|
Exhibit 10.2
AGREEMENT OF PURCHASE AND SALE
OF
LIMITED LIABILITY COMPANY MEMBERSHIP INTERESTS
between
RESOURCE AMERICA, INC. ,
as
Seller,
and
RSI ASSOCIATES, LLC
as
Purchaser
Dated
as of: February ____, 2008
AGREEMENT
OF PURCHASE AND SALE OF
LIMITED
LIABILITY COMPANY MEMBERSHIP INTERESTS
THIS
AGREEMENT OF PURCHASE AND SALE OF LIMITED LIABILITY COMPANY
MEMBERSHIP INTERESTS (“ Agreemen
t”) is made and entered into this ______ day of
February, 2008 by and between RESOURCE AMERICA, INC., a
Delaware corporation (“ Seller
”), and RSI ASSOCIATES, LLC, a Delaware limited
liability company (“ Purchaser
”).
RECITALS
A. Seller
is the owner of 100% of the membership interests in Resource
RSI Phase 1, LLC, a Delaware limited liability company
(“ RSI I
”)and Resource RSI Phase II, LLC, a Delaware limited
liability company (“ RSI II
” and together with RSI I, the ” Companies
”).
B. RSI
I owns that certain parcel of real property located at 102-10
East Bay Street, Savannah, Georgia, as more particularly
described on Exhibit A
attached hereto (the “ Phase I
Property ”) and RSI II holds a leasehold interest
in the 3 rd
, 4 th
and 5 th
floors of that certain real property which is adjacent and
contiguous to the Phase I Property and located at 115 East Bay
Street, Savannah, Georgia as more particularly described on
Exhibit B
attached hereto (the “ Phase II
Property ” and together with the Phase I
Property, the “ Property
”).
C. Purchaser
desires to purchase and assume from Seller and Seller desires
to sell and assign a Thirty percent (30.00%) membership
interest in each of RSI I and RSI II constituting thirty
percent (30%) of the membership interest in the Companies and
all rights, privileges and obligations attendant thereto (the
“ Acquired
Interests ”) subject to and upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE,
in consideration of the premises and the mutual covenants
hereinafter set forth, Seller hereby agrees to sell and
assign, and Purchaser hereby agrees to purchase and assume,
all of Seller's right, title and interest in the Acquired
Interests upon the following terms and
conditions:
1.
Purchase
Price . The purchase price for
the Acquired Interests shall be One Million Six Hundred Sixty
Four Thousand One Hundred Sixty Five and 49/100 Dollars
($1,664,165.49) (the “ Purchase
Price ”).
2.
Payment of
Purchase Price . The Purchase Price shall be
payable as follows:
(a) On
the Initial Closing Date (as hereinafter defined), Purchaser
shall acquire a Nineteen and 99/100 percent (19.99%)
membership interest in each of the Companies (the “
Initial Acquired
Interests ”) upon the payment to Seller of One
Million One Hundred Sixty Four Thousand One Hundred Sixty Five
and 49/100 Dollars ($1,164,165.49)which shall be paid to
Seller by cash, certified or bank check delivered at 1845
Walnut Street, Philadelphia, PA, Attn: Alan Feldman or by wire
transferred funds to such account as Seller may designate;
and
(b) On
the Second Closing Date (as hereinafter defined), Purchaser
shall acquire an additional Ten and 01/100 percent (10.01%)
membership interest in each of the Companies (the “
Second Acquired
Interests ”) upon the payment to Seller of Five
Hundred Thousand Dollars ($500,000) which shall be paid to
Seller by cash, certified or bank check delivered at 1845
Walnut Street, Philadelphia, PA, Attn: Alan Feldman or by wire
transferred funds to such account as Seller may
designate.
3.
Time
and Place of Closing .
(a) Closing
on the Initial Acquired Interests (the “ Initial
Closing ”) shall take place at 10:00 A.M.
Philadelphia, Pennsylvania time on the first business day
which is ten (10) days after notice of the proposed transfer
is delivered (the “ Initial Closing
Date ”) to the current holder of that certain
loan in the original principal amount of $12,500,000 initially
made by Greenwich Capital Financial Products, Inc. (“
Lender
”) and secured by the Property (the “Loan”);
and
(b) Closing
on the Second Acquired Interests (the “ Second
Closing ”) shall take place at 10:00 A.M.
Philadelphia, Pennsylvania time on a date mutually agreed upon
by Seller and Purchaser after receipt of approval from Lender
by to the Companies (the “ Second Closing
Date ” and together with the Initial Closing
Date, the “ Closing
Dates ”).
(c) Each
of the closings shall occur, at the Seller’s option,
either (a) at the offices of the Seller’s counsel or (b)
through an escrow on terms acceptable to the parties’
respective counsel, it being understood that if the Closing
shall occur through escrow, neither Purchaser, Seller nor
their respective counsel need be physically present at the
Closing so long as (i) all documents that are required to be
delivered at Closing are fully executed, delivered in escrow
and available on the date of Closing, (ii) any authorized
signatory of the affected party is available either in person
or by telephone and facsimile at Closing, and (iii) the
Purchase Price has been paid or wire transferred on or prior
to Closing.
4.
Conditions to
Closing .
(a)
Purchaser'
Conditions . Purchaser's obligation to pay
the Purchase Price and to acquire the Acquired Interests
shall be subject to compliance by Seller on or before the
applicable Closing Date:
(i) execution
by Seller of an Assignment and Assumption of Partnership
Interests in the form of Exhibit C
(“ Assignments of
Interests ”) for each of RSI I and RSI II and
delivery of such documents to Seller’s counsel to be
held in escrow until payment of the Purchase
Price;
(ii) such
other documents as may be reasonably required to consummate
the transaction contemplated by this Agreement;
and
(iii) delivery
of a copy of the consent of the Lender.
(b)
Seller's
Conditions . Seller's obligation to sell the
Acquired Interests shall be subject to compliance by Purchaser
with the following conditions precedent on or by the
applicable Closing Date:
(i) delivery
of the Purchase Price by Purchaser;
(ii) execution
by Purchaser of the Assignments of Interests and delivery of
such documents to Seller’s counsel to be held in escrow
until payment of the Purchase Price; and
(iii) such
other documents as may be reasonably required to consummate
the transaction contemplated by this Agreement.
(c)
Conditions
Generally . The foregoing conditions are for
the benefit only of the parties for whom they are specified to
be conditions precedent and such parties may, in their sole
discretion, waive any or all of such conditions and close
title under this Agreement without any increase in, abatement
of or credit against the Purchase Price.
5.
Seller's
Representations and Warranties: Seller
represents and warrants to Purchaser that:
(i) Seller
is a corporation that has
been duly organized and is validly existing and in good
standing under the laws of the State of its
organization.
(ii) Seller
has the full power, authority and legal right to enter into
and perform this Agreement subject to the terms of Section 21
below. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary
legal action on the part of Seller. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not require any
governmental or other consent and will not result in the
breach of any agreement, indenture or other instrument to
which Seller is a party or is otherwise bound.
(iii) Seller
has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any law
relating to bankruptcy or insolvency, nor has any such
petition been filed against Seller. Seller is not insolvent
and the consummation of the transactions contemplated by this
Agreement shall not render Seller insolvent. No general
assignment of Seller’s property has been made for the
benefit of creditors, and no receiver, master, liquidator or
trustee has been appointed for Seller or any of its
property.
(iv) Seller
owns and holds good, marketable and indefeasible title to the
Acquired Interests and now has, and will as of the Closing
Date have, the authority to sell the Acquired Interests free
and clear of any liens, claims, charges or encumbrances of any
kind or character against such interests. Seller
has not previously assigned the Acquired Interests or any
interest therein or portion thereof to any other party, nor
pledged, mortgaged or otherwise hypothecated the Acquired
Interests in favor of any other party. Upon the consummation
of the transfer of the Acquired Interests, Purchaser will
receive good and absolute title thereto, free from all liens,
charges, encumbrances, restrictive agreements and assessments
whatsoever.
(v) Each
of RSI I and RSI II has been duly organized and is validly
existing and subsisting under the laws of the state of its
formation, with requisite power and authority, and all rights,
licenses, permits and authorizations, governmental or
otherwise, necessary to own its properties and to transact the
business in which it is now engaged. Each of RSI I
and RSI II is duly qualified to do business and is in good
standing in each jurisdiction where it is required to be so
qualified in connection with its properties, business and
operations. Schedule
1 identifies each document pursuant to which the
Companies are organized or governed (“ Organizational
Documents ”).
(vi) The
execution and delivery of this Agreement and, upon receipt of
the consent of the Lender, the consummation of the
transactions contemplated hereby will not result in the breach
of any agreement, indenture or other instrument to which the
Companies are a party or is otherwise bound upon receipt of
the consent of the Lender.
(vii) There
is no pending or, to the best of Seller’s knowledge,
threatened litigation, proceeding (including, without
limitation, condemnation proceeding) or investigation (by any
person, governmental or quasi-governmental agency or authority
or otherwise) which might materially adversely affect the
Companies.
(viii) That
certain $12,500,000 mortgage loan (the “ Mortgage
Loan ”) made pursuant to that certain Loan
Agreement dated June 30, 2006 between Greenwich Capital
Financial Products, Inc. and the Companies (the “
Loan
Agreement ”) and the other loan documents related
thereto constitutes a legal, valid and binding obligation of
the Companies enforceable against the Companies in accordance
with their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting rights of creditors
generally, and general principles of equity. To the
best of Seller’s knowledge, the Companies are not in
default under the Mortgage Loan. The outstanding
balance of the Mortgage Loan as of January 29, 2008 is
$12,335,834.51.
(ix) All
of the representations and warranties in this Agreement shall
survive Closing and shall be deemed to have been relied
upon by Purchaser.
6.
Purchaser's
Representations and Warranties
. Purchaser represents and warrants to Seller
that:
(i) Purchaser
is a limited liability company that has been duly organized
and is validly existing under the laws of the state of its
organization; Purchaser has full power and right to enter
into and perform its obligations under this Agreement and the
other closing documents contemplated herein to be executed
and delivered by it; and the execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all
necessary corporate acts and do not require any governmental
or other consent.
(ii) Purchaser
is fully aware that the Mortgage Loan is an obligation of the
Companies and has been provided with the Loan Agreement and
all loan documents related thereto.
(iii) Except
as expressly set forth in this Agreement, Purchaser has not
relied and will not rely on, and neither Seller nor the
Companies has made and is not liable for or bound by, any
express or implied warrants, guarantees, statements,
representations or information pertaining to the Property
made or furnished by Seller, the Companies, or any agent or
third party representing or purporting to represent Seller or
the Companies, to whomever made or given, directly or
indirectly, orally or in writing.
(iv) Purchaser
is a knowledgeable, experienced and sophisticated purchaser
of real estate and that, except as expressly set forth in
this Agreement, it is relying solely on its own expertise in
purchasing the Acquired Interests and shall make an
independent verification of the accuracy of any documents and
information provided by Seller or the
Companies. Purchaser will conduct such inspections
and investigations of the Property as Purchaser deems
necessary and shall rely upon same.
(v) All
of the representations and warranties in this Agreement shall
survive Closing and shall be deemed to have been relied
upon by Seller.
7.
Interim
Operations . During the term of this
Agreement, Seller shall or shall cause the Companies, to the
extent of its authority under the Organizational Documents,
to:
(a) not
create any lien or encumbrance upon or affecting title to the
Acquired Interests, and Seller shall not further mortgage,
pledge, hypothecate or convey, or perform any act which would
result in an encumbrance of the Acquired Interests,
and
(b) not
solicit, accept or provide factual information or negotiate
with respect to, any offer to purchase the Acquired Interests
from any person or entity other than Purchaser or enter into
any agreement, oral, written, contingent or otherwise with any
party (other than Purchaser) to sell the Acquired Interests or
any beneficial ownership interest therein.
8.
Adjustments
. Seller and Purchaser agree to split any and
all costs incurred in connection with obtaining any required
consents. For each closing after the Initial
Closing, the sole adjustment to the Purchase Price shall be
that Purchaser shall reimburse Seller for a portion of any
reduction in the principal balance of the Loan attributable to
monthly payments computed by multiplying the reduction in the
principal balance of the loan by the percentage of interests
of each of the Companies acquired by Purchaser at such Closing
(the “Amortization Reimbursement”). By
way of example, for the Second Closing the Amortization
Reimbursement shall be calculated by multiplying any reduction
in the principal balance by .1001. In the event
that one party advances the funds for the closing costs, the
other will reimburse its share of such costs.
9.
Indemnification
. Seller and Purchaser each represent to the other
that it did not deal with any broker in connection with this
transaction. Seller and Purchaser each covenant and
agree to indemnify and
| 
