ASSIGNMENT AND ASSUMPTION AGREEMENT
This
ASSIGNMENT AND
ASSUMPTION AGREEMENT ("AGREEMENT") is made and entered
into this 21st day of October, 2004, by and
among WARREN E. PAYNE, 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,
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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 affect
