(PAGE) STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated
as of March 1, 1999, is by and among Equus Gaming Company, L.P. a
Virginia limited partnership, with its principal executive offices
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ (the "Buyer")
and Housing Development Associates, S.E., a partnership organized
under the laws of Puerto Rico, with its principal executive offices
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ (the "Seller");
WITNESSETH:
WHEREAS, the Seller owns one hundred fifty thousand shares
(150,000) shares of the Common Stock of Equus Entertainment de
Panama, S.A., a corporation organized under the laws of Panama
("EEP"), and fifteen thousand (15,000) shares of the Common Stock
of Galapagos S.A., a corporation organized under the laws of the
Dominican Republic ("Galapagos") (collectively, the "Shares");
WHEREAS, Seller has made certain advances to Galapagos and EEP
as set forth in Exhibit 1.2 attached hereto (the "Receivables");
WHEREAS, Seller has guaranteed certain indebtedness of Galapagos as
set forth on Exhibit 1.2 attached hereto (the "Guaranteed Debt");
WHEREAS, the Buyer desires to purchase from the Seller, and
the Seller desires to sell to the Buyer, the Shares and the
Receivables upon the terms and conditions provided in this
Agreement in order to provide liquid assets to Seller to meet its
obligations under the Trust Indenture identified in Section 4.3
hereof and to relieve Seller of the obligation to make further cash
advances to Galapagos to enable it to meet operating expenses and
to fund necessary capital improvements;
WHEREAS, the Board of Directors of the Managing General
Partner of the Seller and Buyer has determined in its respective
capacity on behalf of Seller and Buyer that the terms of the
purchase and sale contemplated hereby are fair and no less
favorable to Seller and Buyer than would be available in a
comparable transaction in arm's length dealing with an unaffiliated
third party;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the Seller and the Buyer
hereby agree as follows:
(PAGE) ARTICLE 1
PURCHASE AND SALE OF THE SHARES; CLOSING
1.1. Sale of the Shares and Receivables. Subject to the
terms and conditions set forth in this Agreement, at the Closing
referred to in Section 1.4 hereof, the Buyer agrees to purchase
from the Seller, and the Seller agrees to sell and deliver to the
Buyer, the Shares and the Receivables.
1.2. Purchase Price. The Buyer shall pay to the Seller,
in consideration of the sale of the Shares and Receivables an
aggregate amount equal to the Closing Payment. At the Closing, the
Buyer shall pay to the Seller One Million Eight Hundred Fifty
Thousand Dollars ($1,850,000), in cash by wire transfer of
immediately available funds to a bank account specified in writing
by the Seller to be allocated to the assets purchased as shown on
Exhibit 1.2 (the "Closing Payment").
1.3. Indemnification of Guaranteed Debt. Following the
Closing the Buyer shall indemnify and hold harmless the Seller from
any liability arising under the Guaranteed Debt.
1.4. Taxes. The Buyer shall be responsible for the
payment of any transfer, sales, use or other similar taxes imposed
by reason of the transfer of the Shares and Receivables and any
deficiency, interest or penalty with respect to such taxes.
1.5. Closing. Subject to the conditions set forth in
this Agreement, the sale and delivery of the Shares and the
Receivables pursuant to this Agreement (the "Closing") shall take
place at the offices of the Buyer on March 19, 1999, or on such
other date or at any other place as is mutually agreed to by the
Buyer and Seller. The date on which the Closing is to occur is
herein referred to as the "Closing Date".
1.6. Deliveries at the Closing. Subject to the terms and
conditions set forth in this Agreement, at the Closing:
(a) The Seller shall deliver, or cause to be delivered,
to the Buyer (i) certificates representing all of the Shares,
registered in the name of the Buyer with all necessary stock
transfer and other documentary stamps attached, and (ii) evidence
satisfactory to Buyer confirming to Buyer the assignment of the
Receivables.
(PAGE) (b) The Buyer shall deliver to the Seller (i) the
Closing Payment, and (ii) all agreements, certificates and other
instruments and documents required to be delivered by the Buyer to
the Seller in connection with this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF
THE SELLER
The Seller hereby represent and warrant to the Buyer, as
follows:
2.1. Organization and Good Standing. The Seller is a
partnership duly organized and validly existing under the laws of
the Commonwealth of Puerto Rico and has the power and authority to
own, lease and operate the properties used in its business and to
carry on its business as now being conducted.
2.2. Ownership of the Shares and Receivables.
(a) All of the Shares have been duly authorized and
validly issued and are fully paid and nonassessable.
(b) The Seller is the beneficial and record owner of the
Shares and Receivables free and clear of any security interest,
pledge, lien, charge, claim, option, equity right, restriction on
transfer, or encumbrance of any nature whatsoever (each, an
"Encumbrance"). Other than this Agreement, and as shown on Exhibit
2.2, there is no security, option, warrant, right, call,
subscription agreement, trust, commitment, encumbrance or
understanding of any nature whatsoever, fixed or contingent,
relating to the sale, pledge, transfer or other disposition by the
Seller of any of the Shares or the Receivables. The Seller has,
and upon consummation of the transaction contemplated hereby, the
Buyer will acquire good and valid title to the Shares and
Receivables, free and clear of any Encumbrances.
2.3. Authority. The Seller has all necessary power and
authority to enter into this Agreement and any other agreements and
instruments to be executed and delivered by it hereunder and to
perform its obligations hereunder. The execution, delivery and
performance of this Agreement and such other agreements and
instruments and the consummation of the transactions contemplated
hereby and thereby have been, or prior to the Closing Date will
have been, duly authorized and approved by the general partner of
the Seller, and no other proceedings on the part of the Seller, are
necessary to authorize and approve this Agreement and such other
agreements and instruments and the transactions contemplated hereby
and thereby.
(PAGE) 2.4. Binding Agreement. This Agreement has been, and any
other agreements and instruments to be executed and delivered
hereunder by the Seller will be, duly executed and delivered by the
Seller, and are or will be valid and binding obligations of the
Seller, enforceable in accordance with their terms, except that (a)
such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights, and (b) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
2.5. No Violation. The execution and delivery of this
Agreement and any other agreements and instruments to be executed
and delivered hereunder by the Seller and the consummation of the
transactions contemplated hereby and thereby will not:
(a) conflict with or violate any provisions of the
partnership agreement of the Seller;
(b) conflict with or violate any law, regulation, court
order, judgment, or decree binding upon or applicable to the Seller
or by which any of the properties or assets of the Seller is bound
or affected;
(c) conflict with or result in any breach of or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or give any person
(including the Seller) any rights of termination or cancellation
with respect to, or any right to assert any remedy whether in
contract, tort or otherwise under any governing corporate document
or any material contract, understanding, instrument, lease,
indenture, loan, permit, license, franchise, or other agreement of
any nature whatsoever to which the Seller is a party or by which
the Seller, or the property of the Seller is bound or affected, or
result in the creation of a lien or encumbrance on any of the
properties or assets of the Seller; or
(d) cause the acceleration of any payment or performance
obligation by, or the loss of any rights, advantages or privileges
of, the Seller, under any such contract, instrument, permit,
license, franchise or other agreement or require any action by or
in respect of, or filing with, any governmental body, agency or
official; or
(e) result in the imposition of any Encumbrance on the
Shares.
2.6. Consents and Approvals. Except as set forth on
Schedule 2.6, no consent, approval or authorization of any person
is required for the execution, delivery and performance of this
(PAGE)
Agreement, and any other agreements and instruments to be executed
and delivered hereunder by the Seller or the consummation of the
transactions contemplated hereby and thereby, including, without
limitation (i) consents required pursuant to the terms of any loan,
contract, lease or other agreement to which the Seller is a party
or by which the Seller and (ii) consents from any governmental
body, agency or official.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE BUYER
The Buyer hereby represents and warrants to the Seller as
of the date hereof, as follows:
3.1. Organization and Good Standing. The Buyer is a
limited partnership duly organized, validly existing and in good
standing under the laws of the State of Virginia and has the
corporate power and authority to own, lease and operate the
properties used in its business and to carry on its business as now
being conducted.
3.2. Authority. The Buyer has all necessary corporate
power and authority to enter into this Agreement and any other
agreements and instruments to be executed and delivered by the
Seller hereunder and to perform its obligations hereunder and
thereunder.
3.3. Binding Agreement. This Agreement and any other
agreements and instruments to be executed and delivered hereunder
by the Buyer will be duly executed and delivered by the Buyer and
are or will be valid and binding obligations of the Buyer,
enforceable in accordance with their terms, except that (a) such
enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights, and (b) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(a) No Violation. The execution and delivery of this
Agreement and any other agreements and instruments to be executed
and delivered hereunder by the Buyer and the consummation of the
transactions contemplated hereby and thereby will not:
(b) conflict with or violate any provisions of the
certificate of limited partnership or partnership agreement of the
Seller;
(PAGE) (c) conflict with or violate any law, regulation, court
order, judgment, or decree binding upon or applicable to the Buyer
or by which any material portion of the property of the Buyer is
bound or affected;
(d) conflict with or result in any breach of or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or give the Buyer
or any other party any rights of termination or cancellation with
respect to, or result in the creation of a lien or encumbrance on
any of the material properties or assets of the Buyer pursuant to
any material contract, instrument, permit, license, franchise, or
other agreement to which the Buyer is a party or by which the Buyer
or his property is bound or affected; or
(e) cause the acceleration of any payment or performance
obligation by, or the loss of any rights, advantages or privileges
of the Buyer under any such contract, instrument, permit, license,
franchise or other agreement, or require any action by or in
respect of, or filing with, any governmental body, agency or
official of the United States or any political subdivision thereof.
3.4. Consents. No filing with any governmental body or
agency or consent of any Person is required for the execution and
delivery of this Agreement and any other agreements and instruments
to be executed and delivered hereunder by the Buyer or the
consummation of the transactions contemplated hereby and thereby,
including, without limitation, consents required pursuant to the
terms of any loan, contract, lease or other agreement to which the
Buyer is a party or by which the Buyer may be bound.
3.5. Investment Representation. The Buyer is acquiring
the Shares for its own account, for investment and not with a view
to the distribution thereof, nor with any present intention of
distributing the same. The Buyer understands that the Shares have
not been registered under the Securities Act of 1933, by reason of
their issuance in a transaction exempt from the registration
requirements of that Act and that they must be held indefinitely
unless a subsequent disposition thereof is registered under that
Act and any applicable state securities laws or is exempt from
registration.
ARTICLE 4
COVENANTS OF THE PARTIES
4.1.Further Assurances. Subject to the terms and
conditions of this Agreement, each of the parties hereto shall use
all reasonable efforts to take, or cause to be taken, all action,
and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations, or otherwise to
(PAGE)
fulfill its obligations under this Agreement and to consummate and
make effective the sale of the Shares and Receivables pursuant to
this Agreement. This covenant shall survive the Closing.
4.2. Consents. Each of the parties hereto shall use all
reasonable efforts to obtain consents of all Persons and
governmental authorities necessary for the consummation of the sale
of the Shares pursuant to this Agreement. This covenant shall
survive the Closing.
4.3. Buyer's Undertakings. Buyer acknowledges that
Seller has disclosed to it the terms of the Trust Indenture by and
among El Comandante Capital Corporation, Housing Development
Associates, Seller and Banco Popular as Trustee, dated as of
December 15, 1993, as amended, as such terms apply or could apply
to the transfer of the Galapagos Shares pursuant to the terms of
this Agreement, and that Seller has further disclosed to Buyer the
terms and conditions of the Founders' Agreement of Galapagos as
they may pertain to the transfer of the Galapagos Shares pursuant
to the terms of this agreement. Buyer agrees to indemnify and hold
harmless Seller from any and all obligations that may arise under
such agreements as a result of the transfer of the Galapagos Shares
under this Agreement. This Buyer's undertaking to indemnify and
hold harmless Seller is for the benefit of Seller only and shall
not create any rights, direct or indirect, on behalf of any third
party and shall be limited to rescission of the transaction or, at
Buyer's option, an encumbrance on the Galapagos Shares. In
consideration of the foregoing, Seller transfers and assigns to
Buyer all of its rights under the Galapagos Shareholders Agreement.
This covenant shall survive the Closing.
ARTICLE 5
CONDITIONS TO CLOSING
5.1. Conditions to the Obligations of Each Party to
Effect the Closing. The respective obligations of each party to
effect the Closing shall be subject to the fulfillment, at or prior
to the Closing, unless waived by the parties hereto, of the
following conditions:
(a) Absence of Injunction or Investigation. No statute,
rule, regulation, order, stay, injunction or decree shall have been
promulgated, enacted, entered or enforced, and no investigation or
inquiry shall be pending or, to the knowledge of the the Buyer or
the Seller, threatened against the Buyer and or the Seller by any
government, governmental authority, governmental agency or court of
competent jurisdiction which would prevent or make illegal the
consummation of the transactions contemplated hereby, or which
(PAGE)
would impose additional conditions on the parties hereto in order
to consummate the transactions contemplated hereby.
(b) No Violation of Statutes, Rules, etc. There shall
not be any applicable statute, rule, regulation, order or decision
promulgated, enacted, entered into or made by any government or
governmental authority that prohibits the purchase of the Shares
and Receivables by the Buyer or otherwise restricts or prohibits
the consummation of the transactions contemplated hereunder.
5.2. Additional Conditions to the Obligation of the Buyer
to Effect the Closing. The obligation of the Buyer to effect the
Closing is also subject to the following conditions unless waived
by the Buyer:
(a) Representations and Warranties; Agreements;
Covenants. Each of the representations and warranties of the
Seller and contained in this Agreement shall be true and correct as
of the Closing as though such representations and warranties were
made at and as of the Closing. Each of the obligations of the
Seller required by this Agreement to be performed by them at or
prior to the Closing shall have been duly performed and complied
with in all material respects as of the Closing
(b) Consents. All material permits, authorizations,
consents and approvals of governmental and regulatory authorities
or any other Persons required to be obtained by the Seller as a
condition to the lawful consummation of the transactions
contemplated hereby shall have been obtained, including, but not
limited to any and all consents required under any material
contract that the Seller is a party to.
5.3. Additional Conditions to the Obligation of the
Seller to Effect the Closing. The obligation of the Seller to
effect the Closing is also subject to the following conditions,
unless waived by the Seller:
(a) Representations and Warranties; Agreements;
Covenants. Each of the representations and warranties of the Buyer
contained in this Agreement shall be true and correct as of the
Closing as though such representations and warranties were made at
and as of the Closing. Each of the obligations of the Buyer
required by this Agreement to be performed by him at or prior to
the Closing shall have been duly performed and complied with in all
material respects as of the Closing
(PAGE)
(b) Consents. All material permits, authorizations,
consents and approvals of governmental and regulatory authorities
or any other Persons required to be obtained by the Buyer as a
condition to the lawful consummation of the transactions
contemplated hereby shall have been obtained.
ARTICLE 6
MISCELLANEOUS
6.1. Headings. The section headings herein are for
convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any
of the provisions hereof.
6.2. Successors; Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns, and nothing herein shall be construed to create
any rights enforceable by any other Person. This Agreement may not
be assigned by any party to it without the prior written consent of
all other parties.
6.3. Entire Agreement. This Agreement (including the
Exhibits hereto) embodies the entire agreement and understanding of
the parties with respect to the transactions contemplated hereby
and supersedes all prior written or oral commitments, arrangements
or understandings with respect thereto. There are no restrictions,
agreements, promises, warranties, covenants or undertakings with
respect to the transactions contemplated hereby other than those
expressly set forth herein.
6.4. Modifications, Amendments and Waivers. This
Agreement may be modified or amended only by a written agreement
executed by all parties hereto. No waiver of any right or term
hereof shall be effective unless in a writing executed by the
waiving party. No waiver of any right or privilege hereunder shall
operate as a waiver of any subsequent or similar right or
privilege.
6.5. Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the
same agreement and each of which shall be deemed an original.
6.6. Governing Law. This Agreement shall be governed by
the laws of the Commonwealth of Virginia (regardless of the laws
that might be applicable under principles of conflicts of law) as
to all matters, including, but not limited to, matters of validity,
construction, effect and performance.
(PAGE)
6.7. Severability. If any term, provision or clause of
this Agreement or any application thereof shall be held to be
invalid, illegal or unenforceable for any reason in any particular
jurisdiction, the validity, legality or enforceability of the
remaining provisions of this Agreement and any other application of
such term, provision or clause shall not be affected thereby in
such jurisdiction, and this Agreement and such application shall
not, in any manner, be affected thereby in any other jurisdiction.
To the extent permitted by applicable law, each party waives any
provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
6.8. Specific Performance. The Buyer and the Seller
recognize that any breach of the terms of this Agreement may give
rise to irreparable harm for which money damages would not be an
adequate remedy, and accordingly agree that, in addition to other
remedies, any non-breaching party shall be entitled to enforce the
terms of this Agreement by a decree of specific performance without
the necessity of proving the inadequacy of money damages as a
remedy.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
The Buyer:
EQUUS GAMING COMPANY, L.P.
------------------------
By: s/s ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
President of Equus Management Company,
Its Managing General Partner
The Seller:
HOUSING DEVELOPMENT ASSOCIATES, S.E.
By: Equus Entertainment Corporation, Managing Partner of
Housing Development Associates S.E.
-----------------------------
By: s/s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
-----------------------------
Senior Vice President of
Equus Entertainment Corporation,
its Managing Partner
(PAGE) Exhibit 1.2
to Stock Purchase Agreement
Receivables from Galapagos
--------------------------
Promissory notes dated as of November 3, 1997, due on demand
Receivables from EEP
----------------------
$350,000 in advances
Guaranteed Debt:
----------------------
Capital leases between Galapagos and General Electric Capital
Corporation of Puerto Rico pursuant to the following promissory
notes:
Original
Date Amount
------- ----------
December 5, 1995 $101,525
December 3, 1996 92,250
November 25, 1997 249,180
July 28, 1995 448,000
May 8, 1998 200,820