EXHIBIT 7.2
AGREEMENT FOR PURCHASE AND SALE OF STOCK
THIS AGREEMENT FOR PURCHASE AND SALE OF STOCK ("Agreement") is made and
entered into this 11/th/ day of June, 1999, by and between XXXXX XXXXXXX
("Seller") and XXXXXXX XXXXXXX ("Buyer").
In consideration of the mutual promises contained herein, and for other
good and valuable consideration the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Seller does hereby sell, assign, convey and transfer to Buyer,
and Buyer does hereby purchase from Seller, 2,514,368 shares of
common stock of Grand Havana Enterprises, Inc., a Delaware
corporation ("Shares").
2. Seller does hereby represent and warrant that he has good and
marketable title to the Shares and is hereby conveying them to
Buyer free and clear of any and all liens and encumbrances
whatsoever.
3. The purchase price to be paid by Buyer to Seller for the Shares
is $201,149.44, which shall be payable pursuant to a Non-Recourse
Promissory Note executed by Buyer in favor of Seller concurrently
herewith. The payment of the purchase price shall be secured by
the Shares pursuant to the terms of a Stock Pledge Agreement to
be executed by Buyer and Seller concurrently herewith.
4. The parties hereto agree to execute any and all documents,
including but not limited to stock assignments separate from
certificate, in order to effectuate the terms and conditions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
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XXXXX XXXXXXX XXXXXXX XXXXXXX
NON-RECOURSE PROMISSORY NOTE
$201,149.44 Los Angeles, California
June 11, 1999
FOR VALUE RECEIVED, the undersigned, Xxxxxxx Xxxxxxx, promises to pay
to the order of Xxxxx Xxxxxxx the sum of Two Hundred One Thousand One Hundred
Forty-Nine Dollars and Forty-Four Cents ($201,149.44), together with interest
from the date hereof on the unpaid principal, as it exists from time to time, at
the rate of 5 1/2% per annum.
Interest shall be paid annually and principal shall be paid on or
before ten (10) years from the date of this Non-Recourse Promissory Note.
Payment shall be paid in lawful money of the United States. The
undersigned shall have the right to prepay all or any portion due hereunder at
any time and from time to time without any penalty whatsoever. Each payment
made hereunder shall be credited first to interest then due and the remainder to
principal.
If the undersigned shall default in any payment due hereunder, then,
at the option of the holder of this Non-Recourse Promissory Note, the entire
amount of outstanding principal and interest due shall immediately become due
and payable. If action be instituted on this Non-Recourse Promissory Note, the
undersigned promises to pay reasonable attorneys' fees and court costs.
This Non-Recourse Promissory Note is secured by the terms of a certain
Stock Pledge Agreement of even date herewith entered into between the
undersigned and the payee hereunder. This Non-Recourse Promissory Note is non-
recourse and the undersigned shall have no personal liability beyond that which
the holder of this Non-Recourse Promissory Note receives upon the sale of the
collateral under the aforesaid Stock Pledge Agreement.
/s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
STOCK PLEDGE AGREEMENT
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THIS STOCK PLEDGE AGREEMENT ("Agreement") is made and entered into
this 11/th/ day of June, 1999, by and between XXXXXXX XXXXXXX ("Debtor") and
XXXXX XXXXXXX ("Secured Party"), with reference to the following facts:
A. Debtor has executed and delivered to Secured Party a Non-
Recourse Promissory Note of even date herewith in the original principal amount
of $201,149.44 ("Note").
B. Debtor desires to enter into this Agreement to secure payment and
performance of his obligations under the Note.
NOW, THEREFORE, for valuable consideration, Debtor and Secured Party
agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
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shall have the following definitions:
1.1 "Collateral" means 2,514,368 shares of common stock of
Grand Havana Enterprises, Inc., a Delaware corporation, owned or held by Debtor,
all cash, additional securities and other property at any time and from time to
time receivable or otherwise distributed in respect of or in exchange for any of
the Collateral, and all proceeds of the foregoing.
1.2 "Event of Default" means any event of default specified in
Section 5 herein.
1.3 "Obligations" means payment and performance of all
obligations of Debtor under the Note.
2. Grant of Security Interest. To secure the Obligations, Debtor
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hereby grants and assigns to Secured Party a present and continuing security
interest in the Collateral.
3. Debtor's Covenants.
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3.1 Further Assurances. The security interest granted by Debtor
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hereunder, at all times, shall be perfected and prior to any other interests in
the Collateral. Debtor shall take all actions which may be reasonably necessary
or appropriate to maintain, preserve, protect and defend the Collateral and
Secured Party's security interest therein, including all such actions as may be
reasonably requested by Secured Party. Upon Secured Party's request, Debtor
shall execute and deliver to Secured Party such further documents and
agreements, in form and substance satisfactory to Secured Party, as Secured
Party may require to effectuate this Agreement or to evidence, perfect,
maintain, preserve or protect Secured Party's security interest
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in the Collateral, including without limitation financing statements,
continuation financing statements, financing statement amendments, security
agreements and assignments.
3.2 Deliveries. Debtor shall deliver to Secured Party the
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certificate and any other certificates evidencing the Collateral as soon as
possible after the execution of this Agreement and shall deliver, immediately
upon receipt by Debtor from any party of any securities that constitute
Collateral, such securities to the Secured Party, together with duly executed
stock powers in blank with a signature guarantee provided by a member of the New
York Stock Exchange or such other party satisfactory to Secured Party. In the
event of any non-cash distribution with respect to such Collateral (whether by
way of stock dividends, stock splits or recapitalization), the property so
distributed shall be delivered to the Secured Party to be held as additional
Collateral under this Agreement.
3.3 Negative Covenants. Without Secured Party's prior written
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consent, Debtor shall not sell, transfer, assign, pledge, mortgage, encumber,
hypothecate or otherwise dispose of or abandon any or all of the Collateral.
3.4 Voting Rights. So long as there shall exist no Event of
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Default, Debtor shall be entitled to exercise his rights to voting power with
respect to all Collateral pledged under this Agreement. Upon an Event of
Default, Secured Party acting alone may exercise voting rights with respect to
the Collateral and may cause the Collateral to be reissued in Secured Party's
name to facilitate the exercise of such voting rights.
4. Warranties and Representations. Debtor warrants and represents
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to Secured Party that:
(a) Debtor has the full power and authority to enter into
this Agreement, to grant to Secured Party the security interest in the
Collateral as provided herein, and to perform all of his other obligations under
this Agreement; and
(b) Debtor is the sole owner of and has good and marketable
title to the Collateral, and the Collateral is free and clear and shall at all
times remain free and clear of all claims, demands, rights, liens, security
interests and encumbrances, other than the security interest granted to Secured
Party under this Agreement.
5. Event of Default.
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The occurrence of any of the following events or conditions shall
constitute and is hereby defined to be an "Event of Default":
(a) Any failure to make any payment on the date that such
payment is due under the Note;
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(b) The sale, lease, transfer, assignment, pledge,
mortgage, encumbrance, hypothecation or other disposal of or abandonment of any
or all of the Collateral without the prior written consent of Secured Party;
(c) Any failure or neglect to perform or observe any of the
other terms, provisions, or covenants of this Agreement;
(d) Any warranty, representation or statement contained in
this Agreement or any other document or agreement executed or delivered in
connection with the Obligations that shall be or shall prove to have been
materially false when made or furnished;
(e) The filing by Debtor (or against Debtor in which Debtor
acquiesces or which is not dismissed within thirty (30) days after the filing
thereof) of any proceeding under the federal bankruptcy laws now or hereafter
existing or any other similar statute now or hereafter in effect; the entry of
an order for relief under such laws with respect to Debtor; or the appointment
of a receiver, trustee, custodian or conservator of all or any part of the
assets of Debtor;
(f) The insolvency of Debtor; or the execution by Debtor of
an assignment for the benefit of creditors; or the convening by Debtor of a
meeting of his creditors, or any class thereof, for purposes of effecting a
moratorium upon or extension or composition of his debts; or the failure of
Debtor to pay his debts as they mature; or if Debtor is generally not paying his
debts as they mature;
(g) The admission in writing by Debtor that he is unable to
pay his debts as they mature or that he is generally not paying his debts as
they mature; and
(h) The institution of any legal action or proceedings to
enforce a lien or security interest in any portion of the Collateral that is not
dismissed to the satisfaction of Secured Party within fifteen (15) days of such
institution.
6. Remedies Upon Default. Upon the occurrence of any Event of
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Default, Secured Party shall, in addition to all other rights and remedies
provided hereunder or any document or agreement referred to herein, have the
following rights and remedies:
6.1 Uniform Commercial Code. Secured Party shall have all of
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the rights and remedies of a secured party under the California Uniform
Commercial Code and under all other applicable laws.
6.2 Acceleration. Secured Party may declare any or all of the
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Obligations to be immediately due and payable, to the extent that such
Obligations are not already due and payable by their terms.
6.3 Sale of Collateral. Secured Party may sell or dispose of
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the Collateral at public or private sale, in one or more sales, as a unit or in
parcels, at wholesale or retail, and at
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such time and place and on such terms as Secured Party may determine. Secured
Party may be the purchaser of any or all of the Collateral at any public or
private sale. If, at any time when Secured Party shall determine to exercise his
right to sell all or any part of the Collateral and such Collateral, or the part
thereof to be sold, he has been advised by legal counsel or himself determines
that the Collateral is subject to the Securities Act of 1933 as amended or any
state securities laws, Secured Party in his sole and absolute discretion, is
hereby expressly authorized to sell such Collateral, or any part thereof,
subject to obtaining all required regulatory approvals, by private sale in such
manner and under such circumstances as Secured Party may deem necessary or
advisable in order that such sale may be effected legally without registration
or qualification under applicable securities laws (including without limitation
without any obligation to advertise). Without limiting the generality of the
foregoing, Secured Party, in his sole and absolute discretion, may approach and
negotiate with a restricted number of potential purchasers to effect such sale
or restrict such sale to a purchaser or purchaser who will represent and agree
that such purchaser or purchasers are purchasing for his or their own account,
for investment only, and not with a view to the distribution or sale of such
Collateral or any part thereof. Any such sale shall be deemed to be a sale made
in a commercially reasonable manner within the meaning of the Uniform Commercial
Code of the State of California and Debtor hereby consents and agrees that
Secured Party shall incur no responsibility or liability for selling all or any
part of the Collateral at a price which is not unreasonably low, notwithstanding
the possibility that a higher price might be realized if the sale were public.
Any public sale of any or all of the Collateral may be postponed from time to
time by public announcement at the time and place last scheduled for the sale.
6.4 Commercially Reasonable Sale. Without limiting the
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generality of this Section 6, Secured Party shall conclusively be deemed to have
made a commercially reasonable disposition of any or all of the Collateral if
Secured Party holds a public or private sale of such Collateral at least (5)
five days after notice is given to Debtor of the date fixed for any public sale
or the date on or after which any private sale or other disposition of the
Collateral is to be made by Secured Party; with respect to any public sale, the
sale is held at least five (5) days after notice is published in a newspaper of
general circulation in the City of Los Angeles, California; and without respect
to any public disposition, the sale is held any time between the hours of 8 a.m.
and 5 p.m. at any place designated by Secured Party or the sale is made by a
licensed securities broker or dealer through the placement of a "sell" order at
the then current market price. Without limiting the generality of this Section
6, it shall conclusively be deemed to be commercially reasonable for Secured
Party to direct any prospective purchaser of any or all of the Collateral to
Debtor to ascertain all information concerning the status of Grand Havana
Enterprises, Inc. Secured Party's disposition of any or all of the Collateral
in any manner which differs from the procedures specified in this Section 6
shall not be deemed to be commercially unreasonable.
6.5 Protection of Collateral. Secured Party may discharge
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claims, demands, liens, security interests, encumbrances and taxes affecting any
or all of the Collateral and take such other actions as Secured Party determines
to be necessary or appropriate to protect the Collateral and Secured Party's
security interest therein. Secured Party, without releasing Debtor or any other
party from any of the Obligations and without any obligation to do so, may
perform
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any of the Obligations in such manner and to such extent as Secured Party
determines to be necessary or appropriate to protect the Collateral and Secured
Party's security interest therein.
6.6 Proceeds. The proceeds of any sale or disposition of the
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Collateral by Secured Party shall be applied in the following order of priority:
(a) First, to all liabilities, obligations, costs, and
expenses, including without limitation reasonable attorneys' fees and costs,
incurred by Secured Party in exercising any of his rights or remedies under this
Agreement, including without limitation the costs and expenses of retaking,
holding, and selling any or all of the Collateral and the costs and expenses of
enforcing and collecting upon any or all of the Collateral;
(b) Second, to the payment of the Obligations in such order
and amounts as Secured Party may determine in his sole and absolute discretion;
and
(c) Third, the surplus, if any, shall be paid to Debtor or
any other party legally entitled thereto.
7. No Liability for Deficiency. Debtor shall not be liable for any
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deficiency remaining on the Obligations after any disposition of any or all of
the Collateral. Secured Party's sole recourse against Debtor in the Event of
Default shall be against the Collateral.
8. Power of Attorney. Debtor irrevocably appoints Secured Party,
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with full power of substitution, as Debtor's attorney-in-fact, coupled with an
interest, with full power, in Secured Party's own name or in the name of Debtor:
(a) Upon the occurrence of any Event of Default, to endorse
any checks, drafts, money orders, notes, and other instruments or documents
representing Collateral proceeds or evidencing payment on account of any or all
of the Collateral;
(b) Upon the occurrence of any Event of Default, to pay or
discharge claims, demands, liens, security interests, encumbrances, or taxes
affecting or threatened against any or all of the Collateral;
(c) Upon the occurrence of any Event of Default, to receive
payment of all Collateral proceeds;
(d) To commence, prosecute or defend any suit, action or
proceeding relating to any or all of the Collateral;
(e) Upon the occurrence of any Event of Default, to sell,
transfer, pledge, make any agreement with respect to, or otherwise deal with any
or all of the Collateral as though Secured Party were the owner thereof for all
purposes; and
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(f) To execute any financing statement, continuation
financing statement, financing statement amendment, security agreement,
assignment, notice, or other document which Secured Party, in his sole and
absolute discretion, determines to be necessary or appropriate in order to
perfect or maintain Secured Party's first-priority security interest in the
Collateral.
Debtor acknowledges that Secured Party shall have no obligation to exercise any
of the foregoing rights.
9. Waivers. Debtor hereby waives presentment, demand for payment,
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protest, notice of demand, dishonor, protest and nonpayment, and all other
notices and demands in connection with the delivery, acceptance, performance,
default under, and enforcement of the Obligations. Debtor waives the right to
assert any statute of limitations as a defense to the enforcement of any of the
Obligations to the fullest extent permitted by law.
10. Relationship of Parties. Nothing contained in this Agreement
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constitutes or shall be construed as the formation of a partnership or joint
venture between Secured Party and Debtor or any other party; or the creation of
any confidential or fiduciary relationship of any kind between Secured Party and
Debtor or any other party. Secured Party shall not be deemed to be a partner,
joint venturer, trustee, or fiduciary with respect to Debtor or any other party
as a result of this Agreement or the transactions contemplated hereby.
11. Attorneys' Fees. Upon Secured Party's demand, Debtor shall
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reimburse Secured Party for all costs and expenses, including without
limitation, reasonable attorney's fees and costs, which are incurred by Secured
Party, whether before or after Debtor's default under this Agreement, in
connection with any or all of the following: the exercise of any or all of
Secured Party's rights and remedies under this Agreement or the enforcement of
any obligation of any other party liable to Secured Party in connection with the
Obligations, whether or not any legal proceedings are instituted by Secured
Party; the protection, preservation, management, operation, or maintenance of
any or all of the Collateral; the sale or disposition of any or all of the
Collateral; or the defense of any suit, action or proceeding by Debtor or any
other party relating to the Obligations.
12. Notices. All notices, requests and other communications
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hereunder shall be in writing and shall be delivered by courier or other means
of personal service, or sent by telecopy or by overnight mail or by Federal
Express addressed to:
If to Secured Party:
Xxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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If to Debtor:
Xxxxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
All notices, requests and other communications shall be deemed given on the date
of delivery, if given by personal service, or, if sent by overnight mail or air
courier, seventy-two (72) hours after delivery to the air courier to the address
set forth above. Any party may change their address for notices, requests and
other communications by giving notice in the manner specified above.
13. Interpretation. This Agreement shall be construed in accordance
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with and governed by the laws of the State of California. The headings to
sections of this Agreement are for convenience only, and they do not in any way
limit or amplify any of the terms of this Agreement and shall not be used in
interpreting this Agreement.
14. Entire Agreement. This Agreement contains the entire agreement
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between Secured Party and Debtor concerning the subject matter of this
Agreement.
15. No Waiver by Secured Party. No waiver by Secured Party of any of
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his rights or remedies in connection with the Obligations or of any of the terms
or conditions of this Agreement shall be effective unless such waiver is in
writing and signed by Secured Party.
16. Amendment. This Agreement may be modified only by a written
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agreement signed by Debtor and Secured Party.
17. Successors. This Agreement shall be binding upon and inure to
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the benefit of Debtor and Secured Party and their respective successors and
assigns.
18. Counterparts. This Agreement may be executed in two (2) or more
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counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
"Debtor"
/s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
"Secured Party"
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
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