Assignment and Assumption Agreement for Transfer of Limited Partnership Interest, dated June 9, 2023

Exhibit 10.1

EXECUTION VERSION 

ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR TRANSFER OF LIMITED PARTNERSHIP INTEREST

in

THE MDI KEEPER’S FUND, L.P.

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Agreement”) is entered into as of June 9, 2023 (the “Effective Date”), by and among Ideanomics, Inc. (the “Assignor”), Uber Technologies, Inc. (the “-Assignee”), The MDI Keeper’s Fund, L.P., a Delaware limited partnership (the “Partnership”), and Legacy Two GP, LLC, a Delaware limited liability company and General Partner of the Partnership (the “General Partner”).

WHEREAS, Assignor subscribed for a Commitment in the amount of $25,000,000.00 pursuant to a Subscription Agreement (the Subscription Agreement“”) executed and delivered by the Assignor on July 15, 2021, and was admitted to the Partnership as a Limited Partner on July 15, 2021;

WHEREAS, the Assignor has made aggregate Contributions to the Partnership prior to the Effective Date in an amount equal to $4,378,318.98, and as of the Effective Date, the Assignor’s Remaining Commitment is equal to $20,621,681.02;

WHEREAS, the General Partner issued a Call Notice on December 20, 2022, pursuant to which Assignor was obligated to make a Contribution of $146,128.82 on or before January 3, 2023, and on March 31, 2023, the General Partner issued an additional Call Notice pursuant to which Assignor was obligated to make a Contribution of $121,684.35 on or before April 14, 2023, and as of the Effective Date, the Assignor has not made either of such Contributions (such Contributions, collectively, the “Defaulted Contribution”);

WHEREAS, Assignor desires to transfer its entire partnership interest in the Partnership, together with a corresponding interest in all of Assignor’s rights and obligations as a Partner with respect to such partnership interest (collectively, the “Transferred Interest”), to Assignee pursuant to Section 15.02 of the Second Amended and Restated Limited Partnership Agreement of the Partnership dated as of June 30, 2022 (as the same may be amended, supplemented or otherwise modified from time to time, the “Partnership Agreement”) (such transfer to be referred to as the “Transfer”), and that Assignee become a substituted Partner pursuant to Section 15.03 of the Partnership Agreement with respect to the Transferred Interest (the “Substitution”), with both the Transfer and the Substitution to be deemed to have become effective for all purposes under the Partnership Agreement as of the Effective Date;

WHEREAS, Assignee desires to assume the Defaulted Contribution (as reduced in accordance with the provisions hereof) as of the Effective Date; and

WHEREAS, the transfer of partnership interests in the Partnership is restricted by certain provisions in the Partnership Agreement.

NOW THEREFORE, in consideration of the premises, the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby covenant and agree as follows:

1.             Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Partnership Agreement.

2.             Pursuant to Section 15.02 of the Partnership Agreement and in consideration of the Assignee’s assumption of the Assignor’s Remaining Commitment (as reduced pursuant to paragraph 3(b) below) and agreement to make the Defaulted Contribution (as reduced pursuant to paragraph 3(b) below), Assignor hereby transfers, assigns and conveys all of its rights, title and interest (free and clear of all liens and encumbrances other than any restrictions imposed on the Transferred Interest pursuant to the Partnership Agreement), in and to the Transferred Interest to Assignee, and Assignee hereby accepts such assignment of the Transferred Interest, it being understood that such transfer, assignment, conveyance and acceptance shall for all purposes under the Partnership Agreement be deemed to have become effective as of the Effective Date.

3.              

4.             Assignee hereby makes the representations and warranties set forth below as of the Effective Date:

5.             Assignor hereby makes the representations and warranties set forth below as of the Effective Date:

6.              

7.              

8.             This Agreement shall be binding upon the successors and permitted assigns of the undersigned. All the agreements, representations and warranties made in this Agreement by any party hereto shall survive the execution and delivery hereof. Every provision of this Agreement is intended to be severable, and if any term or provision hereof is held to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder hereof.

9.             This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any rules or principles of conflicts of law that would cause the application of the laws of any jurisdiction other than the State of Delaware.

10.           This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

11.           The General Partner hereby (a) consents to the Transfer and Substitution, it being understood that the Transfer and Substitution shall for all purposes under the Partnership Agreement be deemed to have become effective as of the Effective Date (b) waives the requirement of an opinion of counsel with respect to the Transfer set forth in Section 15.02(e) of the Partnership Agreement and (c) confirms that all conditions to the Transfer and Substitution set forth in the Partnership Agreement, including without limitation those set forth in Sections 15.02 and 15.03 of the Partnership Agreement, are hereby satisfied or waived. The General Partner agrees to record Assignee as a substituted Partner with respect to the Transferred Interest and as owner of the Transferred Interest on the books and records of the Partnership as of the Effective Date.

12.           The parties acknowledge and agree that the intended U.S. federal income tax treatment of the transactions herein is that no gross income will be realized by Assignee in connection with the assignment of the Transferred Interest (pursuant to paragraph 2) and/or Contributions thereon (the "Intended Treatment"). The parties will report the transactions herein in a manner consistent with the Intended Treatment, except with written consent of the Assignee or to the extent otherwise required by a final determination of a tax authority. 

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IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement as of the date first written above.

[Signature Page to Assignment and Assumption Agreement] 

IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement as of the date first written above. 

[Signature Page to Assignment and Assumption Agreement] 

IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement as of the date first written above. 

[Signature Page to Assignment and Assumption Agreement]