Exhibit XI
NOTE PURCHASE AGREEMENT
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This Note Purchase Agreement (this "Agreement") is made as of March 25,
2003, by and among Xxxxx Hotels & Casino Resorts, Inc. ("THCR"), Xxxxx Hotels &
Casino Resorts Holdings, L.P. ("THCR Holdings") and Xxxxx Hotels & Casino
Resorts Funding, Inc. ("THCR Funding," and together with THCR Holdings, the
"Issuers").
WHEREAS, THCR Holdings and THCR Funding have heretofore issued a series of
15 1/2% Senior Secured Notes due 2005 (the "Senior Notes") pursuant to a Trust
Indenture, dated as of June 12, 1995, between Issuers and First Bank National
Association, as Trustee (as supplemented to date, the "Indenture");
WHEREAS, Xxxxxx X. Xxxxx ("Xxxxx") is the beneficial owner of $16,700,000
aggregate principal amount of Senior Notes (the "Xxxxx Notes"); and
WHEREAS, Issuers desires to acquire the Xxxxx Notes from Xxxxx, and Xxxxx
desires to sell the Xxxxx Notes to Issuers as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Purchase and Sale of Xxxxx Notes; Closing Date. (a) Subject to
the terms and conditions hereof, Issuers agree, jointly and severally, to
purchase from Xxxxx, and Xxxxx agrees to sell to Issuers, on the Closing Date
(as defined below), the Xxxxx Notes for the purchase price of $17,131,000 (i.e.,
102.583% the aggregate principal amount thereof), plus accrued interest on the
entire principal amount of the Xxxxx Notes to the Closing Date. Issuers shall
pay for the purchase price on the Closing Date as follows: (i) delivery of
certificates representing 1,500 shares of Series A Preferred Stock of THCR (the
terms of which Preferred Stock (the "Preferred Stock") are set forth in the
proposed certificate of designations thereof attached hereto as Exhibit I); and
(ii) $2,882,455 in cash (assuming a Closing Date of March 25, 2003 and otherwise
adjusted to reflect the accrued interest on the Xxxxx Notes to the Closing
Date). The cash portion of the purchase price shall be made by wire transfer to
the account designated by Xxxxx.
(b) Subject to the terms and conditions hereof, the closing hereunder shall
occur on the date that Xxxxx Casino Holdings, LLC and Xxxxx Casino Funding,
Inc., both affiliates of the Issuers, close the issue and sale of a proposed
private offering of approximately $425 million aggregate principal amount of
their First Priority Mortgage Notes due 2010 and $50 million aggregate principal
amount of Second Priority Mortgage Notes due 2010 (the "Notes Offering," and the
notes issued therein, the "New Notes"). Issuers agree to notify Xxxxx of the
proposed date, time and place of the closing of such offering (the "Notes
Offering Closing") at least three business days prior thereto, and the closing
hereunder (the "Closing" and the date of the Closing being referred to as the
"Closing Date") shall occur concurrently with the Notes Offering Closing. At the
Closing, Xxxxx and the registrar for the Senior Notes shall cause the Xxxxx
Notes to be cancelled. The Xxxxx Notes shall be transferred to Issuers free and
clear of any liens, claims or security interests thereon created by or through
Xxxxx.
Section 2. Representations and Warranties of Issuers. In connection with
the purchase and sale of the Xxxxx Notes hereunder, Issuers (and with respect to
(iii) below, THCR) each represent and warrant to Xxxxx now and as of the Closing
Date as follows:
(i) The Xxxxx Notes to be acquired by Issuers pursuant to this Agreement
will be acquired for Issuers' account and not with a view to, or an
intention of, further distribution thereof in violation of the
Securities Act of 1933, as amended (the "Act"), or any applicable
state securities laws, and the Xxxxx Notes will not be disposed of in
contravention of the Act or any applicable state securities laws;
(ii) The execution, delivery and performance of this Agreement have been
duly and validly authorized by the governing bodies of Issuers and
this Agreement constitutes the legal, valid and binding obligation of
Issuers, enforceable against each of them in accordance with its
terms, and the execution, delivery and performance of this Agreement
by Issuers does not and will not conflict with, violate or cause a
breach of any agreement, contract or instrument to which either Issuer
is a party or any law, regulation judgment, order or decree to which
either Issuer is subject and
(iii) The Preferred Stock, when issued to Xxxxx hereunder, and the Common
Stock issued upon the exchange therefor, shall have been duly
authorized and shall constitute duly and validly issued, fully paid
and non-assessable capital stock of THCR.
Section 3. Representations and Warranties of Xxxxx. In connection with the
purchase and sale of the Xxxxx Notes hereunder, Xxxxx represents and warrants to
Issuers now and as of the Closing Date as follows:
(i) The execution, delivery and performance of this Agreement have been
duly and validly authorized by Xxxxx and this Agreement constitutes
the legal, valid and binding obligation of Xxxxx, enforceable against
him in accordance with its terms, and the execution, delivery and
performance of this Agreement by Xxxxx does not and will not conflict
with, violate or cause a breach of any agreement, contract or
instrument to which Xxxxx is a party or any law, regulation, judgment,
order or decree to which Xxxxx is subject.
(ii) Xxxxx owns the Xxxxx Notes free and clear of any liens, claims or
security interests.
(iii) The Preferred Stock to be acquired by Xxxxx pursuant to this
Agreement will be acquired for Trump's account and not with a view to,
or an intention of, further distribution thereof in violation of the
Securities Act of 1933, as amended (the "Act"), or any applicable
state securities laws, and the Preferred Stock will not be disposed of
in contravention of the Act or any applicable state securities laws.
Section 4. Conditions to Closing. (a) The obligations of Issuers hereunder
are subject to the satisfaction of the following conditions:
(i) Certain affiliates of Issuers shall have entered into a Purchase
Agreement for the New Notes with the initial purchasers thereof and
the Notes Offering Closing shall have occurred simultaneously with the
Closing;
(ii) Consummation of the transactions contemplated hereby shall not have
been enjoined; and
(iii) The representations and warranties of Xxxxx shall be true and correct
as if made on the Closing Date.
(b) The obligations of Xxxxx hereunder are subject to the satisfaction of
the following conditions:
(i) The Issuers shall tender to Xxxxx the purchase price of the Xxxxx
Notes at the Closing;
(ii) The Trustee for the Senior Notes shall have executed and delivered the
Supplemental Indenture;
(iii) Consummation of the transactions contemplated hereby shall not have
been enjoined;
(iv) The representations and warranties of Issuers shall be true and
correct as if made on the Closing Date;
(v) The Closing shall occur on or before April 30, 2003; and
(vi) The Notes Offering Closing shall have occurred simultaneously with the
Closing.
Section 5. Agreements Pending Closing. The parties hereto agree to
cooperate in the preparation of such other items as may be necessary for the
purposes contemplated hereby as promptly as possible.
Section 6. Exchange of Preferred Stock
(a) THCR agrees that it will issue shares of its authorized Common Stock to
Xxxxx in exchange for shares of Preferred Stock on the following basis:
Right to Exchange. Each share of the Preferred Stock shall be exchangeable,
at the option of Xxxxx, at any time after the Approval Date (as
defined in this Section 6(h)), at the office of THCR or any transfer
agent for such stock, into such number of fully paid and
non-assessable shares of Common Stock as is determined by dividing the
Liquidation Value per share of Series A Preferred Stock by the
Exchange Price, determined as hereafter provided, in effect on the
date the Preferred Stock is surrendered for exchange. The Exchange
Price per share for shares of Series A Preferred Stock shall be $1.90
per share (the "Exchange Price"). Based on this Exchange Price, the
1,500 shares of Series A Preferred Stock will be exchangeable for a
total of 7,894,737 shares of Common Stock. The Exchange Price for the
Series A Preferred Stock shall be subject to adjustment as set forth
below.
(b) Mechanics of Exchange. Before Xxxxx shall be entitled to exchange the
Preferred Stock same into shares of Common Stock, Xxxxx shall surrender the
certificate or certificates therefor, duly endorsed, at the office of THCR or of
any transfer agent for the Preferred Stock, and shall give written notice to
THCR at its principal corporate office, of the election to exchange the same and
shall state therein the name or names in which the certificate or certificates
for shares of Common Stock are to be issued. THCR shall thereupon issue and
deliver at such office to Xxxxx, or to the nominee or nominees of Xxxxx, a
certificate or certificates for the number of shares of Common Stock to which
Xxxxx shall be entitled as aforesaid. Such Exchange shall be deemed to have been
made immediately prior to the close of business on the date of such surrender of
the shares of Preferred Stock to be exchanged, and the person or persons
entitled to receive the shares of Common Stock issuable upon such exchange shall
be treated for all purposes as the record holder or holders of such shares of
Common Stock as of such date.
(c) Exchange Price Adjustments of Preferred Stock for Splits and
Combinations. The Exchange Price of the Series A Preferred Stock shall be
subject to adjustment from time to time as follows:
In the event THCR should at any time or from time to time
after the date or dates upon which any shares of Series A
Preferred Stock were first issued (a "Purchase Date") fix a
record date for the effectuation of a split or subdivision of
the outstanding shares of Common Stock or the determination of
holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common
Stock or other securities or rights convertible into, or
entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of
any consideration by such holder for the additional shares of
Common Stock or the Common Stock Equivalents (including the
additional shares of Common Stock issuable upon exchange or
exercise thereof), then, as of such record date (or the date
of such dividend distribution, split or subdivision if no
record date is fixed), the Exchange Price of the Series A
Preferred Stock shall be appropriately decreased so that the
number of shares of Common Stock issuable on exchange of each
share shall be increased in proportion to such increase of the
aggregate of shares of Common Stock outstanding and those
issuable with respect to such Common Stock Equivalents. If the
number of shares of Common Stock outstanding at any time after
a Purchase Date is decreased by a combination of the
outstanding shares of Common Stock, then, following the record
date of such combination, the Exchange Prices for the Series A
Preferred Stock shall be appropriately increased so that the
number of shares of Common Stock issuable on exchange of each
share of each such series shall be decreased in proportion to
such decrease in outstanding shares.
(d) Recapitalizations. If at any time or from time to time there shall be a
recapitalization of the Common Stock (other than a subdivision or combination
provided for elsewhere herein) provision shall be made so that Xxxxx shall
thereafter be entitled to receive upon exchange of his shares of Series A
Preferred Stock the number of shares of stock or other securities or property of
THCR or otherwise, to which a holder of Common Stock deliverable upon exchange
would have been entitled on such recapitalization. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Section 6
with respect to the rights of Xxxxx after the recapitalization to the end that
the provisions of this Section 6 (including adjustment of the Exchange Prices
then in effect and the number of shares purchasable upon exchange of the Series
A Preferred Stock) shall be applicable after that event as nearly equivalent as
may be practicable.
(e) No Impairment. THCR will not, by amendment of its Amended and Restated
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by
THCR, but will at all times in good faith assist in the carrying out of all the
provisions of this Section 4 and in the taking of all such action as may be
necessary or appropriate in order to protect the exchange rights of Xxxxx
against impairment.
(f) Reservation of Stock Issuable Upon Exchange. THCR shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of effecting the exchange of the shares of the
Series A Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the exchange of all outstanding shares
of the Series A Preferred Stock; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the exchange
of all then outstanding shares of the Series A Preferred Stock, in addition to
such other remedies as shall be available to Xxxxx, THCR shall take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purposes, including, without limitation, engaging
in best efforts to obtain the requisite shareholder approval of any necessary
amendment to its Certificate of THCR.
(g) Notices. Any notice required by the provisions of this Section 6 be
given to Xxxxx shall be deemed given if deposited in the United States mail,
postage prepaid, and addressed to each holder of record at his address appearing
on the books of THCR.
(h) Approval. The parties hereto agree that no shares of Series A Preferred
Stock may be exchanged for Common Stock until such time as the stockholders of
THCR shall have first approved of the issuance thereof (the "Approval Date").
THCR agrees to seek and solicit such stockholder approval at its 2003 annual
meeting of stockholders and, if necessary, at successive annual meetings of
stockholders until such issuance is approved by the requisite stockholder vote.
Section 7. General Provisions.
(a) Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
(b) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Issuers and Xxxxx and their respective successors and assigns.
(c) Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
XXXXX HOTELS & CASINO RESORTS HOLDINGS, L.P., as buyer
By: Xxxxx Hotels & Casino Resorts, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President, Secretary and General
Counsel
XXXXX HOTELS & CASINO RESORTS FUNDING, INC., as buyer
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President, Secretary and General
Counsel
XXXXX HOTELS & CASINO RESORTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President, Secretary and General
Counsel
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, as Seller
