hereby confirmed as counsel
to the Authority
8. This resolution shall take effect immediately upon its
<PAGE>
RESOLUTIONS OF THE BOARD OF
DIRECTORS OF ADTRAN, INC.
Adopted on April 23, 1997
WHEREAS, the Board of Directors of ADTRAN, Inc. (the "Company") has
determined that it is in the best interest of the Company to authorize the
execution and delivery of (i) an Amended and Restated Financing Agreement (the
"Financing Agreement") dated April 25, 1997, among the Company, the State
Industrial Development Authority, a public corporation under the laws of Alabama
(the "Authority") and First Union National Bank of Tennessee (the "Bondholder"),
(ii) an Amended and Restated Loan Agreement dated April 25, 1997 (the "Loan
Agreement") between the Authority and the Company, (iii) an Investment Agreement
among the Company, the Bondholder and AmSouth Bank of Alabama dated April 25,
1997 (the "Investment Agreement"), and (iv) an Amended and Restated Note dated
April 25, 1997 (the "Note") from the Company to the Bondholder, as assignee of
the Authority (said Financing Agreement, Loan Agreement, Investment Agreement
and Note being hereinafter together called the "Financing Documents").
WHEREAS, the Financing Documents are being executed and delivered in
connection with the issuance by the Authority of its Taxable Revenue Bond,
Series 1997 (ADTRAN, Inc. Project) in the principal amount of $50,000,000 (the
"Bond"), for the purpose of paying a portion of the costs of acquiring,
constructing and equipping certain office, manufacturing, design, engineering
and distribution facilities (the "Facilities") in Huntsville, Alabama, for use
by the Company;
WHEREAS, the Authority and the Company will enter into the Loan Agreement
providing that the proceeds of the Bond shall be loaned to the Company for the
purpose of acquiring, constructing and equipping the Facilities; as evidence of
and as security for the Company's obligations under the Loan Agreement, the
Company will issue the Note in the principal amount of $50,000,000, payable to
the Bondholder as assignee of the Authority; the Note will be payable at times
and in amounts corresponding to the payment of debt service on the Bond;
payments by the Company under the Loan Agreement will be credited against the
payments due under the Note; pursuant to the Financing Agreement, the Authority
will assign and pledge to the Bondholder all the Authority's rights under the
Loan Agreement, except for certain rights relating to indemnification,
reimbursement of expenses and receipt of notices and other communications;
WHEREAS, copies of the Financing Documents have been presented to,
considered and approved by the Board of Directors; and
WHEREAS, the Board of Directors, upon evidence submitted to and considered
by it, has found and determined that the acquisition, construction and equipping
of the Facilities and the execution and delivery of the Financing Documents are
in the best interest of the Company;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE COMPANY,
as follows:
1. The Board of Directors does hereby approve, authorize, ratify and
confirm the execution and delivery by the Company of the Financing
Documents and the consummation of all other transactions described in the
recitals to this resolution and contemplated by the Financing Documents
(the "Plan of Financing").
2. Mark C. Smith, Chairman of the Board and Chief Executive Officer
of the Company, is hereby authorized and directed to execute and deliver
the Financing Documents to which the Company will be a party in
substantially the form presented to the Board of Directors at this meeting
with such changes or additions thereto or deletions therefrom as he shall
approve, which approval shall be conclusively evidenced by his execution of
such instruments. Lonnie S. McMillian, Secretary of the Company, is hereby
authorized and directed to affix the corporate seal of the Company to such
instruments and to attest the same.
3. The officers of the Company and any person or persons designated
and authorized by any officer of the Company to act in the name and on
behalf of the Company, or any one or more of them, are authorized to do and
perform or cause to be done and performed in the name and on behalf of the
Company such other acts, to pay or cause to be paid on behalf of the
Company such related costs and expenses, and to execute and deliver or
cause to be executed and delivered in the name and behalf of the Company
such other notices, requests, demands, directions, consents, approvals,
orders, applications, certificates, agreements, further assurances, or
other instruments or communications, under the corporate seal of the
Company, or otherwise, as they or any of them may deem necessary,
advisable, or appropriate in order to (i) complete the Plan of Financing,
(ii) carry into effect the intent of the provisions of this resolution and
the Financing Documents, and (iii) demonstrate the absence of any pending
or threatened litigation with respect to the Bond, the Financing Documents
and the Plan of Financing.
4. Each act of any officer or officers of the Company or any person
or persons designated and authorized to act by the Board of Directors or
any officer of the Company, which act would have been authorized by the
foregoing provisions of this resolution except that such action was taken
prior to the adoption of this resolution, is hereby ratified, confirmed,
approved and adopted.
<TABLE>
<CAPTION>
EXHIBIT 11
ADTRAN, INC
WEIGHTED AVERAGE COMMON AND COMMON EQUIVALENT SHARES OUTSTANDING
For the Three Months Ended March 31, 1996 and 1997
Three Months Ended
March 31,
1996 1997
---- ----
<S> <C> <C>
Weighted average common shares outstanding.......... 38,295,634 39,030,371
Net weighted average common stock
options outstanding under the treasury
stock method..................................... 1,253,472 526,759
---------- ---------
Weighted average common and common
equivalent shares outstanding................... 39,549,106 39,557,130
========== ==========
Net income......................................... $8,623,388 $9,522,268
========== ==========
Net income per common and common.....
equivalent share............................... $ .22 $ .24
========== ==========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED STATEMENT OF INCOME FOR THE THREE MONTHS ENDED MARCH 31, 1997
AND THE CONDENSED BALANCE SHEET AS OF MARCH 31, 1997 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000926282
<NAME> ADTRAN, INC.
<MULTIPLIER> 1
<CURRENCY> US DOLLAR
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<EXCHANGE-RATE> 1
<CASH> $49,542,844
<SECURITIES> 30,550,210
<RECEIVABLES> 33,575,563
<ALLOWANCES> (870,842)
<INVENTORY> 48,082,345
<CURRENT-ASSETS> 164,739,843
<PP&E> 75,130,234
<DEPRECIATION> (15,350,751)
<TOTAL-ASSETS> 224,519,326
<CURRENT-LIABILITIES> 20,295,962
<BONDS> 20,000,000
0
0
<COMMON> 392,027
<OTHER-SE> 182,229,221
<TOTAL-LIABILITY-AND-EQUITY> 224,519,326
<SALES> 61,230,184
<TOTAL-REVENUES> 61,230,184
<CGS> 29,438,797
<TOTAL-COSTS> 29,438,797
<OTHER-EXPENSES> 10,537,516
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 242,534
<INCOME-PRETAX> 14,878,545
<INCOME-TAX> 5,356,277
<INCOME-CONTINUING> 9,522,269
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,522,269
<EPS-PRIMARY> 0.24
<EPS-DILUTED> 0.24
</TABLE>
