EXHIBIT 10.1
AGREEMENT
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THIS AGREEMENT is made as of February 1, 1999, by and among TIS Mortgage
Investment Company, a Maryland corporation (the "Company"), Turkey Vulture Fund
XIII, Ltd., an Ohio limited liability company ("TVF"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇"), Third Capital, LLC, a Tennessee limited liability company ("Third
Capital"), ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"),
being sometimes collectively referred to as the "Parties", with reference to the
following:
A. TVF owns 793,700 shares of common stock, par value $0.001 per share
(the "Common Stock"), of the Company, which it acquired in open market purchases
from July 1996 through April 1997, and ▇▇▇▇▇▇▇ and ▇▇▇▇▇ personally own 20,000
and 12,000 shares of Common Stock, respectively. The shares of Common Stock
owned by TVF are sometimes referred to as the "TVF Shares", the shares of Common
Stock owned by ▇▇▇▇▇▇▇ and ▇▇▇▇▇ are sometimes referred to as the "▇▇▇▇▇▇▇
Shares" and "▇▇▇▇▇ Shares", respectively, and the TVF Shares, ▇▇▇▇▇▇▇ Shares and
▇▇▇▇▇ Shares are sometimes collectively referred to as the "Shares".
B. At the annual meeting of shareholders of the Company held on May 29,
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, who had disagreed with management regarding
the future direction of the Company, were elected directors of the Company.
▇▇▇▇▇▇▇ is the sole manager of TVF, ▇▇▇▇▇▇▇ is the chief manager of Third
Capital and ▇▇▇▇▇▇▇ and ▇▇▇▇▇ are the only members of Third Capital.
C. On March 16, 1998, TVF granted Third Capital the right to purchase
760,000 of the Shares (the "Option"). Concurrently with the grant of the
Option, TVF executed an irrevocable proxy (the "Proxy") granting ▇▇▇▇▇▇▇ or, in
his absence, ▇▇▇▇▇, the right to vote 760,000 of the TVF Shares for the election
of individuals to serve as directors of the Company.
D. The Company is negotiating with Pacific Securitization, Inc.
("Pacific") to acquire Novato Markets, Inc. in consideration of the issuance of
its shares. Such transaction is sometimes referred to as the "Pacific
Transaction."
E. It is a condition precedent to the closing of the Pacific Transaction
that the Company purchase the Shares for issuance to Pacific in the Pacific
Transaction and that ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ resign from the Board of
Directors of the Company.
NOW, THEREFORE, in consideration of the mutual promises and subject to the
terms and conditions herein set forth, the Parties agree as follows:
1. Purchase and Sale of Shares
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(a) At the Closing (as defined below), TVF shall sell all 793,700 of the TVF
Shares to the Company, and the Company shall purchase the TVF Shares from TVF,
for a total purchase price of $1,984,250, which shall be paid by wire transfer
to an account(s) designated by TVF. TVF and Third Capital each acknowledge that
payment of the purchase price by the Company to TVF shall satisfy any ownership
or other interest they may have in the TVF Shares (including, without
limitation, Third Capital's rights under the Option), that their respective
rights to the proceeds from sale of the TVF Shares are to be determined among
them and that the Company will have no further obligation therefor.
(b) At the Closing, ▇▇▇▇▇▇▇ shall sell the ▇▇▇▇▇▇▇ Shares and ▇▇▇▇▇ shall
sell the ▇▇▇▇▇ Shares to the Company, and the Company shall purchase the ▇▇▇▇▇▇▇
Shares and the ▇▇▇▇▇ Shares, for a purchase price of $40,000 and $24,000,
respectively, which shall be paid by wire transfer to accounts designated by
each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇.
2. Closing
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The closing of the purchase of the Shares (the "Closing") shall take
place at such date and time as the Company shall designate to TVF, which shall
occur as soon as practicable after the Board of Directors of the Company shall
have approved a definitive purchase agreement relating to the Pacific
Transaction, but in no event shall the Closing occur later than February 1,
1999. The Closing shall consist of (i) transfer of the TVF Shares to the
Company by TVF by book transfer through the facilities of the Depository Trust
Company in a manner satisfactory to the Company, (ii) wire transfer by the
Company of $1,984,250 to an account(s) designated by TVF, (iii) transfer of the
▇▇▇▇▇▇▇ Shares and ▇▇▇▇▇ Shares to the Company by ▇▇▇▇▇▇▇ and ▇▇▇▇▇ by book
transfer through the facilities of the Depository Trust Company in a manner
satisfactory to the Company or by delivery to the Company of certificates
evidencing such Shares endorsed or with stock powers attached in proper form for
transfer, (iv) wire transfer by the Company of $40,000 and $24,000 to ▇▇▇▇▇▇▇
and ▇▇▇▇▇, respectively, to accounts designated by ▇▇▇▇▇▇▇ and ▇▇▇▇▇, and (v)
the other deliveries referred to in Section 6 below.
3. Representations and Warranties
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3.1 Representations and Warranties of the Company. The Company hereby
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represents and warrants to each of the other Parties that as of the date hereof
and as of the Closing:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Maryland.
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(b) The Company has all necessary power and authority, corporate and
otherwise, to execute and deliver this Agreement and all other documents to be
executed and delivered by it pursuant to this Agreement; and the Company has
taken all necessary actions required to be taken to authorize it to execute and
deliver this Agreement and such other documents, and to perform all of its
obligations to be observed and performed by it under this Agreement. This
Agreement has been duly executed and delivered by the Company, and constitutes
the valid and binding agreement of the Company enforceable against the Company
in accordance with its terms.
(c) The execution and delivery of this Agreement and the actions
contemplated by this Agreement will not constitute a violation of, or be in
conflict with, or result in a cancellation of, or constitute a default under:
(i) any term or provision of the articles of incorporation or bylaws of the
Company; (ii) any judgment, decree, order, regulation or rule of any court or
governmental authority; (iii) any statute or law, including without limitation
Section 3-601 et. seq. of the Maryland GCL (as defined herein); or (iv) any
contract, agreement, indenture, lease or other commitment to which the Company
is a party or by which it is bound; and will not cause any material change in
the rights or obligations of any party under any such contract, agreement,
indenture, lease or commitment.
(d) The disinterested directors of the Company (being those directors
other than ▇▇. ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇) have unanimously
determined that the Pacific Transaction, if and when closed, and the purchase of
the Shares as contemplated by this Agreement are fair and in the best interests
of the Company and its stockholders.
3.2 Representations and Warranties of TVF. TVF hereby represents and
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warrants to each of the other Parties that as of the date hereof and as of the
Closing:
(a) TVF is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Ohio.
(b) TVF has all necessary power and authority to execute and deliver this
Agreement and all other documents to be executed and delivered by it pursuant to
this Agreement; and TVF has taken all necessary actions required to be taken to
authorize it to execute and deliver this Agreement and such other documents, and
to perform all of its obligations to be observed and performed by it under this
Agreement. This Agreement has been duly executed and delivered by TVF, and
constitutes the valid and binding agreement of TVF enforceable against TVF in
accordance with its terms.
(c) The execution and delivery of this Agreement and the actions
contemplated by this Agreement will not constitute a violation of, or be in
conflict with, or result in a cancellation of, or constitute a default under:
(i) any term or provision of the operating agreement or other organizational
documents of TVF; (ii) any judgment, decree,
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order, regulation or rule of any court or governmental authority; (iii) any
statute or law; or (iv) any contract, agreement, indenture, lease or other
commitment to which TVF is a party or by which it is bound; and will not cause
any material change in the rights or obligations of any party under any such
contract, agreement, indenture, lease or commitment.
(d) The TVF Shares are all held in book entry form in account(s) at EVEREN
Securities, Inc. and are owned by TVF free and clear of all liens, claims,
encumbrances, options, security agreements and adverse claims, except for
▇▇▇▇▇▇▇'▇ margin account at EVEREN Securities, Inc. and the Option. At Closing,
the TVF Shares will be transferred to or for the account of the Company free and
clear of all liens, claims, encumbrances, options, security agreements and
adverse claims, including, but not limited to, the foregoing margin account and
the Option.
(e) Neither TVF nor any of its Affiliates (as defined below), owns or has
any rights to acquire any other shares of Common Stock other than the TVF
Shares.
3.3 Representations and Warranties of Third Capital. Third Capital
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hereby represents and warrants, and ▇▇▇▇▇▇▇ and ▇▇▇▇▇ with respect to Section
3.3(e) only hereby represent and warrant, to each of the other Parties that as
of the date hereof and as of the Closing (except as otherwise indicated):
(a) Third Capital is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Tennessee.
(b) Third Capital has all necessary power and authority to
execute and deliver this Agreement and all other documents to be executed and
delivered by it pursuant to this Agreement; and Third Capital has taken all
necessary actions required to be taken to authorize it to execute and deliver
this Agreement and such other documents, and to perform all of its obligations
to be observed and performed by it under this Agreement. This Agreement has been
duly executed and delivered by Third Capital, and constitutes the valid and
binding agreement of Third Capital enforceable against Third Capital in
accordance with its terms.
(c) The execution and delivery of this Agreement and the actions
contemplated by this Agreement will not constitute a violation of, or be in
conflict with, or result in a cancellation of, or constitute a default under:
(i) any term or provision of the operating agreement or other organizational
documents of Third Capital; (ii) any judgment, decree, order, regulation or rule
of any court or governmental authority; (iii) any statute or law; or (iv) any
contract, agreement, indenture, lease or other commitment to which Third Capital
is a party or by which it is bound; and will not cause any material change in
the rights or obligations of any party under any such contract, agreement,
indenture, lease or commitment.
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(d) Third Capital has not assigned the Option or any interest therein or
rights thereto to any Person and, as of the Closing, the Option will have been
terminated and Third Capital will have no claim or right to any of the Shares.
(e) Neither Third Capital, ▇▇▇▇▇▇▇ or ▇▇▇▇▇ nor any of their Affiliates
owns or has any rights to acquire any shares of Common Stock, except (i) under
the Option at the date of this Agreement only, and (ii) ▇▇▇▇▇▇▇ and ▇▇▇▇▇
personally own the ▇▇▇▇▇▇▇ Shares and ▇▇▇▇▇ Shares, respectively.
4. Certain Other Covenants
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4.1 Covenants of TVF and ▇▇▇▇▇▇▇. For the benefit of the Company, TVF and
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▇▇▇▇▇▇▇ agree as follows:
(a) TVF shall not sell or otherwise transfer any TVF Shares or any
interest therein or rights related thereto before the Closing.
(b) Neither TVF or ▇▇▇▇▇▇▇ shall take any action to cause any of
TVF's representations and warranties to be untrue as of the Closing.
(c) TVF shall revoke the Proxy as of the Closing.
(d) ▇▇▇▇▇▇▇ shall resign as a director of the Company as of the
Closing.
4.2 Covenants of Third Capital, ▇▇▇▇▇▇▇ and ▇▇▇▇▇. For the benefit of
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the Company, Third Capital, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ agree as follows:
(a) Third Capital shall not assign the Option or any interest
therein or rights thereto to any person or entity, and will terminate the Option
as of the Closing.
(b) None of Third Capital, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall take any action
to cause any of Third Capital's representations and warranties to be untrue as
of the Closing.
(c) ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall each resign as a director of the Company
and shall relinquish the Proxy as of the Closing.
(d) Neither ▇▇▇▇▇▇▇ nor ▇▇▇▇▇ shall sell or otherwise transfer the
▇▇▇▇▇▇▇ Shares or the ▇▇▇▇▇ Shares, as the case may be, or any interest therein
or rights related thereto before the Closing.
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5. Conditions to Closing
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5.1 The Company's Conditions to Closing. The obligations of the Company
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under this Agreement shall be subject to the following (any of which may be
waived by the Company in whole or in part):
(a) A definitive agreement between the Company and Pacific evidencing
the terms and conditions of the Pacific Transaction shall have been unanimously
approved by the disinterested directors of the Company.
(b) Each of the representations and warranties of TVF, Third Capital,
▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall be true and accurate in all material respects as of the
Closing and each of them shall have performed their respective covenants
hereunder.
(c) No injunction, judgment, order, decree or ruling shall have been
entered in any action, suit or proceeding pending before any court or agency of
any federal, state or local jurisdiction that prevents the performance of the
Parties' obligations hereunder, including but not limited to the purchase of the
Shares contemplated by this Agreement.
5.2 TVF's, ▇▇▇▇▇▇▇'▇ and ▇▇▇▇▇' Conditions to Closing. The obligations of
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TVF, Third Capital, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ under this Agreement shall be subject to
the following (any of which may be waived in whole or in part):
(a) A definitive agreement between the Company and Pacific evidencing
the terms and conditions of the Pacific Transaction shall have been unanimously
approved by the disinterested directors of the Company.
(b) Each of the representations and warranties of the Company shall be
true and accurate as of the Closing in all material respects and the Company
shall have performed its covenants hereunder.
(c) No injunction, judgment, order, decree or ruling shall have been
entered in any action, suit or proceeding pending before any court or agency of
any federal, state or local jurisdiction that prevents the performance of the
Parties' obligations hereunder, including but not limited to the purchase of the
Shares contemplated by this Agreement; provided, however, that this shall not
apply to any action, suit or proceeding initiated by any Party (other than the
Company) or any of such Party's Affiliates.
6. Deliveries by the Parties
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The Parties shall deliver or cause to be delivered the following at
the Closing:
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(a) The Company shall pay the purchase prices in the amount and manner set
forth in Section 2 of this Agreement.
(b) TVF, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall effect a book transfer of the Shares to
or for the account of the Company through the facilities of the Depository Trust
Company in a manner satisfactory to the Company or shall deliver certificates
duly endorsed or with stock powers attached in proper form for transfer.
(c) TVF and Third Capital shall deliver evidence satisfactory to the
Company that the Option has been terminated and the Proxy has been revoked and
relinquished.
(d) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall each deliver their resignations to
the Company as directors of the Company, which resignations shall be effective
at the Closing.
7. Releases
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7.1 The Company's Release. As of the Closing, and without further action
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by any of the Parties, the Company, on behalf of itself and its Affiliates,
predecessors, successors and assigns, and all others claiming through the
Company (collectively, the "Company Releasors"), fully releases and discharges
TVF, ▇▇▇▇▇▇▇, Third Capital, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, and their Affiliates, agents,
predecessors, successors and assigns (the "Shareholder Releasees"), from any and
all claims, demands, disputes, controversies, damages, expenses, obligations,
liabilities, costs, fees (including reasonable attorneys' fees) and causes of
action of whatever kind or character which any of the Company Releasors have,
may have or may claim to have against any of the Shareholder Releasees arising
out of or relating to, directly or indirectly, the business or affairs of the
Company or the ownership of its stock.
7.2 Other Parties' Release. As of the Closing, and without further action
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by any of the Parties, TVF and Third Capital, on behalf of themselves and their
Affiliates, predecessors, successors and assigns, and all others claiming
through TVF or Third Capital, and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ and their
Affiliates (collectively, the "Shareholder Releasors"), fully release and
discharge the Company and its Affiliates, agents, predecessors, successors and
assigns (the "Company Releasees"), from any and all claims, demands, disputes,
controversies, damages, expenses, obligations, liabilities, costs, fees
(including reasonable attorneys' fees) and causes of action of whatever kind or
character which any of the Shareholder Releasors have, may have or may claim to
have against any of the Company Releasees arising out of or relating, directly
or indirectly, to the business or affairs of the Company or the ownership of its
stock.
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7.3 Limitations. Notwithstanding the foregoing, the releases in Sections
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7.1 and 7.2 shall not extend to any claims arising out of or relating to the
failure of any Party to perform its or his obligations under this Agreement.
7.4 General Release. The Parties understand and agree that the released
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claims are intended to and do include any and all claims of every nature and
kind whatsoever, known, unknown, suspected or unsuspected which each has, or may
have, against the other. The Parties hereby expressly waive the provisions and
benefits of Section 1542 of the California Civil Code and any statute or other
law of any other state similar or substantially similar to Section 1542. Section
1542 provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
The Parties also further acknowledge that they may hereafter discover facts
different from, or in addition to, those which they now know or believe to be
true. The Parties agree that, in such event, this Agreement shall nevertheless
be and remain effective in all respects, notwithstanding such different or
additional facts, or the discovery thereof.
7.5 No Assignment. The Parties each represent and warrant that neither
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they nor any of their respective Affiliates have sold, assigned or otherwise
transferred any interest in any of the claims being released hereby. If this
representation and warranty is breached, the breaching Party shall indemnify and
hold harmless the other Parties and their respective Affiliates from all claims,
demands, fees (including reasonable attorneys' fees) and expenses of every kind
or character (including those arising from any interest and any claim assigned
to or transferred to any other person).
7.6 Indemnification.
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(a) In the event that any of the Parties commences any suit or other
proceeding or in any manner asserts any of the claims that are released pursuant
to this Agreement against another Party, then the Party commencing such suit or
other proceeding shall indemnify and hold such other Party harmless, to the full
extent provided by law, from and against any and all such claims. This indemnity
extends to any and all expenses incurred by such other Party (including
reasonable attorneys' fees) in the course of defending against or settling any
such claims, the amount of any judgment that might be entered against such
Party, and any amounts paid by such Party in settlement thereof. This agreement
of indemnity shall be deemed breached and a cause of action shall be deemed to
have accrued immediately upon the commencement of any such suit or proceeding
described above. In such event, this agreement of indemnity may be pleaded as a
full and complete defense thereto, as the basis for an abatement of or
injunction against said action, and as the basis of a counterclaim or cross-
claim for damages therein.
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(b) The Company acknowledges that, upon the signing of this Agreement
and following their resignation from the Board of Directors of the Company,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ each will be and will continue to be entitled to
indemnification to the fullest extent permitted by the Maryland General
Corporation Law (the "Maryland GCL"), as provided in Section 7.3(b) of the
Articles of Incorporation and Section 6.2 of the Bylaws of the Company and,
subject to the limitations of Section 2-418 of the Maryland GCL, such
indemnification shall include, without limitation, indemnification for any act
or omission involving the purchase and sale of the Shares or otherwise in
connection with this Agreement or the Pacific Transaction. In the event that the
Company or any Person who is not a Party hereto commences any suit or other
proceeding against ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or ▇▇▇▇▇ involving any act or omission for
which he is entitled to indemnification as provided in the immediately preceding
sentence, including, without limitation, the purchase and sale of the Shares or
otherwise in connection with, or arising from, this Agreement or the Pacific
Transaction, the Company agrees, subject to the limitations of Section 2-418 of
the Maryland GCL, to indemnify and hold him harmless from and against all such
claims and to pay or reimburse him for any and all expenses incurred by him,
including reasonable attorneys' fees, in advance of the final disposition of
such suit or other proceeding upon its receipt of the written affirmations and
undertakings required by Section 2-418(f) of the Maryland GCL.
8. Standstill
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TVF, ▇▇▇▇▇▇▇, Third Capital, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ each agree that, for a
period commencing on the date of this Agreement and continuing for seven years
from the Closing or until termination of this Agreement under Section 9, unless
such shall have been specifically authorized in writing by the Company, it or he
will not, nor will any of its or his Affiliates, in any manner, directly or
indirectly:
(a) effect or seek, offer or propose (whether publicly or otherwise)
to effect, or cause to participate in or in any way assist any other Person to
effect or seek, offer or propose (whether publicly or otherwise) to effect or
participate in, (i) any acquisition of any securities or rights to acquire
securities (or beneficial ownership thereof) or assets of the Company or any of
its subsidiaries, (ii) any tender or exchange offer, merger or other business
combination involving the Company or any of its subsidiaries, (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with the respect to the Company or any of its subsidiaries, or (iv)
any "solicitation" of "proxies" (as such terms are used in the proxy rules of
the Securities and Exchange Commission) or consents to vote any voting
securities of the Company;
(b) form, join or in any way participate in a "group" (as defined
under the Securities Exchange Act of 1934, as amended) with respect to the
Company;
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(c) otherwise act, alone or in concert with others, to seek to
control or influence the management, Board of Directors or policies of the
Company or its subsidiaries;
(d) take any action or participate in or assist any other Person to
take any action to compel the holding of an annual or special meeting of
stockholders of the Company;
(e) take any action that might cause the Company to make a public
announcement regarding any of the types of matters set forth in Section 8(a)
above; or
(f) enter into any discussions or arrangements with any Person with
respect to any of the foregoing.
Notwithstanding the foregoing, TVF, ▇▇▇▇▇▇▇, Third Capital, ▇▇▇▇▇▇▇ and ▇▇▇▇▇
shall not be restricted prior to the Closing with respect to any of the
activities covered in clauses (a), (b) or (c), or clauses (e) or (f) to the
extent they relate to clauses (a), (b) or (c), if prior to the Closing the
Company calls an annual or special meeting of its stockholders on its own
initiative and without being compelled to do so by court order. For purposes of
this Agreement, the term "subsidiaries" shall include all current and future
subsidiaries, partnerships, limited liability companies or other entities
controlled by the Company.
9. Termination
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This Agreement may be terminated:
(a) by the written agreement of the Company and TVF;
(b) by the Company by written notice to the other Parties if any of
the representations and warranties in Sections 3.2 and 3.3 are not true and
correct in all material respects;
(c) by TVF by written notice to the other Parties if any of the
representations and warranties of the Company in Section 3.1 are not true and
correct in all material respects; or
(d) by either the Company or TVF by written notice to the other
Parties if the purchase of the Shares contemplated hereby shall not have been
consummated by 5:00 P.M., Pacific Time, on February 1, 1999, unless caused by
the failure of the Company, on the one hand, or any of the other Parties, on the
other hand, as the case may be, to perform any of the covenants herein to be
performed by it or him prior to or at the Closing.
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In the event of termination of this Agreement under this Section 9, this
Agreement shall be void and have no further effect, except for the liability of
a Party for breach of any of its or his covenants occurring before such
termination and for the provisions of Section 10 to the extent they pertain
thereto.
10. Miscellaneous
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10.1 Acknowledgment. TVF, ▇▇▇▇▇▇▇, Third Capital, ▇▇▇▇▇▇▇ and ▇▇▇▇▇
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each acknowledge that, personally or through their managers, as the case may be,
they have had access to such information (financial and other) concerning the
Company and its subsidiaries as they have requested, and have had their
questions about the Company and its subsidiaries answered to their satisfaction.
10.2 Entire Agreement. This Agreement supersedes all prior
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negotiations and understandings of any kind with respect to the subject matter
hereof and contains all of the terms and provisions of agreement between the
parties hereto with respect to the subject matter hereof.
10.3 Binding Effect. This Agreement shall be binding upon, and
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inure to the benefit of, the Parties and their respective Affiliates,
successors, assigns, transferees, legal representatives and all other persons or
entities succeeding to the rights or obligations of the Parties, and each of
them.
10.4 Notices. All notices and other communications required or
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permitted to be given under this Agreement shall be in writing and delivered
personally, by facsimile or by mail, postage prepaid, return receipt requested,
to the Parties, addressed as follows:
If to the Company, as follows:
TIS Mortgage Investment Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to TVF or ▇▇▇▇▇▇▇, as follows:
Turkey Vulture Fund XIII, Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Third Capital, ▇▇▇▇▇▇▇ or ▇▇▇▇▇, as follows:
Third Capital, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Such notices and other communications shall be deemed given upon personal
delivery, on the date of facsimile transmission with confirmation and on the
second business day following any mailing, as the case may be. Any Party may
change the address to which such notices and other communications are to be
directed by giving written notice to the other Parties in the manner provided in
this Section.
10.5 Amendment and Waiver. Neither this Agreement nor any provision
--------------------
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the Party against whom enforcement of the
change, waiver, discharge or termination is sought.
10.6 Execution of Agreement. This Agreement may be executed in
----------------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement. This Agreement shall not be effective
until each Party has executed its or his counterpart and delivered it to each
other Party. Execution and delivery of this Agreement may be effected by the
exchange of facsimile copies, and the parties' signatures thereon shall be
deemed to be their original signatures for purposes of proving the validity of
the execution and delivery of this Agreement.
10.7 Expenses. Subject to Sections 7.6 and 10.12, each Party shall
--------
bear his or its own expenses, including attorneys' fees, incurred by it or him
in connection with the negotiation, execution, delivery and performance of this
Agreement.
12
10.8 Survival. All representations and warranties of the Parties
--------
contained in this Agreement shall survive the Closing.
10.9 Governing Law. This Agreement shall be governed by, and
-------------
interpreted in accordance with, the laws of the State of California, without
regard to the laws as to choice or conflict of laws.
10.10 Construction of Agreement. The headings contained in this
-------------------------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. This Agreement and all its
provisions shall be construed in accordance with its fair meaning and no rule of
strict construction shall be applied against any Party on the basis that it
drafted this Agreement or otherwise. Moreover, the following terms shall have
the definitions set forth below:
(a) "Affiliate" shall mean any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person. A Person shall be deemed to control another Person if such Person owns
10% or more of any class of stock of the "controlled" Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of the controlled Person, whether through ownership of
equity securities of such Person, by contract, or otherwise. Affiliate shall
also include any Person who is a member of the Person's immediate family sharing
the same household, or who is an officer, director, manager or employee of such
Person or of any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person.
(b) "Person" shall mean any individual, corporation
(including any non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization,
labor union, or other entity or governmental body.
10.11 Further Assurances. Each Party shall execute and deliver such
------------------
further documents and take such further actions as any other Party may
reasonably request in order to carry out the purpose and intent of this
Agreement.
10.12 Attorneys' Fees. In the event of any action, arbitration or
---------------
other proceeding by one Party against any other Party arising from or in
connection with this Agreement or the releases contained herein, the prevailing
Party shall recover its or his reasonable attorneys' fees, expenses and costs,
including, without limitation, all fees, expenses and costs incurred in such
action, arbitration or other proceeding and any appeals or petitions relating
thereto.
10.13 Disparaging Communications. Each Party agrees, for a period
--------------------------
commencing on the date of this Agreement and continuing for seven years from the
Closing or until termination of this Agreement under Section 9, not to, and to
cause its
13
Affiliates not to, defame, or falsely disparage, discredit or deprecate, or make
false representations of fact, about any other Party or its Affiliates, or
otherwise provide inaccurate information tending to damage the other Party or
its Affiliates in its reputation, office, trade, business or means of earning a
livelihood, including, without limitation, by stating that any other Party or
its Affiliates has failed to exercise his, her or its fiduciary duty to the
stockholders of the Company. This Section 10.13 shall be limited to those
matters that, directly or indirectly, relate to the business or affairs of the
Company or the ownership of its stock.
10.14 Publicity. No Party shall make any disclosures or give any
---------
notices to third parties or other publicity, including press releases,
concerning this Agreement or any of the transactions contemplated hereby (other
than the Pacific Transaction) without the prior approval of all the Parties to
this Agreement, except to the extent that counsel to the Company shall recommend
that a particular public disclosure or notice is or may be appropriate, in which
event the Company shall provide the content of the proposed disclosure or notice
to TVF which shall use its best efforts to promptly notify the Company of any
comments or that it has no comments, but the Company shall not make such public
disclosure or release such notice for 48 hours after providing TVF with the
content of the proposed disclosure or notice in the absence of a response from
TVF.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first written above.
TIS MORTGAGE INVESTMENT COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President
TURKEY VULTURE FUND XIII, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sole Manager
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually
THIRD CAPITAL, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Manager
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, individually
15