Exhibit 10(oooo)
AGREEMENT TO RETIRE PARTNERSHIP INTEREST OF
INTERSTATE GENERAL COMPANY, L.P. IN
EQUUS GAMING COMPANY, L.P.
This AGREEMENT TO RETIRE PARTNERSHIP INTEREST OF INTERSTATE
GENERAL COMPANY, L.P. IN EQUUS GAMING COMPANY, L.P. (the "Agreement") is
entered into and shall be effective as of December 30, 1997 by and among
Equus Gaming Company, L.P., a Virginia limited partnership (the
"Partnership"), Interstate General Company, L.P., a Delaware limited
partnership and general partner of the Partnership (the "Retiring
Partner"), Equus Management Company, a Delaware Corporation and managing
general partner of the Partnership ("EMC"), Equus Management Title Company,
a Delaware Corporation and limited partner of the Partnership ("EMTC" and
together with EMC, the "Continuing Partners"), and Housing Development
Associates S.E., a Puerto Rico Partnership ("HDA") (HDA, the Retiring
Partner, the Continuing Partners, and the Partnership are sometimes
referred to individually as a "Party" and collectively as the "Parties"),
based on the following facts:
A. The Retiring Partner and the Continuing Partners formed the
Partnership pursuant to that certain agreement dated February 6, 1995,
which agreement has been amended from time to time (as amended, the
"Partnership Agreement").
B. The Parties have agreed that the Retiring Partner's entire right,
title, and interest in the Partnership (the "Redemption Interest") shall be
retired and redeemed by the Partnership and the Retiring Partner shall
withdraw from the Partnership, all as set forth herein.
Based on the foregoing, and in consideration of the mutual agreements,
covenants, and conditions contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the Parties hereby agree as follows:
1. Retirement, Redemption, and Withdrawal. The Redemption
Interest shall be retired and redeemed by the Partnership effective as of
9:00 a.m. Eastern Time on December 31, 1997, (the "Effective Date"), all in
accordance with the provisions set forth in this Agreement. The Retiring
Partner shall sell, assign, and transfer the entire Redemption Interest to
the Partnership and withdraw from the Partnership as of the close of
business on the Effective Date.
2. Consideration for Redemption Interest; Indemnification
Provisions. In consideration for the retirement and redemption of the
Redemption Interest, the Partnership agrees to distribute to the Retiring
Partner consideration (the "Redemption Consideration") composed of the
following:
(a) On the Effective Date, the Partnership shall distribute
to the Retiring Partner a portion of its partnership interest in HDA, such
portion being equal to the product of (a) the Partnership's interest in HDA
immediately prior to the Effective Date and (b) the Retiring Partner's
Partnership interest in the Partnership immediately prior to the Effective
Date.
(b) As among the Parties and subject to the Guaranty
Agreement (of even date herewith by and between Retiring Partner and EMC
(the "Guaranty Agreement")) and Section 7.7 of the Partnership Agreement,
the Retiring Partner shall be relieved of all responsibility for
liabilities of the Partnership whether known or unknown the Partnership and
EMC shall indemnify, defend, protect, and hold harmless the Retiring
Partner from such liabilities, subject to the Guaranty Agreement and
Section 7.7 of the Partnership Agreement. Liabilities to which the
Retiring Partner remains subject pursuant to Section 7.7 of the Partnership
Agreement are referred to herein as "Contingent Liabilities".
(c) The Redemption Consideration provided for in this
Section 2 is the total consideration payable by the Partnership to the
Retiring Partner for the Redemption Interest, and the Retiring Partner
shall not retain an interest in, or be entitled to receive distributions
of, any other Partnership assets.
3. Continuation of Partnership; Adjustment of EMC Percentage
Interest. The Parties hereby agree that the Partnership shall continue and
shall not be dissolved because of the retirement and redemption of the
Redemption Interest or the withdrawal of the Retiring Partner. Pursuant to
Section 7.3 of the Partnership Agreement, the partnership interest of EMC
shall be increased from .99% to 1%.
4. Tax Matters. The Parties agree that:
(a) To the extent possible, the tax and other attributes
that the Retiring Partner held indirectly in HDA through its interest in
the Partnership (including its share of Section 704(c) property under
Treas. Reg. Section 1.704-3 and its share of HDA's nonrecourse liabilities
under Section 752 of the Internal Revenue Code of 1986 (the "Code"))
immediately before the Effective Date shall continue to be held by the
Retiring Partner through its direct interest in HDA on and after the
Effective Date.
(b) The Parties shall each file all required Federal,
state, and local income tax returns and related returns and reports in a
manner consistent with the provisions of this Section 4.
5. Representations, Warranties, and Covenants.
(a) Of Each Party. The Partnership, the Retiring Partner, and
the Continuing Partners each hereby represents and warrants to and
covenants to each other Party that:
(i) Neither the execution nor the delivery of this
Agreement, the incurrence of the obligations herein set forth, the
consummation of the transactions herein contemplated, nor the compliance
with the terms of this Agreement will conflict with, or result in a breach
of, any of the terms, conditions, or provisions of, or constitute a default
under, any bond, note, or other evidence or indebtedness or any contract,
indenture, mortgage, deed of trust, loan agreement, lease, or other
agreement or instrument to which such Party is a party or by which such
Party may be bound.
(ii) Such Party has the right, power, legal capacity,
and authority to execute and enter into this Agreement and to execute all
other documents and perform all other acts as may be necessary in
connection with the performance of this Agreement.
(iii) No approval or consent not heretofore obtained
by any person or entity is necessary in connection with the execution of
this Agreement by such Party or the performance of such Party's obligations
under this Agreement.
(iv) Such Party has received independent tax and legal
advice from attorneys of his choice with respect to the advisability of
executing this Agreement.
(v) Such Party has made such investigation of the
facts pertaining to this Agreement, and all of the matters pertaining
thereto, as he deems necessary.
(vi) Except as expressly provided herein, no person
has made any statement or representation to such Party regarding any fact
relied upon by such Party in entering into this Agreement and each Party
specifically does not rely upon any statement, representation, or promise
of any other person in executing this Agreement.
(vii) Such Party relies on the finality of this
Agreement as a material factor inducing his execution of this Agreement,
and the obligations under this Agreement.
(viii) Such Party will not take any action which would
interfere with the performance of this Agreement by any other Party or
which would adversely affect any of the rights provided for herein.
(b) Additional Representation, Warranty, and Covenant of the
Retiring Partner. The Retiring Partner hereby represents and warrants to
and covenants to each other Party that the Retiring Partner owns the
Redemption Interest free and clear of any and all liens, claims,
encumbrances, and adverse equities.
6. Releases and Indemnification.
(a) By Each Party. For value received, each Party for himself
and for each and all of his past, present, and future predecessors,
successors, assigns, affiliates, licensees, transferees, principals,
servants, agents, partners, associates, officers, directors, employees,
representatives, shareholders, attorneys, insurers, legal representatives,
descendants, dependents, heirs, executors, administrators, and all other
persons (collectively, the "Successors in Interest") hereby and forever
releases and discharges and agrees to indemnify and hold harmless each
other Party and each and all of each other Party's Successors in Interest,
from any and all claims, demands, liens, causes of action, suits,
obligations, controversies, debts, costs, expenses, damages, judgments, and
orders of whatever kind or nature, in law, equity, or otherwise, whether
known or unknown, suspected or unsuspected, and whether or not concealed or
hidden, which have existed, do presently exist, or may exist, relating to
the Partnership or its activities, assets, liabilities, or partners, other
than the obligations to the Retiring Partner set forth in this Agreement.
(b) After-Discovered Facts. It is understood by each Party that
there is a risk that subsequent to the execution of this Agreement, a Party
may discover facts different from or in addition to the facts which he now
knows or believes to be true with respect to the subject matter of this
Agreement, or that certain debts, claims, expenses, or liabilities
presently known may be or become greater than a Party now expects or
anticipates. Each Party intends this Agreement to apply to all unknown or
unanticipated results, as well as those known and anticipated, and it is
the intention of each Party to hereby fully, finally, absolutely, and
forever resolve any and all claims and disputes which have existed, do
exist, or may exist relating to the Partnership or its activities, assets,
liabilities, or partners, other than the obligations to the Retiring
Partner set forth in this Agreement.
7. Miscellaneous.
(a) Statement of Partnership; Other Filings. The Partnership
may prepare and file fictitious business name statements and such other
statements or documents as the Continuing Partners deem appropriate to
reflect the withdrawal of the Retiring Partner from the Partnership and the
continuation of the Partnership.
(b) Name of Partnership. The Partnership may, in the sole
discretion of the Continuing Partners, continue to use Equus Gaming
Company, L.P. as the name of the Partnership after the Effective Date.
(c) Attorneys' Fees to Enforce This Agreement or in Subsequent
Litigation. In the event any Party shall maintain or commence any action,
proceeding, or motion against any other Party to enforce this Agreement or
any provision thereof, the prevailing Party therein shall be entitled to
recover his actual attorneys' fees and costs therein incurred. Each Party
agrees that if such Party hereafter commences, joins in, or in any manner
asserts against any other Party any of the claims released hereunder, then
it will pay to the other Party, in addition to any other damages caused to
the other Party thereby, all actual attorneys' fees and costs incurred in
defending or otherwise responding to such suit or claim.
(d) Severability. Each provision of this Agreement is intended
to be severable. If any term or provision hereof is illegal or invalid for
any reason whatsoever, such illegality or invalidity shall not affect the
legality or validity of the remainder of the Agreement.
(e) Survival. All of the terms, representations, warranties,
and other provisions of this Agreement shall survive and remain in effect
after the Effective Date.
(f) Costs. Each Party shall pay its own legal fees and expenses
incidental to the execution of this Agreement and the consummation of the
transactions contemplated hereby.
(g) Execution of Documents. Each Party agrees to execute all
documents necessary to carry out the purpose of this Agreement and to
cooperate with each other for the expeditious filing of any and all
documents and the fulfillment of the terms of this Agreement.
(h) Successors and Assigns. This Agreement shall inure to the
benefit of the transferees, successors, assigns, heirs, beneficiaries,
executors, administrators, partners, agents, employees, and representatives
of each Party.
(i) Controlling Law. This Agreement has been entered into in
the Commonwealth of Virginia and the Agreement, including any rights,
remedies, or obligations provided for thereunder, shall be construed and
enforced in accordance with the laws of the State of Delaware.
(j) Counterpart Execution. This Agreement may be executed in
multiple counterparts each of which may be deemed an original and shall
become effective when the separate counterparts have been exchanged among
the Parties.
(k) Construction. Every covenant, term, and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Party.
(l) Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement
or any provision hereof.
(m) Incorporation by Reference. Every exhibit, schedule, and
other appendix attached to this Agreement and referred to herein is hereby
incorporated in this Agreement by reference.
(n) Variation of Provisions. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, or neuter,
singular or plural, as the identity of the person or persons may require.
(o) Notices. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this Agreement shall
be in writing and shall be delivered personally to the Party or to an
officer of the Party to whom the same is directed, or sent by regular,
registered, or certified mail, addressed to the person to whom directed at
the following address, or to such other address as such Party may from time
to time specify by notice to the Parties:
(i) If to the Partnership or the Continuing Partners:
Equus Gaming Co., L.P.
222 Smallwood Village Center
St. Charles, MD 20602
(ii) If to the Retiring Partner:
Interstate General Company
222 Smallwood Village Center
St. Charles, MD 20602
Any such notice shall be deemed to be delivered, given, and received for
all purposes as of the date so delivered, if delivered personally or if
sent by regular mail, or as of the date on which the same was deposited in
a regularly maintained receptacle for the deposit of United States mail,
if sent by registered or certified mail, postage and charges prepaid. Any
Party may from time to time specify a different address by choice to the
other Parties.
(p) Amendments. Any amendment to this Agreement shall be in
writing and executed by each Party hereto.
(q) Entire Agreement. This Agreement contains the entire
understanding among the Parties and supersedes any prior written or oral
agreements between them respecting the subject matter of this Agreement.
There are no representations, agreements, arrangements, or understandings,
oral or written, between the Parties relating to the subject matter of this
Agreement that are not fully set forth herein. This Agreement amends and
restates the Partnership Agreement with respect to the subject matter of
this Agreement. This Agreement shall be considered part of the Partnership
Agreement for all purposes under the Code.
IN WITNESS WHEREOF, the Parties hereto have approved and executed this
Agreement as of the date first set forth above.
PARTNERSHIP
EQUUS GAMING COMPANY, L.P.
a Virginia partnership
By: EQUUS MANAGEMENT COMPANY
its Managing General Partner
By: /s/ Gretchen Gronau
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CONTINUING PARTNERS:
EQUUS MANAGEMENT COMPANY, a
Delaware corporation
By: /s/ Gretchen Gronau
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Its: Vice President
EQUUS MANAGEMENT TITLE COMPANY, a Delaware
corporation.
By: /s/ Gretchen Gronau
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Its: Vice President
RETIRING PARTNER:
INTERSTATE GENERAL COMPANY, L.P.
By: Interstate General Management Company,
its managing general partner
By: /s/ Francisco Arrivi
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HOUSING DEVELOPMENT ASSOCIATES S.E.
By: EQUUS GAMING COMPANY, L.P.
a Virginia partnership
By: EQUUS MANAGEMENT COMPANY
its Managing General Partner
By: /s/ Gretchen Gronau
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