Exhibit 10.44
LETTER
AGREEMENT
This LETTER AGREEMENT (this
“Agreement”) is entered into as of February 12, 2004,
between Trump Hotels & Casino Resorts, Inc., a Delaware
corporation (the “Company”) and Trump Hotels &
Casino Resorts Holdings, L.P., a Delaware limited partnership
(“Trump Holdings”), and DLJ Merchant Banking Partners
III, L.P., a Delaware limited partnership
(“DLJMB”).
WHEREAS, on January 21, 2004, the
Company and DLJMB entered into an Exclusivity Agreement (the
“Exclusivity Agreement”) setting forth certain matters
related to a possible transaction 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 and its controlled affiliates (the
“Transaction”), which agreement remains in full force
and effect;
WHEREAS, the Company has advised
DLJMB that it has determined that it will publicly disclose the
fact that it has entered into the Exclusivity Agreement with DLJMB
and is in active negotiations with respect to the
Transaction;
WHEREAS, the Exclusivity Agreement
provides that DLJMB may terminate such discussions with the Company
with respect to the Transaction if such a disclosure is made
without its consent;
WHEREAS, DLJMB is concerned about
the risks attendant to negotiating the Transaction in a public
forum, the reputational issues associated with the possible failure
to consummate the Transaction, and the uncertainties associated
with accomplishing the restructuring of the Company’s
subsidiaries’ and its controlled affiliates’ debt as
well as the significant time, effort and expense which needs to be
devoted to the project;
WHEREAS, DLJMB nonetheless remains
interested in the Transaction;
WHEREAS, in light of the potential
“stalking horse” role which may be played by DLJMB and
the Company’s desire to assure DLJMB’s continued
pursuit of the Transaction and the Company’s desire to
consummate the Transaction, the Company has determined to provide
some certainty to DLJMB in connection with the significant time,
effort and expense which DLJMB will continue to expend in order to
consummate the Transaction; and
WHEREAS, the Board of Directors of
the Company has determined that it is in the best interests of the
Company and its various constituencies for the Company to enter
into this Agreement.
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 Agreement .
The Company agrees that it, and any of its respective subsidiaries
or affiliates, will and will cause all of their respective
officers, directors, employees, agents and representatives
(including Donald J. Trump) to comply with the provisions set forth
in paragraph 1 of the Exclusivity Agreement. The Exclusivity
Agreement is hereby amended as follows: The Exclusivity Period
defined therein shall mean the period ending on May 31, 2004. The
Exclusivity Agreement, as amended by this Agreement, remains in
full force and effect.
2. Expenses . The Company
shall reimburse DLJMB for all Transaction Expenses (as defined in
the Exclusivity Agreement) incurred by DLJMB beginning after the
date of this Agreement and accruing until, and shall be payable
upon, the earlier to occur of (i) the consummation of an
Alternative Transaction (as defined below) and (ii) the date that
is eighteen months following the date of this Agreement; provided,
however, Transaction Expenses through such date shall be payable
immediately upon the sale (whether through a stock sale or sale of
assets) of either the Trump Marina Hotel Casino or the Trump
Indiana Casino Hotel; provided, further, that (a) such
reimbursement obligation shall not duplicate any amounts reimbursed
under the Exclusivity Agreement and (b) the aggregate amount of
Transaction Expenses reimbursed to DLJMB shall not exceed $5
million. At such time as the Company is required to reimburse DLJMB
for the Transaction Expenses pursuant to the preceding sentence,
such reimbursement shall be made promptly based upon the submission
by DLJMB to the Company of an invoice for such Transaction
Expenses, which invoice shall contain a reasonably detailed
breakdown and supporting documentation reflecting any amounts due
under such invoice.
3. Transaction Fee . The
Company will become obligated to pay $25 million (the
“Transaction Fee”) to DLJMB if, on or prior to December
1, 2004, an Alternative Transaction occurs. The Transaction Fee (if
any) shall be earned by DLJMB upon the occurrence of any
Alternative Transaction but shall not become payable by the Company
until consummation of any Alternative Transaction without regard to
when such Alternative Transaction occurs.
An “Alternative
Transaction”
