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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
SCHEDULE 13D
Information to be included in statements filed pursuant to Rule 13d-1(a)and
amendments thereto filed pursuant to Rule 13d-2(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2 )*
TIS MORTGAGE INVESTMENT COMPANY
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
8725 27 10
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(CUSIP Number)
Marc C. Krantz, Kohrman Jackson & Krantz P.L.L.,
1375 East 9th Street, Cleveland, Ohio 44114, 216-736-7204
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 2, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7(b)
for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
Page 1 of 27 Pages
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SCHEDULE 13D
CUSIP NO. 8725 27 10 Page 2 of 27 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Third Capital, LLC
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Tennessee
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7 SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH ----------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
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14 TYPE OF REPORTING PERSON*
OO
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SCHEDULE 13D
CUSIP NO. 8725 27 10 Page 3 of 27 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Christopher L. Jarratt
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.
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7 SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH ----------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
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14 TYPE OF REPORTING PERSON*
IN
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SCHEDULE 13D
CUSIP NO. 8725 27 10 Page 4 of 27 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
James G. Lewis
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.
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7 SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH ----------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
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14 TYPE OF REPORTING PERSON*
IN
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CUSIP No. 8725 27 10
This Amendment No. 2 to Schedule 13D Statement is filed on behalf of
Third Capital, LLC ("Third Capital"), a Tennessee limited liability company,
Christopher L. Jarratt and James G. Lewis for the purpose of reporting the
disposition of 32,000 shares of common stock, $0.001 par value per share (the
"Common Stock"), of TIS Mortgage Investment Company, a Maryland corporation
("TIS"), owned by Messrs. Jarratt and Lewis and the revocation of the proxy
and option granted to Third Capital and Messrs. Jarratt and Lewis, by the
Turkey Vulture Fund XIII, Ltd., an Ohio limited liability company (the
"Fund").
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 to Schedule 13D is hereby amended and supplemented as follows:
Reference is hereby made to the original Schedule 13D Statement filed
with the Securities and Exchange Commission by Third Capital and Messrs.
Jarratt and Lewis on March 19, 1998 (the "Original Schedule 13D"), describing
the Option to Purchase 760,000 shares of Common Stock of TIS, dated March 16,
1998 (the "Option"),and the Irrevocable Proxy (the "Proxy") executed by the
Fund appointing Christopher L. Jarratt or in his absence James G. Lewis
attorneys-in-fact for the purpose of voting, at their discretion, all 760,000
shares of Common Stock subject to the Option at the election of directors of
TIS. A copy of the Option and the Proxy was attached to the Original
Schedule 13D as Exhibit 7.1.
On February 1, 1999, TIS, the Fund, Richard M. Osborne, the sole Manager
of the Fund, Third Capital and Messrs. Jarratt and Lewis entered into an
agreement whereby (i) the Fund sold all of its 793,700 shares of Common Stock
to TIS for $2.50 per share; (ii) Messrs. Jarratt and Lewis sold all of their
personally-owned shares of Common Stock to TIS for $2.00 per share; and (iii)
the Fund, Third Capital and Messrs. Osborne, Jarratt and Lewis agreed that
for a period of seven years from the date of the agreement they would not (a)
acquire any shares of Common Stock of TIS, (b) solicit any proxies to vote
any shares of TIS, (c) effect or participate in any tender offers involving
TIS, (d) form, join or participate in a group (as that term is defined in the
Securities Exchange Act of 1934) with respect to TIS,(e) seek to control or
influence the management, board of directors or policies of TIS, (f) take any
action to compel TIS to hold an annual or special meeting of shareholders, or
(g) enter into any discussions or arrangements with any person regarding any
of the foregoing (the "TIS Agreement").
In addition, Messrs. Osborne, Jarratt and Lewis resigned as directors of
TIS effective February 2, 1999, to allow TIS to proceed with a transaction
with Pacific Securitization, Inc.
Page 5 of 27 Pages
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The TIS Agreement is attached hereto as Exhibit 7.5 and incorporated by
reference. In accordance with the terms of the TIS Agreement, the Fund, Third
Capital, and Messrs. Osborne, Jarratt and Lewis entered into the Revocation
of Option and Proxy Agreement, whereby the Option and Proxy were revoked. The
Revocation of Option and Proxy Agreement is attached hereto as Exhibit 7.6
and incorporated by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is amended and supplemented as follows:
(a) According to the most recently available filing with the Securities
and Exchange Commission by TIS, there are 8,105,880 shares of Common Stock
outstanding.
Third Capital, Mr. Jarratt and Mr. Lewis each beneficially own zero
shares of Common Stock, or 0.0% of the outstanding shares of Common Stock.
(b) Mr. Jarratt, as chief manager of the Fund, has sole power to vote,
or to direct the voting of, and the sole power to dispose or to direct the
disposition of, the shares of Common Stock owned by Third Capital.
(c) Since the filing of Amendment No. 1 to the Schedule 13D Statement
on April 23, 1998, Mr. Jarratt has sold all 20,000 shares of Common Stock for
$2.00 per share to TIS as mentioned in Item 4 above.
Since the filing of Amendment No. 1 to the Schedule 13D Statement on
April 23, 1998, Mr. Lewis has sold all 12,000 shares of Common Stock for
$2.00 per share to TIS as mentioned in Item 4 above.
(d) Not Applicable.
(e) Third Capital and Messrs. Jarratt and Lewis ceased to be the
beneficial owner of more than 5.0% of the outstanding shares of Common Stock
of TIS on February 2, 1999.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 to Schedule 13D is hereby amended and supplemented as follows:
Reference is hereby made to Item 4 which describes the TIS Agreement and
the Revocation of Option and Proxy Agreement, which agreements are attached
hereto as Exhibits 7.5 and 7.6, respectively.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 to Schedule 13D is hereby amended and supplemented as follows:
Page 6 of 27 Pages
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Exhibit 7.5 Agreement, as of February 1, 1999, by and among TIS Mortgage
Investment Company, a Maryland corporation, Turkey Vulture Fund
XIII, Ltd., an Ohio limited liability company, Richard M.
Osborne, Third Capital, LLC, a Tennessee limited liability
company, Christopher L. Jarratt and James G. Lewis
Exhibit 7.6 Revocation of Option and Proxy Agreement, as of February 2, 1999,
Turkey Vulture Fund XIII, Ltd., an Ohio limited liability
company, Richard M. Osborne, Third Capital, LLC, a Tennessee
limited liability company, Christopher L. Jarratt and James G.
Lewis
Page 7 of 27 Pages
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CUSIP No. 8725 27 10
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Dated: February 16, 1999 THIRD CAPITAL, LLC
/s/ C. L. Jarratt
------------------------------
C. L. Jarratt, Chief Manager
/s/ C. L. Jarratt
-------------------------------
C. L. Jarratt, individually
/s/ James G. Lewis
-------------------------------
James G. Lewis, individually
Page 8 of 27 Pages
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Exhibit Index
Exhibit 7.5 Agreement, as of February 1, 1999, by and among TIS Mortgage
Investment Company, a Maryland corporation, Turkey Vulture Fund
XIII, Ltd., an Ohio limited liability company, Richard M.
Osborne, Third Capital, LLC, a Tennessee limited liability
company, Christopher L. Jarratt and James G. Lewis
Exhibit 7.6 Revocation of Option and Proxy Agreement, as of February 2, 1999,
Turkey Vulture Fund XIII, Ltd., an Ohio limited liability
company, Richard M. Osborne, Third Capital, LLC, a Tennessee
limited liability company, Christopher L. Jarratt and James G.
Lewis
Page 9 of 27 Pages
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Exhibit 7.5
AGREEMENT
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"), Richard
M. Osborne ("Osborne"), Third Capital, LLC, a Tennessee limited liability
company ("Third Capital"), Christopher L. Jarratt ("Jarratt") and James G.
Lewis ("Lewis"), 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 Jarratt and Lewis 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 Jarratt and Lewis are sometimes referred to
as the "Jarratt Shares" and "Lewis Shares", respectively, and the TVF Shares,
Jarratt Shares and Lewis Shares are sometimes collectively referred to as the
"Shares".
B. At the annual meeting of shareholders of the Company held on
May 29, 1997, Osborne, Jarratt and Lewis, who had disagreed with management
regarding the future direction of the Company, were elected directors of the
Company. Osborne is the sole manager of TVF, Jarratt is the chief manager of
Third Capital and Jarratt and Lewis 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
Jarratt or, in his absence, Lewis, 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 Osborne, Jarratt and Lewis 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
Page 10 of 27 Pages
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as follows:
1. PURCHASE AND SALE OF SHARES
(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, Jarratt shall sell the Jarratt Shares
and Lewis shall sell the Lewis Shares to the Company, and the Company shall
purchase the Jarratt Shares and the Lewis 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 Jarratt and Lewis.
2. CLOSING
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 Jarratt Shares and Lewis Shares to the Company by
Jarratt and Lewis 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 Jarratt and Lewis, respectively, to accounts
designated by Jarratt and Lewis, and (v) the other deliveries referred to in
Section 6 below.
3. REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company hereby 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,
Page 11 of 27 Pages
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validly existing and in good standing under the laws of the State of Maryland.
(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 Ms. Legg, Ms. Howe, Osborne, Jarratt and Lewis)
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 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
Page 12 of 27 Pages
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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, 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 Osborne's 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 hereby represents and warrants, and Jarratt and Lewis 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
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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.
(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, Jarratt or Lewis 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) Jarratt and Lewis personally own the Jarratt Shares and Lewis Shares,
respectively.
4. CERTAIN OTHER COVENANTS
4.1 COVENANTS OF TVF AND OSBORNE. For the benefit of the
Company, TVF and Osborne 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 Osborne 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) Osborne shall resign as a director of the Company
as of the Closing.
4.2 COVENANTS OF THIRD CAPITAL, JARRATT AND LEWIS. For the
benefit of the Company, Third Capital, Jarratt and Lewis 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, Jarratt and Lewis shall
take any action to cause any of Third Capital's representations and
Page 14 of 27 Pages
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warranties to be untrue as of the Closing.
(c) Jarratt and Lewis shall each resign as a director
of the Company and shall relinquish the Proxy as of the Closing.
(d) Neither Jarratt nor Lewis shall sell or otherwise
transfer the Jarratt Shares or the Lewis Shares, as the case may be, or any
interest therein or rights related thereto before the Closing.
5. CONDITIONS TO CLOSING
5.1 THE COMPANY'S CONDITIONS TO CLOSING. The obligations of
the Company 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, Jarratt and Lewis 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, JARRATT'S AND LEWIS' CONDITIONS TO CLOSING. The
obligations of TVF, Third Capital, Jarratt and Lewis 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
Page 15 of 27 Pages
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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
The Parties shall deliver or cause to be delivered the
following at the Closing:
(a) The Company shall pay the purchase prices in the amount
and manner set forth in Section 2 of this Agreement.
(b) TVF, Jarratt and Lewis 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) Osborne, Jarratt and Lewis shall each deliver their
resignations to the Company as directors of the Company, which resignations
shall be effective at the Closing.
7. RELEASES
7.1 THE COMPANY'S RELEASE. As of the Closing, and without
further action 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, Osborne, Third Capital, Jarratt and Lewis, 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 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 Osborne, Jarratt and
Lewis and their Affiliates (collectively, the "Shareholder Releasors"), fully
release and discharge the Company and its Affiliates, agents, predecessors,
successors and assigns (the
Page 16 of 27 Pages
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"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.
7.3 LIMITATIONS. Notwithstanding the foregoing, the
releases in Sections 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 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 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.
(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,
Page 17 of 27 Pages
<PAGE>
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.
(b) The Company acknowledges that, upon the signing
of this Agreement and following their resignation from the Board of Directors
of the Company, Osborne, Jarratt and Lewis 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 Osborne, Jarratt or Lewis 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
TVF, Osborne, Third Capital, Jarratt and Lewis 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:
Page 18 of 27 Pages
<PAGE>
(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;
(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, Osborne, Third Capital, Jarratt and Lewis
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
This Agreement may be terminated:
(a) by the written agreement of the Company and TVF;
Page 19 of 27 Pages
<PAGE>
(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.
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
10.1 ACKNOWLEDGMENT. TVF, Osborne, Third Capital, Jarratt
and Lewis 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
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 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 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:
Page 20 of 27 Pages
<PAGE>
TIS Mortgage Investment Company
655 Montgomery Street
San Francisco, CA 94111
Attention: Lorraine O. Legg
Facsimile: (415) 393-8006
with a copy to:
Heller Ehrman White & McAuliffe
333 Bush Street
San Francisco, CA 94104-2878
Attention: Daniel E. Titelbaum, Esq.
Facsimile: (415) 772-6268
If to TVF or Osborne, as follows:
Turkey Vulture Fund XIII, Ltd.
7001 Center Street
Mentor, OH 44060
Attention: Richard M. Osborne
Facsimile: (440) 255-8645
with a copy to:
Kohrman Jackson & Krantz P.L.L.
1375 East 9th Street
Cleveland, OH 44114
Attention: Marc C. Krantz
Facsimile: (216) 621-6536
If to Third Capital, Jarratt or Lewis, as follows:
Third Capital, LLC
314 Church Street
Nashville, TN 37201
Facsimile: (615) 255-3190
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
Page 21 of 27 Pages
<PAGE>
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.
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
Page 22 of 27 Pages
<PAGE>
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 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]
Page 23 of 27 Pages
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first written above.
TIS MORTGAGE INVESTMENT COMPANY
By: /s/ Lorraine O. Legg
---------------------------------------
Lorraine O. Legg
President
TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
---------------------------------------
Richard M. Osborne
Sole Manager
/s/ Richard M. Osborne
---------------------------------------
Richard M. Osborne, individually
THIRD CAPITAL, LLC
By: /s/ Christopher L. Jarratt
---------------------------------------
Christopher L. Jarratt
Chief Manager
/s/ Christopher L. Jarratt
---------------------------------------
Christopher L. Jarratt, individually
/s/ James G. Lewis
---------------------------------------
James G. Lewis, individually
Page 24 of 27 Pages
<PAGE>
EXHIBIT 7.6
REVOCATION OF OPTION AND PROXY AGREEMENT
THIS REVOCATION OF OPTION AND PROXY AGREEMENT (this "Agreement") is
made as of February 2, 1999 by and among Turkey Vulture Fund XIII, Ltd., an
Ohio limited liability company (the "Fund"), Richard M. Osborne ("Osborne"),
Third Capital, LLC, a Tennessee limited liability company ("Third Capital"),
Christopher L. Jarratt ("Jarratt"), and James G. Lewis ("Lewis"), being
sometimes collectively referred to as the "Parties."
RECITALS
A. Osborne is the sole Manager of the Fund. Jarratt is the chief
manager of Third Capital and Jarratt and Lewis are the only members of Third
Capital.
B. The Fund owns 793,700 shares (the "Shares") of common stock,
par value $0.001 per share (the "Common Stock") of TIS Mortgage Investment
Company, a Maryland corporation ("TIS").
C. On March 16, 1998, the Fund granted to Third Capital the right
to purchase 760,000 of the Shares (the "Option"). Concurrently with the
grant of the Option, the Fund executed an irrevocable proxy granting Jarratt,
or in his absence, Lewis, the right to vote 760,000 of the Shares for the
election of individuals to serve as directors of TIS (the "Proxy").
D. Concurrently with the execution of this Agreement, the Parties
have entered into an agreement with TIS whereby the Fund will sell all of the
793,700 Shares to TIS (the "TIS Agreement").
E. The Parties desire to enter into an agreement whereby the Proxy
will be revoked, the Option will be terminated and none of the Parties will
have any rights under the Proxy or the Option as of the Closing (as that term
is defined in the TIS Agreement).
NOW, THEREFORE, in consideration of the mutual promises and subject to
the terms and conditions herein set forth, the Parties agree as follows:
1. Third Capital, Jarratt and Lewis represent and warrant to the
Fund that as of the date hereof and as of the Closing (as that term is
defined in the TIS Agreement) that none of them have, or will have, assigned
or transferred the Proxy or the Option or any interest therein or rights
thereto to any person or entity.
2. Without any further actions by the Parties, concurrently with the
Closing (as that term is defined in the TIS Agreement) and payment
Page 25 of 27 Pages
<PAGE>
for the Shares pursuant to the terms of the TIS Agreement, the Proxy will be
revoked and relinquished, the Option will be terminated and neither will be
valid or enforceable.
3. (a) Any of the terms or conditions of this Agreement may be
waived at any time by the Party or Parties entitled to the benefit thereof
but only by a written notice signed by the Party or Parties waiving such
terms or conditions.
(b) This Agreement may be amended, supplemented or
interpreted at any time only by written instrument duly executed by each of
the Parties hereto.
(c) This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Ohio, without regard to the laws as
to the choice or conflict of laws.
(d) This Agreement supersedes all prior 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.
(e) The individuals executing this Agreement on behalf of
the Fund and Third Capital are duly authorized to execute this Agreement and
have full authority to bind the Fund and Third Capital.
(f) This Agreement shall be binding upon, and inure to the
benefit of, the Parties and their respective successors and all other
parties succeeding to the rights or obligations of the Parties, and each of
them. None of the rights or obligations of any of the Parties hereto may be
assigned without the prior written consent of the other parties hereto.
(g) This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument,
provided that this Agreement shall not be effective until each party has
delivered its counterpart to each other party.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
--------------------------------------
Richard M. Osborne, Manager
Page 26 of 27 Pages
<PAGE>
/s/ Richard M. Osborne
--------------------------------------
Richard M. Osborne, individually
THIRD CAPITAL, LLC
By: /s/ Christopher L. Jarratt
--------------------------------------
Christopher L. Jarratt, Chief Manager
/s/ Christopher L. Jarratt
--------------------------------------
Christopher L. Jarratt, individually
/s/ James G. Lewis
--------------------------------------
James G. Lewis, individually
Page 27 of 27 Pages
