Membership Interest Purchase Agreement

EXHIBIT 10.1







MEMBERSHIP INTEREST PURCHASE AGREEMENT



by and among



WEST CO LLC ,

the Buyer







C&D IT LLC, EFG KIRKWOOD LLC AND EFG PALISADES LLC,

collectively, the Companies







and



AFG INVESTMENT TRUST C LIQUIDATING TRUST

and

AFG INVESTMENT TRUST D LIQUIDATING TRUST,

together, the Sellers













July 24, 2006














TABLE OF CONTENTS



PAGE



ARTICLE 1 DEFINITIONS AND RULES OF CONSTRUCTION 1




1.1. Definitions 1
1.2. Certain Interpretive Matters 6
1.3. Acknowledgment Regarding Negotiation and Preparation of Agreement 7




ARTICLE 2 PURCHASE AND SALE OF THE INTERESTS 7




2.1. Purchase and Sale of the Interests 7
2.2. Purchase Price; Payment; Deposit and Delivery into Escrow 7
2.3. Additional Consideration for Sellers 8




ARTICLE 3 THE CLOSING 8




3.1. Closing and Closing Date 8
3.2. Documents and Items to Be Delivered to the Buyer by the Sellers 8
3.3. Documents and Items to Be Delivered to the Sellers by the Buyer 9




ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE SELLERS 10




4.1. Issuance of the Interests; Sellers' Title to the Interests 10
4.2. No Conflict 10
4.3. Enforceability 10
4.4. Brokers 10
4.5. Litigation 11
4.6. Consequential Damages and Lost Profits 11




ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE BUYER 11




5.1. Organization 11
5.2. Authority of the Buyer 11
5.3. Enforceability 11
5.4. No Violation or Conflict; Consents 11
5.5. Brokers 12
5.6. Investment Intent 12
5.7. Litigation 12
5.8. Consequential Damages and Lost Profits; Buyer Due Diligence 12




ARTICLE 6 COVENANTS OF THE PARTIES 13




6.1. Conduct of Business of the Companies 13
6.2. Notification of Certain Matters 13




ARTICLE 7 CONDITIONS TO CLOSING 13




7.1. Conditions to Obligations of the Sellers 13
7.2. Conditions to Obligations of the Buyer 14




ARTICLE 8 TERMINATION 14




8.1. Termination 14
8.2. Effect of Termination 15












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ARTICLE 9 INDEMNIFICATION 16






9.1. Survival 16
9.2. Terms of Indemnification 17
9.3. Procedures with Respect to Third-Party Claims 17
9.4. Indemnification Cap and Threshold 18
9.5. Additional Indemnification Provisions 18
9.6. Exclusive Remedy 19




ARTICLE 10 GENERAL PROVISIONS 19




10.1. Parties in Interest; Successors and Assigns; No Third Party Rights 19
10.2. Assignment 19
10.3. Notices 20
10.4. Entire Agreement 20
10.5. Counterparts and Facsimile Signature 20
10.6. Severability 20
10.7. Amendment 20
10.8. Waiver 20
10.9. Further Assurances 21
10.10. Legal Counsel 21
10.11. Expenses 21
10.12. Governing Law 21






Exhibits



A - Interests

B - Escrow Agreement

C-1 - Assignment Instructions (AFG Investment Trust C Liquidating Trust)

C-2 - Assignment Instructions (AFG Investment Trust D Liquidating Trust)











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MEMBERSHIP INTEREST PURCHASE AGREEMENT



THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this " Agreement " ) is made and entered into as of July 24, 2006, by and among West Co LLC, a Florida limited liability company (the " Buyer "), C&D IT LLC, a Delaware limited liability company (" C&D "), EFG Kirkwood LLC, a Delaware limited liability company (" Kirkwood ") and EFG Palisades LLC, a Delaware limited liability company ( ? Palisades ") (C&D, Kirkwood and Palisades, each a " Company " and together, the " Companies ), and Wilmington Trust Company, not in its individual capacity but solely as Liquidating Trustee of each of AFG Investment Trust C Liquidating Trust and AFG Investment Trust D, each a Delaware liquidating trust (each a " Seller " and together, the " Sellers ").



RECITALS



WHEREAS, the Sellers are the owners of all of the outstanding units of interest of the Companies set forth on Exhibit A hereto (collectively, the " Interests " ); and



WHEREAS, the Buyer desires to purchase the Interests from the Sellers, and the Sellers desire to sell the Interests to the Buyer, all upon the terms and conditions set forth in this Agreement;



NOW, THEREFORE, in consideration of the premises, the mutual covenants, agreements, representations and warranties contained in this Agreement, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



ARTICLE 1



DEFINITIONS AND RULES OF CONSTRUCTION



1.1. Definitions . As used in this Agreement, the following terms have the meanings set forth below:



" Additional Consideration" has the meaning set forth in Section 2.3.



" Affiliate(s)" means with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with the first Person on or after the date of this Agreement. For the purposes of this definition, " control ," when used with respect to any Person, means the possession, directly or indirectly, of the power to (i) vote 25% or more of the voting securities of such Person or (ii) direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms " controlling " and " controlled " have meanings correlative to the foregoing.



" Agreement " has the meaning set forth in the introduction to this Agreement.





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"Assignment Instructions" means those certain Assignment Instructions in the form of Exhibit C hereto.



"Breach" means (a) any inaccuracy in, or breach or violation of, or default under, or failure to perform or comply with, any representation or warranty of this Agreement or any of the other Transaction Documents; or (b) any claim (by any Person) or other occurrence or circumstance that is or was inconsistent with any such representation or warranty.



"Buyer " has the meaning set forth in the introduction to this Agreement.



"Buyer Party" means (a) prior to the Closing, the Buyer, its Affiliates and its stockholders, directors, officers, employees, agents, advisors and other representatives, including legal counsel, accountants and financial advisors; and (b) from and after Closing, the Buyer and its Affiliates, the Companies and their Affiliates and their respective stockholders, directors, officers, employees, agents, advisors and other representatives, including legal counsel, accountants and financial advisors.



"Closing" has the meaning set forth in Section 3.1 .



"Closing Date" has the meaning set forth in Section 2.3 .



"Code" means the Internal Revenue Code of 1986, as amended, and rules and regulations promulgated pursuant thereto.



"Company" has the meaning set forth in the introduction to this Agreement.



" Consent " means any consent, approval, license, ratification, waiver, novation, award or other authorization, including any Permit.



" Contract " means any agreement, contract, instrument, obligation, commitment, covenant, understanding, promise, promissory note, bond, indenture, insurance policy, deed, lease, license, franchise, invoice, quotation, purchase order, sales order or other obligation, undertaking or arrangement (whether written or oral and whether express or implied) that is legally binding.



"Damages " means any and all losses, charges, claims, damages, liabilities, obligations, judgments, settlements, taxes, fines, penalties, awards, demands, offsets, costs, deficiencies and expenses including reasonable attorney and expert fees, whether absolute, accrued, conditional or otherwise and whether or not resulting from third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing.



" Deposit " has the meaning set forth in Section 2.2(c) .



" Escrow Agent" means Wilmington Trust Company.



"Escrow Agreement" means that certain Escrow Agreement by and among the Buyer, the Sellers, the Companies and the Escrow Agent in the form attached as Exhibit B hereto.





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"GAAP" means United States generally accepted accounting principles, consistently applied.



"Governmental Authority" means: (a) any nation, state, county, city, town, municipality, village, district, territory or other jurisdiction of any nature; (b) any federal, state, municipal or local governmental or quasi-governmental entity or authority of any nature; (c) any court or tribunal exercising or entitled to exercise judicial authority or power of any nature; (d) any multinational organization or body; and (e) any department or subdivision of any of the foregoing, including any commission, branch, board, bureau, agency, official or other instrumentality exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.



"Indebtedness" means with respect to the Company, at any date, without duplication: (a) all obligations of the Company for borrowed money, whether current, short-term or long-term, secured or unsecured, including all principal, interest, premiums, fees, expenses, overdrafts and pre-payment and other penalties with respect thereto; (b) all obligations of the Company evidenced by bonds, debentures, notes or other similar instruments; (c) all obligations of the Company to pay the deferred purchase price of property or services, except trade payables incurred in the Ordinary Course of Business; (d) all obligations of the Company to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker's acceptance or similar instrument; (e) all capital lease obligations; (f) any Liability of the Company with respect to interest rate swaps, collars, caps and similar hedging obligations; and (g) all Indebtedness of any other Person of the type referred to in clauses (a) through (f) above directly or indirectly guaranteed by the Company or secured by any assets of the Company. For purposes of this definition, " capital lease obligations " means the obligations of the Company that are required to be classified and accounted for as capital lease obligations under GAAP, and the amount of such obligations at any date shall be the capitalized amount of such obligations at such date determined in accordance with GAAP together with all obligations to make termination payments under such capital lease obligations.



"Indemnification Cap" has the meaning set forth in Section 9.4(a) .



"Indemnification Threshold" has the meaning set forth in Section 9.4(b) .



"Indemnified Party" has the meaning set forth in Section 9.3 .



"Indemnifying Party" has the meaning set forth in Section 9.3 .



"Interests" has the meaning set forth in the Recitals to this Agreement.



"Law" means (a) any constitution, statute, code, ordinance, regulation, treaty, rule, common law, policy, interpretation or guidance document enacted, published or promulgated by any Governmental Authority; and (b) with respect to a particular Person, the terms of any Order binding upon such Person or its assets or properties.



" Liability " means any liability, Indebtedness or other obligation, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated.





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" Lien " means any charge, claim, mortgage, lease, sublease, occupancy agreement or similar Contract, tenancy, right-of-way, easement, collateral assignment, restrictive covenant, encroachment, burden, condition, Order, community property interest, equitable interest, security interest, lien (statutory or otherwise), pledge, hypothecation, option, right of first refusal or other restriction, limitation, exception or encumbrance of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.



"Material Adverse Effect" means a material adverse effect on the business, operations, condition (financial or otherwise), results of operations, rights, assets (including intangible assets) or liabilities of the Company or a material adverse effect on the ability of the Company or the Sellers to consummate and perform in a timely manner the transaction contemplated by this Agreement.



"Material Adverse Event" means any one or more events, changes, circumstances, conditions, violations or developments (whether or not arising in the Ordinary Course of Business), which has had or have had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.



" Order " means any order, injunction (whether temporary, preliminary or permanent), ruling, decree (including any consent decree), writ, subpoena, verdict, charge, assessment, Consent or other decision entered, issued, made or rendered by any court or other Governmental Authority or by any arbitrator.



" Ordinary Course of Business " means, with respect to a particular Person, an action taken by, or the conduct of, such Person that is:



(a) consistent with the past practices of such Person in timing, frequency, amount and otherwise and taken in the ordinary course of the normal day-to-day operations of such Person;



(b) not required to be authorized by the board of directors of such Person (or by any Person or group of Persons exercising similar authority); and



(c) similar in nature and magnitude to actions customarily taken by, or the conduct of, such Person, without any authorization by the board of directors (or by any Person or group of Persons exercising similar authority), in the ordinary course of the normal day-to-day operations of other Persons that are in the same line of business as such Person.



" Organizational Documents " means, with respect to a particular Person, (a) if such Person is a corporation, its certificate or articles of incorporation, organization or formation and its by-laws; (b) if such Person is a general partnership, its partnership agreement and any statement of partnership; (c) if such Person is a limited partnership, its certificate of limited partnership and its limited partnership agreement; (d) if such Person is a limited liability company, its certificate or articles of formation or organization and limited liability company or operating agreement; (e) any other charter or similar document adopted or filed in connection with the creation, formation or organization of such Person; and (f) any amendment to any of the foregoing.





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" Permit " means any permit, license, Consent, exemption, variance, registration, security clearance or other authorization issued or granted by any Governmental Authority.



" Permitted Liens " means any: (a) Liens for current Taxes not yet due (other than Taxes arising out of the transactions contemplated by this Agreement); (b) Liens of carriers, laborers, materialmen, mechanics, repairmen or warehousemen, and other similar Liens imposed by Law and arising in the Ordinary Course of Business for Liabilities not yet due; and (c) Liens of record or other minor defects of title that do not and could not interfere with the use of such real property or materially diminish the value thereof.



" Person " means any individual, firm, company, general partnership, limited partnership, limited liability partnership, joint venture, association, corporation, limited liability company, trust, business trust, estate, Governmental Authority or other entity.



" Proceeding " means any action, claim, complaint, charge, arbitration, audit, hearing, investigation, inquiry, suit, litigation or other proceeding (whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator.



"Purchase Price" has the meaning set forth in Section 2.2(a) .



"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated pursuant thereto.



"Seller Party" means (a) prior to Closing, the Sellers and the Companies, and (b) from and after Closing, the Sellers.



"Seller" or " Sellers " has the meaning set forth in the introduction to this Agreement.



"Seller's Counsel" means Putney, Twombly, Hall & Hirson LLP.



"Tax" or "Taxes" means, however denominated, all federal, state, local, territorial, foreign and other taxes, levies, fees, deficiencies, imposts, assessments, impositions or other government charges of whatever nature, including all net income, gross income, estimated income, gross receipts, business, occupation, franchise, real property, payroll, personal property, sales, transfer, stamp, use, employment, social security, unemployment, worker's compensation, commercial rent, withholding, occupancy, premium, gross receipts, profits, windfall profits, deemed profits, recapture, license, lease, severance, capital, production, corporation, ad valorem , excise, custom, duty, escheat, built in gain pursuant to Code Section 1374 or similar tax, including any interest, fines, penalties and additions (to the extent applicable) thereon or thereto, whether disputed or not, and any obligations with respect to such amounts arising as a result of being a member of an affiliated, consolidated, combined or unitary group for any period or under any Contract with any other Person, and including any Liability for taxes of a predecessor.



"Transaction Documents" means this Agreement and all other agreements, certificates, instruments and other documents being delivered pursuant to this Agreement or pursuant to such other agreements, certificates, instruments and other documents.





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1.2. Certain Interpretive Matters .



(a) General Rules of Construction. In this Agreement, unless the context otherwise requires:



(i) words of the masculine or neuter gender shall include the masculine and/or feminine gender, and words in the singular number or in the plural number shall each include the singular number or the plural number;



(ii) reference to any Person includes such Person's successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity;



(iii) reference to any agreement (including this Agreement) or other Contract or any document means such agreement, Contract or document as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof;



(iv) any accounting term used and not otherwise defined in this Agreement or any other Transaction Document has the meaning assigned to such term in accordance with GAAP;



(v) " including " (and with correlative meaning " include ") means including without limiting the generality of any description preceding or succeeding such term;



(vi) relative to the determination of any period of time, " from " means " from and including ," " to " means ? to but excluding " and " through " means " through and including ;"



(vii) " hereto ", " herein ", " hereof ", " hereinafter " and similar expressions refer to this Agreement in its entirety, and not to any particular Article, Section, paragraph or other part of this Agreement;



(viii) reference to any " Article " or " Section " means the corresponding Article(s) or Section(s) of this Agreement;



(ix) the descriptive headings of Articles, Sections, paragraphs and other parts of this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement or any of the terms or provisions hereof;



(x) references to dollars or "$" in this Agreement shall mean United States Dollars;





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(xi) reference to any Law or Order, means (A) such Law or Order as amended, modified, codified, supplemented or reenacted, in whole or in part, and in effect from time to time; and (B) any comparable successor Laws or Orders; and



(xii) any Contract, instrument, insurance policy, certificate or other document defined or referred to in this Agreement or in any other Transaction Document means such Contract, instrument, insurance policy, certificate or other document as from time to time amended, modified or supplemented, including (in the case of Contracts or instruments) by waiver or Consent and all attachments thereto and instruments and other documents incorporated therein.



1.3 Acknowledgment Regarding Negotiation and Preparation of Agreement . The parties hereto further acknowledge and agree that: (i) this Agreement is the result of negotiations between the parties hereto and shall not be deemed or construed as having been drafted by any one party, (ii) each of the parties hereto and its counsel have reviewed and negotiated the terms and provisions of this Agreement (including any exhibits and schedules attached hereto) and have contributed to its preparation, (iii) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement, and (iv) the terms and provisions of this Agreement shall be construed fairly as to all parties hereto and not in favor of or against any party, regardless of which party was generally responsible for the preparation of this Agreement. The parties hereto recognize that Wilmington Trust Company will be acting as Escrow Agent with respect to the transactions contemplated hereby, and as ]the Liquidating Trustee of each of the Sellers. Each of the parties hereto recognizes that acting in both capacities creates a potential conflict of interest with respect to Wilmington Trust Company, and each party hereto hereby waives any and all such conflicts of interest.



ARTICLE 2



PURCHASE AND SALE OF THE INTERESTS



2.1. Purchase and Sale of the Interests . Upon and subject to the terms and provisions of this Agreement, at the Closing, the Buyer will purchase and accept delivery of the Interests from the Sellers, and the Sellers shall sell, assign, transfer and deliver all of the Interests to the Buyer free and clear of all Liens.



2.2. Purchase Price; Payment; Deposit and Delivery into Escrow .



(a) Purchase Price; Allocation. The total purchase price for the Interests will be Five Million Four Hundred Ten Thousand Dollars ($5,410,000) (the " Purchase Price ") and shall be allocated to the Interests in accordance with Exhibit A .



(b) Payment. The Purchase Price shall be paid at the Closing in accordance with the Escrow Agreement.



(c) Delivery of Deposit into Escrow. On the date hereof, the Buyer shall deposit with the Escrow Agent in immediately available funds by wire transfer One Hundred Thousand Dollars ($100,000.00) as a deposit (the " Deposit "), which shall be offset against the Purchase Price at Closing; however; the Deposit shall not be considered part of the Purchase Price as the Deposit shall be non-refundable except as expressly set forth in Section 8.2(b) .





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2.3. Additional Consideration for Sellers . In the event that, within the eighteen month period following the Closing commencing on the date of the Closing (the " Closing Date "), either of the Sellers provides written notice to the Buyer that BMIF/BSLF II Rancho Malibu Limited Partnership (the "Partnership") has received a grading permit from the appropriate regulatory agencies relating to the Land (as defined in the Partnership's Amended and Restated Limited Partnership Agreement, as amended), then the Buyer shall promptly, but in no event later than three (3) business days after such notice, pay an additional $300,000 to the Sellers, allocated in accordance with each Sellers' interest in C&D IT LLC as set forth on Exhibit A (such amount, the "Additional Consideration").







ARTICLE 3



THE CLOSING



3.1. Closing and Closing Date . Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned in accordance with the terms and provisions of Article 8 , the purchase and sale of the Interests (the " Closing ") shall take place at 10:00 a.m. (Boston time) on a date to be designated by the Buyer and the Sellers upon the satisfaction or waiver of all of the conditions to the respective obligations of the parties set forth in Article 7 ), in accordance with the terms of the Escrow Agreement. The Closing shall take place at the offices of Nixon Peabody LLP, 100 Summer Street, Boston, MA 02110.



3.2. Documents and Items to Be Delivered to the Buyer by the Sellers . At the Closing, the Sellers will deliver to the Buyer:



(i) Signature pages to the Assignment Instructions, fully executed by the Sellers and dated as of the Closing Date;



(ii) A certificate in form and substance reasonably acceptable to the Buyer, d ...