Form 8-K ADTRAN INC For: May 19

Exhibit 10.1

LOAN MODIFICATION AGREEMENT AND AMENDMENT TO LOAN DOCUMENTS

 

THIS LOAN MODIFICATION AGREEMENT AND AMENDMENT TO LOAN DOCUMENTS

(this "Agreement") is being entered into as of the l9th day of May, 2022, by and between CADENCE BANK, a Mississippi state banking corporation with its bank headquarters in Tupelo, Mississippi (the "Bank"), and ADTRAN, INC., a Delaware corporation (the "Borrower").

 

PREAMBLE

 

The Borrower is the maker of a certain Promissory Note dated as of the 4th day of November, 2020 (the "Note"), which evidences a certain TEN MILLION and NO/100 Dollars ($10,000,000.00) loan from the Bank to the Borrower (the "Loan"). The Loan was made available pursuant to a certain Revolving Credit and Security Agreement by and between the Bank and the Borrower dated as of the 4th day of November, 2020 (the "Loan Agreement"; any capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Loan Agreement), and is secured by, among other things, that certain Security Agreement by and between the Bank and the Borrower dated as of the 41h day of November, 2020. The Bank and the Borrower have agreed to modify the Loan, and to amend the documents and instruments evidencing, securing, relating to, guaranteeing or executed or delivered in connection with the Loan, all as modified by that certain Loan Modification Agreement and Amendment to Loan Documents by and between the Bank and the Borrower dated as of the 4•h day of November, 2021 (as modified, collectively the "Loan Documents").

 

Accordingly, the Bank and the Borrower have agreed that the Loan shall be further modified, and that the Loan Documents shall be further amended as set forth below.

 

AGREEMENT

 

NOW, THEREFORE, the parties, intending to be legally bound hereby, agree as follows, notwithstanding anything in the Loan Documents to the contrary:

 

 

 

 

"(v) monthly investment account statements from Portfolio Manager within thirty days of each month end; and (vi) such other financial) and related information when and as requested by Bank regarding Borrower, the Collateral and any endorser, guarantor or surety of any of the Liabilities of Borrower to Bank, including balance confirmations of Collateral as requested."

 

 

"6.9 Loan to Value. To be tested at any time by Bank, but at least quarterly, there shall be a maximum Loan to Value of eighty-five percent (85%) determined

 

 

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by dividing the full commitment amount of the Loan on the date of testing by the market value of the Collateral described in that certain Security Agreement."

 

 

 

 

 

 

By their execution below, for and in consideration of the Bank's commitments contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Borrower, for itself and for its respective successors, executors, heirs, administrators, and assigns, each hereby acknowledge and agree that neither the Bank, nor any of its officers, directors, employees, agents, servants, representatives, attorneys, loan participants, successors, successors-in-interest, predecessors-in-interest and assigns (hereinafter referred to collectively as the "Released Parties") have interfered with or impaired the acquisition, collection, use, ownership, disposition, disbursement, leasing or sale of any of the collateral which secures the Loan (the "Collateral"), and that the Borrower does not have any claim of any nature

 

 

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whatsoever, at law, in equity or otherwise, against the Released Parties, or any of them, as a result of any acts or omissions of the Released Parties, or any of them, under the Loan Documents or in connection to the Loan or the Collateral prior to and including the date hereof. The Borrower, for itself and for its respective successors, executors, heirs, administrators, and assigns, hereby unconditionally waive and release the Released Parties, and forever discharge the Released Parties, of and from and against any and all manner of action, suits, claims, counterclaims, causes of action, offsets, deductions, breach or breaches, default or defaults, debts, dues, sums of money, accounts, deposits, damages, expenses, losses, liabilities, costs, expenses, any and all demands whatsoever and compensation of every kind and nature, past, present, and future, known or unknown (herein collectively, "Claims") that the Borrower or any of the Borrower's successors, successors-in-interest, heirs, executors, administrators, or assigns, or any one of them, can or now have or may have at any time hereafter against the Released Parties, or any of them, by reason of any matter, cause, transaction, occurrence or omission whatsoever, which happened or has happened on or before the date of this Agreement, on account of or arising from or which is connected in any manner whatsoever with the Loan, the Indebtedness, the Collateral, the Loan Documents, any related documents, or any and all collateral which has served or is serving as security for the Loan or the Loan Documents, or which is related to any and all transactions and dealings with among Bank and the Borrower, or any other matter or thing that has occurred before the signing of the Agreement, known or unknown. Any and all such Claims are hereby declared to be satisfied and settled, and the Borrower, for itself and for its respective successors, executors, heirs, administrators, and assigns, each hereby discharge the Released Parties from any liability with respect to any and all such Claims.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[SIGNATURE PAGE TO LOAN MODIFICATION AGREEMENT]

 

IN WITNESS WHEREOF, the undersigned have caused this instrument to be duly executed as of the date first set forth above.

 

BORROWER:

 

ADTRAN, INC., a Delaware corporation

 

By: /s/ Michael K Foliano

 

Printed Name: Michael K. Foliano

 

Title: CFO

 

STATE OF Alabama

COUNTY OF Madison

 

I, Ashely Michelle Jackson a notary public in and for said county in said state, hereby certify that Michael K. Foliano, whose name as CFO of ADTRAN, Inc., a Delaware corporation, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of such instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation.

Given under my hand and official seal this 12th day of May, 2022.

 

Ashley Michelle Jackson

Notary Public

 

[NOTARIAL SEAL]

 

My Commission Expires: April 23, 2023

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[SIGNATURE PAGE TO LOAN MODIFICATION (continued)]

 

Bank:

 

CADENCE BANK, a Mississippi state banking corporation with its bank headquarters in Tupelo, Missippi

 

By: /s/ Barbara Mulligan (SEAL)

 

Printed Name: Barbara Mulligan

 

Title: SVP

 

STATE OF Alabama

COUNTY OF Jefferson

 

I, Jennifer Uhlich Miller Jackson a notary public in and for said county in said state, hereby certify that Barbara Mulligan, whose name as Senior Vice President of Cadence Bank, a Mississippi state banking corporation with its bank headquarters in Tupelo, Mississippi, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of such instrument, she, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation.

Given under my hand and official seal this 18th day of May, 2022.

 

Jennifer Uhlich Miller

Notary Public

 

[NOTARIAL SEAL]

 

My Commission Expires: May 16, 2024

 

 

 

 

[End of signatures.]

 

 

 

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Exhibit 10.2

 

AMENDED AND RESTATED PROMISSORY NOTE

 

 

$25,000,000.00 May 19, 2022

Birmingham, Alabama

 

FOR VALUE RECEIVED, the undersigned ADTRAN, INC., a Delaware corporation (the "Borrower"), hereby promises to pay to the order of CADENCE BANK, a Mississippi state banking corporation with its bank headquarters in Tupelo, Mississippi (the "Lender"), at its office at 2100 Third Avenue North, Suite 1100, Birmingham, Alabama 35203, or at such other place as Lender may direct, in lawful money of the United States of America constituting legal tender in payment of all debts and dues, public and private, together with interest thereon calculated at the rate and in the manner set forth herein, the principal amount of TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00), or so much thereof as may be advanced and outstanding hereunder. Lender, from time to time, shall make advances and re-advances as may be requested by Borrower and accept payments, all in accordance with and subject to the provisions of this Note (as defined herein) and the Loan Documents (as defined herein). The amount outstanding under this Note may vary from time to time by increases of up to the maximum principal amount stated above plus accrued interest, charges and expenses, and decreases down to no outstanding principal or accrued interest, charges or expenses. Payment of principal and interest under this Amended and Restated Promissory Note (the "Note") shall be in accordance with the following provisions:

 

 

As used herein, the following terms have the meanings set forth below:

 

"Business Day" means a day other than a Saturday, Sunday or a day on which Lender is closed for business.

 

"Daily Simple SOFR" means, for any day (a "SOFR Rate Day''), a rate per annum equal to the greater of (a) SOFR for the day (such day "SOFR Determination Date") that is ten (I 0) Business Days prior to (i) if such SOFR Rate Day is a Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a Business Day, the Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator's Website, and (b) the Floor. If by 5:00 pm (New York City time) on the second (2nd) Business Day immediately following any day SOFR Determination Date, the SOFR in respect of such day SOFR Determination Date has not been published on the SOFR Administrator's Website, then the SOFR for such day SOFR Determination Date will be the SOFR as published in respect of the first preceding Business Day for which such SOFR was published on the SOFR Administrator's Website; provided that any SOFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice

 

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to the Borrower.

 

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"Payment Date" means the first Business Day of each quarter in a calendar year.

 

"SOFR" means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

 

"SOFR Administrator" means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

"SOFR Administrator's Website" means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org. or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

 

 

 

It is the intention of Lender and Borrower to conform strictly to any applicable usury laws. Accordingly, if the transactions contemplated hereby would be usurious under any applicable law, then, in that event, notwithstanding anything to the contrary in this Note or any other agreement entered into in connection with or as security for or guaranteeing this Note, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under applicable law that is contracted for, taken, reserved, charged, or received by Lender under this Note or under any other agreement entered into in connection with or as security for or guaranteeing this Note shall under no circumstances exceed the Highest Lawful Rate (as defined below), and any excess shall be canceled automatically and, if theretofore paid, shall, at the option of Lender, be credited by Lender on the principal amount of any indebtedness owed to Lender by Borrower or refunded by Lender to Borrower, and (ii) in the event that the payment of this Note is accelerated or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to Lender may never include more than the Highest Lawful Rate and excess interest, if any, to Lender provided for in this Note or otherwise shall be canceled automatically as of the date of such acceleration or prepayment and, if theretofore paid, shall, at the option of Lender, be credited by Lender on the principal amount of any indebtedness owed to Lender by Borrower or refunded by Lender to Borrower.

 

The term "Highest Lawful Rate" means the maximum non-usurious interest rate (computed on the basis of a year of365 or 366 days, as applicable) that at any time or from time to time may be contracted for, taken, reserved, charged, or received on amounts due to Lender, under laws applicable to Lender with regard to this Note that are presently in effect or, to the extent allowed by law, under such applicable laws that allow a higher maximum non-usurious rate than applicable laws now allow.

 

 

 

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occurs on a date which is not the last day of an applicable Libor Adjustment Period, Borrower shall upon demand by Bank indemnify Bank for all costs incurred by Bank resulting therefrom, including, without limitation, any loss in liquidating or employing deposits acquired to fund or maintain such an Adjusted Libor Rate loan amount.

 

 

 

 

 

 

 

 

 

 

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in any of the Loan Documents or in any other instrument executed in connection with or securing this Note to the contrary notwithstanding.

 

The Lender is not required to rely on any collateral for the payment of this Note upon the occurrence of an Event of Default by the Borrower, but may proceed directly against the maker, endorsers, or guarantors, if any, in such manner as it deems desirable. None of the rights and remedies of the Lender are to be waived or affected by failure to exercise them or by delay in exercising them. All remedies conferred on the Lender by this Note or any other instrument or agreement shall be cumulative, and none is exclusive. Such remedies may be exercised concurrently or consecutively at the then holder's option.

 

 

 

 

 

 

 

This Note and the other Loan Documents, and the rights and obligations of the parties hereunder and thereunder, shall be governed by and be construed in accordance with the internal laws of the State of Alabama, except that any conflict of laws rule of such jurisdiction that would require reference to the laws of some other jurisdiction shall be disregarded. It is intended, and the Borrower and the Lender hereof specifically agree, that the internal laws of the State of Alabama (without regard to choice of law considerations), including, without limitation, applicable usury laws, shall apply to this Note and to this transaction. Borrower acknowledges that the negotiation of the provisions of this Note and the other Loan Documents took place in the State of Alabama, and that all such documents are being executed in the State of Alabama, or if executed elsewhere, will become effective only upon Lender's receipt and acceptance thereof in said State; provided, however, that Lender shall have no obligation to give, nor shall Borrower or any other person be entitled to receive, any notice of such receipt and acceptance in order for said Loan Documents to become effective, valid and binding obligations of the Borrower.

 

 

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Borrower acknowledges further that all of such documents were or will be executed and delivered to Lender to induce Lender to make the Loan to Borrower. Borrower acknowledges further that it is foreseeable that the negotiation, execution, and delivery of the Loan Documents and the making of the Loan materially affect a bank located in the State of Alabama and will have material economic effects in such State. To the extent that Borrower's actions have not already done so, and to the extent permitted by law, Borrower hereby submits itself to and/or does not object to jurisdiction in the State of Alabama for any action or cause of action arising out of or in connection with this Note, the Loan or the Loan Documents, agrees (to the extent permitted by law) that venue for any such action shall be in Jefferson County, Alabama, and (to the extent permitted by law) waives any and all rights under the laws of any state to object to jurisdiction or venue within Jefferson County, Alabama; provided, that with respect to the exercise and enforcement of foreclosure rights against any of the collateral or the mortgaged property, the laws of the state where the Collateral or the mortgaged property is located shall govern. Notwithstanding the foregoing, nothing contained in this section shall prevent Lender from bringing any action or exercising any rights against Borrower, any guarantor, any security for the Loan, or any of Borrower's properties in any other county, state or jurisdiction. Initiating such action or proceeding or taking any such action in any other state shall in no event constitute a waiver by Lender of any of the foregoing. Nothing herein shall be deemed to have the effect of limiting the jurisdiction of any court.

 

This Note is given under the seal of all parties hereto, and it is intended that this Note is and shall constitute and have the effect of a sealed instrument according to law. This Note may not be modified except by written agreement signed by the Borrower and the Lender hereof, or by their respective successors or assigns.

 

[SIGNATURES APPEAR ON FOLLOWING PAGE.]

 

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[SIGNATURE PAGE TO AMENDED AND RESTATED PROMISSORY NOTE]

 

IN WITNESS WHEREOF, Borrower has caused this Note to be executed, sealed and delivered as of the date first set forth above.

BORROWER:

 

ADTRAN, INC., a Delaware corporation

 

By: /s/ Michael K Foliano (SEAL)

 

Printed Name: Michael K. Foliano

 

Title: CFO

 

STATE OF Alabama

COUNTY OF Madison

 

I, Ashely Michelle Jackson a notary public in and for said county in said state, hereby certify that Michael K. Foliano, whose name as CFO of ADTRAN, Inc., a Delaware corporation, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of such instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation.

Given under my hand and official seal this 12th day of May, 2022.

 

Ashley Michelle Jackson

Notary Public

[NOTARIAL SEAL]

 

 

My Commission Expires: April 23, 2023

 

 

 

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