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EXHIBIT 10
Execution Copy
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 the opportunity to make
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