RESTATED AND AMENDED
OPTION AGREEMENT
BETWEEN
WHITTIER TOWERS, INC.
A MICHIGAN CORPORATION, AS OPTIONOR
AND
UNITED VANGUARD HOMES, INC.
A DELAWARE CORPORATION OR ITS ASSIGNEE, AS OPTIONEE
RELATING TO THE BUILDING(S) AND LAND IN DETROIT, MICHIGAN DESCRIBED ON EXHIBIT A
(THE "PREMISES")
FOR VALUE RECEIVED:
1. OPTION Subject to the terms and conditions of this Option
Agreement, Optionor hereby grants to Optionee the
exclusive right, at Optionee's option at any time
during the period commencing April 1, 1996 and ending
on December 31, 2001.
2. PURCHASE PRICE: Purchase price for the Premises shall be a sum equal to
the lesser of:
a. Appraised fair market value of the Premises, as
ascertained by the method set forth below but not
less than the current outstanding balance of the
first mortgage; and
b. The amount at date of closing of (i) the mortgage
debt on the Premises, (ii) management fees
relating to management of the Premises since April
1, 1996, payable to UVH Management Corp. ("UVM"),
accrued but unpaid (which may be offset against
the purchase price), (iii) sums paid by Vanguard
Ventures, Inc. ("Vanguard") or Optionor on or
after April 1, 1996 for capital
improvements at the Premises, (iv) sums spent by
Vanguard on or after April 1, 1996 to fund
negative cash flow of Optionor and (v) interest at
12 percent per annum on the sums referred to in
items (iii) and (iv),
subject to adjustment as provided in this Option.
Optionee's election to purchase the Premises shall
be by written notice served upon Optionor either
personally or by Certified Mail or Registered
Mail, Return Receipt Requested, at 0 Xxxxx Xxxxx
Xxxx, Xxxx Xxxx, Xxx Xxxx 00000 (or such other
address as Optionor has advised Optionee by like
notice), not later than June 30, 2001.
3. BONA FIDE OFFEREE: In the event that Vanguard or Optionor receives a
written offer from an unaffiliated prospective
purchaser ("Bona Fide Offeree") to purchase the
Premises (or the stock of Optionor), Optionee
agrees to either (i) relinquish this Option or
(ii) change the purchase price set forth in
paragraph 2 to be the same as offered in writing
by the Bona Fide Offeree and promptly exercise
this Option per said Bona Fide Offeree price and
terms. If this Option is relinquished per item (i)
above and the Premises (or Whittier Tower, Inc.
stock) are sold to the Bona Fide Offeree, then the
net proceeds shall be applied as follows: (i)
payment of accrued since April 1, 1996 but unpaid
management fees due UVM, (ii) sums paid by
Vanguard or Optionor on or after April 1, 1996 for
capital improvements at the Premises, (iii) sums
spent by Vanguard to fund negative cash flow of
Optionor and (iv) interest at 12 percent per annum
on the sums referred to in items (iii)
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and (iv). The remaining net profit (i.e., net of
brokerage fees, closing costs, mortgage debt,
etc.) shall be split 50 percent to Optionee and 50
percent to Vanguard.
4. CHECK AT OPTION
EXERCISE: A certified or bank check for $25,000 to be
applied to the purchase price shall be delivered
to Optionor along with the aforesaid election to
exercise this Option. If for any reason, other
than Optionor's default, Optionee defaults in the
purchase of the Premises, Optionor shall be
entitled to retain said $25,000 as liquidated
damages.
5. APPRAISAL: Appraised fair market value referred to in
paragraph 2(a) shall be established by a panel of
independent, unaffiliated appraisers experienced
in real estate appraisal, one selected by
Optionor, one selected by Optionee, and the third
selected by the other two appraisers. The cost of
Optionor's appraiser shall be borne by Optionor.
The cost of Optionee's appraiser shall be borne by
Optionee. The cost of the third appraiser shall be
borne by Optionor and Optionee, equally.
6. MORTGAGES: At closing, Optionor shall pay or otherwise
satisfy all mortgages on the Premises.
7. TENANTS: The sale shall be subject to the rights to occupy
of tenants and/or residents in possession at
closing. Leases and security deposits shall be
assigned by Optionor to Optionee at closing; and
rent adjusted.
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8. CLOSING: Closing for the purchase of the Premises shall be
held at 10:00 AM at Vanguard's offices at 0 Xxxxx
Xxxxx Xxxx, Xxxx Xxxx X.X. 00000, on the 60th day
following the giving of the notice as provided
above, or on such other date and place as the
parties may agree.
9. INSPECTIONS: During the term of this Option, Optionee and its
agents and consultants, at Optionee's expense,
shall be entitled to a review of the Premises'
financial performance and make such physical
inspections and other investigations of and
concerning the Premises, including, without
limitation, surveys, soil borings, percolation,
engineering and environmental studies, zoning
review, and other tests as Optionee considers
necessary for Optionee and its consultants to
review and evaluate the physical and fiscal
characteristics of the Premises and condition and
structural soundness of Improvements and to
perform certain work or inspections in connection
with such evaluation.
10. PAYMENT OF
PURCHASE PRICE: The purchase price shall be payable by Optionee to
Optionor by certified or bank check, at the
closing or, if mutually agreed by Optionor and
Optionee, in cash and financing on mutually agreed
terms.
11. DOCUMENTARY
STAMPS: Optionor and Optionee each pay one half of the
cost of any realty transfer taxes and recording
costs relating to this conveyance.
12. TITLE: Optionor shall convey to Optionee a good and
marketable fee simple title to the Premises, free
and clear of all liens, encumbrances, easements,
restrictions, and other title objections other
than those approved by Optionee. Occupancy by
Optionor's tenants or residents
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shall not be an objection to title. Optionee's
title shall be insurable as aforesaid at ordinary
rates by any reputable title company of Optionee's
choice.
13. INSURANCE, ETC.: Possession of the Premises shall be surrendered by
Optionor to Optionee at the time of closing.
During the term of this Option and prior to the
surrender of possession, Optionor shall commit no
waste nor permit waste, deterioration or
destruction of the Premises, normal wear and tear
excepted, and shall bear the risk of loss. During
the term of this Option, Optionor shall maintain
insurance against loss by fire and all perils
included within the term "extended coverage
endorsements" on all improvements in an amount not
less than the highest insurable value.
14. WAIVER: If title to any part of the Premises shall not be
in accordance with the requirements of paragraph
12 above, Optionee shall have the option of taking
such title to the Premises as Optionor can give
with abatement of the purchase price for liens of
fixed or ascertainable amounts.
15. APPROVAL: This Option has been duly approved by the Board of
Directors of Optionor and shareholders of
Optionor.
16. PRIOR AGREEMENT: This Option supercedes the Option Agreement among
the parties dated March 29, 1996, as amended by
Amendment No. 1 thereto dated July 15, 1996.
17. CONTRACT To the extent not provided for in this Option, the
OF SALE: provision of the Contract of Sale annexed hereto
as Exhibit B shall apply.
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IN WITNESS WHEREOF, the parties have executed this Option this 23rd day of
October 1996.
WITNESS: WHITTIER TOWERS, INC., Optionor
/s/ Xxxx Xxxxxxx by: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------- -----------------------------------
Xxxx Xxxxxxx Xxxx X. Xxxxxxxxxx, President
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
WITNESS: UNITED VANGUARD HOMES, INC., Optionee
/s/ Xxxx Xxxxxxx /s/ Xxxx D'Xxxxxx
------------------------------- ----------------------------------------
Xxxx Xxxxxxx Xxxx D'Xxxxxx, Vice President - Finance
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
APPROVED:
Vanguard Ventures, Inc., sole shareholder of Optionor
/s/ Xxxx X. Xxxxxxxxxx
by -----------------------------
Xxxx X. Xxxxxxxxxx, President
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STATE OF NEW YORK
COUNTY OF NASSAU
The foregoing instrument was acknowledged before me this 23rd day of
October 1996, by Xxxx X. Xxxxxxxxxx, the President of WHITTIER TOWERS, INC., a
Michigan corporation, on its behalf.
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx, Notary Public
Xxxxx X. Xxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires Aug. 31, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXXXXX
The foregoing instrument was acknowledged before me this 23rd day of
October 1996, by Xxxx d'Xxxxxx, the Vice President - Finance of UNITED VANGUARD
HOMES, INC., a Delaware corporation, on its behalf.
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx, Notary Public
Xxxxx X. Xxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires Aug. 31, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXXXXX
The foregoing instrument was acknowledged before me this 23rd day of
October 1996, by Xxxx X. Xxxxxxxxxx, the President of VANGUARD VENTURES, INC., a
New York corporation, on its behalf.
/s/ Xxxxx X. Xxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxx, Notary Public
Xxxxx X. Xxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires Aug. 31, 1998
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