EXHIBIT 10.1 (j)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Assignment"), dated as
of January 3, 2002 (the "Effective Date"), is entered into by and between
AMSOUTH BANK OF ALABAMA (the "Assignor") and FIRST UNION NATIONAL BANK
(successor-in-interest to First Union National Bank of Tennessee) (the
"Assignee").
1. Definitions. Capitalized terms used but not defined herein shall
have the meanings given to them in that certain First Amended and
Restated Financing Agreement dated as of April 25, 1997 among
ADTRAN, Inc., as borrower, State Industrial Development Authority,
as issuer, and First Union National Bank (successor-in-interest to
First Union National Bank of Tennessee), as bondholder (as amended,
the "Financing Agreement").
2. Assignment and Assumption. As of the Effective Date, for an
agreed consideration (which the Assignee has delivered to the
Assignor prior to or concurrently with the execution hereof), the
Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the
Assignor: (i) a 40% undivided participation interest in the Bond,
the principal amount of such interest is $20,000,000 (the
"Assignor's Participation"); (ii) to the extent of the Assignor's
Participation, an undivided interest in all of the Bond Documents
and the Collateral (as defined in the Participation Agreement, as
hereinafter defined); and (iii) all of Assignor's right, title and
interest in and to the Participant Account as defined in the
Investment Agreement (the "Investment Agreement") dated April 25,
1997 among First Union National Bank (successor-in-interest to
First Union National Bank of Tennessee), ADTRAN, Inc. and AmSouth
Bank of Alabama (collectively, the "Assigned Interest"). Such sale
and assignment is without recourse to the Assignor and, except as
expressly provided in this Agreement, without representation or
warranty by the Assignor.
3. Representations and Warranties:
3.1 Assignor: The Assignor represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest,
(ii) the Assigned Interest is free and clear of any lien,
encumbrance, option, right or other adverse claim, and (iii)
it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to
consummate the transactions contemplated hereby.
3.2 Assignee: The Assignee represents and warrants that (i) it
has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to
consummate the transactions contemplated hereby, and (ii) from
and after the Effective Date, it shall, to the extent of the
Assigned Interest, assume the rights and obligations of the
Bondholder thereunder.
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4. Participant Account and Investment Agreement. The Assignor
acknowledges and agrees that concurrently with the execution hereof
the Participant Account (as defined in the Investment Agreement)
and all amounts on deposit therein shall be transferred from
Assignor to a deposit account maintained by the Company with
Assignee, which deposit account shall be governed by and subject to
a new investment agreement between the Company and Assignee in
replacement of the Investment Agreement.
5. Payments. From and after the Effective Date, all payments from
the Company in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) due and payable on
or after the Effective Date shall be the sole property of the
Assignee. As of the Effective Date $87,627.74 of the accrued and
unpaid interest is owed to the Assignor in respect of the Assigned
Interest. To the extent that such amount(s) are received by the
Assignee from the Company, the Assignee shall promptly forward same
to the Assignor.
6. Participation Agreement. That certain Participation Agreement
dated as of April 25, 1997 between First Union Nation Bank
(successor-in-interest to First Union National Bank of Tennessee)
and AmSouth Bank of Alabama (the "Participation Agreement") is
hereby terminated, as of the Effective Date, and except as
otherwise provided in Paragraph 5 hereof, Assignor and Assignee
represent and agree that neither has any claims, matured or
unmatured, against the other arising from such Participation
Agreement or the transactions described therein, or if any such
claims exist, they are hereby waived and released.
7. General Provisions. This Assignment shall be binding upon, and
inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment may be executed in any
number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page
of this Assignment by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment. This Assignment
shall be governed by, and construed in accordance with, the law of
the State of New Jersey.
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR:
AMSOUTH BANK OF ALABAMA
By: /s/ Nicholas Willis
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Nicholas Willis
Commercial Banking Officer
ASSIGNEE:
FIRST UNION NATIONAL BANK
By: /s/ Robyn G. Beh
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Robyn G. Beh
Vice President
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