EXHIBIT 10.48
SECOND MORTGAGE NOTE PURCHASE AGREEMENT
THIS SECOND 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 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, certain financial institutions, as purchasers, and the
guarantors named therein.
B. The Company issued 13 1/2% Second Mortgage Second Mortgage Notes due
2001 in the original aggregate principal amount of $30,000,000 (such notes being
the "Second Mortgage Notes") pursuant to that certain Amended and Restated
Indenture, dated as of March 3, 1997 by and between Elsinore, as issuer, the
guarantors named therein (the "Guarantors"), and First Trust National
Association, as trustee (the "Trustee"), as amended and supplemented by that
certain First Supplemental Amended and Restated Indenture dated September 18,
1997 (collectively, the "Indenture").
C. The Company desires to purchase in full all of the Company's
outstanding Second 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 Second Mortgage Notes held by persons or entities other than the Funds for
an aggregate purchase price equal to 100% 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 Second 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 of a cashier's or certified check of
immediately available funds or 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 Second 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
Second 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 Indenture; (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 Second
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 Second 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 Second Mortgage Note to the Company
pursuant hereto will convey valid title to the Second Mortgage Note to the
Company subject as appropriate to compliance with the provisions of the
Indenture relating to transfer of the Second 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
Second 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 Second 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
Second 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) Holder will take all actions required under the Indenture
to be taken by the transferor in connection with a transfer of the Second
Mortgage Note.
(c) To the extent Holder may have any right of notice with
respect to the purchase and sale of the Second 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 Second
Mortgage Notes that (a) the Company shall have received the funds contemplated
to be received pursuant to that certain Capital Contribution Agreement, dated as
of September 29, 1998, by and between the Company and the Funds, (b) the Company
shall have purchased the First Mortgage Notes pursuant to that certain First
Mortgage Note Purchase Agreement, dated as of September 29, 1998, by and between
the Company and the noteholders listed thereon, and (c) the Company shall have
received all requisite consent from the holders of the Company's First Mortgage
Notes, and (d) the Company shall have received from each Holder the
certificate(s) evidencing such Holder's First Mortgage Note, together with the
Assignment of Note in the form attached hereto as Exhibit A, duly executed in
blank.
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 Second 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 Second Mortgage
Note or the Indenture.
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 Indenture, 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:
XXXX XXXXX
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Address:
The Metro Center
Xxx Xxxxxxx Xxxxx, 0X
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Fax: 000-000-0000
with a copy to:
Xxxxxxxx & Company, Inc.
Harborside Financial Center Plaza III,
Suite 705
Jersey City, New Jersey 07303-0469
Attn: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
BEA INCOME FUND
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Director BEA Advisors
Address: 0 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
with a copy to:
Attn:
Fax: ___-___-____
BEA STRATEGIC GLOBAL INCOME FUND
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Director BEA Advisors
Address: 0 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
with a copy to:
Attn:
Fax: ___-___-____
EXHIBIT A
FORM OF ASSIGNMENT
I or we assign this Second 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 Second 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 Second Mortgage Note)
