MEMBERSHIP INTEREST PURCHASE AGREEMENT
Exhibit 10.1
THIS
MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”) is made
as of this 22nd day of
April, 2008, by and between LEAF Funding, Inc., a Delaware corporation (“Seller”), and LEAF
Equipment Leasing Income Fund III, L.P., a Delaware limited partnership (“Buyer”).
BACKGROUND
A. Seller
owns 51% of the membership interests in LEAF Funding, LLC, a Delaware limited
liability company (“LLC”).
B. Buyer
acquired 49% of the membership interests of LLC from Seller pursuant to a
membership interest purchase agreement dated as of February 1,
2008.
C. Seller
desires to sell and Buyer desires to purchase the remaining 51% of the
membership interests of LLC pursuant and subject to the terms and conditions set
forth herein. The foregoing membership interests to be transferred
from Seller to Buyer as of the date hereof are sometimes hereinafter called the
“Transferred
Interests.” Upon
receipt of the Transferred Interests, Buyer shall own 100% of the membership
interests of LLC.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual promises and
covenants contained herein, Buyer and Seller, intending to be legally bound,
hereby agree as follows:
1. Sale and Purchase of Transferred
Interests. Upon the terms and subject to the conditions set
forth in this Agreement, Seller hereby irrevocably sells, assigns, transfers and
delivers to Buyer, and Buyer hereby purchases, all of Seller’s right, title and
interest in and to the Transferred Interests, free and clear of all liens,
encumbrances, security interests, pledges, options, claims and rights of others
of any nature whatsoever.
2. Purchase
Price.
(a) The
purchase price of the Transferred Interests shall be an amount equal to
fifty-one percent (51%) of the difference between the LLC’s cost of acquiring
and holding the Investment (as such term is defined in the Amended and Restated
Agreement of Limited Partnership of Buyer) (as determined under United States
generally accepted accounting principles and as adjusted for any income
received, capital or investment returned and reasonable and necessary expenses
paid or incurred while holding the Investment) and the liabilities to which the
foregoing are subject (the “Purchase
Price”). On the date hereof, Buyer shall pay Seller EIGHT
MILLION SIX HUNDRED SEVENTY-SEVEN THOUSAND NINE HUNDRED AND SIXTY-FIVE DOLLARS
AND NINETY-FOUR CENTS ($8,677,965.94) (the “Closing Date
Payment”), which is the amount Buyer and Seller estimate to be the
Purchase Price.
(b) As
promptly as practicable, but no later than thirty (30) days from the date
hereof, Seller shall deliver to Buyer sufficient financial information to
determine the Purchase Price. If the Closing Date Payment is less
than the Purchase Price, Buyer shall pay to Seller, in the
manner and with interest as provided in Section 2(c), the
amount of such shortfall and, if the Closing Date Payment exceeded the Purchase
Price, Seller shall pay to Buyer, in the manner and with interest as provided in
Section 2(c),
the amount of such excess.
(c) Any
payment pursuant to Section 2(b) shall be
made at a mutually convenient time and place within two (2) business days after
the Purchase Price has been determined. The amount of any payment to
be made pursuant to Section 2(b) shall
bear interest from and including the date hereof to but excluding the date of
payment at a rate per annum equal to six percent (6%).
3. Costs. Buyer
and Seller shall be solely responsible for their own respective costs and
expenses (including without limitation legal and accounting fees) incurred in
connection with the transactions contemplated by this Agreement. It
is acknowledged that there will be no broker’s commission, finder fee or similar
fee payable in connection with this transaction.
4. Further
Assurance. At any time and from time to time after the date
hereof, Buyer or Seller shall promptly execute and deliver all such further
agreements, certificates, instruments and documents, or perform such further
actions, as may be requested, in order to fully consummate the transactions
contemplated hereby regarding the sale of the Transferred Interests and carry
out the purposes and intent of this Agreement.
5. Entire
Agreement. This Agreement and the other documents referred to
herein constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and supersede all other prior and contemporaneous
agreements and undertakings among the parties (whether oral or written) with
respect to its subject matter.
6. Parties in
Interest. This Agreement is binding upon, inures to the
benefit of, and is enforceable by the parties hereto, and their respective
heirs, executors, personal representatives, successors and
assigns. No party hereto may assign its or his rights or delegate its
or his obligations hereunder without the written consent of the other party
hereto.
7. Headings. The
Section headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
8. Severability. Any
provision of this Agreement which is invalid, illegal, or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective only to the extent
of such invalidity, illegality or unenforceability, without in any way affecting
the remaining provisions hereof in such jurisdiction or rendering that or any
other provision of this Agreement invalid, illegal or unenforceable in any other
jurisdiction.
9. Governing
Law. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware, without
giving effect to the conflict of laws provisions thereof.
10. Waiver. No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any right, power or privilege hereunder, or any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
11. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
document. Confirmation of execution by electronic transmission of a
facsimile signature page shall be binding upon any party so
confirming.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
SELLER: | |||
LEAF FUNDING, INC. | |||
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By:
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/s/ | |
Name | |||
Title | |||
BUYER: | |||
LEAF EQUIPMENT LEASING INCOME FUND III, L.P. | |||
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By:
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/s/ | |
Name | |||
Title | |||