Exhibit
10.9
SALE AND ASSIGNMENT AGREEMENT
THIS SALE AND ASSIGNMENT AGREEMENT (this “ Agreement
”) is made as of this 30 th day of June, 2009, by and between
LEAF Asset Management, LLC, a Delaware limited liability company
(“ Seller ”) and LEAF Equipment Finance Fund 4,
L.P., a Delaware limited partnership (“ Buyer
”).
BACKGROUND
A. Seller owns 100% of the membership
interests in Resource Capital Funding, LLC, a Delaware limited
liability company. (“ RCF ”). The membership
interests in RCF are sometimes hereinafter called the “
Interests .”
B. RCF is a party to that certain
Receivables Loan and Security Agreement (the “ RLSA
”), dated as of March 31, 2006, by and among RCF; LEAF
Financial Corporation; Black Forest Funding Corporation (the
“ Lender ”); Bayerische Hypo- und Vereinsbank
AG, New York Branch, as agent (the “ Agent ”);
U.S. Bank, National Association; and Lyon Financial Services, Inc.
(d/b/a U.S. Bank Portfolio Services). Capitalized terms used herein
and not otherwise defined have the meanings set forth in the
RLSA.
C. Seller desires to sell and Buyer
desires to purchase the Interests on the terms and conditions set
forth herein.
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
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 Interests,
free and clear of all liens, encumbrances, security interests,
pledges, options, claims and rights of others of any nature
whatsoever. Seller hereby agrees to deliver an assignment of
interest in the form of the assignment of interest attached hereto
as Exhibit A.
2. Purchase Price . The
purchase price of the Interests shall be an amount equal to the
purchase price set forth on the financial schedule attached hereto
as Exhibit B (the “ Purchase Price ”). The
Purchase Price of the Interests as of the date hereof is Seven
Million Six Hundred and Twenty Seven Thousand One Hundred and Three
Dollars ($7,627,103). Upon the closing of the books and records of
RCF for the month ended June 30, 2009, an adjustment to the
Purchase Price shall be made, if necessary (the “ Adjusted
Purchase Price ”). If the Purchase Price is less than the
Adjusted Purchase Price, Buyer shall pay to Seller the amount of
such shortfall and, if the Purchase Price exceeded the Adjusted
Purchase Price, Seller shall pay to Buyer the amount of such
excess.
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
Interests and carry out the purposes and intent of this Agreement
including without limitation amendments to the operating agreement
of RCF to the extent permitted under the Transaction Documents and
otherwise satisfactory to the Agent.
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 partie
