EFTA01128206.pdf

NOVEMBER 26, 2012 DRAFT PURCHASE AND SALE AGREEMENT AGREEMENT, dated as of November 31 , 2012, by and between FINANCIAL TRUST COMPANY, INC. a U.S. Virgin Islands corporation having an office at 6100 Red Hook Quarter, B3, St. Thomas, USVI 00802 ("Seller"), and BLACK FAMILY PARTNERS, L.P., a Delaware limited partnership having an office at 9 West 57th Street, 43rd Floor, New York, NY 10019 ("Purchaser"). RECITALS: A. Seller is the holder of 13,350,205 shares of the Common Stock, $0,001 par value (the "ESWW Shares"), of Environmental Solutions Worldwide, Inc., a Florida corporation ("ESWW"). B. Seller is a member of AP SHL Investors, LLC, a Delaware limited liability company ("AP SHL"). AP SHL is governed by that certain Limited Liability Company Agreement, dated as of December 20, 2001 (as the same may from time to time be amended, or amended and restated, and in effect, the "AP SHL LLCA '. John J. Hannan, is the Managing Member of AP SHL (the "APSHL Managing Member"). C. Seller is a member in AP Technology Partners LLC, a Delaware limited liability company ("AP Tech'). AP Tech is governed by that certain Limited Liability Company Agreement, dated as of February 10, 2000 (as the same may from time to time be amended, or amended and restated, and in effect, the "AP Tech LLCA '9. Andrew D. Africk, John J. Hannan, Mark J. Rowan, and Michael D. Weiner are the Managers of AP Tech (the "AP Tech Managers"). D. Seller's total interest in AP SHL consists of all of Seller's right, title and interest in and to Seller's entire 40% interest as a member of AP SI-IL, including, without limitation, Seller's rights to, and interest in, capital of AP SHL, and Seller's rights for periods commencing on and after the date hereof to distributions from AP SHL, as well as any and all of Seller's duties and obligations in respect of Seller's membership interest in AP SHL pursuant to the AP SHL LLCA (the "APSHL Interest,. E. Seller's total interest in AP Tech consists of all of Seller's right, title and interest in and to Seller's entire 5.834262% interest as a member of AP Tech, including, without limitation, Seller's rights to, and interest in, capital of AP Tech, and Seller's rights for periods commencing on and after the date hereof to distributions from AP Tech, as well as any and all of Seller's duties and obligations in respect of Seller's membership interest in AP Tech pursuant to the AP Tech LLCA (the "AP Tech Interest"). Seller's AP SHL Interest and AP Tech Interest are referred to collectively as the "AP Interests"). The AP Interests and the ESWW shares are referred to collectively as the "Purchased Interests"). EFTA01128206  F. Seller and Purchaser desire to provide for the purchase by Purchaser from the Seller of the ESWW Shares and the AP Interests on the terms and conditions set forth herein. NOW, THEREFORE, the Parties agree as follows: 1. Definitions. The terms defined or referenced in Appendix A to this Agreement, whenever used herein, shall have the meanings set forth or referenced therein for all purposes of this Agreement. 2. Purchase and Sale. Subject to the terms and conditions set forth in this Agreement, Seller agrees to sell and assign to Purchaser, and Purchaser agrees to purchase from Seller, the Purchased Interests. Upon the sale of the AP Interests in accordance with this Agreement, Purchaser will be admitted as a member of AP SHL in substitution for Seller with respect to the AP SHL Interest and Purchaser will be admitted as a member of AP Tech in substitution for Seller with respect to the AP Tech Interest. 3. Purchase Price and Payment. 3.1 Purchase Price. The purchase price for the Purchased Interests shall be Five Million Five Hundred Thousand Dollars ($5,500,000) (the "Purchase Price,. The Purchase Price shall be payable by Purchaser to Seller on the Closing Date by wire transfer of immediately available funds to an account designated in writing by Seller to Purchaser. 32 Allocation of Purchase Price; Treatment and Reporting. The Purchase Price shall be allocated among the ESWW Shares, the AP SHL Interest and the AP Tech Interest as set forth in Schedule 3.2, and Seller and Purchaser shall not file any Tax Returns inconsistent with such allocation of the Purchase Price. 4. The Closing. 4.1 gitjaiss. The closing of the sale and transfer of the Purchased Interests (the "Closing") shall take place at the offices of the Purchaser, on a Business Day (the "Closing Dale") mutually agreed to by Seller and Purchaser which, unless Seller and Purchaser otherwise agree, shall not be earlier than two (2) Business Days after the conditions set forth in Section 7 shall have been satisfied or shall have been waived by the appropriate Party or Parties, and shall not in any event be later than November 30, 2012. 4.2 Closing Deliveries by Seller. Subject to the satisfaction, or the waiver by Seller, of the conditions set forth in Sections 7.1 and 7.3, at the Closing Seller shall take the following actions: (a) Seller shall deliver to Purchaser certificates representing all of the ESWW Shares, together with accompanying stock powers or instruments of assignment, duly endorsed for transfer, as to 13,198,711 of the ESWW Shares, and irrevocable instructions to Seller's broker to transfer to the Purchaser the remaining 151,494 ESWW Shares which are maintained in an account with Seller's broker; (b) Seller shall execute and deliver to Purchaser an assignment and assumption 2 Not US I:8253924v3 EFTA01128207  agreement with respect to the AP SHL Interest in the form attached hereto as exhibit B (the "AP SHL Assignmenfr, and (c) Seller shall execute and deliver to Purchaser an assignment and assumption agreement in the form attached hereto as Exhibit C (the "AP Tech Assignment). 4.3 Closing Deliveries by Purchaser. Subject to the satisfaction, or the waiver by Purchaser, of the conditions set forth in Sections 7.1 and 7.2, at the Closing Purchaser shall take the following actions: (a) Purchaser shall execute and deliver to Seller the AP SHL Assignment and the AP Tech Assignment; (b) Purchaser shall deliver to Seller an original consent to the purchase and sale of the AP SHL Interest as required under the AP SHL LLCA in the form attached hereto as Exhibit D , signed by the AP SHL Managing Member (the "APSHL Consent'); (c) Purchaser shall deliver to Seller an original consent to the purchase and sale of the AP Tech Interest as required under the AP Tech LLCA in the form attached hereto as Exhibit E , signed by that number of AP Tech Managers as is required under the AP Tech LLCA (the "AP Tech Consent"), and (d) Purchaser shall pay the Purchase Price to Seller in the manner set forth in Section 3.1. 5. Representations and Warranties. 5.1 Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser that: (a) Execution and Delivery. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against him in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (b) Consents: No Conflicts, Etc. Subject to the satisfaction of all of the conditions in Section 7.1 including the receipt of the AP SHL Consent and the AP Tech Consent, neither the execution and delivery of this Agreement, the consummation by Seller of the transactions contemplated herein nor compliance by Seller with any of the provisions hereof will (with or without the giving of notice or the passage of time) (i) violate any order, writ, injunction or decree, applicable to Seller, (ii) require the consent, approval, permission or other authorization of or by or filing or qualification with any Governmental Authority, except for such consents, approvals, permissions, authorizations, and receipts of filings or qualifications, the failure of which to obtain prior to the Closing, would not adversely affect Seller's ability to consummate the transactions contemplated by this Agreement, or (iii) conflict with, violate, result in a breach of or constitute a default under (without regard to requirements of notice, lapse of time, or elections of other Persons, or any combination thereof), any instrument or agreement to which 3 Dod: USI:8253924v3 EFTA01128208 Seller is a party or by which it is bound. (c) Seller's Interests. Seller has valid and marketable title to the Purchased Interests and owns the Purchased Interests free of all Encumbrances other than any restrictions set forth in ESWW's organizational documents and those arising under the AP SHL LLCA and the AP Tech LLCA (collectively, the "Transfer Restrictions"). Upon consummation of the transactions contemplated hereby at the Closing, Seller shall have assigned to Purchaser all of Seller's interest in the Purchased Interests and Purchaser will acquire valid and marketable title to the Purchased Interests, free and clear of any Encumbrances, other than pursuant to the Transfer Restrictions. 5.2 Representations and Warranties of Purchaser. Purchaser hereby represents and warrants to Seller that: (a) Execution and Delivery. This Agreement has been duly executed and delivered by Purchaser and constitutes the legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (b) Consents: No Conflicts. Etc, Subject to the satisfaction of all of the conditions in Section 7.1 including the receipt of the AP SHL Consent and the AP Tech Consent, neither the execution and delivery of this Agreement, the consummation by Purchaser of the transactions contemplated herein nor compliance by Purchaser with any of the provisions hereof will (with or without the giving of notice or the passage of time) (i) violate any order, writ, injunction or decree applicable to Purchaser, (ii) require the consent, approval, permission or other authorization of or by or filing or qualification with any Governmental Authority, except for such consents, approvals, permissions, authorizations, and receipts of filings or qualifications, the failure of which to obtain prior to the Closing, would not adversely affect Purchaser's ability to consummate the transactions contemplated by this Agreement, or (iii) conflict with, violate, result in a breach of or constitute a default under (without regard to requirements of notice, lapse of time, or elections of other Persons, or any combination thereof), any instrument or agreement to which Purchaser is a party. (c) Qualification of Purchaser. Purchaser is an "accredited investor" as defined in Rule 501(a) promulgated under the Securities Act of 1933, as amended (the r'Securtties Act), and is a "qualified purchaser" as defined in Section 2(a) of the Investment Company Act of 1940, as amended. Purchaser is acquiring the Purchased Interests for investment and not with a view to the distribution of all or any portion thereof within the meaning of the Securities Act. Purchaser acknowledges that none of the Purchased Interests has been registered under the Securities Act or state securities laws and agrees that he will not sell all or any portion of the Purchased Interests in violation of any applicable securities laws. (d) Disclaimer: No Reliance. Purchaser acknowledges, represents and warrants that Purchaser is not, and will not be, relying on any information, representations or warranties furnished or made by Seller or any of Seller's representatives or agents as to any matter whatsoever (other than as expressly stated herein) concerning any of the Purchased Interests and/or the legal status, good standing, organizational documents (or interpretation or effect thereof), business, history, prospects, assets, liabilities, financial condition, operations or value of 4 Doc4: USI:C539240 EFTA01128209 any of ESWW, AP SHL, AP Tech, or any of their Affiliates, and in entering into this Agreement and in purchasing the Purchased Interests as contemplated hereby at the Closing, Purchaser is not, and will not be, relying upon any representations or warranties of Seller whatsoever, except for Seller's representations expressly set forth in Section 5.1 hereof. Purchaser further acknowledges, represents, warrants and covenants that Purchaser has had complete access to any and all information, facts and personnel connected with ESWW, AP SHL and AP Tech that Purchaser deems necessary or relevant, and that Purchaser has conducted its own independent investigation into and analysis of the value of the Purchased Interests and whatever facts Purchaser deems necessary or relevant, for deciding whether to purchase the Purchased Interests and what price Purchaser is willing to pay therefor, and that in entering into this Agreement and in engaging in the transactions contemplated hereby, Purchaser is and will be relying solely on Purchaser's own independent investigation, analysis and due diligence and on representations, warranties, information and documents made or furnished to Purchaser by or on behalf of ESWW, AP SHL, AP Tech, ESWW's officers, directors, employees and agents, the AP SHL Managing Member, and the officers, employees and agents of AP SHL, and the AP Tech Managers and the officers, employees and agents of AP Tech (collectively, the "Purchased Interests Representatives', and Purchaser acknowledges and agrees that neither Seller nor any of Seller's representatives or agents is responsible for any such representations, warranties, information or documents and that Purchaser shall not seek to hold any of them responsible or liable in any way in connection with any such representations, warranties, information or documents made or furnished by or on behalf of the Purchased Interests Representatives. Purchaser acknowledges that it is a sophisticated investor with a long standing business relationship with the Purchased Interests Representatives and, as such, is familiar with the legal status, good standing, organizational documents (or interpretation or effect thereof), business, history, prospects, assets, liabilities, financial condition, management, operations and value of each of ESWW, AP SHL, AP Tech. 5.3 Survival of Representations and Warranties. The representations and warranties of the Parties contained in this Agreement or in any instrument delivered pursuant hereto shall survive the Closing Date. 6. Covenants. 6.1 Consents. The Parties acknowledge that the consummation of the purchase and sale of the AP SHL. Interest contemplated by this Agreement will require the AP SHL. Consent, and the consummation of the purchase and sale of the AP Tech Interest contemplated by this Agreement will require the AP Tech Consent. Purchaser shall obtain the AP SHL Consent and the AP Tech Consent and deliver an original thereof to Seller at the Closing. 7. Conditions to Closing; Termination. 7.1 Condition to Each Partv's Obligation to Close. The respective obligations of the Parties to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or waiver by each Party in writing, on or before the Closing Date of the following conditions: (a) Jniunctions. There shall not be outstanding any injunction, decree or order of any court or governmental department or agency prohibiting the consummation of the transactions contemplated by this Agreement. 5 Cod: U51:8253924v3 EFTA01128210  (b) No Change in Law. There shall not have been any action taken or any statute enacted by any Governmental Authority which would render the Parties unable to consummate the transactions contemplated hereby or make the transactions contemplated hereby illegal or prohibit the consummation of the transactions contemplated hereby. (c) Consents. The AP SHL Managing Member shall have executed and delivered the AP SHL Consent to each of Seller and Purchaser and those of the AP Tech Managers as are required under the provisions of the AP Tech LLCA shall have executed and delivered counterparts of the AP Tech Consent to each of Seller and Purchaser. 7.2 Conditions to Purchaser's Obligation to Close. The obligation of Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment,or the waiver in writing by Purchaser, on or prior to the Closing Date, of the following conditions: (a) Representations and Warranties True at the Closing Date. The representations and warranties of Seller contained in this Agreement shall be deemed to have been made at and as of the Closing Date and shall be true and correct in all material respects at and as of the Closing Date. (b) Seller's Performance. Each obligation of Seller to be performed on or before the Closing Date pursuant to the terms of this Agreement, including Seller's taking all of the actions required warranties of Purchaser contained in this Agreement shall be deemed to have been made at and as of the under Section 4.2 hereof, shall have been duly performed at or before the Closing, in all material respects. 7.3 Conditions to Seller's Obligation to Close. The obligations of Seller to consummate the transactions contemplated hereby shall be subject to the fulfillment, or the waiver in writing by Seller, on or prior to the Closing Date, of the following conditions: (a) Representations and Warranties True at the Closing Date. The representations and Closing Date and shall be true and correct in all material respects at and as of the Closing Date. (b) Purchaser's Performance. Each obligation of Purchaser to be performed on or before the Closing Date under the terms of this Agreement including Purchaser's taking all of the actions required under Section 4.3 hereof, shall have been duly performed at or before the Closing, in all material respects. 8. Miscellaneous. 8.1 Notices. All notices, elections, consents, approvals, demands, objections, requests or other communications which any Party hereto may be required or desire to give to the other Party hereto must be in writing and sent by (i) first class U.S. certified or registered mail, return receipt requested, with postage prepaid, (ii) telecopy, facsimile or email (with a copy sent by first class U.S. certified or registered mail, return receipt requested, with postage prepaid), or (iii) express mail or courier (for either same day or next Business Day delivery). A notice or other communication sent in compliance with the provisions of this Section 8.1 shall be deemed given and received on (a) the third (3rd) Business Day following the date it is deposited in the U.S. 6 Dolt: US I :8253924v3 EFTA01128211 mail, (b) the date of confirmed dispatch if sent by facsimile, telecopy or email (provided that a copy thereof is sent by mail the same day in the manner provided in clause (ii) above), or (c) the date it is delivered to the other Party's address if sent by express mail or courier. The addresses for the Parties are as follows: All notices and other communications to Seller shall be addressed to such Party at the following address: Financial Trust Company, Inc. 6100 Red Hook Quarter, )33 St. Thomas, Facsimile No. email Attention: r. e y . Epstein, President with a copy to (which shall not constitute notice to Seller): Darren K. Indyke, Esq. Darren K. Indyke, PLLC 575 Lexington Avenue, 4th Floor New York, N Facsimile No.: email: All notices and other communications to Purchaser shall be addressed to such Party at the following address: Black Family Partners, L.P. do Apollo Management 9 West 57th Street, 43rd Floor New York, N Facsimile No.: email: Attention: Mr. Leon Black with a copy to (which shall not constitute notice to Purchaser): Kenneth M. Schneider Paul, Weiss, Riflcind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, N Telephone: Facsimile N E-mail: Any Party may designate another addressee or change its address for notices and other Dori: US 1:8253924v3 EFTA01128212 communications hereunder by a notice given to the other Party in the manner provided in this Section 8.1. 8.2 Successors and Assigns. This Agreement and all the terms and provisions hereof shall be binding upon and shall inure to the benefit of each of the Parties hereto, and their legal representatives, successors and permitted assigns. 8.3 Effect and Interpretation. This Agreement shall be governed by and construed in confonnity with the laws of the State of New York, without reference to conflicts or choice of law principles. 8.4 Amendments. Except as otherwise provided herein, this Agreement may not be changed, modified, supplemented or terminated, except by an instrument executed by the Party hereto which is or will be affected by the terms of such change, modification, supplement or termination. 8.5 Waiver. No waiver by any Party hereto of any failure or refusal by any other Party hereto to comply with its obligations hereunder shall be deemed a waiver of any other or subsequent failure or refusal to so comply. Any Party hereto may waive compliance by any other with respect to any of the other's agreements or obligations set forth herein. All such waivers shall be in writing signed by the Party hereto to be charged therewith. 8.6 Severability. If any provision of this Agreement, or the application of such provision to any Person or circumstance, shall be held invalid by a court of competent jurisdiction, the remainder of this Agreement, or the application of such provision to Persons or circumstances other than those to which it is held invalid by such court, shall not be affected thereby. 8.7 Headings: Usage. The headings, titles and subtitles herein are inserted for convenience of reference only and are to be ignored in any construction of the provisions hereof. Unless the context of this Agreement otherwise requires (i) words of any gender are deemed to include each other gender, (ii) words using singular or plural number also include the plural or singular, respectively, (iii) the terms "hereof, "herein", "hereby", "hereto", and derivative or similar words refer to this entire Agreement, and (iv) all references to dollars or "$" shall be toUnited States dollars. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". 8.8 No Third Party Beneficiaries. Except as expressly provided herein, Persons who are not parties to this Agreement shall have no rights or privileges (whether as a third party beneficiary or otherwise) under or by virtue of this Agreement. 8.9 Business Days. In the event that any of the dates specified in this Agreement shall fall on a Saturday, Sunday, or a holiday recognized by the State of New York, then the date of such action shall be deemed to be extended to the next Business Day. 8.10 Expenses. Each Party shall be liable for its own costs and expenses incurred in connection with the negotiation, preparation execution and performance of this Agreement and 8 Oat US I :82.53924v3 EFTA01128213 the transactions contemplated hereby, including all fees of legal counsel, auditors and financial advisors; provided, however that a breaching Party hereto shall be liable for such costs and expenses of the other Party hereto in the event it becomes necessary for the non-breaching party to enforce this Agreement. Any stamp taxes, sales taxes, transfer taxes, recording taxes, filing fees and similar taxes, fees or charges in connection with the assignment of the Purchased Interests pursuant to this Agreement shall be borne by Purchaser. 8.11 Entire Agreement. This Agreement together with all documents and instruments executed or to be executed and delivered in connection with the Closing contemplated herein and in such other agreements, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements and negotiations. 8.12 Construction. Each of the Parties hereto acknowledges that it was represented by counsel of its choice in connection with the negotiation of this Agreement and the transactions contemplated hereby, and the Parties agree that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any documents executed and delivered pursuant hereto. Instead, the language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the Parties hereto. 8.13 Further Assurances. Each Party shall execute and deliver to the other Party such further documents and instruments as may be reasonably requested by the other Party in order to effectuate the intent of this Agreement and to obtain the full benefit of this Agreement. Any request by a Party under this Section 7.13 shall be accompanied by the document proposed for signature by the Party requesting it for review by the Party of whom such document is requested and its attorneys. The Party making the request shall bear and discharge any fees or expenses incident to the preparation, filing or recording of the document requested pursuant to this Section 7.13. 8.14 Assignment. No Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party hereto. 8.15 Nature of Relationship. The relationship between Seller and Purchaser hereunder or contemplated by this Agreement is solely that of seller and purchaser and nothing herein is intended to create or constitute a joint venture or partnership of any kind between Seller and Purchaser or to constitute either Party as an agent of the other Party. 8.16 Counterparts: Delivery. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by the other Party to this Agreement attached thereto. This Agreement may be executed and delivered by delivery of a facsimile copy of an executed signature page or counterpart or by e-mailing a PDF version of a signed signature page or counterpart, and each shall have the same force and effect as the delivery of an originally executed signature page or counterpart. 9 Dad: USI:8233924v3 EFTA01128214  IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. SELLER: FINANCIAL TRUST COMPANY, INC. By: Name: Jeffrey E. Epstein Title: President PURCHASER: BLACK FAMILY PARTNER, L.P. By: BLACK FAMILY GP, LLC . C y By: Name: Leon Black Title: Managing Member 10 Doe/f: US1:8253924v3 EFTA01128215  APPENDIX A Definitions (a) Defined Terms. The following terms shall have the respective meanings ascribed to them below: "Affiliate" of a specified Person means any Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with the Person specified. "Agreement" means this Agreement as it may from time to time be amended, and is in effect. "Business Day" means each day which is neither a Saturday, a Sunday nor any other day on which banking institutions in New York are authorized or obligated by law or required by executive order to be closed. "Control" or "Controlled" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, a general partner, managing member or non-member manager of a Person shall always be considered to Control such Person. "Damaaes" means any actual loss, liability (including, but not limited to, any tax liability), claim, action or cause of action, damage, assessment, judgment, cost or out-of-pocket expense (including but not limited to reasonable attorneys' fees and expenses). "Encumbrances" means all liens, pledges, security interests, community property rights, charges, encumbrances, equities, claims, options and other restrictions. "Governmental Authority" means any nation or government, any state or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administration functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of the United States, any self- regulatory organization, any foreign government, any State of the United States or any political subdivision thereof, and any court, tribunal, mediator(s) or arbitrator(s) of competent jurisdiction. "Party" means any of Seller or Purchaser. "Person" means any individual, partnership, limited liability company, joint venture, corporation, trust, association, unincorporated organization or Governmental Authority or other entity of any kind. Doc?: USI:t253924v3 EFTA01128216  "Tax" or Taxes" means all federal, state, local and foreign taxes, charges, fees, imposts, levies or other assessments, including without limitation all income, profits, franchise, receipts, capital, sales, use, withholding, alternative minimum, ad valorem, inventory, payroll, employment, social security, unemployment, customs duties, value added, property, transfer, severance, excise and other similar taxes and governmental charges, including related interest, penalties, fines and additions to tax. DoeS: USI:82.53924v3 EFTA01128217  ASSIGNMENT AND ASSUMPTION AGREEMENT ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement'"), dated November 311 , 2012, by and between FINANCIAL TRUST COMPANY, INC., a U.S. Virgin Islands corporation having an office at 6100 Red Hook Quarter, B3, St. Thomas, USVI 00802 ("FTC"), and BLACK FAMILY PARTNERS, L.P., a Delaware limited partnership having an office at 9 West 57th Street, 43" Floor, New York, NY 10019 (the "Assignee"). RECITALS: A. FTC is a Member of AP Technology Partners LLC, a Delaware limited liability company (the "Company"). B. The Company is governed by that certain Limited Liability Company Agreement, dated as of February 10, 2000 (as the same may from time to time be amended, or amended and restated, and in effect, the "LLC Agreement"). C. Pursuant to a certain Purchase and Sale Agreement, dated as of November ;/ , 2012, by and between FTC and the Assignee (the "Purchase Agreement"), FTC is assigning to the Assignee all of FTC's right, title and interest in and to FTC's entire 5.834262% interest as a Member of the Company, including, without limitation, FTC's rights to, and interest in, capital of the Company, and FTC's rights for periods commencing on and after the date hereof to distributions from the Company, as well as any and all of FTC's duties and obligations in respect of Fits membership interest in the Company pursuant to the LLC Agreement (the "Assigned Interest"), which Assigned Interest does not include FTC's right to any distributions or other amounts paid by the Company to FTC prior to the date hereof. Capitalized terms used and not otherwise defined herein have the meanings ascribed to such terms in the Purchase Agreement. D. FTC and the Assignee intend that the Assignee be admitted to the Company as a substitute Member in FTC's place with respect to the Assigned Interest. E. The Assignee desires to accept such assignment, to assume all of FTC's duties and obligations under the LLC Agreement with respect to the Assigned Interest, and to be admitted as a substitute Member of the Company with respect to the Assigned Interest. F. This Agreement is the "AP Tech Assignment" referred to in the Purchase Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the parties hereto do hereby agree as follows: 1. In consideration of the transfer and assignment of the Assigned Interest by FTC to the Assignee as provided herein, as well as the concurrent transfer and assignment by FTC to the Assignee of the ESWW Shares and the AP SHL Interest, the Assignee shall, concurrently with the execution hereof, pay to FTC by wire transfer of immediately available funds, the Purchase Price. Dodl: USI:$256395v1 EFTA01128218  2. FTC hereby assigns to the Assignee all of FTC's right, title and interest in and to the Assigned Interest, and designates the Assignee as a substitute Member in respect of the Assigned Interest, excluding FTC's right to any distributions or other amounts paid by the Company to FTC prior to the date hereof. The parties intend that the Assignee be admitted as a substitute Member ofthe Company in FTC's place with respect to the Assigned Interest. FTC IS NOT MAKING ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO THE ASSIGNEE WITH RESPECT TO THE ASSIGNED INTEREST OR THE COMPANY EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY FTC IN THE PURCHASE AGREEMENT. THE ASSIGNEE IS NOT MAKING ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO FTC WITH RESPECT TO THE COMPANY EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY ASSIGNEE IN THE PURCHASE AGREEMENT. 3. The Assignee hereby accepts the assignment and transfer of the Assigned Interest, accepts and agrees to be bound by all of the terms and provisions of the LLC Agreement in place ofFTC, and assumes and shall pay or perform when required all of the obligations of FTC thereunder as a substitute Member of the Company, with respect to the Assigned Interest. 4. The Assignee agrees to execute and deliver such other documents as may be reasonably necessary to effect the adoption of the LLC Agreement by the Assignee and the admission of the Assignee to the Company as a member in substitution for FTC. 5. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles. 6. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by the other party to this Agreement attached thereto. This Agreement may be executed and delivered by delivery of a facsimile copy of an executed signature page or counterpart or by e-mailing a PDF version of a signed signature page or counterpart, and each shall have the same force and effect as the delivery of an originally executed signature page or counterpart. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. FINANCIAL TRUST COMPANY, INC. BLACK FAMILY PARTNERS, LP. By: BLACK FAMILY GP, BY: By: Jeffrey E. Epstein Leon Black President Managing Member Da: US1:82$6393v1 EFTA01128219  INVESTORS, LLC LIMITED LIABILITY COMPANY AGREEMENT MEMBER SIGNATURE PAGE By signing below, the undersigned hereby agrees that effective as of the date of the undersigned's admission to AP SHL Investors, LLC as a Member in substitution for Financial Trust Company, Inc., the undersigned shall (i) be bound by each and every term and provision of the Limited Liability Company Agreement of AP SHL Investors, LLC, as the same may be duly amended front time to time in accordance with the provisions thereof, and (ii) become and be a party to said Limited Liability Company Agreement in place of Financial Trust Company, Inc. (Type or Print Name) BLACK FAMILY PARTNERS, L.P. Managing Member Date: ACCEPTED: MANAGING MEMBER: Dock: USI:8256773v1 EFTA01128220  ASSIGNMENT AND ASSUMPTION AGREEMENT ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated November 7 , 2012, by and between FINANCIAL TRUST COMPANY, INC., a U.S. Virgin Islands corporation having an office at 6100 Red Hook Quarter, B3, St. Thomas, USVI 00802 ("FTC"), and BLACK FAMILY PARTNERS, L.P., a Delaware limited partnership having an office at 9 West 57th Street, 43rd Floor, New York, NY 10019 (the "Assignee"). RECITALS: A. FTC is a Member of AP SHL Investors, LLC, a Delaware limited liability company (the "Company"). B. The Company is governed by that certain Limited Liability Company Agreement, dated as of December 20, 2001 (as the same may from time to time be amended, cr amended and restated, and in effect, the "LLC Agreement"). C. Pursuant to a certain Purchase and Sale Agreement, dated as of November, , 2012, by and between FTC and the Assignee (the "Purchase Agreement"), FTC is assigning to the Assignee all of FTC's right, title and interest in and to FTCs entire 40% interest as a Member of the Company, including, without limitation, FTC's rights to, and interest in, capital of the Company, and FTCs rights for periods commencing on and after the date hereof to distributions from the Company, as well as any and all of FTCs duties and obligations in respect of FTC's membership interest in the Company pursuant to the LLC Agreement (the "Assigned Interest"), which Assigned Interest does not include FTC's right to any distributions or other amounts paid by the Company to FTC prior to the date hereof. Capitalized terms used and not otherwise defined herein have the meanings ascribed to such terms in the Purchase Agreement. D. FTC and the Assignee intend that the Assignee be admitted to the Company as a substitute Member in FTC's place with respect to the Assigned Interest. E. The Assignee desires to accept such assignment, to assume all of FTC's duties and obligations under the LLC Agreement with respect to the Assigned Interest, and to be admitted as a substitute Member of the Company with respect to the Assigned Interest. F. This Agreement is the "AP SHL Assignment" referred to in the Purchase Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the patties hereto do hereby agree as follows: 1. In consideration of the transfer and assignment of the Assigned Interest by FTC to the Assignee as provided herein, as well as the concurrent transfer and assignment by FTC to the Assignee of the ESWW Shares and the AP Tech Interest, the Assignee shall, concurrently with the execution hereof, pay to FTC by wire transfer of immediately available ftmds, the Purchase Price. DocN: USI:82565760 EFTA01128221  2. FTC hereby assigns to the Assignee all of FTC's right, title and interest in and to the Assigned Interest, and designates the Assignee as a substitute Member in respect of the Assigned Interest, excluding FTC's right to any distributions or other amounts paid by the Company to FTC prior to the date hereof. The parties intend that the Assignee be admitted as a substitute Member of the Company in FTC's place with respect to the Assigned Interest. FTC IS NOT MAKING ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO THE ASSIGNEE WITH RESPECT TO THE ASSIGNED INTEREST OR THE COMPANY EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY FTC IN THE PURCHASE AGREEMENT. THE ASSIGNEE IS NOT MAKING ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO FTC WITH RESPECT TO THE COMPANY EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY ASSIGNEE IN THE PURCHASE AGREEMENT. 3. The Assignee hereby accepts the assignment and transfer of the Assigned Interest, accepts and agrees to be bound by all of the terms and provisions of the LLC Agreement in place ofFTC, and assumes and shall pay or perform when required all of the obligations ofFTC thereunder as a substitute Member of the Company, with respect to the Assigned Interest. 4. The Assignee agrees to execute and deliver such other documents as may be reasonably necessary to effect the adoption of the LLC Agreement by the Assignee and the admission of the Assignee to the Company as a member in substitution for FTC. 5. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles. 6. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by the other party to this Agreement attached thereto. This Agreement may be executed and delivered by delivery of a facsimile copy of an executed signature page or counterpart or by e•mailing a PDF version of a signed signature page or counterpart, and each shall have the same force and effect as the delivery of an originally executed signature page or counterpart. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. FINANCIAL TRUST COMPANY, INC. BLACK FAMILY PARTNERS, L.P. By: BLACK FAMILY GP, LLC By: By: Jeffrey E. Epstein Leon Black President Managing Member Dock US1 :5256576v1 EFTA01128222