**Exhibit 10.43**

 

**EXCLUSIVITY AGREEMENT**

 

This EXCLUSIVITY AGREEMENT (this “Agreement”), is entered into, as of January 21, 2004, between Trump Hotels & Casino Resorts, Inc., aDelaware 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 towhich 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 theCompany 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 discussionswith 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 ofits 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 theassets 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 involvingthe 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 bythe 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 orencourage, 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 anyperson 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 beingunderstood 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 anyprovisions 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 theordinary 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 ornegotiations 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 typedescribed 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 toactively 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 right to immediatelyterminate the Exclusivity Period. 

 

2. Access. Uponreasonable advance notice to the Company, the Company shall allow DLJMB and its representatives full and complete access to the assets and the books, records and documents of the Company and its subsidiaries and affiliates during normal businesshours or such other hours as the Company and DLJMB shall agree and subject to the reasonable rules of the Company, and the Company shall make available (subject to the same conditions) the officers, employees, attorneys, independent accountants andother agents of the Company and its subsidiaries and affiliates to discuss the business, condition (financial or otherwise) or prospects of the Company in furtherance of the Transaction. Such access and information shall be subject to the terms ofthe confidentiality agreement between the Company and DLJMB dated as of September 29, 2003. 

 

3. Publicity. This Agreement is intended to be confidential and its existence shall not be disclosed by DLJMB or the Company to any person unless required by law or the rules or regulations of the New YorkStock Exchange or unless requested by any regulatory agency, including, but not limited to, any gaming authority or agency; provided, however, that the foregoing shall not prohibit a party from making any such disclosure to any of thefollowing (“Permitted Recipients”): (i) officers and directors of such party or any subsidiary, (ii) agents and advisors of such party or its subsidiaries (including legal, tax and financial advisors), (iii) applicable gaming authoritiesin connection with requesting approval for the proposed Transaction, and (iv) any other person with the prior consent of the other parties. In the event the Company determines that any public announcement of this Agreement is required, the Companyshall afford DLJMB the opportunity to review and comment on such public announcement prior to its release. In any event, if any party discloses, without the prior written consent of the other parties, the fact that discussions concerning aTransaction between the parties are taking place or the status or terms of any possible Transaction to any person other than a 

 

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Permitted Recipient, then DLJMB (in the case of a disclosure by the Company or any of its Permitted Recipients described in clause (i) or (ii) of thedefinition thereof) or (ii) the Company (in the case of a disclosure by DLJMB or any of its Permitted Recipients described in clause (i) or (ii) of the definition thereof) may terminate discussions concerning the Transaction and the ExclusivityPeriod. 

 

4. Expenses. The Company agrees to reimburseDLJMB, but only if the Transaction is consummated, for all reasonable and accountable out-of-pocket expenses (including without limitation the fees, charges, disbursements and expenses of financial advisors, accountants, consultants, attorneys andother advisors) incurred by DLJMB and paid to third parties (which shall include CSFB and its affiliates other than DLJMB) by DLJMB in connection with the Transaction (the “Transaction Expenses”). Reimbursement of the Transaction Expensesshall be made out of the proceeds of the Transaction based upon the submission by DLJMB to the Company of an invoice for such Transaction Expenses. In the event that the Company materially breaches its obligations under this Agreement, the Companyshall reimburse DLJMB for the Transaction Expenses regardless of whether the Transaction is consummated. 

 

5. No Agreement Regarding the Transaction. There are no legally binding obligations among the parties relating to the Transaction except thosespecifically set forth herein. Each party acknowledges and agrees that this Agreement expresses the parties’ interests in continuing discussions regarding the Transaction and is not intended to, and does not, create any legally bindingobligation on any party to consummate the Transaction. Such an obligation will arise only upon the negotiation, execution and delivery of final definitive agreements relating to the Transaction in form and substance satisfactory to the parties andtheir respective counsel. Neither the discussions or negotiations between the parties hereto nor this Agreement is intended to, and they do not, create any fiduciary or other special duties or obligations between the parties hereto other than thosespecifically set forth herein, including any implied covenant of good faith or fair dealing. 

 

6. Non-Assignability. This Agreement shall not be assignable without the prior written consent of the non-assigning party. 

 

7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Delaware.

 

8. Entire Agreement. This Agreement constitutes theentire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements related thereto. 

 

9. Amendments and Waivers. Neither this Agreement nor any of the terms hereof may be terminated, amended or waived orally, but only by aninstrument in writing signed by the party against which enforcement of the termination, amendment or waiver is sought. The performance or observance of any provision of this Agreement may 

 

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be waived in whole or in part and any period of time relating to such performance or observance may be extended from time to time, as agreed by the partieshereto. 

 

10. Counterparts. This Agreement may beexecuted in one or more counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart. 

 

11. Termination. This Agreement will terminate upon the earliest of(a) termination or expiration of the Exclusivity Period in accordance with the terms hereof, (b) execution by the parties of definitive agreements with respect to a Transaction or (c) such earlier date as may be agreed upon by the parties hereto.Notwithstanding the foregoing, in the event this Agreement is terminated, the parties hereto agree that the provisions of Sections 3, 5, 7, 11 and the last sentence of Section 4 hereof shall survive any such termination and shall continue in fullforce and effect. 

 

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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed on itsbehalf by its officer thereunto duly authorized, all as of the day and year first above written. 

 
TRUMP HOTELS & CASINO RESORTS, INC.By: /S/    SCOTT C. BUTERA  
Name:
 Scott C. Butera
Its:
 Executive Vice PresidentDLJ MERCHANT BANKING PARTNERS III, L.P. By: DLJ Merchant Banking III, Inc., its Managing General PartnerBy: /S/    STEVE RATTNER  
Name:
 Steve Rattner
Its:
 Authorized Signatory
 

 

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