AGREEMENT
THIS AGREEMENT is entered into as of the 5th day of September, 1995 by and
between COSCAN COLORADO INC., a Colorado corporation ("Colorado"), LINCORP
HOLDINGS, INC., a Delaware corporation, formerly known as Unicorp American
Corporation ("Lincorp"), COSCAN LIMITED PARTNER CORPORATION, a Colorado
corporation, formerly known as COSCAN UAC INC. ("UAC"), COSCAN CALIFORNIA
COMMERICAL, INC., a California Corporation ("California") formerly known as
COSCAN CALIFORNIA UAC INC. ("California UAC"), COSCAN, INC. a Delaware
corporation ("Coscan").
WITNESSETH:
WHEREAS, Colorado, as the general partner, and Lincorp and UAC, as limited
partners, did heretofore enter into that certain Agreement of Limited
Partnership of Coscan Commercial Limited Partnership dated July 23, 1990
("Partnership" 1"); and
WHEREAS, California, as the general partner, and Lincorp and California UAC,
as limited partners, did heretofore enter into that certain Agreement of Limited
Partnership of Coscan California Commercial Limited Partnership dated July 23,
1990 ("Partnership 2"); and
WHEREAS, Lincorp desires to sell 98% of its 50% limited partnership interest
in Partnership 1 to UAC, and grant to UAC an option to purchase the balance of
its limited partnership interest in Partnership 1; and
WHEREAS, UAC desires to purchase such limited partnership interest in
Partnership 1 from Lincorp and to obtain such option;
WHEREAS, Lincorp desires to sell its limited partnership interest in
Partnership 2 to California UAC, and California UAC desires to purchase such
limited partnership from Lincorp.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt of
which is hereby acknowledge, the parties agree as follows:
1. Lincorp hereby agrees to sell 98% of its 50% limited partnership interest
in Partnership 1 to UAC for a purchase price of Six Million Nine Hundred
Thirty Thousand Dollars ($6,930,000.00), and UAC hereby agrees to purchase 98%
of Lincorp's 50% limited partnership in Partnership 1 for said purchase price
on the earlier of September 28, 1995 or the date of the satisfaction of all
conditions precedent hereinafter set forth )"Purchase
Date"). Said sale and purchase shall be accomplished by Lincorp delivering to
UAC an assignment of said partnership interest in the form attached hereto as
Exhibit A. The purchase price of $6,930,000.00 shall be payable by UAC
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concurrently with the delivery of the aforesaid assignment of partnership
interest by UAC's payment on behalf of and at the direction of Lincorp, which
direction is hereby given (i) the sum of Six Million Two Hundred Eighty-Seven
Thousand Nine Hundred Forty-Seven and 70/100 Dollars ($6,287,947.70) to Coscan,
which sum represents the amount needed to pay in full the outstanding principal
balance and all accrued and unpaid interest as of the Purchase Date due and
owing under that certain Promissory Note dated July 23, 1990 in the original
principal amount of Four Million Three Hundred Eighty Thousand Dollars (U.S.)
($4,380,000.00) payable to the order of Coscan, which Promissory Note was made
by Unicorp American Corporation, a Delaware corporation ("Promissory Note
1"), (ii) Six Hundred Forty-Two Thousand Fifty-Two and 30/100 Dollars
($642,052.30) to Coscan as a prepayment of principal and accrued but unpaid
interest due and owing under that certain Second Amended and Restated Promissory
Note dated July 23, 1990 in the original principal amount of Eleven Million
Dollars ($11,000,000.00) which Note is payable to the order of Coscan and made
by Unicorp American Corporation ("Promissory Note 2") .
2. Lincorp hereby agrees to grant and hereby grants to UAC an option to
purchase its remaining 1% limited partnership interest in Partnership 1
("Option"). The term of said Option shall commence on the Purchase Date and
shall expire on December 31, 1996. The purchase price for said 1% limited
partnership interest in Partnership 1 shall be payable by UAC concurrently with
the delivery of the aforesaid assignment of partnership interest by UAC's
payment on behalf of and at the direction of Lincorp, which direction is hereby
given to pay $70,000.00 to Coscan or its assigns as a prepayment of principal
and accrued but unpaid interest due and owing under that certain Promissory
Note dated July 23, 1990 in the original principal amount of Ten Million
Dollars ($10,000,000.00) payable to the order of Colorado and made by Unicorp
American Corporation ("Promissory Note 3"). The assignment of such partnership
interest shall be in the form attached hereto as Exhibit A.
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3. Colorado, in its capacity as general partner of Partnership 1 and pursuant
to the provision of Article XIII of the Agreement of Limited Partnership 1
hereby consents to the aforedescribed transfer of a 49% limited partnership
interest in Partnership 1 to UAC. Further, Colorado consents to the transaction
entered into between Lincorp and UAC under the terms of the Option.
4. Lincorp hereby agrees to sell its 50% limited partnership interest in
Partnership 2 to California UAC for a purchase price of One Hundred Dollars
($100.00), and California UAC hereby agrees to
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purchase Lincorp's 50% limited partnership in Partnership 2 for said purchase
price on the Purchase Date. Said sale and purchase shall be accomplished by
Lincorp delivering to California UAC an assignment of said partnership interest
in the form attached hereto as Exhibit B. The purchase price of $100.00 shall be
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payable in cash or by check concurrently with the delivery of the aforesaid
assignment of partnership interest.
5. California, in its capacity as general partner of Partnership 2 and
pursuant to the provision of Article XIII of the Agreement of Limited
Partnership of Partnership 2 hereby consents to the aforedescribed transfer of
Lincorp's 50% limited partnership interest in Partnership 2 to California UAC.
Further, in the event that the transfer of the aforedescribed 50% limited
partnership interest from Lincorp to California UAC results in a termination of
Partnership 2 under Section 708 of the Internal Revenue Code, then and in such
even California and California UAC, for tax purposes, hereby elect and agree to
reconstitute Partnership 2 in accordance with the Internal Revenue Code and the
regulations promulgated thereunder.
6. Lincorp and UAC hereby acknowledge that prior to the date of this
Agreement, Partnership 1 entered into an agreement to sell to Coscan Commercial
Properties, Inc., a Colorado corporation ("Commercial"), and an affiliate of
Colorado, the real property commonly known as 101 University Blvd., Denver,
Colorado, pursuant to the terms of that certain Commercial Contract to Buy
and Sell Real Estate, a copy of which is attached hereto as Exhibit C, for a
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purchase price of Two Million Six Hundred Fifty Thousand Dollars
($2,650,000.00). Lincorp and UAC, pursuant to Article V, Section 5.1(d) of the
Agreement of Limited Partnership of Partnership 1 hereby consent to such
contract and Colorado's execution thereof on behalf of Partnership 1, and
directs Colorado, in its capacity as general partnership of Partnership 1, to
consummate the purchase and sale described in said contract as soon as
practical.
7. Lincorp and UAC acknowledge that Partnership 1 as issued a loan commitment
("Commitment") by EFG Financial, Inc. ("RFG") for a Five Million Three Hundred
Thousand Dollar ($5,300,000.00) first mortgage loan (the "Loan") secured by the
Las Palmas Shopping Center ("Center"), which is owned by Partnership 1. Lincorp
and UAC acknowledge that the terms of the Commitment require that: (i) the
proposed first mortgage would not be prepayable for four (4) years after the
date the Loan is closed ("Prepayment Lockout"); (ii) the borrower under the
Loan be a bankruptcy remote, special purpose entity, which, among other things,
owns no other assets other than the Center, and which special purpose entity
would have no secured debt other than said Loan and no other liabilities other
than those incurred in the normal operations of the Center; and (iii)
Partnership 1 guarantee certain obligations of the borrower of the Loan pursuant
to the Commitment and also indemnify RFG with respect to environmental matters
("Guaranteed Obligations").
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Lincorp and UAC further acknowledge that Colorado has recommended the (i) a
Colorado limited liability company which would be owned by Colorado and
Partnership 1 (the "LLC) be formed; (ii) subsequent to the formation of such
entity, Partnership 1 transfer to the LLC the land, buildings, fixtures,
furnishings and equipment and other personal property which comprise the Center
in order to comply with the requirements of said Loan; (iii) the LLC, in order
to comply with the requirements of the Internal Revenue Code would be owned 1%
by Colorado, which will be the manager of the LLC, and 99% by Partnership 1;
(iv) the 1% ownership by Colorado in the LLC will arise through the conveyance
by Partnership 1 to Colorado of a 1% undivided ownership interest in the Center
in consideration of the payment by Colorado to Partnership 1 of the sum of
Seventy-Two Thousand Dollars ($72,000.00), which sum represents 1% of the
appraised value of the Center; (v) upon Colorado's acquisition of such 1%
undivided tenancy-in-common interest, it shall contribute the same to the LLC in
exchange for a 1% ownership interest in the LLC; and (vi) Partnership 1 accept
and close the Loan pursuant to the Commitment. Lincorp and UAC acknowledge that
since the Agreement of Limited Partnership 1 does not expressly permit the
obtaining of a loan with the Prepayment Lockout, the Guaranteed Obligations or
the conveyance or formation of the LLC, as described above, pursuant to Article
V, Section 5.1(d) of the Agreement of Limited Partnership of Partnership 1,
Lincorp and UAC hereby agree and consent to the foregoing, and direct Colorado,
in its capacity as general partner of Partnership 1, to consummate the formation
of the LLC, the transfer of the Center to the LLC and close the Loan, as soon as
practicable.
8. Lincorp agrees that the following shall be conditions precedent to the
obligations of Colorado, UAC, California, California UAC and Coscan to perform
their respective obligations and agreement hereunder:
(a) Lincorp's execution and delivery of an amendment to the Agreement of
Limited Partnership of Coscan Commercial Limited Partnership (i.e.
Partnership 1) in the form of Exhibit D attached hereto;
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(b) Lincorp's delivery of evidence that its limited partnership interests
in Partnership 1 and/or Partnership 2 have been released from any pledge,
assignment, hypothecation or other security interest granted by Lincorp to (i)
National Bank of Canada, (ii) Hees International Bancorp, and/or (iii) Unicorp
Canada Corporation pursuant to the rights granted to Lincorp under Section
13.3(b) of both the Agreement of Limited Partnership for Partnership 1 and the
Agreement of Limited Partnership for Partnership 2, which evidence shall be in
form and substance satisfactory to UAC and California UAC, as applicable;
(c) Lincorp's execution and delivery of Exhibits D and E to Coscan and
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Colorado, respectively; and
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9. Each of the parties hereto shall, from time to time, execute and deliver
such further instruments as may be reasonably necessary to consummate and
evidence the various transactions, conveyances and consents described in and
contemplated by this Agreement and the exhibits attached hereto.
10. The parties hereto expressly agree that the terms and conditions hereof,
and the subsequent performance hereunder shall be governed, construed and
controlled by the laws of the State of Colorado.
11. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof. Any and all prior written or oral
agreements are superseded hereby and are deemed to be null, void and of not
further force and effect, and each of the parties disclaim any future reliance
thereon. The parties agree that no change, alteration, amendment, modification
or waiver of any of the terms and provisions hereof shall be valid unless the
same shall be in writing and signed by the parties hereto.
12. This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
13. This Agreement and the rights and duties of the respective parties
hereunder shall not be assigned, delegated or assumed without the consent of
all parties hereto.
14. All agreements of the parties contained in the Agreement or in any
amendment or supplement hereto shall survive the consummation of any of the
transactions described herein.
15. The parties hereto acknowledge that this Agreement has been negotiated
and prepared in an arms-length transaction and that all parties hereto have had
the opportunity to discuss the terms and provisions hereof and the transactions
described herein with, and have received advice from, their respective counsel.
Accordingly, the parties agree that none of the parties shall be deemed to have
drafted this Agreement, and this Agreement shall not be interpreted against any
party as the draftsman.
16. In the event that any condition, covenant, agreement or other provisions
contained herein is held to be invalid or void by any court of competent
jurisdiction, the same shall be deemed several from the remainder of this
Agreement and shall in no way affect any other covenant or condition contained
herein.
17. This Agreement may be executed in two or more counterparts, each of which
shall be an original, but all of which shall constitute one Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the day and year first above written.
LANCORP HOLDINGS, INC., a Delaware
corporation, formerly known as
Unicorp American Corporation
Attest:
By:_______________________ By:_____________________________________
Its:______________________ Its:____________________________________
COSCAN COLORADO, INC., a Colorado
corporation
Attest:
By:_______________________ By:_____________________________________
Its:______________________ Its:____________________________________
COSCAN LIMITED PARTNER CORPOATION,
a Colorado corporation, formerly
known as Coscan UAC, Inc.
Attest:
By:_______________________ By:_____________________________________
Its:______________________ Its:____________________________________
COSCAN CALIFORNIA COMMERCIAL, INC.,
a California corporation
Attest:
By:_______________________ By:_____________________________________
Its:______________________ Its:____________________________________
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COSCAN CALIFORNIA LIMITED PARTNER CORPORATION
a California corporation, formerly
known as Coscan California UAC, Inc.
Attest:
By:_______________________ By:_____________________________________
Its:______________________ Its:____________________________________
COSCAN INC., a Delaware
corporation
Attest:
By:_______________________ By:_____________________________________
Its:______________________ Its:____________________________________
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