ASSIGNMENT AND ASSUMPTION
AGREEMENT
This Assignment
and Assumption Agreement (this “ Agreement ”),
is dated November 27, 2006 by and between FS Private
Investments III LLC (“ Assignor ”), and
Jefferies Group, Inc. (“ Assignee ”).
WHEREAS, Assignor
is a limited partner holding a limited partnership interest (the
“ Interest ”) in Jefferies Capital Partners IV
L.P., a Delaware limited partnership (the “
Partnership ”);
WHEREAS, Assignor
desires to assign, transfer and deliver to Assignee, and Assignee
has agreed to assume and acquire from Assignor, a portion of its
right, title and interest in and to the Interest in the
Partnership, in an amount representing a Capital Commitment of
$19 million (the “ Assigned Interest ”),
and Assignee has agreed to assume and perform all of the
liabilities and obligations of Assignor with respect to the
Assigned Interest under the Amended and Restated Limited
Partnership Agreement of the Partnership dated as of May 31,
2006, as amended, supplemented or otherwise modified (the “
Partnership Agreement ” and together with the
Subscription Agreement, (the “ Operative Documents
”)). Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Partnership
Agreement; and
WHEREAS, JCP IV
LLC, a Delaware limited liability company and the general partner
of the Partnership (the “ General Partner ”)
desires to consent to the assignment and assumption contemplated
herein, and to the admission of Assignee as a substituted Limited
Partner of the Partnership, subject to the terms and conditions as
set forth herein.
NOW, THEREFORE, in
consideration of Assignee’s assumption of Assignor’s
obligations under the Operative Documents, the mutual agreements,
covenants and conditions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged:
Section 1 . Assignment and Assumption . As of
the date hereof, the Assignor hereby assigns and transfers to
Assignee, and Assignee hereby accepts and acquires all of
Assignor’s right, title and interest in and to the Assigned
Interest, and all of Assignor’s rights, claims and causes of
action related thereto, free and clear of all liens, pledges,
claims, security interests, encumbrances, charges, restrictions, or
limitations of any kind whether arising by agreement, operation of
law or otherwise, other than any restriction that arises out of or
is based on the Operative Documents. Assignee hereby assumes and
agrees to perform all of the liabilities and obligations of
Assignor with respect to the Assigned Interest under the Operative
Documents. As of the date hereof, Assignee, by its execution and
delivery of this Agreement, shall become a Limited Partner of the
Partnership in substitution of Assignor to the extent of the
Assigned Interest, and hereby agrees to be bound by all of the
terms and conditions of the Operative Documents.
Section 2 . Representations and Warranties of
Assignor . Assignor hereby represents and warrants to the
General Partner and the Partnership that Assignor has the power and
authority, and is duly authorized, to enter into this Agreement and
upon its execution and delivery, this Agreement will be a binding
and valid obligation of Assignor, enforceable against the Assignor
in accordance with its terms. In addition, Assignor represents,
warrants and agrees with the General Partner and the Partnership
that (i) the transfer of the Assigned Interest is exempt from
and does not require compliance with the registration provisions of
the Securities Act of 1933, as amended (the “ Securities
Act ”) and applicable state securities laws,
(ii) such transfer is not being made on an established
securities market as defined under Section 7704 of the Code,
(iii) to the Assignor’s actual knowledge, there has not
been a material adverse change to the Partnership’s business
or operations, and (iv) the Capital Account balance
attributable to the Assigned Interest is equal to or greater than
the purchase price of the Assigned Interest.
Section 3 . Representations and Warranties of
Assignee . Assignee hereby represents and warrants to the
General Partner and the Partnership as follows:
(a) Assignee
has the power and authority to enter into this Agreement and upon
its execution and delivery, this Agreement will be a valid and
binding obligation of Assignee, enforceable against the Assignee in
accordance with its terms.
(b) Assignee
acknowledges that it has received all the information it deems
necessary and appropriate regarding the Partnership and the
Assigned Interest, has had
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