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Assignment and assumption agreement.
ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") effective as of July 19, _________ by and between _________ INTERNATIONAL MANAGEMENT L.L.C., a Delaware limited liability company _________ INCORPORATED, a Delaware corporation ("PCM"). PRELIMINARY STATEMENTS A. _________ is registered as an investment adviser under the Investment Advisers Act of 1940 to _________ Funds Inc. (the "Company") and the portfolios of the U.S. funds listed on Exhibit A hereto (the "U.S. Family of Funds") [omitted]. B. _________ is a party to the Second Amended and Restated Supplemental agreements listed on Exhibit B hereto (the "Contracts") [omitted]. C. _________ Inc., a Delaware corporation ("PJCI") and _________ Capital L.L.C., a Delaware limited liability company, each own a 50% limited liability company interest in _________. D. PJCI and _________ have agreed by unanimous written consent that it is in the best interest of each party to dissolve _________, distribute the assets and liabilities of _________ equally, and separately pursue the business of _________, with PJCI's wholly owned subsidiary PCM acting as investment adviser to the U.S. Family of Funds. E. As of July 19, _________, the Board of Directors of the Company and the shareholders of each of the funds of the U.S. Family of Funds have approved the execution of a new investment advisory and management agreement between the Company and PCM. F. _________ and PCM desire to enter into this Agreement to evidence the assignment of the Contracts from _________ to PCM. NOW THEREFORE, in consideration of the preliminary statements and of the mutual covenants and other terms and conditions contained herein, the parties hereto agree as follows: 1. Assignment and Assumption. _________ hereby conveys, transfers and assigns to PCM all of _________ right, title and interest in the Contracts and all documents related thereto (collectively, the "Assigned Contracts"). In consideration of such assignment (which assignment PCM hereby accepts) and subject to the terms, conditions, representations and warranties contained herein, PCM hereby assumes all of the obligations of _________ under the Assigned Contracts and hereby agrees to be bound by all covenants and agreements of _________ set forth in the Assigned Contracts and to comply with all other terms and conditions of the Assigned Contracts. 2. Representations Warranties and Covenants of . _________ represents, warrants and covenants to PCM as follows: (a). _________ is a limited liability company duly formed and validly existing under the laws of the State of Delaware. _________ has the requisite power and authority to own and operate its business and to carry on its business as now being conducted. (b). The execution and delivery of this Agreement and performance of the transactions contemplated hereby have been duly authorized by Hercules and will not result in a breach by it or constitute a default by it under any agreement, instrument or order to which it is a party or by which it is bound, and will not be in conflict with or constitute a default under or violation of any provision of its limited liability company agreement. (c). This Agreement and all other instruments required hereby to be executed and delivered to PCM are, or when delivered will be, legal and binding instruments enforceable in accordance with their terms. (d). The Assigned Contracts are assignable by _________ to PCM hereunder. (e). _________ has complied with all provisions of the Assigned Contracts and neither _________ nor any other parties to the Assigned Contracts is in default under any thereof. (f). _________ has not, directly or indirectly, in any Assigned Contract guaranteed performance or payment by any other corporation or person of any obligation or liability. (g). _________ agrees to promptly furnish each of the other parties to the Assigned Contracts with notice of the assignment hereunder of the Assigned Contracts to PCM and agrees to promptly give PCM notice of any notice or communication hereafter received by _________ with respect to the Assigned Contracts. 3. Representations, Warranties and Covenants of PCM. (a). PCM is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. PCM has the corporate power to own and operate its business and to carry on its business is now being conducted. (b). The execution and delivery of this Agreement and performance of the transactions contemplated hereby have been duly authorized by PCM and will not result in a breach by it or constitute a default by it under any agreement, instrument or order to which it is a party or by which it is bound, and will not be in conflict with or constitute a default under or violation of any provision of its Articles of Incorporation or By-Laws. (c). This Agreement and all other instruments required hereby to be executed and delivered to _________ are, or when delivered will be, legal and binding instruments enforceable in accordance with their terms. 4. Further Instruments. _________ hereby agrees to duly execute and deliver to PCM all such other and further instruments of conveyance, transfer and assignment and to take such other action as PCM may reasonably deem necessary to more effectively convey and transfer to PCM the Assigned Contracts transferred or intended to be transferred hereby. PCM agrees to duly execute and deliver to _________ all such other and further instruments of assumption and take such other action as may reasonably be required by _________ to effect the full and complete assumption by PCM of the obligations of _________ assumed or intended to be assumed hereunder. 5. Indemnification. PCM hereby agrees to indemnify and hold _________ harmless from and against all actions, claims, demands and expenses, including attorneys' fees, in respect of the obligations assumed hereunder other than any actions, claims, demands and expenses arising from or in connection with any misrepresentation or breach of warranty or covenant by _________ hereunder. _________ hereby agrees to indemnify and hold PCM harmless from and against all actions, claims, damages and expenses, including attorneys' fees, arising from or in connection with any misrepresentation or breach of warranty or covenant by _________ hereunder. 6. Notices. Any notice or other communication provided for herein or given hereunder to a party hereto shall be in writing and shall be delivered in person to such party or mailed by first class mail, postage prepaid, addressed as follows:
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