EXHIBIT 10.47
FIRST MORTGAGE NOTE PURCHASE AGREEMENT
THIS FIRST MORTGAGE NOTE PURCHASE AGREEMENT (this "Agreement") is dated
as of September 29, 1998, and made by and between Elsinore Corporation, a Nevada
corporation (the "Company"), and each of the Holders listed on the signature
page hereof (each such holder being a "Holder" and collectively, the "Holders".)
RECITALS
A. The Company issued to the Holders 11 1/2% First Mortgage Notes due
2000 in the original aggregate principal amount of $3,855,739.39 (such notes
being the "First Mortgage Notes") pursuant to that certain Amended and Restated
Note Agreement (the "Note Agreement"), dated as of March 3, 1997, by and among
the Company, as issuer, the Holders, as purchasers, and the guarantors named
therein.
B. The Company desires to purchase in full all of the Company's
outstanding First Mortgage Notes held by the Holders.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and the agreements,
covenants and conditions contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Purchase. The Company hereby agrees to purchase and assume from each
Holder, and each Holder hereby agrees to sell and assign to the Company, all of
the First Mortgage Notes held by each for an aggregate purchase price equal to
102% of the original aggregate principal amount thereof, plus accrued and unpaid
interest thereon through (but not including) the date of the Closing (as
hereinafter defined) unless payment is received after 1:30 p.m. (Pacific
Daylight Time) in which event the Purchase Price shall include accrued and
unpaid interest on the First Mortgage Notes through and including the date of
Closing (the "Purchase Price"). The closing of such purchase and sale (the
"Closing") shall take place on September 29, 1998, at which time (i) each Holder
shall deliver to the Company an Assignment of Note in the form attached hereto
as Exhibit A, and (ii) the Company shall pay the Purchase Price to each Holder
by delivery by wire transfer of immediately available funds to an account
designated in writing by each Holder.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Holder as follows:
2.1 Power and Authority. The Company has all requisite power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Company. This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the enforcement of creditors' rights and
remedies generally and general principles of equity.
2.2 No Conflict. The execution and delivery of this Agreement by
the Company and the consummation by the Company of the transactions contemplated
hereby and compliance by the Company with the provisions hereof will not: (i)
violate, conflict with, result in a breach of, or constitute a default under,
the organization documents of the Company, or any agreement, note, mortgage,
undertaking or other obligation to which the Company is a party or to which its
properties or assets are bound; (ii) violate any law, rule or regulation of any
governmental body or regulatory authority applicable to the Company or any
judgment, writ, injunction, decree, order or ruling of any court, governmental
body, regulatory authority or arbitrator binding on the Company; or (iii)
require any consent, approval, waiver, license or authorization or other action
by, or notice to or filing by the Company with, any governmental body,
regulatory authority or court having jurisdiction over the Company.
2.3 No Legal Proceedings. There are no legal actions, suits,
arbitrations, or other legal, administrative or other governmental proceedings
pending against the Company or, to the Company's knowledge, threatened against
the Company, that might question the validity of this Agreement or the
consummation of the transactions contemplated hereby.
2.4 Not Registered Securities. The Company acknowledges that none
of the First Mortgage Notes has been registered under the Securities Act of
1933, as amended (the "Securities Act"), and applicable state securities or
"blue sky" laws and, accordingly, may not be reoffered or resold except pursuant
to an effective registration statement under the Securities Act or an available
exemption from such registration requirements. The Company is not acquiring the
First Mortgage Notes with a view to, or for resale in connection with, any
distribution thereof in violation of applicable law.
2.5 True and Correct. All warranties and representations of the
Company in this Section 2 are true and correct in all material respects as of
the date hereof, and shall continue to be true and correct in all material
respects as of the date of Closing.
3. Representations and Warranties of Each Holder. Each Holder,
severally but not jointly, hereby represents and warrants to the Company as
follows:
3.1 Power and Authority. Holder has all the requisite power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by Holder
and the consummation by Holder of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of Holder. This Agreement
has been duly executed and delivered by Holder and constitutes the legal, valid
and binding obligation of Holder enforceable against Holder in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratoriums and similar laws affecting the enforcement of
creditors' rights and remedies generally and general principles of equity.
3.2 No Violation. The execution and delivery of this Agreement by
Holder and the consummation by Holder of the transactions contemplated hereby
and compliance by Holder with the provisions hereof will not (i) violate,
conflict with, result in a breach of, or constitute a default under, the
organizational documents of Holder or any agreement, note, mortgage, undertaking
or other obligation to which Holder is a party or to which its properties or
assets are bound, including, but not limited to, the Note Agreement; (ii)
violate any law, rule or regulation of any governmental body or regulatory
authority applicable to Holder or any judgment, writ, injunction, decree, order
or ruling of any court, governmental body, regulatory authority or arbitrator
binding on Holder or (iii) require any consent, approval, waiver, license or
authorization or other action by, or notice to or filing by Holder with any
governmental body, regulatory authority or court having jurisdiction over
Holder.
3.3 No Encumbrances. Holder (i) is the sole owner of the First
Mortgage Note, and such sole ownership is free and clear of any liens, security
interests or other encumbrances, (ii) has not granted any other option or rights
to the First Mortgage Note or any interest therein, and (iii) has not pledged,
collaterally assigned or otherwise hypothecated any interest therein. Holder's
transfer, assignment and sale of the First Mortgage Note to the Company pursuant
hereto will convey valid title to the First Mortgage Note to the Company subject
as appropriate to compliance with the provisions of the Note Agreement relating
to transfer of the First Mortgage Note.
3.4 Legal Proceedings. There are no legal actions, suits,
arbitrations, or other legal, administrative or other governmental proceedings
(i) pending against Holder or, to Holder's knowledge, threatened against Holder,
that might question the validity of this Agreement or the consummation of the
transactions contemplated hereby, or, (ii) to Holder's knowledge, affecting the
First Mortgage Note.
3.5 True and Correct. All warranties and representations of Holder
in this Section 3 are true and correct in all material respects as of the date
hereof, and shall continue to be true and correct in all material respects as of
the date of Closing.
4. Further Agreement and Covenants.
4.1 Of the Company. As a further inducement for Holder to enter
into this Agreement and in consideration of Holder's agreements contained
herein, the Company, for itself and on behalf of its successors and assigns,
hereby agrees that the Company shall have no right or claim against Holder or
any of its directors, officers, stockholders, investment advisers or affiliates
in connection with or arising out of the purchase of the First Mortgage Note
except in respect of a breach by Holder of its representations and warranties
herein contained or of any covenant of Holder set forth in this Agreement.
Without limiting the generality of the foregoing, Holder's transfer of the First
Mortgage Note pursuant to Exhibit A hereto is made without recourse,
representation or warranty, express or implied, except as set forth in this
Agreement.
4.2 Of Holder. As a further inducement for the Company to enter
into this Agreement and in consideration of the Company's agreements contained
herein, Holder, for itself and on behalf of its successors and assigns, hereby
agrees that:
(a) Holder shall not, between the date hereof and the date of
Closing, take any action, or consent to any action, which would impair Holder's
ability to consummate the transactions contemplated hereby.
(b) To the extent Holder may have any right of notice with
respect to the purchase and sale of the First Mortgage Note and the consummation
of the transactions contemplated hereby, Holder hereby waives any such right of
notice.
5. Conditions Precedent to Obligations of the Company. It shall be a
condition precedent to any obligation of the Company to purchase the First
Mortgage Notes that (a) the Company shall have received the funds contemplated
to have been received pursuant to that certain Capital Contribution Agreement,
dated as of September 29, 1998, by and between the Company and the Funds, and
(b) the Company shall have received from each Holder the certificate(s) set
forth as Exhibit B.
6. Survival of Agreement. Any claim against a party hereto based on the
representations, warranties, covenants and agreements of the parties to this
Agreement and the parties' obligations hereunder must be brought within one year
after the Closing.
7. Further Assurances. Holder agrees to execute and deliver such
further Instruments and documents necessary to effectuate the terms and intent
of this Agreement and take other similar ministerial action at any time as may
be reasonably requested by the Company to evidence the sale and assignment of
the First Mortgage Note to it pursuant hereto. Without limiting the generality
of the foregoing, Holder agrees to provide such information as may be reasonably
requested by the Company in connection with enforcement of the First Mortgage
Note or the Note Agreement.
8. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its conflict
of laws principles.
9. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
10. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if (a) delivered in person, (b) transmitted by
telecopy (with written confirmation), or (c) sent by an express courier (with
written confirmation) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice) set forth next
to each party's signature below.
11. Amendment; Waiver. This Agreement may be amended, supplemented,
modified or changed only by a written agreement making specific reference to
this Agreement executed by Holder and the Company; and any provision hereof may
be waived, in whole or in part, only by a written agreement making specific
reference to this Agreement executed by the party making such waiver.
12. Captions. The headings of the various sections hereof are for
convenience of reference only and shall not affect the meaning or construction
of any provision hereof.
13. Entire Agreement. The Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and other writings with respect to the subject matter hereof.
14. Counterparts. This Agreement may be executed in counterparts, all
of which, taken together, shall constitute one and the same instrument.
15. Severability. In the event any one or more of the provisions of
this Agreement should be held invalid, illegal or unenforceable in any respect
in any jurisdiction, such provision or provisions shall be automatically deemed
amended to the minimum extent necessary to render such provision or provisions
valid, legal and enforceable in such jurisdiction, and the legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
16. Confidentiality. Holder shall not disclose the economic terms of
the transaction contemplated hereby to any person other than (i) its counsel or
investment advisor or (ii) as may be required by law or the Note Agreement, in
which event Holder shall provide the Company with as much advance notice of such
disclosure as is practicable.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their authorized representatives as of the day and year
first written above.
Company:
ELSINORE CORPORATION,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn:
Fax: 000-000-0000
with a copy to:
Xxxxxx & Silver, Ltd.
0000 Xxxxxx Xxxxxx Xxxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn:
Fax: 000-000-0000
Holders:
XXXXXX DIVERSIFIED INCOME TRUST
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX HIGH INCOME CONVERTIBLE
AND BOND FUND
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX MASTER INTERMEDIATE
INCOME TRUST
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX MANAGED HIGH YIELD TRUST
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX MANAGER TRUST - PCM
DIVERSIFIED INCOME FUND
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
The address for each Holder is:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Beach
Fax: 000-000-0000
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxx X. XxXxxxxx
Fax: 000-000-0000
EXHIBIT A
FORM OF ASSIGNMENT
I or we assign this First Mortgage Note to:
Elsinore Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Please insert Social Security or other identifying number of assignee
_______________ and irrevocably appoint ________________ agent to transfer this
First Mortgage Note on the books of the Company. The agent may substitute
another to act for him.
Dated: September __, 1998 Signed:
_____________________________________________________________________________
(Sign exactly as name appears on the other side of this First Mortgage Note)
EXHIBIT B
CANCELLED FIRST MORTGAGE NOTE CERTIFICATES
