EXHIBIT 10.05
OPTION TO PURCHASE
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Option Agreement ("Agreement") made as of February 21, 2007, by and between
PIONEER REALTY HOLDINGS, LLC, a New York limited liability company ("Pioneer"),
having an address at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, and COLONIAL
COMMERCIAL CORP., having an address at 000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx
00000 ("Colonial"). Pioneer and Colonial are sometimes referred to as the
"parties."
Recitals
A. Pioneer is the owner of a improved property located at 0000 Xxxxx 0,
Xxxx xx Xxxxxxxx, Xxxxxxxx Xxxxxx, XX (the "Premises") which is presently being
leased to The RAL Supply Group, Inc. ("RAL"), a wholly-owned subsidiary of
Colonial, pursuant to a Lease dated September 1, 1998, as modified under
agreements dated as of September 30, 2003 and April 12, 2005, respectively (the
"Lease").
B. Pioneer is owned by a group of private investors that includes Xxxxxxx
Xxxxxx ("Xxxxxx").
C. Pioneer has commenced a renovation and expansion of the Premises. Upon
completion, the entire renovated Premises will be leased to RAL under the terms
of the Lease.
D. In accordance with resolutions adopted at a Colonial Board of Directors
meeting on January 18, 2007, as of the date hereof Colonial will enter into a
third modification of the terms of the Lease, including an increase in rent
payments due under the Lease, provided that Pioneer grant Colonial an option to
purchase the Premises exercisable through July 31, 2007.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration the receipt of which is hereby acknowledged, and
intending to be legally bound hereby, Pioneer and Colonial agree as follows:
1. Pioneer hereby grants Colonial the option ("Option") to purchase the
Premises for (i) an exercise price equal to Pioneer's total financial investment
in the Premises through the date of exercise and (ii) the release of Xxxxxx (and
any other guarantors) from all bank guaranties of mortgage loans secured by the
Premises. The Option shall expire on July 31, 2007.
2. The Option may be exercised by delivery of a notice of exercise to Pioneer,
followed by payment of the exercise price in full and release of all bank
guarantors, within thirty (30) days of receipt from Pioneer of a detailed
calculation of the exercise price.
3. Any and all notices to be given under this Agreement shall be in writing and
shall be deemed to have been duly given immediately when personally delivered,
on the next business day when delivered by overnight courier, or three days
after being mailed by first class registered or certified mail, return receipt
requested, addressed to the parties at the addresses set forth above (or at such
other address as any party may specify by notice to all other parties given as
aforesaid).
4. This writing constitutes the entire agreement of the parties with respect to
the subject matter hereof, supersedes all prior agreements or understandings of
the parties relating thereto, and may not be modified, amended or terminated
except by a written agreement.
5. This Agreement shall be binding upon and inure to the benefit of each party
hereto, its successors and assigns. Neither party may assign either this
Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of the other.
6. Each party hereto shall cooperate, shall take such further action and shall
execute and deliver such further documents as may be reasonably requested by any
other party in order to carry out the provisions and purposes of this Agreement.
7. This Agreement shall be governed and construed in accordance with the laws
of the State of New York, applicable to agreements made and to be performed
within such State. Any disputes, controversies or claims ("Disputes") arising
out of or relating to the transactions contemplated herein, or the breach
thereof, shall be referred to a single arbitrator selected in accordance with
the rules of the American Arbitration Association ("AAA") sitting in New York
City, New York and enforcement of and/or challenges to any determination made by
such arbitrator shall be determined in accordance with the laws of the State of
New York. Any award issued by the AAA shall be final and binding, and judgment
upon the award rendered may be entered in any court having jurisdiction. Such
arbitration shall be the exclusive method of resolving Disputes. Each party
shall be liable for its own attorney's fees.
8. No course of dealing between the parties to this Agreement or any failure or
delay on the part of either party in exercising any rights or remedies or
enforcing any of the provisions of the Agreement shall be construed as a waiver
of such provisions or preclude the exercise of any other rights or remedies or
the enforcement of any provisions hereunder.
9. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of any party. No failure or delay (in whole or in part) on the part of either
party hereto to exercise any right or remedy hereunder will impair any such
right or remedy, operate as a waiver thereof, or affect any right or remedy
hereunder. All rights and remedies hereunder are cumulative and are not
exclusive of any other rights or remedies provided hereunder or by law
10. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together will constitute one and
the same instrument. Delivery of an executed counterpart of this Agreement by
facsimile shall have the same force and effect as delivery of an original
executed counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by facsimile shall also deliver an original
executed counterpart of this Agreement, but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability and binding
effect of this Agreement as to such party or any other party.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day,
month and year first above written.
PIONEER REALTY HOLDINGS, LLC
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Managing Member
COLONIAL COMMERCIAL CORP.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: CFO, Secretary
