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"), Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), Third Capital,
LLC, a Tennessee limited liability company ("Third Capital"), Xxxxxxxxxxx X.
Xxxxxxx ("Xxxxxxx"), and Xxxxx X. Xxxxx ("Xxxxx"), being sometimes collectively
referred to as the "Parties."
RECITALS
X. Xxxxxxx is the sole Manager of the Fund. Xxxxxxx is the chief manager
of Third Capital and Xxxxxxx and Xxxxx 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 Xxxxxxx, or in his
absence, Xxxxx, 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
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promises and subject to the terms and conditions herein set forth, the Parties
agree as follows:
1. Third Capital, Xxxxxxx and Xxxxx 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 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
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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/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Manager
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, individually
THIRD CAPITAL, LLC
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Xxxxxxxxxxx X. Xxxxxxx, Chief Manager
/s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxxxxxx X. Xxxxxxx, individually
/s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx, individually
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