ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("AGREEMENT") is made and entered
into this 21st day of October, 2004, by and among XXXXXX X. XXXXX, a resident of
Knoxville, Tennessee ("ASSIGNOR"), FSGBANK, NATIONAL ASSOCIATION, a national
bank chartered under the laws of the United States of America ("ASSIGNEE"), and
National Bank of Commerce, a national banking association ("NBC") as a third
party beneficiary.
WITNESSETH:
WHEREAS, Assignor has made and entered into a Stock Purchase Agreement of
even date herewith ("PURCHASE AGREEMENT") with NBC, pursuant to which Assignor
has agreed to purchase and acquire from NBC, and NBC has agreed to sell and
transfer to Assignor, all of the issued and outstanding capital stock of Kenesaw
Leasing, Inc., a Tennessee corporation ("KLI") and J&S Leasing, Inc., a
Tennessee corporation ("J&S"); and
WHEREAS, Assignor and Assignee have made and entered into a letter of
understanding dated as of September 24, 2004, pursuant to which Assignor and
Assignee agreed in principal that Assignor assign his rights under the Purchase
Agreement to Assignee, and Assignee assume Assignor's obligations under the
Purchase Agreement.
NOW, THEREFORE, IN CONSIDERATION OF the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree, covenant and warrant as follows:
1. TRANSFER AND ASSIGNMENT. Assignor hereby sells, transfers, assigns
and conveys to Assignee all of Assignor's right, title and interest in and to
the Purchase Agreement and in and to the capital stock of KLI and J&S.
2. ACCEPTANCE AND ASSUMPTION. Assignee hereby accepts the assignment of
the Purchase Agreement and the capital stock of KLI and J&S, and hereby assumes
and agrees to perform all of the obligations and commitments of Assignor under
the Purchase Agreement when and as required thereunder, including, without
limitation, the obligation to pay to NBC the Purchase Price for the KLI and J&S
stock provided for therein.
3. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. The Assignor represents
and warrants to Assignee that (a) the Purchase Agreement is in full force and
effect as of the date hereof, (b) all of the obligations of Assignor under the
Purchase Agreement have been performed up to and including the date hereof in
all material respects, (c) Assignor has made no other prior assignment of the
Purchase Agreement, (d) Assignor has full power and authority to execute and
deliver this Agreement, and (e) the execution and delivery hereof by Assignor
and the assignment of all of his right, title and interest in and to the
Purchase Agreement does not contravene any agreement to which the Assignor is a
party. Assignor further represents and warrants to Assignee that, to Assignor's
knowledge, KLI and J&S have no material undisclosed liabilities or
contingencies, and that Assignor is not aware of any pending or threatened
facts,
actions, situations or omissions that would have a material adverse effect on
the value of KLI or J&S or their business or operations.
4. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Assignee represents and
warrants to Assignor and NBC that (a) Assignee has full power and authority to
execute and deliver this Agreement, (b) this Agreement and the Purchase
Agreement have been duly authorized by all necessary corporate action of
Assignee, and no other corporate proceedings on the part of Assignee are
necessary to authorize this Agreement or the Purchase Agreement or to consummate
the transactions contemplated by this Agreement or the Purchase Agreement and
(c) this Agreement has been duly executed and delivered by Assignee and
constitutes a valid and binding agreement of Assignee, enforceable against
Assignee in accordance with its terms, subject to applicable bankruptcy,
insolvency and other similar laws affecting the enforceability of creditor's
rights generally, general equitable principles and the discretion of courts in
granting equitable remedies.
5. INDEMNIFICATION BY ASSIGNEE. Assignee (a) agrees to be bound by all
of the terms, covenants and conditions of the Purchase Agreement, (b) assumes
the obligations of Assignor thereunder and (c) covenants and hereby agrees to
indemnify, defend and hold harmless Assignor from any loss, damage, cost or
expense (including reasonable attorneys' fees) arising out of any failure of
Assignee to perform any of its obligations under the Purchase Agreement or
hereunder.
6. RELEASE OF ASSIGNOR. NBC hereby agrees that upon execution of this
Agreement by the parties, the assignment of Assignor's rights, duties and
obligations under the Purchase Agreement, and the Closing of the transactions
contemplated thereby, that Assignor shall be, and hereby is, released by NBC
from all obligations and liabilities hereunder and under the Purchase Agreement
and from any loss, damage, cost or expense (including reasonable attorneys'
fees) arising out of any failure of Assignee to perform any of its obligations
under the Purchase Agreement or hereunder.
7. FURTHER ASSURANCES. From and after the date of this Agreement, the
parties agree to execute and deliver such additional documents, agreements,
notices, acknowledgments or other instruments as are reasonably necessary or
required to effectuate the intent and purpose of this Agreement.
8. AMENDMENTS. No amendment to, or modification of, this Agreement shall
be effective unless it is in writing and executed by each of the parties hereto,
or their authorized representatives.
9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original.
10. SEVERABILITY. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
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11. WAIVERS. No waiver by either party of any breach of nonperformance of
any provision or obligation of this Agreement shall be deemed to be a waiver of
any preceding or succeeding breach of the same or any other provision of this
Agreement.
12. ENTIRE AGREEMENT. This Agreement represents the entire agreement of
the parties with respect to the subject matter hereof and may not be amended,
supplemented or modified except by a written instrument executed by an
authorized representative of each of the parties to this Agreement. This
Agreement supersedes all prior agreements, oral or written, between the parties
relating to the subject matter of this Agreement, and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force and effect.
13. NOTICES. Any notice or other communication required or permitted by
the terms of this Agreement shall be deemed given and effectively delivered for
all purposes under this Agreement when personally delivered, or sent by
registered or certified mail, postage prepaid, addressed as follows:
To Assignor:
Xxxxxx X. Xxxxx
0000 X. Xxxxxxxxxx Xxxxx, Xxxxx X-000
Xxxxxxxxx, Xxxxxxxxx 00000
To Assignee:
FSGBank, National Association
000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Xx.
To NBC:
National Bank of Commerce
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Xx.
14. ATTORNEYS FEES. If any party to this Agreement is held by any panel
of arbitrators under Section 17 hereof or by any court of competent jurisdiction
to be in violation, breach or nonperformance of any of the terms of this
Agreement, such breaching party shall pay all costs of such action or suit,
including reasonable attorneys fees of the other party.
15. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Tennessee.
16. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties' heirs, personal representatives, successors and assigns,
as applicable.
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17. ARBITRATION. Any and all disputes or disagreements arising between
the parties pertaining to or relating in any manner to this Agreement, including
any breach of this Agreement, are to be decided by arbitration in accordance
with the rules of the American Arbitration Association. The parties agree to be
bound by the majority decision of the arbitrators. The arbitration proceeding
shall take place in Chattanooga, Tennessee, unless another location is mutually
agreed to by the parties. Three arbitrators shall be selected for the
arbitration panel. One arbitrator shall be selected by each party. The third
arbitrator shall be selected by the arbitrators named by each party. The costs
and expenses of the third arbitrator shall be shared equally by the parties.
Each party shall be responsible for its own costs and expenses in arbitrating
the dispute. The award of the arbitrator shall be final and a judgment on the
award may be entered in any court having jurisdiction. This provision shall
survive the termination of this Agreement.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
ASSIGNOR:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
ASSIGNEE:
FSGBANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. "Xxxxx" Xxxxxxxxxx III
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Title: Chief Operating Officer
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NBC:
NATIONAL BANK OF COMMERCE, a national
association
By: /s/ Xxxxxxx X. Xxxx, Xx.
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Title: President & Chief Executive Officer
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