Exhibit 10.43
EXCLUSIVITY
AGREEMENT
This EXCLUSIVITY AGREEMENT (this
“Agreement”), is entered into, as of January 21, 2004,
between Trump Hotels & Casino Resorts, Inc., a Delaware
corporation (the “Company”), and DLJ Merchant Banking
Partners III, L.P., a Delaware limited partnership
(“DLJMB”).
The parties have engaged in
preliminary, non-binding discussions regarding the terms of a
possible transaction between the Company and DLJMB pursuant to
which DLJMB would make a substantial equity investment in the
Company in connection with a restructuring of the debt securities
of the Company’s subsidiaries (the
“Transaction”).
As a condition to pursuing the
Transaction, DLJMB has requested that the Company enter into this
Agreement and the Company is willing to do so.
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable consideration, and
intending to be legally bound, the parties hereto agree as
follows:
1. Exclusivity . DLJMB is
aware that, prior to the date of this Agreement, the Company has
had several discussions with one or more third parties concerning a
possible transaction or transactions which may or may not be
similar to the Transaction proposed by DLJMB. Notwithstanding the
foregoing, the Company agrees that it shall not, and shall not
permit any of its respective subsidiaries or affiliates, and will
cause its respective officers, directors, employees, agents and
representatives (including Donald J. Trump) not to, at any time
during the sixty (60) day period commencing on the date hereof (the
“Exclusivity Period”), directly or indirectly, (a)
solicit, initiate or encourage submission of further proposals or
offers from any person, other than DLJMB, relating to any
acquisition or purchase of all or a significant portion of the
assets of, including any river boat or other gaming facility or any
contract to manage any gaming facility, or any equity interest in,
the Company, any of its subsidiaries or affiliates controlled by
the Company or any business combination involving the Company or
any of its subsidiaries or affiliates controlled by the Company, or
the declaration or payment of any dividend or any change in the
public debt or capital structure of the Company or any of its
subsidiaries or affiliates controlled by the Company, (b) further
participate in any negotiations regarding, or furnish to any other
person any additional non-public information with respect to, or
otherwise further cooperate in any way with, or assist or
participate in, facilitate or encourage, any effort or attempt by
any other person other than DLJMB to do or seek any of the
foregoing. During the Exclusivity Period, (x) the Company shall
promptly advise DLJMB if any such proposal or offer, or any inquiry
or contact with any person with respect thereto, is made, shall
promptly inform DLJMB of all the terms and conditions thereof, and
shall furnish to DLJMB copies of any such written proposal or offer
and the contents of any communications in response thereto (it
being understood that the Company shall not be required to take any
action pursuant to
this clause (x) that would violate any
pre-existing confidentiality obligation enforceable against the
Company), and (y) the Company shall not waive any provisions of any
“standstill” agreements between the Company and any
party. During the Exclusivity Period, the Company shall not,
without the consent of DLJMB, enter into, or commit to enter into,
any material transaction outside the ordinary course of business or
any transactions of the type described in Paragraph 1(a). In
addition, the Company agrees that it will immediately cease, from
the date hereof through the end of the Exclusivity Period, any
existing discussions or negotiations with any party other than
DLJMB or its affiliates that relate to, or may reasonably be
expected to lead to, any transaction outside of the ordinary course
of business, consistent with its past practices, or any transaction
of the type described in Paragraph 1(a). The Company shall have the
right to terminate the Exclusivity Period upon five (5) days prior
written notice to DLJMB if DLJMB terminates discussions regarding
the potential Transaction or otherwise abandons or ceases to
actively pursue the Transaction prior to the expiration of the
Exclusivity Period. If DLJMB notifies the Company that DLJMB is
terminating discussions regarding the potential Transaction, then
the Company shall have the righ
