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FIFTH SUPPLEMENTAL INDENTURE
THIS FIFTH SUPPLEMENTAL INDENTURE, is executed as of
this __th day of November 1997, by and among EL COMANDANTE
CAPITAL CORP., a Delaware corporation (the "Company"), BANCO
POPULAR DE PUERTO RICO, a Puerto Rico banking corporation (the
"Trustee"), and HOUSING DEVELOPMENT ASSOCIATES S.E., a Puerto
Rico partnership (the "Partnership").
WITNESSETH:
WHEREAS, the Company, the Trustee and the Partnership
are parties to that certain indenture, dated as of December 15,
1993 and amended by a First Supplemental Indenture and Second
Supplemental Indenture each dated as of December 22, 1994, and
a Third Supplemental Indenture and Fourth Supplemental Indenture
each dated as of February 27, 1996 (the "Indenture"); and
WHEREAS, the Company and the Partnership desire to
amend the Indenture to permit the Partnership to purchase the
interest of Supra (as defined in the Indenture) in the
Partnership, to permit the Partnership to increase by $1.5
million the amount of its Investments (as defined in the
Indenture) in Galapagos (as defined in the Indenture), to permit
the Partnership to make Investments up to an aggregate amount of
$1.5 million in Equus Gaming de Panama, S.A., a corporation
organized under the laws of the Republic of Panama ("Equus
Panama"); and
WHEREAS, the Trustee has been requested to join the
Company and the Partnership in the execution of this Fifth
Supplemental Indenture; and
WHEREAS, pursuant to Section 902 of the Indenture the
holders of a majority of the outstanding principal amount of
11.75% First Mortgage Notes of the Company have consented to such
amendment to the Indenture and to permit certain amendments to
the Lease Agreement (as defined in the Indenture) to permit ECOC
(as defined in the Indenture) to borrow up to $1 million from
third parties for limited purposes;
NOW, THEREFORE, in consideration of the foregoing
premises of the mutual covenants herein contained and for other
good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
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1. Section 101 of the Indenture is hereby amended to add
the following immediately after the definition of "Equus
Distribution":
"Equus Panama" shall mean Equus Gaming de Panama,
S.A., a corporation organized under the laws of the
Republic of Panama and any successor thereto.
2. The term "Permitted Indebtedness", as defined in
Section 101 of the Indenture, shall be amended so as
(a) to amend and restate clause (f) as follows:
(f) Indebtedness of Galapagos to the Partnership
in an aggregate principal amount not in excess of
$3,500,000 and to its stockholders other than the
Partnership in an aggregate principal amount not in
excess of $2,863,636;
(b) to add thereto following the end of clause (f) a
new clause (g) as follows:
(g) If it should become a Subsidiary (other than
a Wholly-owned Subsidiary), Indebtedness of Equus
Panama to the Partnership in an aggregate principal
amount not in excess of $1,500,000 and to its
investors other than the Partnership ratably in
proportion to their respective percentage Equity
Interest in Equus Panama and Indebtedness to third
parties without recourse to the Partnership not to
exceed $3.5 million;
(c) to redesignate current clause (g) as clause (h),
and to amend and restate the first subclause thereof as follows:
(h) any renewals, extensions, substitutions,
refundings, refinancings, or replacements of any
Indebtedness described in clauses (a), (b), (c), (d),
(e), (f), and (g) of this definition of "Permitted
Indebtedness,"
3. The term "Permitted Investment," as defined in Section
101 of the Indenture, shall be amended so as
(a) to amend and restate clause (h) as follows:
(h) the ownership of at least a majority of the
outstanding capital stock of Galapagos, S.A., a
Dominican Republic corporation, or any successor
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thereto ("Galapagos"), and any Investment (in the form
of loans, capital contributions or otherwise) in
Galapagos from time to time not to exceed the
aggregate amount of $3,500,000;
(b) to add thereto following the end of clause (h) a
new clause (i) as follows:
(i) the ownership of at least half of the
outstanding capital stock of Equus Panama, or any
successor thereto, and any Investment (in the form of
loans, capital contributions or otherwise) in Equus
Panama from time to time not to exceed the aggregate
amount of $1,500,000.
4. The term "Consent Fees," as defined in Section 101 of
the Indenture, shall be amended to read as follows:
"Consent Fees" means (a) the aggregate amount of
payments made by the Partnership to Holders, in
respect of that certain first supplemental indenture,
dated December 22, 1994, that certain third
supplemental indenture, dated February 27, 1996, and
that certain fifth supplemental indenture, dated
November 13, 1997, by and among the Company, the
Partnership and the Trustee; and (b) the aggregate
amount of payments made by the Partnership to holders
of Warrants, in respect of that certain amendment,
dated as of December 12, 1994, to the registration
rights agreement with respect to the Warrants, dated
as of December 15, 1993, by and among the Partnership,
HDAMC, Xxxxxxxxxxx & Co., and the Argosy Securities
Group L.P.; and (c) the aggregate amount of any
redemption premium paid by the Partnership in
connection with the redemption of up to $5.5 million
in aggregate principal amount of Notes in accordance
with the terms of the 1997 Waiver Redemption and the
1998 Waiver Redemption Offer; and (d) the aggregate
amount of any 1998 Waiver Redemption Default Fees paid
to the Holders.
5. Section 101 of the Indenture is hereby amended to add
the following immediately after the definition of "New Notes":
"1997 Waiver Redemption" shall mean the
redemption of Notes in the aggregate principal amount
of $2.5 million at a redemption price of 110% of par
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completed on September 29, 1997.
"1998 Waiver Redemption Offer" shall mean an
offer to be commenced by the Company on or before
December 1, 1998 to redeem Notes in the aggregate
principal amount of up to $3 million at a redemption
price of 110% of par which offer shall remain open for
twenty (20) Business Days following the commencement
date.
"1998 Waiver Redemption Default Fees" shall mean
waiver fees paid to Holders pursuant to Section 518.
6. A new Section 518 is hereby added to the Indenture as
follows:
Section 518. 1998 Waiver Redemption Default
Remedies.
On or before December 1, 1998 the Company shall
commence the 1998 Waiver Redemption Offer and at the
expiration thereof shall redeem all Notes validly
tendered pursuant thereto in the aggregate principal
amount not exceeding $3 million plus accrued and
unpaid interest through the redemption date. If the
Company fails to make the 1998 Waiver Redemption Offer
or fails to redeem Notes validly tendered pursuant
thereto, as the sole and exclusive remedy for such
failure, on January 15, 1999 the Company shall pay a
fee pro rata to each Holder of record on January 1,
1999 equal to 1.5% of the aggregate principal amount
of Notes outstanding on January 1, 1999; provided that
the fee shall be reduced to an amount equal to 1.5% of
the aggregate principal amount of the Notes
outstanding on January 1, 1999 multiplied by a
fraction, the numerator of which shall be the
aggregate principal amount of Notes redeemed pursuant
to the 1998 Waiver Redemption Offer and the
denominator of which shall be the aggregate principal
amount of Notes (not exceeding $3 million) validly
tendered pursuant thereto.
7. Subsection (a)(ii) of Section 1009 of the Indenture
shall be amended to read as follows:
(ii) purchase, redeem or otherwise acquire or retire
for value (A) any such Capital Stock or Equity
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Interests, other than (I) the Warrants in accordance
with the terms thereof, (II) any such Equity Interests
owned by Supra, or any assignee, transferee, or
successor thereto, provided that such purchase,
redemption or acquisition occurs at a fair market
price after arm's length negotiation, or (B) any
options, warrants or other rights to acquire such
Capital Stock or Equity Interests.
8. Subsection (c)(iv) of Section 1009 of the Indenture
shall be amended to read as follows:
(iv) the amounts payable pursuant to the Annual Tax
Payment Agreement; provided that such amounts shall be
reduced by 17% (each such reduction being referred to
as a "Withheld 17% Distribution") with respect to the
Partnership's net income determined in accordance with
GAAP, on a cumulative basis during the period
commencing on July 1, 1997 until such time as the sum
of the following exceeds $3 million (or $1.5 million
if the Partnership abandons plans to invest in Equus
Panama): (i) cumulative Withheld 17% Distribution,
plus (ii) cumulative distributions received by the
Partnership after July 1, 1997 from Galapagos and
Equus Panama and not reinvested within twelve (12)
months into Galapagos or Equus Panama, plus (iii) the
principal amount of Notes in excess of $2.5 million
redeemed or repurchased by the Partnership other than
pursuant to Mandatory Redemption or an Excess Proceeds
Offer or Excess Cash Flow Offer.
9. Except as amended by this Fifth Supplemental
Indenture, all other terms and provisions of the Indenture shall
remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused
this Fifth Supplemental Indenture to be duly executed as of the
year and date first above written.
EL COMANDANTE CAPITAL CORP.
By: ___________________________________
Xxxxxx X. Xxxxxxxx
President
HOUSING DEVELOPMENT ASSOCIATES S.E.
By: Equus Gaming Company L.P., its
managing partner
By: Equus Management Company, its
managing general partner
By: ___________________________________
Xxxxxx X. Xxxxxxxx
President
BANCO POPULAR DE PUERTO RICO
By: ___________________________________
Title:
