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May 13, 1997
Supra & Company, S.E.
A Street #23
Xxxxx Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxx Xxxx 00000
Attn: Xxxxx Xxxxx Lebron, President
Re: Purchase of Supra's Interest in HDA and Related Matters
Dear Xxxxx:
Upon your acceptance, this letter will set forth the
agreement among Equus Gaming Company, L.P., a Virginia limited
partnership ("Equus"), its affiliate Housing Development
Associates S.E., a Puerto Rico special partnership ("HDA"), Supra
and Company, S.E., a Puerto Rico special partnership ("Supra"),
and its President, Xxxxx Xxxxx Lebron and his wife Xxxxxx
Xxxxxxxxxxx Xxxxx (Collectively, "Xxxxx") regarding the purchase
by HDA of Supra's partnership interest in HDA and certain related
transactions.
1. Closing
a. At the Closing (defined in Section 4 below), HDA
shall pay Supra $4.2 million minus the sum of any distributions
by HDA to Supra subsequent to April 30, 1997 (the "Payment") by
manager or cashier check or wire transfer, and deliver to Supra
and Xxxxx original duly executed by HDA, Equus, Interstate
General Company, L. P. ("IGC"), Interstate General Properties
Limited Partnership, S.E. ("IGP"), El Comandante Operating
Company, Inc. ("ECOC"), and Xxxxxxxxx and Xxxxxxx, as applicable,
of the forms of General Waiver and Release of Claims attached as
Exhibits 1A1, 1A2, 1A3 and 3B hereto (the "Supra Releases"); and
(ii) HDA or Equus shall execute and deliver to Supra and Xxxxx a
Promissory Note in the form attached as Exhibit 1A4 hereto (the
"Supra Note") in the principal amount of $600,000. The
determination of as to which of HDA or Equus shall execute and
deliver the Supra Note shall be solely at the discretion of
Equus.
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b. At the Closing, each of Supra, Xxxxx, IGP, ECOC
and HDA shall execute and deliver to each other a Termination
Agreement in the form attached as Exhibit 1B hereto (the
"Termination Agreement").
c. At the Closing, Supra shall (i) deliver to ECOC,
each of the following notes (as defined in the Termination
Agreement), the Stock Note, the Supra Services Note and the Pre-
reorganization Note; and (ii) execute and deliver to ECOC the
form of General Waiver and Release attached as Exhibit 1C hereto
(the "ECOC Release").
d. At the Closing, Xxxxx shall (i) deliver to ECOC
the Xxxxx Services Note (as defined in the Termination
Agreement), and (ii) execute and deliver to ECOC the ECOC
Release.
e. At the Closing, Supra and Xxxxx shall execute and
deliver to HDA, IGC, IGP, and Equus the form of General Waiver
and Release attached as Exhibit 1D hereto (the "HDA/IGC/IGP/Equus
Release").
f. At the Closing, Supra shall execute and deliver to
HDA an Assignment of Partnership Interest in the form attached as
Exhibit 1E hereto granting, assigning and transferring to HDA all
of its rights, title and interest as a partner in HDA (the "HDA
Partnership Interest"). Such assignment shall be made free and
clear of any lien or pledge of its interest in favor of any third
party, including, but not limited to, Royal Bank of Canada
("Royal Bank") and General Electric Capital Corporation of Puerto
Rico ("GE Capital").
g. At the Closing, Supra and Xxxxx shall agree to and
deliver to Xxxxxxxxx and Xxxxxxx the Supra Release in the form of
Exhibit 3B attached hereto.
2. Representations and Warranties
a. Equus and HDA represent and warrant to Supra and
Xxxxx that (i) each has all necessary partnership power and
authority to execute, deliver and perform its obligations under
this Agreement and the agreements and instruments contemplated
hereby to which each is a party, (ii) such execution, delivery
and performance will not violate or conflict with any applicable
statute, law, regulation or governmental order, or, assuming the
consents referred to herein are obtained, any agreement to which
either of Equus or HDA is a party; and (iii) this Agreement
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evidences, and, upon execution and delivery, the Supra Note, the
Supra Releases to which either of Equus or HDA is a party, and
the Termination Agreement will evidence, the legal valid and
binding agreements of Equus and HDA, as applicable, enforceable
against Equus or HDA, as applicable, in accordance with their
terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors rights and by general equitable principles.
b. Supra and Xxxxx represent and warrant to Equus and
HDA that (i) each has all necessary power and authority to
execute, deliver and perform its obligations under this Agreement
and the agreements and instruments contemplated hereby to which
each is a party, (ii) such execution, delivery and performance
will not violate or conflict with any applicable statute, law,
regulation or governmental order, or, assuming the consents and
pledge releases referred to herein are obtained, any agreement to
which either of Supra or Xxxxx is a party; and (iii) this
Agreement evidences, and, upon execution and delivery, the
Termination Agreement, the ECOC Release, and the
HDA/IGC/IGP/Equus Release will evidence, the legal valid and
binding agreements of Supra and Xxxxx, as applicable, enforceable
against Supra or Xxxxx, as applicable, in accordance with their
terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors rights and by general equitable principles.
c. The foregoing representations and warranties shall
survive the scheduled Closing Date.
3. Closing Conditions:
a. The obligations of HDA and Equus hereunder to be
completed in connection with the Closing are subject to (i) the
representations and warranties of Supra and Xxxxx set forth
herein being true in all material respects as of the Closing
Date, (ii) execution and delivery by Supra and Xxxxx of the
agreements and instruments described in Section 1 of this
Agreement to which each is a party including delivery to ECOC of
all of the notes referred to therein, (iii) filing of a motion by
Supra with the Puerto Rico Superior Court - San Xxxx Part
requesting dismissal with prejudice of Supra's complaint dated
February 28, 1997 captioned Supra & Company, S.E. v. Housing
Development Associates, S.E., et al. (the "Pending Action"), (iv)
execution and delivery by Supra, Xxxxx, ECOC and IGP of the
Termination Agreement, (v) delivery to HDA and Equus of an
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opinion of counsel to Supra and Xxxxx in form and substance
satisfactory to HDA and Equus as to the due authorization,
execution and delivery and enforceability of this Agreement and
the other agreements and instruments contemplated hereby, (vi)
execution and delivery by Supra of the Assignment of Partnership
Interest in the form of Exhibit 1E, (vii) HDA obtaining the prior
written consent of the holders of a majority in principal amount
of the First Mortgage Notes due 2003, issued by El Comandante
Capital Corp. and unconditionally guaranteed by HDA (the
"Noteholder Consent"), (viii) receipt by HDA of evidence
satisfactory to HDA of the release by Royal Bank and GE Capital
of their security interests in the HDA Partnership Interest, and
(ix) the absence of any injunction, governmental order, or
proceeding prohibiting the consummation, or questioning the
validity or legality, of the transactions contemplated hereby.
b. The obligations of Supra and Xxxxx hereunder to be
completed in connection with the Closing are subject to (i) the
representations and warranties of Equus and HDA set forth herein
being true in all material respects as of the Closing Date; (ii)
delivery by HDA of the Payment and the Supra Releases; (iii)
execution and delivery by HDA, IGP and ECOC of the Termination
Agreement, (iv) delivery to Supra and Xxxxx of opinions of
counsel to HDA, Equus, IGC, IGP, and ECOC as to the due
authorization, execution, and delivery and enforceability of this
Agreement and the Supra Releases, as applicable; (v) delivery by
HDA or Equus of the Supra Note; (vi) delivery by HDA of the
release attached as Exhibit 3B hereto duly executed by Xxxxxxxxx
and Xxxxxxx; (vii) obtaining the lien releases referred to under
Sectin 2f; and (viii) the absence of any injunction, governmental
order, or proceeding prohibiting the consummation, or questioning
the validity or legality, of the transactions contemplated
hereby.
4. Closing/Termination.
a. The closing of the transactions contemplated by
Section 1 hereof (the Closing") shall be held at the offices of
Fiddler Xxxxxxxx & Xxxxxxxxx on the Closing Date, which shall be
at 10:00 a.m. San Xxxx time on the fifth (5th) business day
following notice delivered by HDA to Supra and Xxxxx of receipt
by HDA of the Noteholder Consent, or such other date as shall be
mutually agreed by the parties hereto.
b. Prior to the Closing, this Agreement may be
terminated and the transactions contemplated hereby abandoned:
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(i) upon mutual agreement in writing by the parties
hereto;
(ii) by Equus or HDA, in the event that as of the
scheduled Closing Date the conditions under
Section 3a to either of their obligations to close
have not been satisfied, or
(iii) by Supra or Xxxxx, in the event that as of
the scheduled Closing Date, the conditions
under Section 3b to either of their
obligations to close have not been satisfied.
5. Miscellaneous.
a. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns.
b. This Agreement may be executed in counterparts.
c. This Agreement and the agreements and instruments
to be delivered pursuant hereto set forth the entire agreement
among the parties regarding the subject matter hereof and
supersede all prior agreements relating to the subject matter
hereof. This Agreement and the agreements and instruments to be
delivered pursuant hereto may not be amended or modified except
by a written instrument executed by the party against whom
enforceability is sought.
d. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Puerto Rico,
without regard to the conflict-of-laws rules thereof.
e. The parties agree that the fair market value of
the notes referred to in Sections 1c and 1d is less than the
aggregate principal thereof; however, the parties have not agreed
upon any allocation of value to any of such notes.
f. The execution of this letter agreement shall not
be deemed to curtail or abrogate any rights or obligations each
of the parties now have under existing agreement among them;
provided that, until Closing or termination of this Agreement
Supra and Xxxxx shall not continue to prosecute the Pending
Action except to serve process and/or amend the complaint for
purposes other than to add parties thereto.
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If you agree to the terms outlined above, please countersign
in the spaces provided below.
Very truly yours,
HOUSING DEVELOPMENT ASSOCIATES S.E.
By: Equus Gaming Company, L.P.
its managing partner
By: Equus Management Company,
its managing general partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
President
EQUUS GAMING COMPANY, L.P.
By: Equus Management Company,
its managing general partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxx
President
Agreed to:
SUPRA & COMPANY, S.E. /s/ Xxxxx Xxxxx Lebron
------------------------
Xxxxx Xxxxx Lebron
By: Supra Development Corp.
its managing general partner
By: /s/ Xxxxx Xxxxx Lebron /s/ Xxxxxx Xxxxxxxxxxx Xxxxx
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Xxxxx Xxxxx Lebron, Xxxxxx Xxxxxxxxxxx Xxxxx
its President
