Exhibit
10.2


 


AMENDED
AND RESTATED 

PURCHASE AGREEMENT


 


 


dated as of October     ,
2009


 


 


by and among


 




ADAMAR OF NEW JERSEY, INC.,



MANCHESTER MALL, INC.,



THE HONORABLE GARY S. STEIN,



TROPICANA ENTERTAINMENT, LLC,



RAMADA NEW JERSEY HOLDINGS CORPORATION,



ATLANTIC-DEAUVILLE, INC.,



ADAMAR GARAGE CORPORATION,



RAMADA NEW JERSEY, INC.,



TROPICANA ENTERTAINMENT INC.,



TROPICANA ATLANTIC CITY CORP.,




TROPICANA
AC SUB CORP.  



and



CREDIT SUISSE


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  5

  
	
  Section 1.2

  	
  Interpretation

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE II PURCHASE
  AND SALE OF ASSETS; LIABILITIES; PURCHASE AND SALE OF REORGANIZED TROPICANA
  STOCK; PURCHASE PRICE

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Purchase and Sale of Assets

  	
  23

  
	
  Section 2.2

  	
  Credit Bid

  	
  30

  
	
  Section 2.3

  	
  Allocation of Purchase Price

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE III CLOSING

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Closing Date

  	
  31

  
	
  Section 3.2

  	
  Deliveries at Closing

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  REPRESENTATIONS AND WARRANTIES AS TO THE TROPICANA PARTIES, THE COMPANY AND
  THE COMPANY SUBSIDIARY

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Organization and Qualification

  	
  38

  
	
  Section 4.2

  	
  Authority; No Conflict; Required Filings and Consents

  	
  38

  
	
  Section 4.3

  	
  Financial Statements

  	
  39

  
	
  Section 4.4

  	
  No Undisclosed Liabilities

  	
  40

  
	
  Section 4.5

  	
  Absence of Material Adverse Effect

  	
  40

  
	
  Section 4.6

  	
  Real Property

  	
  40

  
	
  Section 4.7

  	
  Intellectual Property

  	
  41

  
	
  Section 4.8

  	
  Agreements, Contracts and Commitments

  	
  42

  
	
  Section 4.9

  	
  Litigation; Orders

  	
  43

  
	
  Section 4.10

  	
  Environmental Matters

  	
  43

  
	
  Section 4.11

  	
  Permits; Compliance with Laws

  	
  43

  
	
  Section 4.12

  	
  Labor Matters

  	
  44

  
	
  Section 4.13

  	
  Employee Benefits

  	
  45

  
	
  Section 4.14

  	
  Brokers

  	
  47

  
	
  Section 4.15

  	
  Taxes

  	
  48

  
	
  Section 4.16

  	
  Insurance

  	
  49

  
	
  Section 4.17

  	
  Personal Property

  	
  49

  
	
  Section 4.18

  	
  Sufficiency of Assets

  	
  49

  
	
  Section 4.19

  	
  Reorganized Tropicana Stock

  	
  50

  
	
  Section 4.20

  	
  No Other Representations

  	
  50

  



 


i

















 


	
  ARTICLE V
  REPRESENTATIONS AND WARRANTIES OF THE SPECIFIED PARTIES

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Organization and Qualification of Newco and Specified
  Parties

  	
  51

  
	
  Section 5.2

  	
  Authority; No Conflict; Required Filings and Consents

  	
  52

  
	
  Section 5.3

  	
  Brokers

  	
  53

  
	
  Section 5.4

  	
  Licensability of the Specified Parties and Principals

  	
  53

  
	
  Section 5.5

  	
  Compliance with Laws

  	
  53

  
	
  Section 5.6

  	
  Investigation by the Specified Parties

  	
  54

  
	
  Section 5.7

  	
  Litigation; Orders

  	
  55

  
	
  Section 5.8

  	
  No Vote Required

  	
  55

  
	
  Section 5.9

  	
  Required Lenders’ Authorization

  	
  55

  
	
  Section 5.10

  	
  Reorganized Tropicana Stock

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  COVENANTS

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Conduct of Business of the Company

  	
  56

  
	
  Section 6.2

  	
  Cooperation; Notice; Cure

  	
  60

  
	
  Section 6.3

  	
  Employee Matters

  	
  60

  
	
  Section 6.4

  	
  Access to Information and the Property

  	
  64

  
	
  Section 6.5

  	
  Regulatory Approvals

  	
  67

  
	
  Section 6.6

  	
  Publicity

  	
  70

  
	
  Section 6.7

  	
  Other Assurances and Actions

  	
  70

  
	
  Section 6.8

  	
  Taxes; HSR Filing Fees

  	
  73

  
	
  Section 6.9

  	
  Reservations

  	
  74

  
	
  Section 6.10

  	
  Insurance Policies

  	
  75

  
	
  Section 6.11

  	
  Certain Transactions

  	
  75

  
	
  Section 6.12

  	
  Insurance; Casualty and Condemnation

  	
  76

  
	
  Section 6.13

  	
  Customer Data

  	
  77

  
	
  Section 6.14

  	
  No Control

  	
  77

  
	
  Section 6.15

  	
  Employee Solicitation

  	
  77

  
	
  Section 6.16

  	
  Refunds and Remittances

  	
  78

  
	
  Section 6.17

  	
  Assignability of Certain Contracts; Adequate Assurance

  	
  79

  
	
  Section 6.18

  	
  Conservatorship Matters

  	
  79

  
	
  Section 6.19

  	
  Tax Matters

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
  BANKRUPTCY COURT MATTERS

  	
  82

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Bankruptcy Court Approvals

  	
  82

  
	
  Section 7.2

  	
  No Solicitation

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  CONDITIONS TO CLOSING

  	
  88

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Conditions to Certain Parties’ Obligations to Effect the
  Closing

  	
  88

  
	
  Section 8.2

  	
  Additional Conditions to Obligations of Specified Parties

  	
  89

  
	
  Section 8.3

  	
  Additional Conditions to Obligations of the
  Trustee/Conservator and the Company

  	
  90

  



 


ii

















 


	
  Section 8.4

  	
  [Intentionally Omitted]

  	
  91

  
	
  Section 8.5

  	
  Waiver of Conditions

  	
  91

  
	
  Section 8.6

  	
  Frustration of Closing Conditions

  	
  91

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  TERMINATION AND AMENDMENT

  	
  91

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Termination

  	
  91

  
	
  Section 9.2

  	
  Effect of Termination

  	
  94

  
	
  Section 9.3

  	
  Mutually Exclusive Remedies

  	
  95

  
	
   

  	
   

  	
   

  
	
  ARTICLE X
  SURVIVAL; AS IS, WHERE IS

  	
  95

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  No Survival of Representations, Warranties and Agreements

  	
  95

  
	
  Section 10.2

  	
  As Is, Where Is

  	
  95

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI
  MISCELLANEOUS

  	
  96

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Governing Law; Consent to Jurisdiction; Waiver of Trial by
  Jury

  	
  96

  
	
  Section 11.2

  	
  Notices

  	
  97

  
	
  Section 11.3

  	
  Headings; Table of Contents

  	
  100

  
	
  Section 11.4

  	
  Entire Agreement

  	
  100

  
	
  Section 11.5

  	
  Severability

  	
  100

  
	
  Section 11.6

  	
  Assignment

  	
  101

  
	
  Section 11.7

  	
  Third Party Beneficiaries

  	
  101

  
	
  Section 11.8

  	
  Counterparts

  	
  101

  
	
  Section 11.9

  	
  Mutual Drafting

  	
  101

  
	
  Section 11.10

  	
  Amendment

  	
  102

  
	
  Section 11.11

  	
  Extension; Waiver

  	
  102

  
	
  Section 11.12

  	
  Time of Essence

  	
  102

  
	
  Section 11.13

  	
  Disclosure Letters

  	
  102

  
	
  Section 11.14

  	
  Matters Relating to the Administrative Agent

  	
  102

  



 


iii

















 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Gaming Approvals

  	
   

  
	
  Exhibit B

  	
  Assumed Tax Liabilities

  	
   

  
	
  Exhibit C

  	
  Allocation of Purchase
  Price

  	
   

  
	
  Exhibit D

  	
  Form of Bill of
  Sale, Assignment and Assumption Agreement

  	
   

  
	
  Exhibit E

  	
  Form of Owned
  Property Lease Assignment

  	
   

  
	
  Exhibit F

  	
  Form of
  Non-Foreign Affidavit

  	
   

  
	
  Exhibit G

  	
  Capital Expenditure
  Budget

  	
   

  
	
  Exhibit H

  	
  Form of
  Confidentiality Agreement

  	
   

  
	
  Exhibit I

  	
  Amended NJ Sale Order

  	
   

  
	
  Exhibit J

  	
  Plan Modification Order

  	
   

  
	
  Exhibit 2.1

  	
  Number of Shares of
  Reorganized Tropicana Stock

  	
   

  
	
  Exhibit 3.2(a)(iii)

  	
  Closing Certificate 

  	
   

  



 


iv

















 


AMENDED AND RESTATED PURCHASE AGREEMENT


 


THIS
AMENDED AND RESTATED PURCHASE AGREEMENT (together with the Disclosure Letters
and Exhibits hereto, this “Agreement”),
dated as of October     , 2009, is by and among (i) Adamar
of New Jersey, Inc., a New Jersey corporation (the “Company”),
(ii) Manchester Mall, Inc., a New Jersey corporation and a
wholly owned subsidiary of the Company (the “Company
Subsidiary”), (iii) the Honorable Gary S. Stein (“Justice Stein”), exclusively in his roles, on behalf of the
Company and the Company Subsidiary, as trustee (the “Trustee”)
and conservator (the “Conservator”
and, together with the Trustee, the “Trustee/Conservator”)
of the Trust Assets and the Company under applicable Gaming Laws, (iv) Tropicana
Entertainment, LLC, a Delaware limited liability company (“Tropicana
Entertainment”), (v) Ramada New Jersey Holdings
Corporation, a New Jersey corporation and an indirect wholly owned subsidiary
of Tropicana Entertainment (“Holdings”), (vi) Atlantic-Deauville, Inc.,
a New Jersey corporation and a direct wholly owned subsidiary of Holdings (“Atlantic-Deauville”), (vii) Adamar Garage
Corporation, a New Jersey corporation and a direct wholly owned subsidiary of
Atlantic-Deauville (the “Atlantic-Deauville
Subsidiary”), (viii) Ramada New Jersey, Inc., a New
Jersey corporation and a direct wholly owned subsidiary of Holdings (“Ramada” and, together with Holdings, Atlantic-Deauville and
the Atlantic-Deauville Subsidiary, the “Non-Conservatorship Sellers”,
the Non-Conservatorship Sellers and Tropicana Entertainment collectively being
the “Tropicana Parties” and the
Non-Conservatorship Sellers, the Company and the Company Subsidiary
collectively being the “Sellers”), (ix) Credit
Suisse, exclusively in its capacity as Administrative Agent and Collateral
Agent for the Lenders under the Original Credit Agreement (the “Administrative Agent”), (x) Tropicana
Entertainment Inc., a Delaware corporation described more fully in the Delaware
Confirmation Order (“Reorganized Tropicana”),
(xi) Tropicana Atlantic City Corp., a New Jersey corporation and a
direct wholly owned subsidiary of Reorganized Tropicana (“Newco”)
and (xii) Tropicana AC Sub Corp., a New Jersey corporation and a direct
wholly owned subsidiary of Newco (“Newco Sub”,
each of Newco, Reorganized Tropicana and Newco Sub being a “Specified Party” and, together, the “Specified
Parties”).  Except as provided
otherwise, capitalized terms used herein but not otherwise defined have the
respective meanings set forth in Section 1.1
of Article I.


 


WHEREAS,
on January 3, 2007 (the “Aztar Acquisition Date”),
Tropicana Casinos and Resorts, Inc., a Delaware corporation (“TCR”), and certain of its Affiliates acquired all of the
issued and outstanding equity interests of Aztar (the “Aztar
Acquisition”);


 


WHEREAS,
in connection with the Aztar Acquisition, TCR, certain of TCR’s direct and
indirect subsidiaries (the “Tropicana Trust Agreement
Parties”) and the Trustee entered into the Trust Agreement, dated October 16,
2006 (the “Trust Agreement”), pursuant to
which, among other things, the Trustee was designated to hold in trust (the “NJ Trust”) all of the Tropicana Trust Agreement Parties’
present and future right, title and interest, including all voting rights, in
the securities of the Company;


 


1

















 


WHEREAS,
on December 12, 2007 (the “Trust Trigger Date”),
the New Jersey Casino Control Commission (the “Commission”),
pursuant to Order Nos. 07-12-12-27 and 07-12-12-27-A (the “Trust Orders”),
among other things, determined not to renew the Company’s casino and casino
hotel alcoholic beverage licenses in respect of the Tropicana Casino and
Resort—Atlantic City (the “Tropicana Atlantic City”
and, the business of the Tropicana Atlantic City, the “Business”),
denied the application of TCR for plenary qualification as a holding company of
the Company and declared the NJ Trust operative in accordance with the terms of
the Trust Agreement and applicable Gaming Laws;


 


WHEREAS,
on December 19, 2007, pursuant to Order No. 07-12-19 (the “Conservator Order” and, together with the Trust Orders and
the other orders and resolutions issued by the Commission relating to the
Business, the “Commission Orders”), the
Commission appointed Justice Stein the Conservator of the Company and, among
other things, authorized the conservator to dispose of the capital stock or the
assets of the Company, to conduct the business of the Company pursuant to the
New Jersey Casino Control Act pending such disposal, and to undertake certain
other actions, in his discretion, in respect of the Company and the Business;


 


WHEREAS,
the Trustee/Conservator has been authorized by the Commission to direct certain
operations of the Company since the issuance of the Commission Orders and is
expected to continue to direct certain operations of the Company, including the
Sale, until such time as the transactions contemplated by this Agreement and
the Ancillary Agreements are consummated or as otherwise required by the
Commission or Gaming Authorities;


 


WHEREAS,
as of the date hereof, certain assets of the Business are held by the
Non-Conservatorship Sellers and are not subject to the Conservator Order;


 


WHEREAS,
in each case subject to the Gaming Laws and the Commission Orders, the Trustee
owns, of record, and the beneficial ownership thereof by Holdings has been
converted into the right to receive certain proceeds of the sale, disposition
or liquidation of the Company, 100 shares of the common stock, no par value, of
the Company, which shares constitute all of the issued and outstanding shares
of capital stock of the Company (such shares, the “Company
Shares”);


 


WHEREAS,
Tropicana Entertainment is the borrower under the Original Credit Agreement,
and the Sellers are guarantors of, inter  alia, its obligations
thereunder;


 


WHEREAS,
on May 5, 2008, the Tropicana Parties and certain of their Affiliates (not
including the Company or the Company Subsidiary) filed voluntary petitions for
relief pursuant to Chapter 11 of Title 11 of the United States Code, 11 U.S.C.
§101 et seq. (as amended, the “Bankruptcy Code”)
in the United States Bankruptcy Court for the District of Delaware (the “Delaware Bankruptcy Court” and, such case, the “Tropicana Bankruptcy Case”);


 


2

















 


WHEREAS,
on April 29, 2009, the Company and the Company Subsidiary filed a
voluntary petition (the “Petition”) for
relief pursuant to the Bankruptcy Code in the United States Bankruptcy Court
for the District of New Jersey (the “NJ Bankruptcy Court”
and, together with the Delaware Bankruptcy Court, the “Bankruptcy
Courts”) (such case, the “Company Bankruptcy Case”
and, together with the Tropicana Bankruptcy Case, the “Bankruptcy
Cases”);


 


WHEREAS,
on April 29, 2009, the Company, the Company Subsidiary, Justice Stein,
Tropicana Entertainment, Holdings, Atlantic-Deauville, Atlantic-Deauville
Subsidiary, Ramada and the Administrative Agent entered into an Asset Purchase
Agreement (the “Original Agreement”);


 


WHEREAS,
on May 8, 2009, the NJ Bankruptcy Court entered an order approving, among
other things, the Original Agreement as a form of “stalking horse” agreement
for the sale of Tropicana Atlantic City and related assets and bidding
procedures governing such sale (the “Bidding Procedures Order”);


 


WHEREAS,
no competing Qualified Bids were submitted on or prior to the Bid Deadline and
the Auction was cancelled, and the Administrative Agent, on behalf of the
Secured Parties and at the direction of the Required Lenders, was the
Successful Bidder (each as defined in the Bidding Procedures Order);


 


WHEREAS,
on June 12, 2009, the NJ Bankruptcy Court entered an order that, among
other things, approved the sale by the Company and the Company Subsidiary of
the Acquired Assets of the Company and the Company Subsidiary to Buyer (as
defined in the Original Agreement) free and clear of all Encumbrances (as
defined in the NJ Sale Order), claims and interests (other than the Assumed
Liabilities and the Permitted Encumbrances) pursuant to the terms of the Original
Agreement (the “NJ Sale Order”);


 


WHEREAS,
on June 24, 2009, the Delaware Bankruptcy Court entered an order that,
among other things, approved the sale by the Non-Conservatorship Sellers of the
Acquired Assets of the Non-Conservatorship Sellers to Buyer (as defined in the
Original Agreement) free and clear of all Liens (as defined in the Delaware
Sale Order) (other than the Assumed Liabilities and the Permitted Encumbrances)
pursuant to the terms of the Original Agreement (the “Delaware
Sale Order”);


 


WHEREAS,
the Original Agreement provided that the Administrative Agent, on behalf of the
Secured Parties and acting at the direction of the Required Lenders, would
credit bid a portion of the obligations secured by the Original Collateral
Agreement and, upon acceptance of such bid (but prior to the consummation
thereof), would assign to Buyer (as defined therein) the right to receive the
assets and Liabilities to be conveyed under the Original Agreement upon the 


 


3

















 


terms and subject to the conditions set forth therein and as authorized
under Sections 105, 363, 365 and 1113 of the Bankruptcy Code;


 


WHEREAS,
the Original Agreement also provided that the Administrative Agent, at the
direction of the Required Lenders and on behalf of the Secured Parties, as
promptly as practicable after the end of the Auction Period (as defined
therein), would designate an entity as the “Buyer”, and that such Buyer would
execute and deliver a joinder to the Original Agreement as promptly as
practicable thereafter;


 


WHEREAS,
the Specified Parties have been
designated by the Administrative Agent, at the direction of the Required
Lenders and on behalf of the Secured Parties, but have not yet executed and
delivered a joinder to the Original Agreement, and the parties instead hereby
desire to amend and restate the Original Agreement as provided in this
Agreement to provide that, among other things, each Specified Party becomes a
party to this Agreement on the date hereof;


 


WHEREAS,
the Company, the Company Subsidiary and the Specified Parties desire to
structure and treat the contribution, transfer, assignment, conveyance or
delivery of the Company Assets to Reorganized Tropicana as reorganizations
under Section 368(a)(1)(G) of the Code;


 


WHEREAS,
upon the terms and subject to the conditions set forth herein and as authorized
under Sections 105, 363, 365 and 1113 of the Bankruptcy Code, Reorganized
Tropicana and Newco Sub desire to purchase and assume, and the
Trustee/Conservator and the Non-Conservatorship Sellers desire to sell,
transfer, assign, convey and deliver, substantially all of the assets
comprising the Business, together with certain obligations and Liabilities
relating thereto (the “Asset Sale”),
in exchange for a certain number of shares of common stock, par value $0.01 per
share, of Reorganized Tropicana, including those shares to be contributed to
and owned by Newco Sub on the Closing Date (such shares, the “Reorganized Tropicana Stock”), as further provided in this
Agreement;


 


WHEREAS,
the Administrative Agent, on behalf of the Secured Parties and acting at the
direction of the Required Lenders, desires to credit bid a portion of the
obligations secured by the Original Collateral Agreement for the Reorganized
Tropicana Stock to be received by the Sellers in connection with the Asset
Sale, as further provided in this Agreement (together with the Asset Sale and
the other transactions contemplated by this Agreement and the Ancillary
Agreements, the “Sale”);


 


WHEREAS,
in lieu of undertaking the formal steps of receiving the Reorganized Tropicana
Stock from Reorganized Tropicana and Newco Sub, transferring the Reorganized
Tropicana Stock through the Sellers and the intermediate holding companies of
the Sellers to Tropicana Entertainment, and having Tropicana Entertainment
subsequently distribute the Reorganized Tropicana Stock to the Secured Parties,
the Sellers instead desire to direct 


 


4

















 


Reorganized Tropicana and Newco Sub, and without objection to such
direction Reorganized Tropicana and Newco Sub desire, to deliver the
Reorganized Tropicana Stock directly to the Secured Parties, in exchange for
the Secured Parties’ surrender of a portion of the obligations secured by the
Original Collateral Agreement, as further provided in this Agreement.


 


NOW,
THEREFORE, the parties hereto, in consideration of the premises and of the
mutual representations, warranties and covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, agree that, subject to the second paragraph of Section 9.2(a), the Original Agreement is hereby
amended and restated in its entirety as follows:


 


ARTICLE I


 


DEFINITIONS


 


Section 1.1            Definitions


 


(a)                                                          As used in this Agreement and the
Exhibits and Schedules delivered pursuant to this Agreement, the following
terms shall have the following respective meanings.


 


“Additional Acquired Contracts” means (i) the Sellers’
rights in and to (A) the distribution agreements, vendor and supplier
agreements, customer agreements, junket agreements, consignment agreements,
agency agreements, license or use agreements, leases (including Owned Property
Leases and Leased Property Leases), broker agreements and confidentiality
agreements, (B) purchase orders for the sale or purchase of goods and
services, or both, and (C) other Contracts, in each case as set forth in Section 2.1(a)(iv)(A) of the AC Disclosure Letter
covering such Seller, (ii) to be assumed and assigned to the Specified
Parties, as applicable, pursuant to the Amended NJ Sale Order or the Plan
Modification Order, as applicable, and (iii) not already approved for
assumption and assignment pursuant to the NJ Sale Order or the Delaware Sale
Order, if any.  Additional Acquired
Contracts shall constitute Acquired Contracts for all purposes of this
Agreement.


 


“Administrative Expense Claim Deadline” means the date which
is 45 days after the Closing Date, or such later date as may be agreed by the
Specified Parties, on the one hand, and the applicable Seller(s), on the other
hand.


 


“Affiliate” means, with respect to any
Person, any other Person that directly or indirectly through one or more
intermediaries controls, is controlled by, or is under common control with,
such first-mentioned Person, except that for the purposes of construing this
Agreement and the Ancillary Agreements, (i) the Company and the
Company Subsidiary, on the one hand, and the


 


5

















 


Trustee/Conservator, on the other hand, shall be deemed not to be
Affiliates of each other, (ii) the Administrative Agent on the one
hand, and the Specified Parties on the other hand, shall be deemed not to be
Affiliates of each other and (iii) the Sellers and Tropicana Entertainment,
on the one hand, and the Specified Parties, on the other hand, shall be deemed
not to be Affiliates of each other.


 


“Affiliate Agreement” means any Contract between any Seller,
on the one hand, and Columbia Sussex Corporation, TCR or any of their
Subsidiaries or Affiliates (other than any Seller), on the other hand, other
than this Agreement and any Ancillary Agreement.


 


“Allowed” means with respect to: (i) Claims other than
administrative expense Claims, (a) proof of which is timely and properly
filed by the applicable Bar Date (or that by the Bankruptcy Code or a final
Order is not or shall not be required to be filed), or (b) that are listed
in the Seller Bankruptcy Schedules as of the date of this Agreement as not
disputed, not contingent and not unliquidated, and for which no proof of claim
has been timely and properly filed; or (ii) any administrative expense
Claim, (a) proof of which is properly filed by the Administrative Expense
Claim Deadline (or that by the Bankruptcy Code or a final Order is not or shall
not be required to be filed), (b) for which payment is requested by filing
an appropriate motion or application with the Delaware Bankruptcy Court or NJ
Bankruptcy Court, as applicable, by the Administrative Expense Claim Deadline,
or (c) that is listed in the Seller Bankruptcy Schedules as of the date of
this Agreement as not disputed, not contingent and not unliquidated, and for
which no proof of claim or request for payment has been timely and properly
filed in accordance with clauses (ii)(a) or (ii)(b) hereof; provided,
however, that with respect to any Claim, such Claim shall be considered “Allowed”
only if and to the extent that: (x) no objection to “Allowance” thereof
has been interposed on or prior to the Claim Objection Deadline, or (y) such
an objection has been timely interposed and the Claim shall have been “Allowed,”
in whole or in part, by a final Order. 
Except as otherwise provided for in the Delaware Plan of Reorganization
or any final Order, the amount of an “Allowed” Claim shall not include interest
on such Claim from and after the filing of the applicable Bankruptcy Case.  For purposes of determining the amount of an “Allowed”
Claim, there shall be deducted therefrom an amount equal to the amount of any
Claim that the Sellers may have against the holder thereof, to the extent such
Claim may be offset, recouped, or otherwise reduced under applicable law.


 


“Ancillary Agreements” means the Bill of Sale, Assignment and
Assumption Agreements,  and the Owned
Property Lease Assignments, and any instruments in connection therewith.


 


6














 


“Atlantic
Assets” means the assets, properties, rights, Claims, Contracts and
businesses of every kind, character and description, whether tangible or
intangible (including goodwill), whether real, personal or mixed, whether
accrued, contingent or otherwise, and wherever located, held by
Atlantic-Deauville or the Atlantic-Deauville Subsidiary and either (i) primarily
used or held for use in the Business or (ii) otherwise necessary
for or beneficial to the conduct of the Business as of the date hereof.


 


“Atlantic City Customer Database” means the customer database
used by the Company in connection with its efforts to market and promote the
Tropicana Atlantic City, which database
includes the names and “consumption” through complimentaries, coin, special
events and “giveaways” of customers listed in the database as having visited
the Tropicana Atlantic City and was used or maintained by the Company on
the Aztar Acquisition Date in connection with the Aztar Acquisition, as updated
by the Company under the supervision of (i) Tropicana Entertainment
through the date immediately preceding the Trust Trigger Date and (ii) the
Trustee/Conservator from the Trust Trigger Date to the Closing Date.


 


“Aztar” means Aztar Corporation, a Delaware corporation and
an Affiliate of Tropicana Entertainment.


 


“Bar Date” means the date by which proofs of claims must be
filed with respect to such Claim as ordered by the Delaware Bankruptcy Court or
the NJ Bankruptcy Court, as applicable.


 


“Business Day” means any day, other than a (i) Saturday
or a Sunday or (ii) day on which banking and savings and loan
institutions in New York, New York are authorized or required by Law to be
closed.


 


“Business Employee” means each current employee of any Seller
whose name is set forth in Section 4.12(c) of
the applicable AC Disclosure Letter and who is engaged primarily in the
Business, including such current employees who are not actively at work because
of an authorized leave of absence for vacation, holiday, illness, jury duty,
military leave, bereavement leave, short-term or long-term disability leave,
workers compensation, or other authorized leave of absence.


 


“Claim” means any claim as defined in section 101(5) of
the Bankruptcy Code.


 


“Claim Objection Deadline” means the date which is 45 days after
the Administrative Expense Claim Deadline, or such later date as may be agreed
by the Specified Parties, on the one hand, and the applicable Seller(s), on the
other hand.


 


7

















 


“COBRA Liability” means all Liabilities arising on or prior
to the Closing Date under Section 4980B of the Code or Section 601 et
seq. of ERISA with respect to any current or former Business Employees and/or
any beneficiaries or dependents thereof.


 


“Code” means the Internal Revenue Code of 1986, as amended.


 


“Cole Schotz” means Cole, Schotz, Meisel, Forman &
Leonard, P.A.


 


“Columbia Sussex Corporation” means Columbia Sussex
Corporation, a Kentucky corporation and an Affiliate of Tropicana
Entertainment.


 


“Commitment” means (a) options, warrants, convertible
securities, exchangeable securities, subscription rights, conversion rights,
exchange rights, or other agreements that could require a Person to issue any
of its equity interests; (b) any other securities convertible into, exchangeable
or exercisable for, or representing the right to subscribe for any equity
interest of a Person; (c) statutory pre-emptive rights or pre-emptive
rights granted under a Person’s certificate of organization or other
organizational documents or agreements; and (d) stock appreciation rights,
phantom stock, profit participation, or other similar rights with respect to a
Person.


 


“Company Assets” means the assets, properties, rights,
Claims, Contracts and businesses of every kind, character and description,
whether tangible or intangible (including goodwill), whether real, personal or
mixed, whether accrued, contingent or otherwise, and wherever located, held by
the Company or the Company Subsidiary and either (i) primarily used
or held for use in the Business or (ii) otherwise necessary for or
beneficial to the conduct of the Business as of the date hereof.


 


“Confirmed
Delaware Plan”
means the First Amended Joint Plan of Reorganization of Tropicana
Entertainment, LLC and Certain of its Debtor Affiliates under Chapter 11 of the
Bankruptcy Code (together with the exhibits thereto) in the case of In re
Tropicana Entertainment, LLC (Case No. 08-10856 (KJC)), dated May 5,
2009, as supplemented, modified and/or amended by the Delaware Confirmation
Order.


 


“Contract” means any agreement, arrangement or understanding,
whether or not in writing.


 


“Corporation Business Tax Claim” means (i) the proof of
claim for New Jersey corporation business tax (and any modification,
supplement, addition, or amendment to the proof of claim or its asserted
amount, including for penalties and interest) filed by the State of New Jersey,
Department of Treasury, Division of Taxation in the amount of $13,000,000,
included in 


 


8

















 


Claim No. 710 on the claims register of the Company Bankruptcy
Case, and (ii) any amount with respect to an amended New Jersey
corporation business tax or federal income tax return by or on behalf of the
Company or the Company Subsidiary for a taxable period (or any portion thereof)
prior to the filing of the Company Bankruptcy Case.


 


“Credit Agreements” means collectively (i) that
certain Credit Agreement, dated as of January 3, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Original Credit
Agreement”), entered into by and among Tropicana Entertainment,
Tropicana Entertainment Intermediate Holdings, CP Laughlin Realty, LLC,
Columbia Properties Vicksburg, LLC, JMBS Casino LLC, the Lenders and the
Administrative Agent, as administrative agent and collateral agent for the
Lenders, (ii) each Loan Document (as defined in Article I of
the Original Credit Agreement) and (iii) that certain Senior
Secured Superpriority Debtor in Possession Credit Agreement, dated as of May 5,
2008, among Tropicana Entertainment, Tropicana Entertainment Intermediate
Holdings, CP Laughlin Realty, LLC, JMBS Casino LLC, the lenders party thereto
and Silver Point Finance, LLC, as administrative agent, collateral agent, sole
bookrunner and sole lead arranger (each as defined in the Senior Secured
Superpriority Debtor in Possession Credit Agreement).


 


“Cure Amount” means, with respect to each Acquired Contract
and CBA, the amount necessary to cure all defaults of the Sellers under such
Acquired Contract or CBA to the extent required by Sections 365 and 1113 of the
Bankruptcy Code.


 


“Damage Threshold” means damage caused by fire or other
casualty at the Property of severity sufficient such that the cost to repair
any such damage is reasonably likely to be equal to or in excess of
$250,000,000 as determined by an independent contractor licensed to do business
in New Jersey and reasonably acceptable to the Trustee/Conservator.


 


“Debt Service Payment” means any distribution, intercompany
loan, dividend, transfer, disbursement or similar payment made by any Seller to
any Affiliates of Tropicana Entertainment in order to fund, in part, the debt
service obligations of Tropicana Entertainment and certain of its Subsidiaries
and Affiliates (which Subsidiaries and Affiliates guarantee such debt service
obligations) pursuant to the Original Credit Agreement; provided,
however, that any such distribution, intercompany loan, dividend, transfer,
disbursement or similar payment made by the Company or the Company Subsidiary
shall be made in accordance with a formula acceptable to the
Trustee/Conservator and approved by the Commission allocating debt service
obligations to the Tropicana Atlantic City.


 


“Delaware Confirmation Order” means the Finding of Fact,
Conclusions of Law, and Order Confirming First Amended Joint Plan of
Reorganization of Tropicana Entertainment, LLC and Certain of its Debtor
Affiliates under Chapter 11 of the Bankruptcy Code (together with the 


 


9

















 


exhibits thereto) in the case of In re Tropicana Entertainment, LLC
(Case No. 08-10856 (KJC)), dated May 5, 2009 and entered by the
Delaware Bankruptcy Court.


 


“Delaware Plan of Reorganization” means the Confirmed
Delaware Plan as supplemented, modified and/or amended: (i) to include the
transactions, terms and conditions of and contemplated by this Agreement (and
ancillary documents entered into in connection with this Agreement), and (ii) by
this Agreement (and ancillary documents entered into in connection with this
Agreement) and the Plan Modification Order; provided, that the terms and
provisions of the Delaware Plan of Reorganization shall be consistent with this
Agreement in all material respects; and, provided, further,
that no such term or condition not provided for in this Agreement may be
included in the Delaware Plan of Reorganization if such term or condition would
be reasonably likely to (x) materially and adversely affect the Company or
the Company Subsidiary or (y) delay the consummation of the transactions
contemplated by this Agreement to a date later than the Outside Date.


 


“Disclosure Letters” means the Specified Party Disclosure
Letter and the AC Disclosure Letters.


 


“Encumbrance” means any lien, pledge, mortgage or security
interest.


 


“ERISA Affiliate” means, with respect to any entity, any
trade or business, whether or not incorporated, that together with such entity
and its Subsidiaries would be deemed a “single employer” within the meaning of Section 4001
of ERISA.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended.


 


“Excluded Intellectual Property” means (i) any
Intellectual Property listed in Section 2.1(b)(iii) of
either of the AC Disclosure Letters under the caption “Excluded Intellectual
Property” and (ii) any Intellectual Property licensed to any Seller
by Tropicana Entertainment or its Affiliates (other than any Seller) (it being
understood that any such licensed rights owned by such Seller shall not
constitute Excluded Intellectual Property), including the words “Tropicana” “Trop”
and “Trop Park”.


 


“Form 10 Registration Statement” means the registration
statement under the Exchange Act with respect to all of the common stock of
Reorganized Tropicana.


 


“GAAP” means, with respect to a specified date or period,
generally accepted accounting principles promulgated or adopted by the United
States Financial Accounting Standards Board and its predecessors in effect for
such date or period.


 


10

















 


“Gaming Approvals” means all licenses, permits, orders, approvals,
authorizations, registrations, findings of qualification or suitability,
franchises, entitlements, waivers and exemptions issued by any Gaming Authority
that are either (y) required to permit the parties hereto to
consummate the transactions contemplated by this Agreement or (z) necessary
to permit the Specified Parties to own
and operate the Property after the Closing in substantially the same manner as
owned and operated by the Tropicana Parties and their Subsidiaries on the date
immediately preceding the Trust Trigger Date, including all of those set forth
on Exhibit A.


 


“Gaming Authorities” means any governmental authority or
agency with regulatory control or jurisdiction over the conduct of lawful
gaming or gambling, including the Commission and the New Jersey Division of
Gaming Enforcement.


 


“Gaming Law” means any applicable federal or state statute,
ordinance, rule, regulation, permit, consent, registration, finding of
qualification or suitability, approval, license, judgment, order, decree, injunction
or other authorization, including any condition or limitation placed thereon,
governing or relating to the casino and gaming activities and operations of the
Business.


 


“Governmental Entity” means any court, administrative agency,
commission, regulatory authority, Gaming Authority or other governmental
authority or instrumentality.


 


“Holdings Assets” means the assets, properties, rights,
Claims, Contracts and businesses of every kind, character and description,
whether tangible or intangible (including goodwill), whether real, personal or
mixed, whether accrued, contingent or otherwise, and wherever located, held by
Holdings and either (i) primarily used or held for use in the
Business or (ii) otherwise necessary for or beneficial to the conduct of
the Business as of the date hereof.


 


“Icahn” means each of Icahn Partners LP, Icahn Partners
Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund
III LP.


 


“Indenture” means that certain Indenture, dated as of December 28,
2006 (as amended supplemented or otherwise modified from time to time), entered
into by and among Tropicana Entertainment, Tropicana Finance Corp. (f/k/a/
Wimar OpCo Finance Corp.) and U.S. Bank National Association, as Trustee.


 


“Intellectual Property” means all intellectual property and
proprietary rights, foreign or domestic, including all patents, patent rights
and patent applications (together with all reissuances, continuations,
continuations-in-part, divisions, revisions, extensions, and reexaminations thereof),
inventions (whether or not patentable), processes, technologies, discoveries,
trade secrets, trademarks, trademark rights, trademark registrations and
applications, internal controls, domain names (including all website content
associated therewith), service 


 


11

















 


marks, service mark rights, service mark registrations and
applications, trade names, trade name rights, trade secrets, service names,
service name rights, brandmarks, brand names, logos, trade dress, know-how,
copyrights, copyright rights, copyright registrations and applications,
marketing and customer information (including customer lists and customer
databases, confidential business information, licenses, technical information
(including confidential information), formulae, business and product names,
slogans, industrial models, designs, methodologies, computer programs
(including all source code and object code), all goodwill associated with the
foregoing, all documentation, copies and tangible embodiments of the foregoing
(in whatever form or medium), and all past, present or future Claims and causes
of actions arising out of or related to any infringement, dilution,
misappropriation or other violation of any of the foregoing.


 


“Intercompany Obligations” means a Claim by a Seller against
another Seller.


 


“IRS” means the Internal Revenue Service, a division of the
United States Treasury Department, or any successor agency thereto performing
substantially the same regulatory function.


 


“knowledge” means (a) when used in the phrase “knowledge
of the Tropicana Parties” or “the Tropicana Parties’ knowledge” or words of
similar import, the actual knowledge of Scott Butera and Marc Rubinstein, (b) when
used in the phrase “knowledge of the Specified Parties” or “Specified Parties’
knowledge” or words of similar import, the actual knowledge of the three most
senior officers of each Specified Party or (c) when used in the
phrase “knowledge of the Company” or words of similar import, the actual
knowledge of Mark Giannantonio, Ed Garruto and Tama Hughes.  For the avoidance of doubt, “actual knowledge”
shall not include constructive knowledge or imputed knowledge, nor shall it
imply any duty of inquiry.


 


“Land” means those certain parcels of or interests in real
property which are owned in fee by the Sellers, as more particularly described
in Section 4.6(a) of either of
the AC Disclosure Letters.


 


“Law” means any foreign or domestic law, statute, code,
ordinance, rule, regulation, order, judgment, writ, stipulation, award,
injunction, decree or arbitration award, policies, guidance, court decision, rule of
common law or finding, including any Gaming Law.


 


“Leased Properties” means those certain parcels of or
interests in real property which are leased, subleased or otherwise licensed
for use or occupancy by the Sellers, including, without limitation, pursuant to
an Affiliate Agreement, as more particularly described in Section 4.6(b) of either of the
AC Disclosure Letters.


 


12

















 


“Leased Property Leases” means all lease, sublease, occupancy
and concession agreements under which a Seller has the right to use or occupy
the Leased Properties.


 


“Lenders” means the Lenders, as defined in Article I of
the Original Credit Agreement.


 


“Liability” means any direct or indirect liability,
indebtedness, obligation, commitment, fee, expense, Claim, deficiency,
disbursement, guaranty or endorsement of or by any Person of any type, whether
accrued, absolute, contingent, matured, unmatured, liquidated, unliquidated,
known or unknown.


 


“Management Agreement” means each Benefit Plan identified as
a Management Agreement in Section 4.13(a) of
the Company Disclosure Letter.


 


“Material Adverse Effect” means (a) any change,
condition, circumstance, event or effect that has had or is reasonably likely
to have a material adverse effect on the assets, financial condition or results
of operations of the Business taken as a whole; provided, however, that
none of the following, individually or in the aggregate, shall be deemed to
have a Material Adverse Effect itself or be considered in any determination as
to whether a Material Adverse Effect has occurred or is continuing in
connection with any other change, condition, circumstance, event or effect:  (i) any change, condition,
circumstance, event or effect arising out of or resulting from changes in or
affecting the (x) travel, hospitality or gaming industries
generally, (y) travel, hospitality or gaming industries in the
markets or jurisdictions where the Business is located or in adjacent markets
or jurisdictions in which it competes, including the Commonwealth of
Pennsylvania, or (z) the financial, banking, currency or capital
markets in general, (ii) any change, condition, circumstance, event
or effect resulting from the entering into or public announcement of the
transactions contemplated by this Agreement (including any facts or
circumstances relating to the Specified Parties,
their equity owners or investors or their respective Affiliates (including
their respective identities)), (iii) any change, condition,
circumstance, event or effect resulting from any act of terrorism,
commencement, escalation, continuation or cessation of armed hostilities in the
United States or internationally or declaration of war by or against or
otherwise involving the United States, (iv) any change, condition,
circumstance, event or effect resulting from any existing event or occurrence
or circumstance which has been made publicly available as of the date hereof,
including the denial by the Commission of the gaming license renewal
application of the Company or the refusal of the Commission to grant plenary
authorization to Affiliates of Tropicana Entertainment, (v) any
change, condition, circumstance, event or effect resulting from a change in
Law, including the commencement of any ban or expansion of restrictions on
smoking at the Property, (vi) any change, condition, circumstance,
event or effect relating to or arising from any of the Excluded Assets or
Excluded Liabilities, (vii) any default or event of default under
indebtedness of the Company or Tropicana Entertainment or any of their
respective Affiliates or the commencement or conduct of the Bankruptcy Cases,
and any event or condition that results from such defaults or events, including
any actions taken by any Gaming Authority as a result of the matters described 


 


13

















 


in clause (iv) and (b) a material adverse
effect on the ability of the Tropicana Parties, the Trustee/Conservator or the
Company to perform its obligations under, or to consummate the transactions
contemplated by, this Agreement.


 


“Material Contract” means any Contract primarily relating to
the Business (other than this Agreement, the Leased Property Leases, the Owned
Property Leases, and Contracts set forth in Section 4.12
or Section 4.13 of either of the AC
Disclosure Letters, and Affiliate Agreements other than those set forth in Section 2.1(a)(iv)(D) of either of the AC
Disclosure Letters) to which any Seller is a party that (i) (a) has
a remaining obligation for payment or services by or to the such Seller in an
amount exceeding $5,000,000 per annum and (b) is not cancelable by
such Seller upon notice of 60 days or less; (ii) provides for a
commitment of employment or consultation services to a current officer or
director of any Seller for a specified or unspecified term or otherwise relates
to the employment or the termination of employment of any such person; (iii) contains
any provision or covenant materially limiting the ability of a Seller to engage
in any business activity or compete with any Person or materially limiting the
ability of any Person to compete with a Seller; (iv) provides for a
material partnership or joint venture arrangement; (v) are
agreements relating to indebtedness (a) for borrowed money, (b) evidenced
by notes, loans, mortgages, bonds, debentures or other similar debt securities
or agreements, (c) for reimbursement in respect of letters of
credit that are drawn prior to Closing, (d) under instruments or
agreements upon which interest charges are customarily paid (other than trade
payables incurred in the ordinary course of business), or (e) under
conditional sale or other title retention agreements, in each case whether incurred,
assumed, guaranteed or secured by any asset of any Seller and representing an
obligation of in excess of $10,000,000 or (vi) except for this
Agreement or as contemplated by this Agreement, provides for (a) the
future disposition or acquisition of any assets that are, individually or in
the aggregate, material to the business or financial condition of the Sellers,
taken as a whole, other than dispositions or acquisitions in the ordinary
course of business or (b) any merger or other business combination.
In no event shall any Contract governing the lease of equipment or gaming
devices be deemed a Material Contract.


 


“Order” means any award, decision, injunction, judgment,
order, ruling, subpoena, or verdict entered, issued, made, or rendered by any
court, administrative agency, or other Governmental Entity or by any
arbitrator.


 


“ordinary course of business” or phrases of similar import,
when used to describe the actions of a Seller relating to the Business, refer
to actions taken in the ordinary course of normal day-to-day operations in a
manner consistent with past practice as in effect (i) in the case
of Gaming Approvals, between the Aztar Acquisition Date and the date
immediately preceding the Trust Trigger Date and (ii) in all other
cases, since the Aztar Acquisition Date.


 


“Original Collateral Agreement” means the Guarantee and
Collateral Agreement as defined in Article I of the Original Credit
Agreement.


 


14

















 


“Outside Date” means January 31, 2010, or such date
resulting from an extension of such Outside Date pursuant to Section 9.1(b).


 


“Owned Property Leases” means all lease, occupancy and
concession agreements affecting the Owned Property, including Affiliate
Agreements.


 


“Permitted Encumbrances” means:


 


(i)                                     to the extent in respect of an Assumed
Liability, Encumbrances for mechanics’ and materialmen’s liens or Encumbrances
not filed of record and charges, assessments and other governmental charges not
delinquent or which are currently being contested in good faith by appropriate
Proceedings (which Proceedings are listed in Section 1.1
of either of the AC Disclosure Letters) or for which Tropicana Entertainment or
one or more of its Affiliates shall have provided irrevocable bond or other
security;


 


(ii)                                  Encumbrances created by any of the Specified Parties;


 


(iii)                               easements, conditions, declarations,
reservations or similar rights of others in property or assets of the Sellers
that do not, individually or in the aggregate, materially impair the current use
of such property or assets for the purposes for which they are held;


 


(iv)                              officially mapped riparian, littoral and
other rights created by the fact that any portion of the Property formerly
comprised, or currently comprises, shores or bottoms of navigable waters;


 


(v)                                 zoning and subdivision ordinances;


 


(vi)                              the terms and conditions of Laws of any
Governmental Entity having jurisdiction over the Property or Permits that
constitute Acquired Assets;


 


(vii)                           Encumbrances created by or arising from (A) any
Owned Property Lease or Leased Property Lease or (B) any Material
Contract disclosed in Section 4.8(a) of
either of the AC Disclosure Letters, in each case to the extent such Owned
Property Lease, Leased Property Lease or Material Contract is an Acquired Contract;


 


(viii)                        rights of tenants under leases that are
Acquired Contracts and rights of guests in possession or holding reservations
for future use or occupancy of the Property;


 


15

















 


(ix)                                rights of the public in public ways;


 


(x)                                   any matter disclosed on surveys delivered
to the Administrative Agent prior to the date hereof; and


 


(xi)                                any Encumbrances disclosed in Section 1.1 of either of the AC Disclosure Letters;


 


“Person” means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or “group” (as defined in Rule 13d-5(b)(1) under the Exchange
Act).


 


“Proceeding” means any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative,
investigative, or informal, at law or in equity) commenced, brought, conducted,
or heard by or before or otherwise involving any Governmental Entity or
arbitrator.


 


“Property” means the Land and all personal property,
fixtures, and improvements owned, leased, licensed or otherwise held by any
Seller and placed on, attached to, or located at and used in connection with
the operation of the Business, in each case other than the Excluded
Intellectual Property.


 


“Property Taxes” means all real property Taxes, personal
property Taxes and similar ad valorem Taxes.


 


“Ramada Assets” means the assets, properties, rights, Claims,
Contracts and businesses of every kind, character and description, whether
tangible or intangible (including goodwill), whether real, personal or mixed,
whether accrued, contingent or otherwise, and wherever located, held by Ramada
and either (i) primarily used or held for use in the Business or (ii) otherwise
necessary for or beneficial to the conduct of the Business as of the date
hereof.


 


“Regulations” means Treasury regulations promulgated under
the Code.


 


“Required Lenders” means the Required Lenders, as defined in Article I
of the Original Credit Agreement.


 


“Retained 401(k) Plan” means the Columbia Sussex
Corporation 401(k) Plan.


 


16














 


“Sale Orders” means the Delaware Sale Order, the NJ Sale
Order and the Supplemental Orders.


 


“SEC” means the Securities and Exchange Commission and any
successor thereto.


 


“Secured Parties” means the Secured Parties, as defined in
the Original Collateral Agreement.


 


“Securities Act” means the Securities Act of 1933, as
amended.


 


“Seller Bankruptcy Schedules” means the schedules of assets
and liabilities filed by the Sellers pursuant to section 521 of the Bankruptcy
Code, the official bankruptcy forms and the Federal Rules of Bankruptcy
Procedure.


 


“Shares” means the Company Shares and the Subsidiary Shares.


 


“Subsidiary” means, with respect to any party (other than the
Trustee/Conservator and the Administrative Agent), any corporation or other
organization, whether incorporated or unincorporated, of which such party or
any other Subsidiary of such party (i) is a general partner or
managing member or (ii) holds at least 50% of the equity interests
in, or equity securities having voting power to elect a majority of the board
of directors or other body performing similar functions with respect to, such
corporation or other organization.


 


“Subsidiary Shares” means the issued and outstanding capital
stock of each of the Company Subsidiary, Holdings, Atlantic-Deauville,
Atlantic-Deauville Subsidiary and Ramada.


 


“Tax Law” means the Code, the Regulations, rulings of the
IRS  as published in the Internal Revenue
Bulletin, and decisions of applicable federal courts interpreting the Code and
the Regulations.


 


“Tax Period” means any period prescribed by any Governmental
Entity for which a Tax Return is required to be filed or a Tax is required to
be paid.


 


“Tax Return” means any report, return (including any
information return), Claim for refund, election, estimated Tax filing or
payment, request for extension, document, declaration or other information or
filing required to be supplied to any Governmental Entity with respect to
Taxes, including attachments or schedules thereto and amendments thereof.


 


17

















 


“Taxes” means any and all taxes, charges, fees, levies,
tariffs, duties, liabilities, impositions or other assessments of any kind
(together with any and all interest, penalties, additions to tax and additional
amounts imposed with respect thereto) imposed by any Tax authority or other
Governmental Entity, including, income, gross receipts, profits, gaming,
excise, real or personal property, environmental, sales, use, value-added, ad
valorem, parking, luxury, hotel, withholding, social security, retirement,
employment, unemployment, workers’ compensation, occupation, service, license,
net worth, capital stock, payroll, franchise, gains, stamp, transfer and
recording taxes, and shall include any liability for the Taxes of any Person
under Treasury Regulation section 1.1502-6 (or any similar provision of state,
local or foreign Law), or as a transferee or successor.


 


“Transferring Employee” means each Business Employee who is
offered and who accepts employment with a Specified Party as of the Closing
Date.


 


“Tropicana Entertainment Intermediate Holdings” means
Tropicana Entertainment Intermediate Holdings, LLC (f/k/a Wimar OpCo
Intermediate Holdings LLC), a Delaware limited liability company and the
immediate parent of Tropicana Entertainment.


 


“Trust Assets” means the Trust Property (as such term is
defined in the Trust Agreement), including, without limitation, all of the
issued and outstanding capital stock of the Company.


 


“WARN Act” means the Worker Adjustment and Retraining
Notification Act of 1988 and any applicable analogous state and/or local Law.


 


“Withdrawal Liability” means liability to a Multiemployer
Plan as a result of a “complete withdrawal” or “partial withdrawal” from such
Multiemployer Plan, as those terms are defined in Part I of Subtitle E of
Title IV of ERISA.


 


(b)                                                         The following capitalized terms are
defined elsewhere in this Agreement, as indicated below:


 


	
  Terms

  	
   

  	
  Cross Reference

  Section in Agreement

  
	
   

  	
   

  	
   

  
	
  2008 Financial
  Information

  	
   

  	
  Section 4.3

  
	
  AC Disclosure Letters

  	
   

  	
  Article IV

  
	
  Acquired Accounts
  Receivable

  	
   

  	
  Section 2.1(a)(v)

  
	
  Acquired Assets

  	
   

  	
  Section 2.1(a)(xvii)

  
	
  Acquired Books and
  Records

  	
   

  	
  Section 2.1(a)(viii)

  
	
  Acquired Cash

  	
   

  	
  Section 2.1(a)(xii)

  



 


18

















 


	
  Terms

  	
   

  	
  Cross Reference

  Section in Agreement

  
	
   

  	
   

  	
   

  
	
  Acquired Claims

  	
   

  	
  Section 2.1(a)(vi)

  
	
  Acquired Contracts

  	
   

  	
  Section 2.1(a)(iv)

  
	
  Acquired Intellectual
  Property

  	
   

  	
  Section 2.1(a)(iii)

  
	
  Administrative Agent

  	
   

  	
  Preamble

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Amended NJ Sale Order

  	
   

  	
  Section 7.1(a)

  
	
  Approval Payment

  	
   

  	
  Section 6.7(a)

  
	
  Asset Sale

  	
   

  	
  Recitals

  
	
  Assumed Benefit Plans

  	
   

  	
  Section 6.3(b)

  
	
  Assumed Liabilities

  	
   

  	
  Section 2.1(c)(v)

  
	
  Assumed Tax Liabilities

  	
   

  	
  Section 2.1(c)(vi)

  
	
  Atlantic-Deauville

  	
   

  	
  Preamble

  
	
  Atlantic-Deauville
  Subsidiary

  	
   

  	
  Preamble

  
	
  Audited Financial
  Information

  	
   

  	
  Section 4.3

  
	
  Available Post-Closing
  Cash

  	
   

  	
  Section 3.2(a)

  
	
  Aztar Acquisition

  	
   

  	
  Recitals

  
	
  Aztar Acquisition Date

  	
   

  	
  Recitals

  
	
  Balance Sheet Data

  	
   

  	
  Section 4.3

  
	
  Bankruptcy Cases

  	
   

  	
  Recitals

  
	
  Bankruptcy Code

  	
   

  	
  Recitals

  
	
  Bankruptcy Courts

  	
   

  	
  Recitals

  
	
  Benefit Plans

  	
   

  	
  Section 4.13(a)

  
	
  Bidding Procedures
  Order

  	
   

  	
  Recitals

  
	
  Bill of Sale,
  Assignment and Assumption Agreement

  	
   

  	
  Section 3.2(b)

  
	
  Broker

  	
   

  	
  Section 4.14

  
	
  Business

  	
   

  	
  Recitals

  
	
  Business Permits

  	
   

  	
  Section 4.11(a)

  
	
  Cage Cash

  	
   

  	
  Section 3.2(a)(i)

  
	
  Cap

  	
   

  	
  Section 9.2(b)

  
	
  CBA

  	
   

  	
  Section 6.3(f)

  
	
  Closing

  	
   

  	
  Section 3.1

  
	
  Closing Certificate

  	
   

  	
  Section 3.2(a)

  
	
  Closing Date

  	
   

  	
  Section 3.1

  
	
  Commission

  	
   

  	
  Recitals

  
	
  Commission Orders

  	
   

  	
  Recitals

  
	
  Company

  	
   

  	
  Preamble

  
	
  Company Bankruptcy Case

  	
   

  	
  Recitals

  
	
  Company Disclosure Letter

  	
   

  	
  Article IV

  
	
  Company Shares

  	
   

  	
  Recitals

  
	
  Company Subsidiary

  	
   

  	
  Preamble

  
	
  Confidential
  Information

  	
   

  	
  Section 6.4(b)

  



 


19

















 


	
  Terms

  	
   

  	
  Cross Reference

  Section in Agreement

  
	
   

  	
   

  	
   

  
	
  Conservator

  	
   

  	
  Preamble

  
	
  Conservator Order

  	
   

  	
  Recitals

  
	
  CRDA

  	
   

  	
  Section 2.1(a)(xv)

  
	
  Deeds

  	
   

  	
  Section 3.2(c)

  
	
  Delaware Bankruptcy
  Court

  	
   

  	
  Recitals

  
	
  Delaware Sale Order

  	
   

  	
  Recitals

  
	
  Engagement Letter

  	
   

  	
  Section 4.15

  
	
  Environmental Laws

  	
   

  	
  Section 4.10

  
	
  ERISA

  	
   

  	
  Section 4.13(a)

  
	
  Excluded Assets

  	
   

  	
  Section 2.1(b)

  
	
  Excluded Claims

  	
   

  	
  Section 2.1(b)(vi)

  
	
  Excluded Contracts

  	
   

  	
  Section 2.1(b)(ii)

  
	
  Excluded Liabilities

  	
   

  	
  Section 2.1(d)

  
	
  Financial Information

  	
   

  	
  Section 4.3

  
	
  Holdings

  	
   

  	
  Preamble

  
	
  HSR Act

  	
   

  	
  Section 6.5(a)

  
	
  Insurance Policies

  	
   

  	
  Section 4.16

  
	
  Justice Stein

  	
   

  	
  Preamble

  
	
  Leased Personal
  Property

  	
   

  	
  Section 2.1(a)(ii)

  
	
  Licensed Intellectual
  Property

  	
   

  	
  Section 4.7(b)

  
	
  Miscellaneous Closing
  Payments

  	
   

  	
  Section 3.2(a)

  
	
  Multiemployer Plan

  	
   

  	
  Section 4.13(d)

  
	
  Newco

  	
   

  	
  Recitals

  
	
  Newco Sub

  	
   

  	
  Recitals

  
	
  NJ Bankruptcy Court

  	
   

  	
  Recitals

  
	
  NJ Sale Order

  	
   

  	
  Recitals

  
	
  NJ Trust

  	
   

  	
  Recitals

  
	
  Non-Conservatorship
  Sellers

  	
   

  	
  Preamble

  
	
  Non-Foreign Affidavit

  	
   

  	
  Section 3.2(g)

  
	
  Non-Seller Business
  Assets

  	
   

  	
  Section 4.18

  
	
  Original Agreement

  	
   

  	
  Recitals

  
	
  Original Credit
  Agreement

  	
   

  	
  Section 1.1
  (Credit Agreements)

  
	
  Owned Personal Property

  	
   

  	
  Section 2.1(a)(ii)

  
	
  Owned Properties

  	
   

  	
  Section 4.6(a)

  
	
  Owned Property Lease
  Assignment

  	
   

  	
  Section 3.2(d)

  
	
  Permits

  	
   

  	
  Section 4.11(a)

  
	
  Personal Property

  	
   

  	
  Section 2.1(a)(ii)

  
	
  Petition

  	
   

  	
  Recitals

  
	
  Plan Modification Order

  	
   

  	
  Section 7.1

  
	
  Pre-Closing Payments

  	
   

  	
  Section 3.2(a)

  
	
  Purchase Price

  	
   

  	
  Section 2.2

  



 


20

















 


	
  Terms

  	
   

  	
  Cross Reference

  Section in Agreement

  
	
   

  	
   

  	
   

  
	
  Ramada

  	
   

  	
  Preamble

  
	
  Real Property

  	
   

  	
  Section 4.6(a)

  
	
  Regulatory Approvals

  	
   

  	
  Section 6.5(a)

  
	
  Reorganized Tropicana

  	
   

  	
  Recitals

  
	
  Reorganized Tropicana
  Stock

  	
   

  	
  Recitals

  
	
  Reorganized Tropicana
  Preferred Stock

  	
   

  	
  Section 5.10(b)

  
	
  Reorganized Tropicana
  Securities

  	
   

  	
  Section 5.10(b)

  
	
  Required Reserve Cash

  	
   

  	
  Section 3.2(a)(iii)

  
	
  Retained Benefit Plan

  	
   

  	
  Section 6.3(b)

  
	
  Rolling Miscellaneous
  Closing Payments

  	
   

  	
  Section 3.2(a)(iv)

  
	
  Sale

  	
   

  	
  Recitals

  
	
  Sale Orders

  	
   

  	
  Section 1.1

  
	
  Secured Party Advisor
  Fees

  	
   

  	
  Section 3.2(a)

  
	
  Sellers

  	
   

  	
  Preamble

  
	
  Severance Policy

  	
   

  	
  Section 3.2(a)(iii)

  
	
  Specified Original
  Credit Agreement Obligations

  	
   

  	
  Section 2.2

  
	
  Specified Party

  	
   

  	
  Recitals

  
	
  Specified Party
  401(k) Plan

  	
   

  	
  Section 6.3(e)

  
	
  Specified Party
  Disclosure Letter

  	
   

  	
  Article V

  
	
  Specified Party Permits

  	
   

  	
  Section 5.5(a)

  
	
  Specified Party Plans

  	
   

  	
  Section 6.3(d)

  
	
  Specified Party
  Recipients

  	
   

  	
  Section 6.4(b)

  
	
  Specified Party
  Representatives

  	
   

  	
  Section 6.4(a)

  
	
  Specified Pre-Petition
  Operating Liability

  	
   

  	
  Section 2.1(c)(v)

  
	
  Supplemental Orders

  	
   

  	
  Section 7.1(a)

  
	
  Supplemental Order
  Hearing Deadline

  	
   

  	
  Section 7.1(a)

  
	
  TCR Affiliated Group

  	
   

  	
  Section 6.8(i)

  
	
  Title Policy

  	
   

  	
  Section 8.2(f)

  
	
  Transfer Taxes

  	
   

  	
  Section 6.8

  
	
  Tropicana Atlantic City

  	
   

  	
  Recitals

  
	
  Tropicana Bankruptcy
  Case

  	
   

  	
  Recitals

  
	
  Tropicana Disclosure
  Letter

  	
   

  	
  Article IV

  
	
  Tropicana Entertainment

  	
   

  	
  Preamble

  
	
  Tropicana Parties

  	
   

  	
  Preamble

  
	
  Tropicana Trust
  Agreement Parties

  	
   

  	
  Recitals

  
	
  Trust Agreement

  	
   

  	
  Recitals

  
	
  Trust Orders

  	
   

  	
  Recitals

  
	
  Trust Trigger Date

  	
   

  	
  Recitals

  



 


21

















 


	
  Terms

  	
   

  	
  Cross Reference

  Section in Agreement

  
	
   

  	
   

  	
   

  
	
  Trustee

  	
   

  	
  Preamble

  
	
  Trustee/Conservator

  	
   

  	
  Preamble

  
	
  Unaudited Financial
  Information

  	
   

  	
  Section 4.3

  
	
  Unpaid Advisor Fees

  	
   

  	
  Section 3.2(a)

  
	
  Written Direction

  	
   

  	
  Section 5.9

  



 


Section 1.2                    Interpretation


 


For all purposes of this
Agreement, except as otherwise expressly provided,


 


(a)                                                          the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the
singular;


 


(b)                                                         all accounting terms not otherwise
defined herein have the meanings assigned under GAAP, as in effect on the date
hereof, unless otherwise stated;


 


(c)                                                          all references in this Agreement to
designated “Articles,” “Sections” and other subdivisions are to the designated
Articles, Sections and other subdivisions of the body of this Agreement;


 


(d)                                                         all references in this Agreement to
designated Exhibits or Schedules are to the designated Exhibit or Schedule
to this Agreement, unless otherwise indicated, and all Exhibits and Schedules
to this Agreement are incorporated herein by reference;


 


(e)                                                          pronouns of either gender or neuter shall
include, as appropriate, the other pronoun forms;


 


(f)                                                            the words “herein,”
“hereof,” “herewith,”
“hereunder” and “hereto”
and other words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision, unless the context
otherwise requires;


 


(g)                                                         the words “include,”
“including” and other words of similar
import mean “include, without
limitation,” or “including, without limitation,” regardless of whether any reference to
“without limitation” or words of similar import is made;


 


22

















 


(h)                                                         the phrase “made
available” in this Agreement shall mean that the information
referred to has been made available (i) in the electronic data room
or (ii) directly to a Specified Party, Icahn or any representative
of such Person that has requested such information to be made available, it
being understood and agreed that availability or delivery to any such Person
shall be deemed availability or delivery to each of the Specified Parties;


 


(i)                                                             each of the Trustee/Conservator, the
Company, the Company Subsidiary, Tropicana Entertainment, Holdings,
Atlantic-Deauville, the Atlantic-Deauville Subsidiary, Ramada, the
Administrative Agent and each Specified Party, shall be referred to herein
individually as a “party” and
collectively as the “parties”
(except where the context otherwise requires); and


 


(j)                                                             “reasonable best efforts”
when used in this Agreement shall not include efforts which require the
performing party (A) to do any act that is unreasonable under the
circumstances, (B) to make any capital expenditures not expressly
contemplated hereunder, (C) to amend or waive any rights under this
Agreement or (D) to incur or expend any funds other than reasonable
expenses incurred in satisfying its obligations hereunder, including the fees,
expenses and disbursements of its accountants, actuaries, counsel and other
professionals.


 


ARTICLE II


 


PURCHASE AND SALE OF ASSETS; LIABILITIES; PURCHASE AND
SALE OF REORGANIZED TROPICANA STOCK; PURCHASE PRICE


 


Section 2.1                    Purchase and Sale of Assets


 


(a)                                                          Pursuant to Sections 105, 363, 365 and
1113 of the Bankruptcy Code, on the terms and subject to the conditions set
forth in this Agreement, the Supplemental Orders and the Commission Orders and
to the extent permitted and transferable by Law, at the Closing, (i) each
of the Company and the Company Subsidiary agrees to sell to Reorganized
Tropicana (and Reorganized Tropicana directs each of the Company and the
Company Subsidiary to transfer, assign, convey and deliver to Newco and the
Company and Company Subsidiary shall transfer, assign, convey and deliver to
Newco, and Newco agrees to accept) all of the Company’s and the Company
Subsidiary’s right, title and interest in and to the Company Assets, (ii) Holdings
agrees to sell, transfer, assign, convey and deliver to Newco Sub, and Newco
Sub agrees to accept, all of Holdings’ right, title and interest in and to the
Holdings Assets, (iii) each of Atlantic-Deauville and the Atlantic
Deauville Subsidiary agrees to sell, transfer, assign, convey and deliver to
Newco Sub, and Newco Sub agrees to accept, all of Atlantic-Deauville’s and the
Atlantic Deauville Subsidiary’s right, title and interest in and to the
Atlantic Assets and (iv) Ramada agrees to sell, transfer, assign,
convey and deliver to Newco Sub, and Newco Sub agrees to accept, all of Ramada’s
right, title and interest in and to the Ramada Assets, in each case other 


 


23

















 


than any Excluded
Assets held by such Seller and free and clear of all Encumbrances except for
Permitted Encumbrances, and including the following such assets, as applicable:


 


(i)                                                             all of its right, title and interests in
and to the Owned Property, including that set forth in Section 4.6(a) of
the AC Disclosure Letter covering such Seller, together with the buildings,
improvements, fixtures, easements and other attachments or appurtenances
thereto;


 


(ii)                                                          all of its office, hotel, casino,
showroom, restaurant, bar, convention, meeting and other furniture,
furnishings, appliances, equipment, equipment manuals, slot machines, gaming
tables and gaming equipment and paraphernalia (including parts or inventories
thereof), vehicles (passenger, delivery and other), software, point of sale
equipment, telephone numbers, two-way security radios and base station,
maintenance equipment, tools, signs and signage, supplies, linens (sheets,
towels, blankets, napkins), uniforms, silverware, glassware, chinaware, pots,
pans and utensils, and food, beverage and alcoholic beverage inventories owned
by such Seller (the “Owned Personal Property”)
or leased by such Seller (the “Leased Personal Property”)
immediately prior to the Closing, including all personal property set forth in Section 4.17 of the AC Disclosure Letter covering such
Seller (the Owned Personal Property and Leased Personal Property, collectively,
the “Personal Property”);


 


(iii)                                                       all of its rights in and to Intellectual
Property (other than the Excluded Intellectual Property) that is either owned
by or licensed to any Seller, including the Intellectual Property set forth in Section 4.7 of the AC Disclosure Letter covering such
Seller, and including rights to sue, causes of action and other Claims for
and/or remedies against past, present and future infringements, dilutions,
misappropriations, and other violations thereof, rights of priority and
protection of interests therein under the laws of any jurisdiction worldwide
and all tangible embodiments thereof (collectively, the “Acquired
Intellectual Property”);


 


(iv)                                                      all of its rights in and to (A) distribution
agreements, vendor and supplier agreements, customer agreements, junket
agreements, consignment agreements, agency agreements, license or use
agreements, leases (including Owned Property Leases and Leased Property
Leases), broker agreements and confidentiality agreements, (B) purchase
orders for the sale or purchase of goods and services, or both, and (C) other
Contracts, in each case as set forth in Section 2.1(a)(iv) of
the AC Disclosure Letter covering such Seller (collectively, the “Acquired Contracts”);


 


(v)                                                         all of its accounts and notes receivable,
unpaid drafts or checks (markers), letters of credit and other rights to
receive payments, including accounts 


 


24

















 


receivable of registered
guests who have not checked out and who are occupying rooms at the Tropicana
Atlantic City on the evening of the Closing Date (collectively, the “Acquired Accounts Receivable”);


 


(vi)                                                      all of its rights, privileges, Claims,
causes of action and demands in respect of prepayments, refunds, warranty
claims, indemnification agreements in favor of any Seller with, and
indemnification and similar rights against, third parties (the “Acquired Claims”);


 


(vii)                                                   all insurance benefits, including rights
and proceeds, arising from or relating to the Business and the Insurance
Policies prior to the Closing (other than such benefits, rights and proceeds
which are specifically related to the funding or reimbursement of any Excluded
Liability), including, for the sake of clarity, benefits, rights and proceeds
arising from or under policies relating to the Assumed Benefits Plans and any
short-term or long-term disability insurance benefits for Transferring
Employees who are entitled to such insurance benefits on the Closing Date;


 


(viii)                                                all of its sales and business records,
files, databases, books of account, customer and supplier lists (including the
Atlantic City Customer Database), books and records related to Taxes,
correspondence, architecture, engineering, maintenance, operating records,
advertising materials, cost and pricing information, business plans, quality
control records and manuals, blueprints, research and development files, credit
records of customers and other books and records, manuals and other materials
(in any form or medium), other than any materials that such Seller is required
by Law to maintain in its possession (collectively, the “Acquired
Books and Records”);


 


(ix)                                                        all of its goodwill other than goodwill
arising out of or related to the Excluded Assets;


 


(x)                                                           all of its Permits (it being understood
that any Permits that may not be assigned or transferred under applicable law
shall be governed by Section 6.17
below);


 


(xi)                                                        all of its computers and automatic
machinery, application systems, servers, and systems hardware and networking
and communications equipment and assets;


 


25

















 


(xii)                                                     all 
cash, negotiable instruments, gaming value and non-value chips and
placques and cash equivalents, including sums located in cages, countrooms,
kiosks, slot machines, drop boxes and other gaming equipment;


 


(xiii)                                                  subject to Section 6.12,
all of its rebates, discounts and credits performance and other bonds, security
and other deposits, advance payments, prepaid expenses and prepaid rents in
favor of such Seller to the extent relating to the Acquired Assets or the
Assumed Liabilities;


 


(xiv)                                                 all rights or assets of such Seller
relating to the Assumed Benefit Plans and all assets of the Assumed Benefit
Plans, including, any assets held in trust (including any rabbi trust and/or
secular trust), as corporate-owned life insurance, trust-owned life insurance
or otherwise;


 


(xv)                                                    all of its rights and entitlements to (x) any
payment made to, (y) investments made with the approval of or (z) notes
or bonds purchased from the New Jersey Casino Reinvestment Development
Authority (the “CRDA”), any sums held by the CRDA
or any other agency or department of the State of New Jersey for the account of
or benefit of or attributable to such Seller and any credits accrued or due
such Seller related to its obligations to the CRDA;


 


(xvi)                                                 all refunds for
Taxes arising out of or related to the Acquired Assets or the Business (whether
in the form of cash, or in the case of real property Taxes, credits that can be
transferred, conveyed or otherwise made available to the Specified Parties, it being
understood Sellers shall cooperate with the Specified Parties, as reasonably
requested, to effect the foregoing); and


 


(xvii)                                              all of its other tangible and intangible
assets owned by such Seller and, in the case of the Non-Conservatorship
Sellers, primarily used or held for use in the Business (other than any
Excluded Assets) (the assets described in this Section 2.1(a) being
collectively the “Acquired Assets”).


 


Each respective
Seller shall receive in exchange for its sale, transfer, assignment, conveyance
and delivery of the Acquired Assets of such Seller to the applicable Specified
Party, the number of shares of Reorganized Tropicana Stock set forth on Exhibit 2.1.


 


For
the sake of clarity, and notwithstanding anything to the contrary in this
Agreement, the transfer of the Acquired Assets pursuant to this Agreement shall
not include the assumption of any Liability related to the Acquired Assets
unless a Specified Party expressly assumes that Liability pursuant to Section 2.1(c).


 


26














 


(b)           Excluded Assets.  Notwithstanding anything to the contrary
herein, the Acquired Assets shall not include the Excluded Assets, which are to
be retained by the current owner thereof and not sold or assigned to the
applicable Specified Party.  “Excluded Assets” shall mean all assets, properties, rights,
Claims, contracts and businesses of every kind, character and description,
whether tangible or intangible (including goodwill), whether real, personal or
mixed, whether accrued, contingent or otherwise and wherever located, in each
case not including cash or cash equivalents, that are:


 


(i)            owned by the Non-Conservatorship
Sellers and neither (y) primarily used or held for use in the
Business nor (z) otherwise necessary for the conduct of the
Business as of the date of this Agreement, as set forth in Section 2.1(b)(i) of
the Tropicana Disclosure Letter;


 


(ii)           Contracts of any Seller other than
the Acquired Contracts (collectively, the “Excluded Contracts”);


 


(iii)          Excluded Intellectual Property;


 


(iv)          Acquired Contracts which cannot be
assumed and assigned pursuant to the terms of Bankruptcy Code Section 365,
by virtue of their being non-executory in nature or non-assignable under the
terms of such Bankruptcy Code Section;


 


(v)           Claims by any Seller under this
Agreement or agreements to be entered into by a Seller pursuant to this
Agreement;


 


(vi)          Claims and causes of action in respect
of any Seller set forth on Section 2.1(b)(vi) of
the AC Disclosure Letter covering such Seller (the “Excluded
Claims”);


 


(vii)         minute books, stock books and corporate
seals;


 


(viii)        the Shares;


 


(ix)           subject to Section 2.1(a)(vi),
(a)(vii) and Section 6.12,
insurance policies; and


 


(x)            assets or rights relating to an
Excluded Liability and set forth in Section 2.1(b)(x) of
either of the AC Disclosure Letters.


 


27

















 


(c)           Assumed Liabilities.  Subject to the terms and conditions set forth
in this Agreement, immediately after the Closing, Reorganized Tropicana (and in
the case of Reorganized Tropicana, Newco as directed by Reorganized Tropicana)
and Newco Sub shall assume and thereafter pay, perform and discharge when due
the following Liabilities of the Sellers that have not been paid, performed or
discharged as of the Closing:


 


(i)            any and all Liabilities to the
extent first arising after the Closing Date, which Liabilities arise out of or
are related to Acquired Contracts after the Closing Date (other than any
Liability arising out of or related to any breach, default, act or omission
that occurred prior to the Closing Date), in each case to the extent that such
Acquired Contracts are validly assigned to such Specified Party or, until so
assigned, subject to Section 6.17(a);


 


(ii)           any and all Liabilities under any
lease covering Leased Personal Property arising after the Closing Date (other
than any Liability arising out of or related to any breach, default, act or
omission that occurred prior to the Closing Date);


 


(iii)          any and all Liabilities for
post-petition ordinary course obligations and trade payables of the Business as
of the Closing Date (excluding any expenses incurred with respect to the
administration of the Sellers’ bankruptcy cases) that are Allowed
administrative expenses under Section 503(b) of the Bankruptcy Code;


 


(iv)          any Liabilities incurred by any of the
Sellers and, in the case of the Non-Conservatorship Sellers, any Liabilities
primarily related to the Property, that are Allowed as administrative expenses
under Section 503(b)(9) of the Bankruptcy Code, which Allowed Claims
shall be paid by such Specified Party within one hundred twenty (120) days
after the later of the Closing Date and the date such Claims are Allowed by the
NJ Bankruptcy Court or the Delaware Bankruptcy Court;


 


(v)           pre-petition operating Liabilities
with respect to the Business in the amounts thereof set forth for such items in
the Closing Certificate (the “Specified Pre-Petition
Operating Liabilities”); and


 


(vi)          all Liabilities for Taxes (y) set
forth on Exhibit B to the extent that such
Liabilities are Allowed administrative expense Claims arising out of or related
to the Acquired Assets or the Business, and (z) to the extent  provided in Section 6.8(a),
Section 6.8(c) and Section 6.8(d) (the “Assumed Tax
Liabilities”); and


 


(vii)         Liabilities relating to the Business
Employees or arising under Benefit Plans, but in each case only to the extent
expressly assumed by the Specified 


 


28

















 


Parties under Section 6.3,
it being understood by the parties hereto that, notwithstanding anything
contained in this Agreement or otherwise, in no event shall the Specified
Parties assume, pay, perform or discharge (y) any COBRA Liability or (z) any Withdrawal Liability


 


(all Liabilities
described in this Section 2.1(c) being
collectively the “Assumed Liabilities”,
it being understood and agreed that the term Assumed Liabilities shall in no
event include any of those Liabilities referenced in Sections
2.1(d)(i)-(vii)).


 


(d)           Excluded Liabilities.  Notwithstanding anything to the contrary
herein, the Specified Parties shall not assume and the applicable Seller
shall retain any and all Liabilities of such Seller other than the Assumed
Liabilities, whether or not relating to or arising out of the operation of the
Business prior to the Closing, including:


 


(i)            any and all Liabilities of any Seller arising out of the Excluded Assets or
not arising out of, relating to or in respect of the Business;


 


(ii)           any and all Liabilities of any Seller
relating to or arising out of the Credit Agreements or the Indenture;


 


(iii)          any and all Liabilities of a Seller
relating to or arising out of any debt incurred or owed by any Seller to Columbia Sussex Corporation, TCR or
any of their Subsidiaries or Affiliates (other than any Seller), other than any such debt relating to
any Acquired Contract;


 


(iv)          any and all Liabilities (other than
Secured Party Advisor Fees) that could have been (but were not) included as
Miscellaneous Closing Payments on the Closing Certificate;


 


(v)           all Liabilities for Taxes other than
Assumed Tax Liabilities;


 


(vi)          all other Liabilities which the Specified Parties do not in writing (including
under this Agreement) expressly assume, including but not limited to
environmental liabilities; and


 


(vii)         any and all COBRA Liabilities and any
and all Withdrawal Liabilities, 


 


29

















 


(the
Liabilities described in this Section 2.1(d) being
collectively the “Excluded Liabilities”).


 


(e)           Assignments; Cure Amounts.  Each Seller shall assume and assign to the
applicable Specified Party as of the Closing Date all Acquired Contracts and
CBAs to which such Seller is a party pursuant to Sections 365 and 1113, as
applicable, of the Bankruptcy Code and the Sale Orders.  Sellers shall pay all cure costs arising from
the assumption and assignment of the Acquired Contracts and CBAs, as and when
required by the Sale Orders; provided, that, (i) no Cure Amounts
shall be required to be paid with respect to Intercompany Obligations, and (ii) prior
to the Closing, the benefits, receivables, payables, liabilities and
obligations associated with Cure Amounts relating to Intercompany Obligations
shall remain outstanding and in full force and effect, to the extent Cure
Amounts are not paid.  Sellers’ good
faith estimates of the Cure Amounts for each Acquired Contract and CBA, as of April 29,
2009, are as set forth in Section 2.1(e) of
the AC Disclosure Letter applicable to such Seller.


 


Section 2.2            Credit Bid


 


At the
Closing, (i) each Seller shall sell, transfer and deliver (and
shall direct Reorganized Tropicana and Newco Sub, as applicable, to deliver and
Reorganized Tropicana and Newco Sub, as applicable, shall deliver), the
Reorganized Tropicana Stock to be received by such Seller in exchange for such
Seller’s sale, transfer, assignment, conveyance and delivery to the applicable
Specified Party of the Acquired Assets as set forth in Section 2.1(a),
to the Secured Parties, free and clear of all Encumbrances and adverse claims,
in exchange for which the Administrative Agent, on behalf of the Secured
Parties, shall surrender a portion of the obligations secured by the Original
Collateral Agreement in the aggregate principal amount of $200,000,000, no
portion of which shall constitute interest or the right to receive interest,
which shall be retained by the Secured Parties (the “Specified
Original Credit Agreement Obligations”) pursuant to the Supplemental
Orders and (ii) the applicable Specified Party shall assume the
Assumed Liabilities of the applicable Sellers. 
As of the Closing, the aggregate amount of the Specified Original Credit
Agreement Obligations shall be deemed fully satisfied and discharged.  Each of the Tropicana Parties acknowledges
and agrees that all of its rights to receive the proceeds of any disposition of
the assets of the Company (including the Reorganized Tropicana Stock) or the
Company Shares under the Commission Orders and the laws of the State of New
Jersey shall be fully satisfied by such satisfaction and discharge and the
applicable Specified Parties’ assumption
of the Assumed Liabilities.  The sum of
the Specified Original Credit Agreement Obligations shall be the “Purchase Price”.  To
the extent related to the Administrative Agent entering into and consummating
the transactions contemplated by this Agreement, on behalf of the Secured
Parties and at the direction of the Required Lenders, the Trustee/Conservator
shall, at the time the Trustee/Conservator seeks the approval of the Commission
to enter into this Agreement, seek a confirmation from the Commission of its
declaratory ruling that the Administrative Agent need not obtain its own
interim authorization, obtain a casino license, or otherwise be found qualified
as a consequence of entering into and consummating the transactions contemplated
by this Agreement, on behalf of the Secured Parties and at the 


 


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direction of the Required Lenders.  The parties hereto acknowledge and agree that
in no circumstances shall the Administrative Agent be obligated to any other
party to obtain any such license or qualification.


 


Section 2.3            Allocation of Purchase Price


 


The
Purchase Price shall be allocated (for U.S. Federal income Tax purposes) among
the Sellers as set forth on Exhibit C.  Within thirty (30) days following the Closing
Date, the Non-Conservatorship Sellers and Newco Sub shall in good faith
determine the allocation (for U.S. Federal income Tax purposes) of the
consideration among the Acquired Assets (other than the Company Assets
transferred to Newco by the Company and the Company Subsidiary).  Tropicana Entertainment and Newco Sub shall
file (and cause their respective Affiliates to file) all Tax Returns (including
Internal Revenue Service Form 8594) consistent with such allocation and
not take any position contrary to such allocation with any Governmental Entity
without the express written consent of the other unless required by a final
determination under Section 1313 of the Code.


 


ARTICLE III


 


CLOSING


 


Section 3.1            Closing Date


 


The
closing of the Sale (the “Closing”) shall
take place at the offices of Debevoise & Plimpton LLP located at 919
Third Avenue, New York, New York 10022, on a date (the “Closing Date”)
to be specified by the Trustee/Conservator, and Reorganized Tropicana, which
date shall be the fourth (4th) Business Day (or such earlier date as may be
agreed by the Trustee/Conservator and Reorganized Tropicana) following the date
on which all conditions to Closing set forth in Article VIII
have been satisfied or, if permissible, waived by the party entitled to make
such a waiver (other than conditions that by their terms are to be satisfied at
the Closing but subject to the satisfaction or waiver of such conditions), or
at such other time as the Trustee/Conservator and Reorganized Tropicana may
agree.  It is understood, however, that,
unless otherwise allowed by the Commission, the Closing Date will not be
scheduled earlier than the 121st day after the submission of a completed
application for licensure or qualification by Newco, which application should
include a fully executed and approved trust agreement in accordance with
N.J.S.A. 5:12-95.14.  Subject to Article IX, failure to consummate the Sale provided for
in this Agreement on the date and at the time and place determined pursuant to
this Section 3.1 shall not result in
termination of this Agreement and shall not relieve any party of any
obligations under this Agreement.


 


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Section 3.2            Deliveries at Closing


 


The
following deliverables shall be executed and delivered or delivered, as
applicable, by the Trustee/Conservator, the applicable Specified Party or the Tropicana Parties, as described below, at or
prior to the Closing:


 


(a)           Closing Certificate; Closing
Payments; Required Working Capital.


 


(i)            Not more than six (6) Business
Days (but at least four (4) Business Days) prior to the Closing Date, the
Company and Newco (or, if Newco and the Administrative Agent by prior written
notice so notify the Company, a Specified Party Representative designated by
the Administrative Agent) shall prepare (A) a good faith estimate of each
Specified Pre-Petition Operating Liability (if any) that is required to be paid
at the Closing and (B) an allocation of the consideration as
between the Owned Property, on the one hand, and the other Acquired Assets, on
the other hand, for purposes of determining the amount of each Transfer Tax
required to be paid in connection with Sellers’ transfer of Acquired Assets to
the Specified Parties.  The Sellers, Tropicana Entertainment and the Specified Parties acknowledge and agree that
the amount of consideration allocated to the Owned Property is intended to
represent the fair market value of the Owned Property;


 


(ii)           Not later than the finalization of
the estimate set forth in Section 3.2(a)(i),
the Administrative Agent shall deliver a certificate to the Company, which
certificate shall be subject to the approval of the Trustee/Conservator (which
approval shall not be unreasonably withheld or delayed), setting forth the
amount of all fees and expenses as of the Closing for the Administrative Agent
and for professionals retained by the Administrative Agent or the Steering
Committee of the Secured Parties, in each case solely to the extent such fees
and expenses were incurred in connection with the transactions effected through
this Agreement and the Ancillary Agreements (“Secured
Party Advisor Fees”), such certificate separately designating the
amount of such fees paid by the Company prior to the Closing (if any) and the
amount of unpaid Secured Party Advisor Fees not paid in or through the
Tropicana Bankruptcy Case pursuant to Section 3.2(a)(iii);


 


(iii)          Not more than one (1) Business
Day following the finalization of the estimate set forth in Section 3.2(a)(i), the Company will
prepare and deliver to Newco a certificate (the “Closing
Certificate”), substantially in the form set forth in Exhibit 3.2(a)(iii) attached
hereto which certificate shall (i) be subject to review and
approval by Newco (which approval shall not be unreasonably withheld or
delayed), (ii) be finalized by Newco and the Company at least two (2) Business
Days prior to the Closing and (iii) set forth (A) an
amount equal to the sum of all Secured Party Advisor 


 


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Fees paid by the Company up to the Closing Date plus the amount of the Company’s good faith estimate of the
aggregate amount of cash, cash equivalents and other items to be included in
the Acquired Assets under Section 2.1(a)(xii),
(B) each Specified Pre-Petition Operating Liability included in the
estimate set forth in Section 3.2(a)(i),
together with wiring or other instructions for the payment of such Liability, (C) the
amount of each Transfer Tax required to be paid at the Closing in connection with
the Sellers’ transfer of the Acquired Assets to the applicable Specified Parties, together with the name of
the Governmental Entity to which such Transfer Tax is to be paid and wiring or
other instructions for the payment of each such Transfer Tax, but excluding the
amount of any Transfer Tax imposed on account of  Sellers’ transfer of Reorganized Tropicana
Stock (D) the amount of all unpaid fees and expenses as of the
Closing for the Trustee/Conservator and professionals (including the Broker)
retained by the Trustee/Conservator, the Company and Company Subsidiary,
together with wiring or other instructions for the payment of such fees and
expenses to each such professional (“Unpaid
Advisor Fees”), (E) the amount of Secured Party Advisor
Fees determined pursuant to the certificate delivered and approved under Section 3.2(a)(ii), but only to the extent that such
Secured Party Advisor Fees are included in Miscellaneous Closing Payments (as
defined below) in accordance with clauses (2) and (3) of
this Section 3.2(a)(iii),  (F) the amount that becomes due
and payable at Closing under the Management Agreements and for severance
obligations under the Tropicana Atlantic City Severance Pay Policy, as in
effect on February 20, 2009 (the “Severance
Policy”), each as are assumed in accordance with Section 6.3(b) hereof,
together with wiring or other instructions for the payment of each such
obligation, (G) the amount due and payable of each unpaid Approval
Payment required to be made at or as a result of the Closing, together with
wiring or other instructions for the payment of each such Approval Payment, (H) the
amount of each priority Claim payable to a current or former employee of the
Company pursuant to Sections 507(a)(4) and 507(a)(5) of the
Bankruptcy Code solely to the extent set forth on Section 3.2(a)(iii)(H) of
the Company Disclosure Letter and in an aggregate amount not to exceed
$500,000, and the amount of statutory fees payable pursuant to United States
Code, Title 28, Section 1930, together with wiring or other instructions
for the payment of each such Claim and fee, (I) the aggregate
amount of other administrative expense Claims under Sections 503(b) and
507(a) of the Bankruptcy Code not assumed pursuant to Section 2.1(c) and
not constituting Unpaid Advisor Fees, Secured Party Advisor Fees or obligations
pursuant to clause (F), together with wiring or other instructions for the
payment of each such Claim and fee, (J) the aggregate amount of
fines, penalties and fees due and payable by the Company to the Commission as
of the Closing Date (including the aggregate amounts of deferred fees disclosed
on Item 2 in Section 4.4 of the Company
Disclosure Letter), together with wiring or other instructions for the payment
of such fines, penalties and fees, (K) the cost of the Title
Policy, (L) any other payments to be made at Closing as agreed in
writing by Newco and the Company, (M) any amount payable by Sellers
in respect of the matter set forth in Section 3.2(a)(iii)(M) of
the Company Disclosure Letter, (N) the amount of each priority
Claim for or relating to Taxes for which the Trustee/Conservator or the
directors, officers or employees of the Company or the Company Subsidiary would



 


33

















 


reasonably be expected to be subject to personal
liability under applicable Law (the sum of the amounts in (B) through
(N) immediately above is referred to in this Agreement as the “Miscellaneous Closing Payments”), (O) the Cure
Amounts for each Acquired Contract and CBA, (P) a good faith
estimate of the cash and cash equivalents that constitute “cage cash” required
to be held in the Business pursuant to applicable Gaming Laws (“Cage Cash”) and (Q) the aggregate amount of any
and all other cash reserves required to be maintained by the Business pursuant
to applicable Gaming Laws, as determined by the Commission (“Required Reserve Cash”). 
The positive difference (if any) between the amount set forth in clause (A) and
the sum of the amounts of the Miscellaneous Closing Payments and the Cure
Amounts for each Acquired Contract and CBA shall be the “Available Post-Closing Cash”.  It is understood and agreed that (1) the
Specified Parties shall, and shall cause
their Affiliates who are Lenders to, use each of their reasonable best efforts
to cause all fees and expenses of the Administrative Agent and professionals
retained by the Specified Parties, the
Administrative Agent or the
Steering Committee of the Secured Parties in connection with the
transactions to be paid in or through the Tropicana Bankruptcy Case, (2) Secured
Party Advisor Fees shall only be included in the calculation of Miscellaneous
Closing Payments to the extent that such fees have not been and will not be
paid in or through the Tropicana Bankruptcy Case as of the Closing, (3) Secured Party Advisor
Fees shall be deemed Miscellaneous Closing Payments only to the extent that
payment of such Secured Party Advisor Fees do not and would not, after
accounting for the payment of all other Miscellaneous Closing Payments and the
Cure Amounts for each Acquired Contract and CBA, result in the aggregate amount
of Available Post-Closing Cash being less than the sum of Cage Cash and
Required Reserve Cash, and (4) in no event shall the Corporation
Business Tax Claim be treated as or deemed to be a Miscellaneous Closing
Payment or otherwise paid (in part or in full) from the cash to be delivered to
the Specified Parties pursuant to Section 2.1(a)(xii).


 


(iv)          At the Closing, the Specified Parties shall cause to be (x) paid
in full from the cash to be delivered to the Specified
Parties pursuant to Section 2.1(a)(xii)
by wire transfer of immediately available funds or such other means as
specified in the Closing Certificate, each of the Miscellaneous Closing
Payments specified pursuant to clauses (C), (F), (G), (J),
(K) and (L) of Section 3.2(a)(iii),
(y) deposited with Cole Schotz from the cash to be delivered to the Specified Parties pursuant to Section 2.1(a)(xii) by wire transfer of immediately
available funds or such other means as specified in the Closing Certificate, an
amount equal to the aggregate amount of (1) the Miscellaneous Closing
Payments specified pursuant to clauses (B), (D), (E), (H),
(I), (M) and (N) of Section 3.2(a)(iii) (collectively,
the “Rolling Miscellaneous Closing Payments”),
plus (2) the Cure Amounts for each Acquired Contract and CBA specified
pursuant to clause (O) of Section 3.2(a)(iii),
and (z) paid in full, to the extent not included in the calculation of
Miscellaneous Closing Payments pursuant to clauses (2) and (3) of
Section 3.2(a)(iii), the Secured
Party Advisor Fees.


 


34

















 


(v)           The Company and Company Subsidiary
agree that, (x) no Miscellaneous Closing Payment shall be paid except to
the extent that such Miscellaneous Closing Payment is Allowed or as otherwise
agreed by the Specified Parties (it being understood that the Specified Parties
agree to the payment of all Secured Party Advisor Fees regardless of this
clause (x)), and (y) in the event the amount of one or more Rolling
Miscellaneous Closing Payments or Cure Amounts ultimately paid to a recipient
thereof by the Company or Company Subsidiary is less than the amount caused by
the Specified Parties to be transferred
at the Closing in respect of such payment(s) to an escrow or similar
account of Cole Schotz on behalf of and for the benefit of such recipient, the
difference shall be remitted to Newco within three (3) Business Days after
entry of a final, non-appealable order dismissing or converting the Company’s
and Company Subsidiary’s Bankruptcy Case or finally determining the aggregate
amount to be paid to the respective beneficiary of such payment.


 


(b)           Transfer of Assets.  The Company and the Company Subsidiary (each,
at the direction of the Trustee/Conservator) and each other Non-Conservatorship
Seller, on the one hand, and each applicable Specified
Party, on the other hand, shall deliver to the other one or more duly
executed, bills of sale and assignment and assumption agreements substantially
in the form of Exhibit D (each, a “Bill of Sale, Assignment and Assumption Agreement”), to
effect the sale, transfer, assignment, conveyance and delivery of the Acquired
Assets (including any Seller’s interests as lessor, lessee, sublessor or
sublessee under any Leased Property Lease or Owned Property Lease, other than
the Owned Property Leases between and among the Sellers) and the Assumed
Liabilities to each applicable Specified Party.


 


(c)           Transfer of Owned Property.  The Company and the Company Subsidiary (each,
subject to the direction of the Trustee/Conservator) and each other
Non-Conservatorship Seller shall deliver to the applicable Specified Party
bargain and sale deeds with covenants against grantor’s acts in form and
substance as is customary for similar transactions in the State of New Jersey
in respect of such Seller’s Owned Property, and executed and acknowledged by
the applicable Seller (the “Deeds”),
conveying title to the Owned Property to such Specified Party, subject to
Permitted Encumbrances (it being understood that any or all of the Permitted
Encumbrances may be omitted by such Seller in the applicable Deed without
giving rise to any liability of such Seller, irrespective of any covenant or
warranty of such Seller contained in such Deed), together with any transfer
declarations or other filings required by Law.


 


(d)           Assignment of Affiliate Agreement
Leases.  The Company and the Company
Subsidiary (each, subject to the direction of the Trustee/Conservator) and each
other Non-Conservatorship Seller, on the one hand, and each Specified Party, on the other hand, shall
deliver to the other one or more duly executed, assignment and assumption
agreements substantially in the form of Exhibit E
(each, an “Owned Property Lease Assignment”),
to effect the sale, transfer, assignment, conveyance and delivery to the
applicable Specified Party of 


 


35

















 


each Seller’s interests as lessor, lessee, sublessor
or sublessee under the Owned Property Leases between and among the Sellers set
forth on Schedule 1 of Exhibit E.


 


(e)           Transfer of Acquired Intellectual
Property.  Each of the Company and
the Company Subsidiary (each, subject to the direction of the
Trustee/Conservator) and the Non-Conservatorship Sellers, as applicable, shall deliver
duly executed customary instruments of assignment or transfer, in form suitable
for recording in the appropriate registry,
office or bureau, including the
United States Patent & Trademark Office and the United States
Copyright Office, as applicable, to effectuate and record the transfer
of the Acquired Intellectual Property to a Specified Party and register the same in the name of such Specified
Party or designee thereof.


 


(f)            Specified Party Certificates.  Each of the Specified
Parties shall have delivered to the Trustee/Conservator and the Sellers
the certificates required by Sections  8.3(a) and 8.3(b).


 


(g)           Tropicana Parties’ and Company
Certificates.  Each of the Tropicana
Parties, the Company and the Company Subsidiary shall have delivered to the Specified Parties the certificates required by Sections 8.2(a) and (b).


 


(h)           Non-Foreign Affidavit.  Each of the Company and the Company
Subsidiary (each, subject to the direction of the Trustee/Conservator) and the
Non-Conservatorship Sellers shall have executed and delivered to the Specified Parties an affidavit (the “Non-Foreign Affidavit”) substantially in the form attached
hereto as Exhibit F.


 


(i)            [Reserved]


 


(j)            Gaming Approvals.  The Specified
Parties shall cause to have been delivered to the Trustee/Conservator
evidence reasonably satisfactory to the Trustee/Conservator that all Gaming
Approvals required to be obtained by the Specified
Parties or any of their holding companies, intermediary companies,
financial sources, directors, officers, key employees, owners or other
qualifiers as a condition to the consummation of the Sale and to the extent
necessary to operate the Business after Closing without interruption of casino
operations, have been obtained and are in full force and effect, including either
interim authorization from the Commission allowing the Specified Parties to close the Sale or a determination by the
Commission of plenary qualification and issuance of a casino license, Casino
Hotel Alcoholic Beverage license and certificate of operation to Newco allowing
Newco to own and operate Tropicana Atlantic City pursuant to applicable Gaming
Laws.


 


36














 


(k)           Reorganized Tropicana Stock.  On behalf, and at the direction, of the
Sellers, Reorganized Tropicana and Newco Sub shall deliver (in book entry form
or otherwise) the Reorganized Tropicana Stock to the Secured Parties.


 


(l)            Other Documents.  The Company and the Company Subsidiary (each,
subject to the direction of the Trustee/Conservator), the Specified Parties and the Tropicana Parties
shall deliver any other documents, instruments or agreements required to be
delivered by such party pursuant to Article VIII
or which are reasonably requested by any other party that are reasonably
necessary to consummate the Sale and have not previously been delivered.


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES AS TO

THE TROPICANA PARTIES, THE COMPANY AND THE COMPANY SUBSIDIARY


 


Except
as set forth in the disclosure letter delivered by Tropicana Entertainment with
respect to the representations and warranties of Tropicana Entertainment and
the Sellers covered thereby (the “Tropicana Disclosure
Letter”)  and the
Company with respect to the representations and warranties of the Company and
the Sellers covered thereby (the “Company Disclosure Letter”
and, together with the Tropicana Disclosure Letter, the “AC
Disclosure Letters”) to the Specified
Parties and the Administrative Agent on the date of this Agreement,
whether or not the representation or warranty or any portion thereof refers to
the Tropicana Disclosure Letter or the Company Disclosure Letter by use of the
phrase “except as set forth in” such Disclosure Letter or words of similar
import, each of (i) Tropicana Entertainment (in respect of itself
and the Non-Conservatorship Sellers and, in respect of the Company and the
Company Subsidiary, only to the extent relating to events, circumstances and
conditions arising as of or prior to the Trust Trigger Date, it being
understood that Tropicana Entertainment (and the Non-Conservatorship Sellers)
makes no representation or warranty in respect of the Financial Information, Section 4.4, Section 4.10
or the first sentence of Section 4.18)
and (ii) the Company (other than with respect to Section 4.3, Section 4.4, Section 4.10  and
the first sentence of Section 4.18,
only in respect of the Company and the Company Subsidiary and only in respect
of events, circumstances and conditions arising following the Trust Trigger
Date; provided, however, that the temporal qualification in this
parenthetical shall not apply in respect of the Financial Information or Section 4.10), represents and warrants, solely with
respect to Section 4.19, to the
Administrative Agent (on behalf of the Secured Parties) and, with respect to
all of the following except for Section 4.19,
to the Specified Parties, as of the date
hereof and as of the Closing Date, as follows:


 


37

















 


Section 4.1            Organization and Qualification


 


Each
Seller (i) is a company duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, (ii) has
the requisite power and authority to own, lease and operate its properties and
to carry on its business as now conducted and (iii) is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary, except in the case of clauses (ii) and (iii), where the failure
to be so qualified or licensed and in good standing would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


Section 4.2            Authority; No Conflict; Required
Filings and Consents


 


(a)           Subject to the entry of the Sale
Orders and, if applicable, the approval of the Commission, each of the
Tropicana Parties, the Company and the Company Subsidiary has the requisite
power and authority to execute and deliver this Agreement and any Ancillary
Agreement to which it is a party and to consummate the transactions to which it
is a party that are contemplated by this Agreement and such Ancillary Agreements.  Subject to the entry of the Sale Orders, the
execution and delivery by each of the Tropicana Parties, the Company and the
Company Subsidiary of this Agreement and any Ancillary Agreement to which it is
a party, the performance of such party’s obligations hereunder and thereunder
and the consummation by each of the Tropicana Parties, the Company and the
Company Subsidiary of the transactions to which it is a party that are
contemplated by this Agreement and such Ancillary Agreements have been duly authorized
by all necessary action on the part of each of the Tropicana Parties, the
Company and the Company Subsidiary, respectively.  This Agreement has been, and each applicable
Ancillary Agreement when executed and delivered by such applicable party will
be, duly executed and delivered by each of the Tropicana Parties, the Company
and the Company Subsidiary, and subject to the entry of the Sale Orders and
assuming that this Agreement and, as applicable, each Ancillary Agreement
constitutes the valid and binding obligation of the other parties hereto and
thereto, this Agreement and each Ancillary Agreement to which it is a party
constitutes the valid and binding obligation of each of the Tropicana Parties,
the Company and the Company Subsidiary, enforceable against such party in
accordance with its terms.


 


(b)           The execution and delivery of this
Agreement by each of the Tropicana Parties, the Company and the Company
Subsidiary do not, and the consummation by each of the Tropicana Parties, the
Company and the Company Subsidiary of the transactions to which it is a party
that are contemplated by this Agreement and each Ancillary Agreement to which a
Tropicana Party, the Company or the Company Subsidiary, as applicable, is a
party, as and when contemplated by the terms hereof and thereof, will not, (i) conflict
with, or result in any violation or breach of, any provision of the
organizational documents of any Tropicana Party or any Seller or (ii) subject
to the entry of the Sale Orders and the governmental filings and other matters
referred to in Section 4.2(c) hereof,
contravene, conflict with, or result in a violation of any of 


 


38

















 


the terms or requirements
of, or give any Governmental Entity or any other Person the right to revoke,
withdraw, suspend, cancel, terminate, or modify any permit, concession,
franchise, license, judgment, or Law applicable to any Tropicana Party, the
Company or the Company Subsidiary, except in the case of clause (ii) for
any such breaches, contraventions, rights, conflicts, violations, defaults,
terminations, cancellations, accelerations, losses or failures to obtain any
such consent or waiver that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(c)           No consent, approval, order or
authorization of, or registration, declaration or filing with any Governmental
Entity is required by or with respect to any Tropicana Party, the Company or
the Company Subsidiary in connection with the execution and delivery of this
Agreement or the Ancillary Agreements, the performance of such party’s
obligations or its consummation of the transactions to which it is a party that
are contemplated hereby and thereby, except for (i) any approvals
or filing of notices required under the Gaming Laws, (ii) such
consents, approvals, orders, authorizations, permits, filings, declarations or
registrations related to, or arising out of, compliance with statutes, rules or
regulations regulating the consumption, sale or serving of alcoholic beverages,
(iii) the approval and the entry of the Sale Orders by the
Bankruptcy Courts, (iv) such other filings, consents, approvals,
orders, authorizations, permits, registrations and declarations as may be
required under the Laws of any jurisdiction in which any Tropicana Party, the
Company or the Company Subsidiary conducts any business or owns any assets, the
failure of which to make or obtain would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (v) the
consents, approvals, orders, authorizations, registrations, permits,
declarations or filings listed in Section 4.2(c) of
either of the AC Disclosure Letters, and (vi) any consents,
approvals, orders, authorizations, registrations, permits, declarations or
filings required to be obtained or made by the Specified
Parties or any of their Subsidiaries, Affiliates or key employees
(including under the Gaming Laws) solely as a result of the identity of the Specified Parties.


 


Section 4.3            Financial Statements


 


Section 4.3 of the Company Disclosure Letter
contains a true and complete copy of: (i) the audited balance
sheets as of, and statements of income and cash flow for the 12-month periods
ending, December 31, 2008 (the “Balance Sheet Date”)
and December 31, 2007 (the “Audited Financial
Information”) of the Company and the Company Subsidiary presented on
a consolidated basis and (ii) the unaudited trial balance sheets as
of, and statements of income (if any) for the 12-month periods ending December 31,
2008 and December 31, 2007 of the Non-Conservatorship Sellers (the “Unaudited Financial Information” and, collectively with the
Audited Financial Information, the “Financial Information”).  Except as set forth in the notes to the
Audited Financial Information, the Audited Financial Information was prepared
in accordance with GAAP as in effect at the time of such preparation applied on
a consistent basis throughout the periods involved, and the Financial
Information presents fairly, in all material respects, the consolidated
financial position, results of operations and cash flows of the Company 


 


39

















 


and the Company Subsidiary, and the financial position
of the Non-Conservatorship Sellers, at and for such periods.


 


Section 4.4            No Undisclosed Liabilities


 


None
of the Company, any Company Subsidiary or, to the extent related to the
Business, any Non-Conservatorship Seller, has any liabilities of any nature,
except for (i) liabilities that are reflected in, reserved against
or disclosed in the applicable Financial Information or any of the notes
thereto, (ii) liabilities that were incurred after the Balance
Sheet Date in the ordinary course of business of such Seller, (iii) liabilities
that are set forth in Section 4.4
of the Company Disclosure Letter or (iv) liabilities that would not
reasonably be expected to exceed, in the aggregate, $500,000.


 


Section 4.5            Absence of Material Adverse
Effect


 


Since
the Balance Sheet Date, there has not been any event that (i) individually
or in the aggregate, has had or would reasonably be expected to have a Material
Adverse Effect or (ii) if such event occurred between the date of
this Agreement and the Closing Date, would be a breach of Section 6.1(b) below.


 


Section 4.6            Real Property


 


(a)           Section 4.6(a) of
each AC Disclosure Letter sets forth a list of all real property and interests
in real property owned as of the date hereof by any Seller covered by such
Disclosure Letter (the “Owned Properties”
and together with the Leased Properties, the “Real
Property”).  The owner set forth in Section 4.6(a) of the AC Disclosure Letters has
good and valid fee title to the Owned Properties, free and clear of all
Encumbrances, except for Permitted Encumbrances.  None of such owner or Tropicana Entertainment
has received any written notices that any condemnation, eminent domain or
similar Proceeding affecting all or any material portion of the Owned Property
is pending or threatened.


 


(b)           Section 4.6(b) of
each AC Disclosure Letter sets forth a list of all Leased Properties leased by
any Seller covered by such Disclosure Letter as of the date of this
Agreement.  Each of the Sellers has a
valid leasehold, license or other interest in its applicable Leased Property,
free and clear of all Encumbrances, except for Permitted Encumbrances.


 


(c)           Section 4.6(c) of
the applicable AC Disclosure Schedule sets forth a list of all Owned Property
Leases in effect as of the date hereof.


 


40

















 


(d)           No Real Property is dependent for its
access, operation or utility on any land, building or other improvement owned
or controlled by Tropicana Party or their Affiliates (other than the Sellers)
that is not included in the Acquired Assets.


 


(e)           To each applicable Seller’s
knowledge, the current use of the Real Property is in material compliance with
all applicable zoning, subdivision or other land use Laws, including all
necessary certificates of occupancy or other similar rights to occupy the Real
Property, and such applicable Seller has not, to such Seller’s knowledge,
received any notice, oral or written, of any material violation thereof.


 


(f)            To each applicable Seller’s
knowledge, the current use of the Real Property does not violate, in any
material respect, any building, fire or life safety Laws, and such applicable
Seller has not, to such Seller’s knowledge, received any notice, oral or
written, of any material violation thereof.


 


Section 4.7            Intellectual Property


 


(a)           Section 4.7(a) of
each AC Disclosure Letter sets forth each item of Intellectual Property
registered with or issued by the United States Patent and Trademark Office, the
United States Copyright Office, or any similar state or foreign registry, and
applications therefor, in each case, that are owned by any Seller covered by
such Disclosure Letter.  Except as
disclosed in Section 4.7 of such AC
Disclosure Letters,  (i) the
applicable Seller owns or possesses adequate and enforceable rights to use all
Acquired Intellectual Property that is material to the Business, (ii) there
are no restrictions on the direct or indirect transfer of any interest held by
any Seller in respect of any of the Acquired  Intellectual
Property that is material to the Business, and (iii) none of the
Sellers is in default under any Contract to use any Acquired Intellectual
Property that is material to the Business. 
Except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, the operation of the Business does
not infringe, dilute, misappropriate, or  otherwise
violate any  Intellectual Property rights of
any other Person and no Proceeding to adjudicate a Claim to the effect that any
Seller is infringing, diluting, misappropriating, or otherwise violating any
Intellectual Property rights of any other Person is currently pending  or, to the knowledge of Tropicana Entertainment or the
Company, as applicable, is threatened. 
To the knowledge of Tropicana Entertainment or the Company, as
applicable, no Person is infringing, diluting, misappropriating, or otherwise
violating any of the
Intellectual Property rights that constitute Acquired Assets.


 


(b)           Set
forth in Section 4.7(b) of each AC Disclosure Letter
is a complete and accurate list of all Contracts pursuant to which any Seller
covered by such Disclosure Letter uses, or is licensed under, the Intellectual
Property of third parties in the conduct of the Business (other than shrink
wrap and click wrap software, off-the-shelf software, and software licenses
with license, maintenance, support, or other fees of less than $50,000 in any
12 month period) 


 


41

















 


(the “Licensed Intellectual
Property”).  Except as set
forth in Section 4.7(b) of the applicable AC Disclosure Letter,
the consummation of the transactions contemplated hereunder will not result in
the loss or impairment of the right to use the Licensed Intellectual Property
in connection with the Business, nor require the consent of any party to the
applicable Contracts.


 


(c)           The Sellers
are taking and have taken all actions required to maintain, and all actions
that they reasonably believe are required to protect, each item of Intellectual
Property that is material to the Business.  To the
knowledge of Tropicana Entertainment or the Company, as applicable, there has
been no unauthorized use or disclosure of any Intellectual Property that
constitutes Acquired Assets.


 


(d)           The collection and use by Company of
the data and information included in the Atlantic City Customer Database is in
material compliance with all applicable Laws, and subject to applicable Laws,
there are no restrictions on the transfer, sale, use or dissemination of such
data and information.


 


Section 4.8            Agreements, Contracts and
Commitments


 


(a)           All Material Contracts that are
Acquired Contracts to which any of the Sellers is a party are listed in Section 4.8(a) of the AC Disclosure Letter
covering such Seller.


 


(b)           Except as would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, each Acquired Contract is a valid and
binding obligation of the Seller party thereto (assuming that each such Acquired Contract constitutes the
valid and binding obligation of the other parties thereto), enforceable by the
applicable Seller in accordance with its respective terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting the enforcement of creditors’ rights generally and
(ii) the availability of equitable remedies may be limited by equitable
principles of general applicability.


 


(c)           Except for breaches or defaults of
the type referred to in Section 365(b)(2) of the Bankruptcy Code,
neither the applicable Seller nor, to the knowledge of Tropicana Entertainment
or the Company, as applicable, any other party thereto is (with or without the
lapse of time or the giving of notice, or both) in default or breach under any
Acquired Contract, except in each case, for such breaches or defaults that
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.


 


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Section 4.9            Litigation; Orders


 


There
is no (a) Proceeding pending or, to the knowledge of Tropicana
Entertainment or the Company, as applicable, threatened against any Seller, its
properties or assets or any other Acquired Assets before any Governmental
Entity that would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect (and Section 4.9
of each AC Disclosure Letter sets forth a list of all such Proceedings in
respect of the Sellers covered by such Disclosure Letter where the amount in
dispute or purported damages exceeds $200,000 or where equitable relief is
sought that would reasonably be expected to materially adversely affect the
Business or any of the Acquired Assets) or (b) Order outstanding
against any Seller that would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, except, in each case, the Commission
Orders and any Proceedings pending before the Commission or the Bankruptcy
Courts.  No Seller has received written
notice of, or is in, default under any Order of any Governmental Entity, in
each case except (i) for any such default or defaults that would
not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or (ii) any default under any Commission
Order.


 


Section 4.10         Environmental Matters


 


(i) Each
Seller is in material compliance with all applicable federal, state, and local
laws governing pollution or the protection of the environment (“Environmental Laws”), (ii) no Seller has
received any material written notice with respect to its business, or any
property owned or leased by it, from any Governmental Entity or third party
alleging that such Seller is not in material compliance with any Environmental
Law, other than with respect to such issues that have been resolved with no
outstanding obligations, (iii) to the knowledge of the Company, no
Seller has caused any material “release” of a “hazardous substance,” as such
terms are defined under the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. § 9601 et seq., as amended, on any Real
Property that requires remediation or investigation under Environmental Laws, (iv) each
Seller is in possession of and in material compliance with all material Permits
required under applicable Environmental Laws necessary to conduct the business
and operations currently conducted at the Property, and all such Permits are in
good standing and (v) there are no material Proceedings pending, or
to the knowledge of the Company, threatened against any Seller under any
Environmental Law.


 


Section 4.11         Permits; Compliance with Laws


 


(a)           The Sellers hold all permits,
registrations, licenses, variances, exemptions, certificates of occupancy,
orders and approvals of all Governmental Entities (other than Gaming Approvals
required under applicable Gaming Laws, which are expressly excepted from the
terms of this Section 4.11(a))
(collectively, “Permits”), necessary to conduct
the Business, except for such Permits, the failure of which to hold, would not
reasonably be expected to have, 


 


43

















 


individually or in the
aggregate, a Material Adverse Effect (the “Business Permits”),
each of which Business Permit is in full force and effect in all material
respects, and, to the knowledge of Tropicana Entertainment or the Company, as
applicable, no event has occurred which permits, or upon the giving of notice
or passage of time or both, would permit, revocation, non-renewal,
modification, suspension, limitation or termination of any Business Permit that
currently is in effect, the loss of which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.  The Sellers are in compliance with the terms
of the Business Permits held by them, except for such failures to comply which
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.  Section 4.11(a) of each AC Disclosure Letter sets
forth all Permits which, to the knowledge of the Sellers covered by such
Disclosure Letter, are non-assignable or non-transferable.


 


(b)           The Business is not being conducted
in violation of any applicable Law of any Governmental Entity, except for
violations which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. 
Neither the Company nor any of its Subsidiaries has received a notice of
any investigation or review by any Governmental Entity (other than the
Commission, all action of which is expressly excepted from the terms of this Section 4.11(b)) with respect to the Sellers or the
Property that is pending, and, to the knowledge of Tropicana Entertainment or
the Company, as applicable, no investigation or review is threatened, nor has
any Governmental Entity indicated any intention to conduct the same, other than
those the outcome of which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


Section 4.12         Labor Matters


 


(a)           Except as set forth in Section 4.12(a) of the applicable AC Disclosure
Letter for Sellers covered by such Disclosure Letter, (i)  there
are no collective bargaining agreements to which Sellers covered by such
Disclosure Letter is a party or by which any such Seller is bound applicable to
employees of the Business, (ii) there is no labor strike, slowdown,
work stoppage or lockout pending, or to the knowledge of the Tropicana
Parties or the Company, as applicable, threatened against any such Seller which
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, (iii) there is no unfair labor practice
charge or complaint pending or, to the knowledge of the Tropicana Parties or
the Company, as applicable, threatened against any such Seller in respect of
the Business, before the National Labor Relations Board which, if determined
adversely to such Seller, would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, and (iv) no collective
bargaining agreement to which any such Seller is bound applicable to employees
of the Business requires any such Seller to bargain with or obtain the approval
or consent of any employee or employee representative in order to undertake any
of action or to consummate the transactions contemplated by this Agreement.


 


44

















 


(b)           Each Seller is in compliance with all
Laws in respect of the Business relating to employment, including Laws relating
to wages, hours, collective bargaining, discrimination, civil rights, safety
and health, worker notification requirements, immigration, workers’
compensation, and layoffs, except for such noncompliance which would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


(c)           Section 4.12(c) of
the applicable AC Disclosure Letter lists the names and positions of the
Business Employees employed by Sellers covered by such Disclosure Letter as of
the date hereof, and shall be updated to accurately reflect any changes thereto
occurring after the date of this Agreement five days prior to the Closing Date.


 


Section 4.13         Employee Benefits


 


(a)           Section 4.13(a) of
the applicable AC Disclosure Letter sets forth for Sellers covered by such
Disclosure Letter an accurate and complete list of all (i) “employee
welfare benefit plans,” within the meaning of Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations thereunder (“ERISA”); (ii) “employee
pension benefit plans,” within the meaning of Section 3(2) of ERISA;
and (iii) all employment, consulting, retention, severance,
change-in-control and retirement agreements, plans, programs and policies, and
any other bonus, stock option, stock purchase, restricted stock, other
compensatory equity or equity-based, incentive, fringe benefit, profit-sharing,
pension or retirement, deferred compensation, medical, life insurance,
disability, accident, cafeteria, salary continuation, severance, accrued leave,
vacation, sick pay, sick leave, supplemental retirement, unemployment and other
compensation or employee benefit plans, programs, policies, agreements and arrangements
(whether or not insured), in each case, maintained or contributed to or
required to be contributed to by such Sellers for the benefit of current or
former Business Employees or their dependents or beneficiaries (the “Benefit Plans”); provided that there
is no obligation to list any immaterial Benefit Plan.


 


(b)           With respect to each Benefit Plan
that is not a Multiemployer Plan, a complete copy has been made available to
the Specified Parties by Sellers of: (i) all
documents constituting such Benefit Plan (including without limitation, plan
documents, adoption agreements, service agreements and written descriptions of
any unwritten Benefit Plans); (ii) the two most recent Annual
Report (Form 5500 Series) documents and schedules and amendments thereto,
if any; (iii) the current summary plan description and any material
modifications thereto, if any; (iv) the two most recent annual
financial and/or actuarial reports, if any; (v) each trust
agreement, group annuity contract, insurance contract and other funding vehicle
relating to any Benefit Plan, and (vi) the most recent
determination letter from the IRS, if applicable.


 


(c)           Each Benefit Plan that is intended to
be a “qualified plan” within the meaning of Section 401(a) of the
Code and the trust forming part thereof has received a favorable 


 


45

















 


determination letter from
the IRS as to its qualification under the Code, and to the knowledge of the
Tropicana Parties or the Company, there are no existing circumstances or events
that could reasonably be expected to result in the revocation of such
qualification.  Except for any
Multiemployer Plan, each Benefit Plan has been administered in material
compliance with all laws and regulations applicable to such Benefit Plan and
its terms.


 


(d)           Section 4.13(d) of
the applicable AC Disclosure Letter identifies, for Sellers covered by such
Disclosure Letter, each Benefit Plan that is a “multiemployer plan” as defined
in Section 4001(a)(3) of ERISA (each, a “Multiemployer Plan”). 
None of the Sellers or any ERISA Affiliate of any Seller has incurred
any Withdrawal Liability that has not been satisfied in full.  To the knowledge of the Tropicana Parties or
the Company, except for the transactions contemplated by this Agreement, there
does not now exist, nor do any circumstances exist which may reasonably be
expected to give rise to, a Withdrawal Liability.


 


(e)           (i) Other than
Multiemployer Plans, no Benefit Plan is subject to Title IV of ERISA, Section 302
of ERISA, Section 412 of the Code or Section 4971 of the Code, and
neither any Seller nor, to the knowledge of the Tropicana Parties or the
Company, any ERISA Affiliate of any Seller has, during the past six years,
sponsored, maintained, participated in, contributed to, or had any obligation
to participate in or contribute to any plan that is  subject to Title IV of ERISA, Section 302
of ERISA, Section 412 of the Code or Section 4971 of the Code, (ii) none
of the Sellers, any officer of the Sellers or any Benefit Plans which are
subject to ERISA, any trust created thereunder or, to the knowledge of the
Tropicana Parties or the Company, any fiduciary or administrator thereof, has
engaged in a “prohibited transaction” (as such term is defined in Section 406
of ERISA or Section 4975 of the Code) or any other breach of fiduciary
responsibility that could subject any of the Sellers or any officer of the
Sellers to any material Tax or penalty on prohibited transactions imposed by
the Code, ERISA or other applicable Law, (iii) no Benefit Plans
that are “employee pension benefit plans” (as defined in Section 3(2) of
ERISA) or trusts associated therewith have been terminated during the past six
years, nor, to the knowledge of the Tropicana Parties or the Company, is there
any intention or expectation to terminate any such Benefit Plans or trusts, (iv) no
Benefit Plans or trusts are, to the knowledge of Tropicana Parties or the
Company, the subject of any proceeding by any Person, including any
Governmental Entity, that could reasonably be expected to result in a
termination of any Benefit Plan or trust, and (v) neither any
Seller nor, to the knowledge of the Tropicana Parties or the Company, any ERISA
Affiliate of any Seller has, or within the past six years had, contributed to,
been required to contribute to, or has any material liability, whether actual
or contingent, with respect to, any “multiple employer plan” (within the
meaning of Section 413(c) of the Code) or any multiple employer
welfare arrangement (within the meaning of Section 3(40) of ERISA).  There are no pending or, to the knowledge of
Sellers, threatened material Claims by or on behalf of any participant in any
of the Benefit Plans, or otherwise involving any such Benefit Plan or the assets
of any Benefit Plan, other than routine Claims for benefits.


 


(f)            Except as set forth in Section 4.13(f) of the applicable AC Disclosure
Letter, for Sellers covered by such Disclosure Letter, or as contemplated
expressly by this Agreement, 


 


46

















 


neither the execution and
delivery of this Agreement nor the consummation of the Sale will (either alone
or in conjunction with any other event) (i) result in, cause the
accelerated vesting, funding or delivery of, or increase the amount or value
of, any payment or benefit to any Business Employee or (ii) result
in any breach or violation of, default under or limit any Seller’s right to
amend, modify or terminate any Benefit Plan.


 


(g)           The consummation of the Sale by the
Sellers and the Trustee/Conservator will not (either alone or in conjunction
with any other event) result in any payment or benefit to any Business Employee
under that would constitute an “excess parachute payment” for purposes of Section 280G
or 4999 of the Code.


 


(h)           Except as set forth in  Section 4.13(h) of
the applicable AC Disclosure Letter, none of the Sellers covered by such
Disclosure Letter, or to the knowledge of the Tropicana Parties or the
Company, their respective ERISA
Affiliates, has incurred or would reasonably be expected to incur any material
Liability under Title IV of ERISA.  No
property or assets of any Seller or to the knowledge of the Tropicana
Parties or the Company, any ERISA
Affiliate of any Seller is, or would reasonably be expected to become, the
subject of any lien arising under ERISA or the Code with respect to any Assumed
Benefit Plan.


 


(i)            Except for continuation coverage as
required by Section 4980B of the Code and Section 601 et seq. of
ERISA, or as required by applicable Law, no Assumed Benefit Plan provides, and
no Seller has any obligation to provide, post-retirement, life, health, medical
or other welfare or insurance benefits to Business Employees or their
beneficiaries or dependents.


 


(j)            All contributions required to be
made by any Seller to any Benefit Plan by applicable Law, regulation, any plan
document or other contractual undertaking, and all premiums due or payable by
any Seller with respect to insurance policies funding any Benefit Plan, for any
period through the date hereof have been timely made or paid in full or, to the
extent not required to be made or paid on or before the date hereof, have been
reflected in the Financial Information. 
Each Benefit Plan that is an employee welfare benefit plan under Section 3(1) of
ERISA and is not is not a Multiemployer Plan is either is funded through an
insurance company contract or is unfunded.


 


Section 4.14         Brokers


 


Except
for Moelis & Company LLC (the “Broker”),
pursuant to the engagement letter, dated as of September 17, 2008, among
the Trustee/Conservator, the Company and the Broker (as amended, the “Engagement Letter”), none of the Tropicana Parties, the
Company or the Company Subsidiary, nor any of their respective Affiliates or
representatives nor the Trustee/Conservator has employed any broker, financial
advisor or finder or incurred any Liability for any brokerage fees, commissions
or finder’s fees in connection with the transactions 


 


47

















 


contemplated by this Agreement.  The Company has delivered to the Specified Parties true and complete copies of
all agreements between the Trustee/Conservator and the Broker relating to the
transactions contemplated by this Agreement. 
The provisions of this Section 4.14
shall survive the Closing or earlier termination of this Agreement.


 


Section 4.15         Taxes


 


Except
as set forth in Section 4.15 of the AC
Disclosure Letters:


 


(a)           Each Seller has timely filed (taking
into account any extensions of time for such filings that have been properly
and timely requested by Seller) all material Tax Returns that were required to
be filed by each Seller.  All such Tax
Returns were complete and accurate in all material respects.  All material Taxes owed by each Seller
(whether or not shown on such Tax Returns) relating to the Acquired Assets or
the Business have been paid.  Seller is
not currently the beneficiary of any extension of time within which to file any
such Tax Return relating to the Acquired Assets or the Business.  Each of the Sellers has been a member of
Aztar’s consolidated federal income Tax group for 2007 and prior years.  To the knowledge of Tropicana Entertainment,
each of the Sellers (other than the Company and the Company Subsidiary) will
join in TCR’s consolidated federal income Tax Return for 2008.  To the knowledge of Tropicana Entertainment,
Aztar has timely filed such federal income Tax Returns relating to the Acquired
Assets or the Business that were required to be filed (or requests for
extensions have been timely filed and any such extensions have been granted and
have not expired).  To the knowledge of
Tropicana Entertainment, all such Tax Returns were complete and accurate in all
material respects, and all material federal Taxes owed by each Seller (whether
or not shown on such Tax Returns) relating to the Acquired Assets or the
Business have been paid.  Each of the
Sellers has fully cooperated with and surrendered requisite information to
Aztar or TCR, as appropriate, for them to file all Tax Returns relating to the
Business.


 


(b)           There is no Proceeding, audit,
written Claim pending or, to the knowledge of Tropicana Entertainment or the
Company, as applicable, proposed with respect to any Taxes of any Seller
relating to the Business or Acquired Assets. 
No Seller has received any written notice from any taxing authority to
the effect that such agency intends to conduct an audit or investigation of any
Taxes relating to the Business or Acquired Assets.  There are no waivers or extensions of, or
agreements that have the effect of waiving or extending, any applicable statute
of limitations for the assessment or collection of Taxes with respect to the
Business that remain in effect as of the date hereof.


 


(c)           There are no Encumbrances for Taxes
upon the Acquired Assets, except for Taxes not yet assessed or not yet due and
payable or which are being contested in good faith and by appropriate
Proceedings.


 


48














 


(d)                   The
Sellers, and Aztar with respect to the Sellers, have each complied in all
material respects with all Laws relating to the payment and withholding of
Taxes relating to the Business and such Taxes have been duly and timely paid to
the Governmental Entity responsible for the collection of such Taxes.


 


(e)                   No
taxing authority has asserted in writing any deficiency, Claim or issue with
respect to Taxes or any adjustment to or assessment of Taxes relating to the
Acquired Assets or the Business that is currently unresolved.


 


Section 4.16         Insurance


 


Section 4.16
of each AC Disclosure Letter contains, for Sellers covered by such Disclosure
Letter, a true and complete list of all material insurance policies currently
in effect that insure the Business and that have been issued to (i) any Seller or (ii) any Person (other
than a Seller) that directly or indirectly benefits any Seller (collectively,
the “Insurance Policies”).  To the knowledge of Tropicana Entertainment
or the Company, as applicable, each policy set forth in Section 4.16
of such AC Disclosure Letters is valid and binding and in full force and effect
as of the date hereof.  None of the
Tropicana Parties or their Affiliates (including the Sellers) has received any
written notice of cancellation or termination in respect of any such policy or
is in default thereunder in any material respect.


 


Section 4.17         Personal Property


 


Except
for Permitted Encumbrances and excluding the Excluded Intellectual Property,
one or more of the Sellers has good and valid title to, or an adequate
leasehold interest in, or other legal right to use, all personal property
included in the Acquired Assets, except to the extent that the failure to
possess such title, interest or right would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.  Section 4.17
of the AC Disclosure Letters set forth a list of all personal property held by
the Sellers covered by such Disclosure Letter, other than the Excluded
Intellectual Property, whether owned, leased or licensed by a Seller or (in the
case of the Tropicana Disclosure Letter) any other Affiliate of any Tropicana
Party, that is material to the operation of the Business.


 


Section 4.18         Sufficiency of Assets


 


The
Acquired Assets (together with the Permits required to be obtained by the Specified Parties under applicable Gaming Laws)
include all the tangible and intangible assets, property and rights reasonably
necessary for the operation of the Business as conducted immediately prior to
the date hereof (determined without regard to any limitation on the Business
imposed by the Commission Orders). 
Neither Tropicana Entertainment nor any of its Affiliates (other than
the 


 


49

















 


Non-Conservatorship Sellers and Columbia Sussex Corporation) owns any
assets, properties, rights, Claims, contracts and businesses of any kind,
character and description, whether tangible or intangible (including goodwill),
whether real, personal or mixed, whether accrued, contingent or otherwise, or
wherever located, that are primarily used or held for use in, or otherwise
necessary or beneficial to the operation of, the Business and which are not
included in the Acquired Assets and are not Excluded Assets, except as set forth
on Section 4.18 of the AC Disclosure
Letter covering such Seller (any such assets or other items, “Non-Seller Business Assets”).  None of the Sellers, on the one hand, nor
Tropicana Entertainment, on the other hand, is aware of any assets, properties,
rights, Claims, contracts and businesses of any kind, character and
description, whether tangible or intangible (including goodwill), whether real,
personal or mixed, whether accrued, contingent or otherwise, or wherever
located, that are (i) owned, leased or controlled by Columbia
Sussex Corporation, (ii) primarily used or held for use in, or
otherwise necessary or beneficial to the operation of, the Business and (iii) which
are not included in the Acquired Assets and are not Excluded Assets.


 


Section 4.19         Reorganized Tropicana Stock


 


(a)                   Subject
to the accuracy, in its entirety, of (i) the representation and
warranty provided by the Specified Parties
in Section 5.10 and (ii) the
accuracy, in its entirety, of the representation and warranty by Tropicana
Entertainment and the Non-Conservatorship Sellers in Section 4.19(b),
the Company and Company Subsidiary represent and warrant that, upon the
surrender of the Specified Original Credit Agreement Obligations by the Secured
Parties and, at the direction of the Sellers, delivery of the Reorganized
Tropicana Stock by Reorganized Tropicana and Newco Sub to the Secured Parties,
the Secured Parties will acquire valid and unencumbered title to the
Reorganized Tropicana Stock, free and clear of all Encumbrances and adverse
claims to the extent set forth in the Sale Orders.


 


(b)                   Subject
to the accuracy, in its entirety, of (i) the representation and
warranty provided by the Specified Parties
in Section 5.10 and (ii) the
representation and warranty by the Company and Company Subsidiary in Section 4.19(a), Tropicana Entertainment and the
Non-Conservatorship Sellers represent and warrant that, upon the surrender of
the Specified Original Credit Agreement Obligations by the Secured Parties and,
at the direction of the Sellers, delivery of the Reorganized Tropicana Stock by
Reorganized Tropicana and Newco Sub to the Secured Parties, the Secured Parties
will acquire valid and unencumbered title to the Reorganized Tropicana Stock,
free and clear of all Encumbrances and adverse claims to the extent set forth
in the Sale Orders.


 


Section 4.20         No Other Representations


 


Except
for the representations and warranties contained in this Article IV
and the AC Disclosure Letters, none of the Tropicana Parties or
their Affiliates (including the Sellers) or the 


 


50

















 


Trustee/Conservator (or any other Person or entity acting on behalf of
any of the foregoing) makes any representation or warranty, express or implied,
and the Tropicana Parties, the Company, the Company Subsidiary and the
Trustee/Conservator hereby disclaim any other representations and warranties
made by them, or any of their respective officers, directors, employees,
shareholders, controlling persons, Affiliates, agents, advisors or other
representatives, with respect to the execution and delivery of this Agreement
or the transactions contemplated hereby, notwithstanding the delivery or
disclosure by any of them or their respective representatives of any
documentation or other information, including any documentation or other
information furnished in the form of management presentations, management
reports or other financial information, information memoranda and supplements,
data room materials, due diligence materials, and information and materials
conveyed, provided or made available by or on behalf of any of the foregoing
persons or their respective representatives in connection with any due
diligence, sale or auction process.


 


ARTICLE V



REPRESENTATIONS AND WARRANTIES OF THE SPECIFIED
PARTIES


 


Except
as set forth herein and in the disclosure letter delivered by the Specified Parties to the Trustee/Conservator,
the Company and the Administrative Agent on the date hereof (the “Specified Party Disclosure Letter”), whether or not the representation
or warranty or any portion thereof refers to the Specified Party Disclosure
Letter by use of the phrase “except as set forth in the Specified Party
Disclosure Letter” or words of similar import, each Specified Party jointly and
severally, represents and warrants to the Trustee/Conservator, the Company and,
with respect to all of the following other than Section 5.9,
the Administrative Agent (on behalf of the Secured Parties), as of the date
hereof and as of the Closing Date, as follows:


 


Section 5.1            Organization and Qualification of
Newco and Specified Parties


 


Each
Specified Party (i) is a company duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization, (ii) has
the requisite power and authority to own, lease and operate its properties and
to carry on its business as now conducted and (iii) is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary, except in the case of clauses (ii) and (iii), where the failure
to be so qualified or licensed and in good standing would not, individually or
in the aggregate, reasonably be expected to materially delay or impair the
ability of such party to consummate the Closing.  Notwithstanding the foregoing qualification,
each Specified Party is in good standing in each jurisdiction in which such
party owns or operates any gaming business.


 


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Section 5.2            Authority; No Conflict; Required
Filings and Consents


 


(a)                   Subject
to Gaming Approvals, each Specified Party has the requisite power and authority
to execute and deliver this Agreement and each Ancillary Agreement to which it
is a party and to consummate the transactions to which it is a party that are
contemplated by this Agreement and such Ancillary Agreements.  The execution and delivery by each of the Specified Parties of this Agreement and any
Ancillary Agreement to which it is a party, the performance of such party’s
obligations hereunder and thereunder, and the consummation by such parties of
the transactions to which it is a party that are contemplated by this Agreement
and each Ancillary Agreement to which it is a party have been duly authorized
by all necessary action on the part of such parties.  This Agreement has been, and each Ancillary
Agreement to which a Specified Party is a party (when executed and delivered by
such party) will be, duly executed and delivered by such party, and assuming
this Agreement and, as applicable, each Ancillary Agreement, constitutes the
valid and binding obligation of the other parties hereto (other than the Specified Parties) and thereto, this Agreement
and each Ancillary Agreement to which it is a party constitutes the valid and
binding obligation of such party, enforceable against such party, in accordance
with its terms, except as (i) the enforceability hereof and thereof
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.


 


(b)                   The
execution and delivery of this Agreement by each Specified Party does not, and
the consummation by such parties of the transactions to which such party is a
party that are contemplated by this Agreement and each Ancillary Agreement to
which such party is a party, as and when contemplated by the terms hereof and
thereof, will not, (i) conflict with, or result in any violation or
breach of, any provision of the organizational documents of such party, (ii) result
in any violation or breach of, or constitute (with or without notice or lapse
of time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any material benefit)
under, or require a consent or waiver under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture or other agreement to which
such party is a party or otherwise bound, or (iii) subject to the
governmental filings and other matters referred to in Section 5.2(c) of
the Specified Party Disclosure Letter, contravene, conflict with, or result in
a violation of any of the terms or requirements of, or give any Governmental
Entity or any other Person the right to revoke, withdraw, suspend, cancel,
terminate, or modify any permit, concession, franchise, license, judgment, or
Law applicable to such party, respectively, or any of its properties or assets,
except in the case of clauses (ii) and (iii) for any such breaches,
contraventions, rights, conflicts, violations, defaults, terminations,
cancellations, accelerations, losses or failures to obtain any such consent or
waiver that would not, individually or in the aggregate, reasonably be expected
to materially delay or impair the ability of such party to consummate the
Closing.


 


(c)                   Other
than the approvals set forth in Section 5.2(c) of
the Specified Party Disclosure Letter, no consent, approval, order or
authorization of, or registration, declaration or 


 


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filing with, any
Governmental Entity is required by or with respect to any of the Specified Parties in connection with the
execution, delivery and performance of this Agreement or the Ancillary
Agreements to which such party is a party, or the consummation of the
transactions contemplated hereby or thereby.


 


Section 5.3            Brokers


 


Except
as set forth in Section 5.3 of the Specified
Party Disclosure Letter, as of the date hereof, none of the Specified Parties or any of their
representatives has employed any broker, financial advisor or finder or
incurred any Liability for any brokerage fees, commissions or finder’s fees in
connection with the transactions contemplated by this Agreement.  The Specified
Parties are solely responsible for any payment, fee, commission or
indemnification obligation that may be due to any broker, financial
advisor or finder set forth in Section 5.3
of the Specified Party Disclosure Letter or subsequently engaged by any of the Specified Parties or any of their Affiliates or
representatives in connection with the transactions contemplated by this
Agreement.  The provisions of this Section 5.3 shall survive the Closing or earlier
termination of this Agreement.


 


Section 5.4            Licensability of the Specified Parties and Principals


 


None
of the Specified Parties nor any of their
directors, officers, key employees, or Persons performing management functions
similar to officers and partners has ever been denied or had revoked an
application for a Gaming Approval by any Governmental Entity or Gaming
Authority.  To the best of the knowledge
and belief of each Specified Party, there are no facts, which if known to any
Gaming Authority, could (i) reasonably be expected to result in the
denial, revocation, limitation, suspension or material delay of a Gaming
Approval currently held, or which may be sought pursuant to this Agreement, by
any of the Specified Parties or any of
their Affiliates or (ii) result in a negative outcome in connection
with any finding of qualification or suitability proceedings currently pending,
any applications for Gaming Approval currently pending, or under any future
qualification or suitability proceedings necessary for the consummation of this
Agreement or the transactions contemplated hereby or by any Ancillary
Agreement, with respect to any Specified Party or
any of their directors, officers, key employees and Persons performing
management functions similar to officers and partners.


 


Section 5.5            Compliance with Laws


 


(a)                   Each
of the Specified Parties, their holding
companies, intermediary companies, financial sources, directors, officers, key
employees, owners or other qualifiers, and each of their respective directors,
officers, key employees and Persons performing management functions similar to
officers and partners hold or will hold on or prior to the Closing all Permits
necessary to conduct the business and operations of such Specified Party (the “Specified Party 


 


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Permits”),
each of which Specified Party Permit is in full force and effect in all
material respects and no event has occurred which permits or with or without
the giving of notice or passage of time or both, would permit, revocation,
non-renewal, modification, suspension, limitation or termination of any
Specified Party Permit.  Each of the Specified Parties, their holding companies,
intermediary companies, financial sources, directors, officers, key employees,
owners or other qualifiers, and each of their directors, officers, key
employees and Persons performing management functions similar to officers and
partners are in compliance with the terms of the Specified Party Permits.  None of the Specified
Parties, their holding companies, intermediary companies, financial
sources, directors, officers, key employees, owners or other qualifiers has
received notice of any investigation or review by any Governmental Entity under
any Gaming Law (other than in connection with interim authorization or plenary
licensure under the New Jersey Gaming Laws in connection with the Sale) or
other Law with respect to any of such Persons that is pending, and, to the knowledge
of the Specified Parties, no
investigation or review is threatened, which, if known to any Gaming Authority,
would reasonably be expected to result in the denial, limitation or material
delay of Gaming Approval determinations to be made by the Commission or other
Gaming Authorities in connection with the transactions contemplated hereby.


 


(b)                   None
of the Specified Parties or any of their
directors, officers, key employees, partners or Persons performing similar
management functions has received any written claim, demand, notice, complaint,
court order or administrative order from any Governmental Entity under, or
relating to, any violation or possible violation of any Gaming Laws or other
Laws which did or would be reasonably likely to result in fines or penalties,
individually or in the aggregate, of $15,000 or more.  To the best of the knowledge and belief of
the Specified Parties, there are no facts
which, if known to the Gaming Authorities, will or could reasonably be expected
to result in the revocation, limitation or suspension of an existing material
license, finding of suitability, registration, permit or approval of any of
them, or any of its officers, directors, key employees or Persons performing
management functions similar to an officer or partner, or limited partner,
under any Gaming Laws or other Laws. 
None of the  Specified Parties or any of their officers,
directors, key employees or Persons performing any management functions similar
to an officer or partner has suffered a suspension or revocation of any
Specified Party Permit held under Gaming Laws or other Laws.


 


Section 5.6            Investigation by the Specified Parties


 


The Specified Parties acknowledge and agree that each
of them has conducted its own independent investigation, review and analysis of
the business, operations, assets, liabilities, results of operations, financial
condition, software, technology and prospects of the Business and the Property,
which investigation, review and analysis was done by the Specified Parties and
their Affiliates and, to the extent the Specified Parties deemed appropriate,
by representatives of the Specified Parties. 
The Specified Parties have (i) been furnished with and has had
access to all such information concerning the Business and the Property, as the
Specified Parties consider relevant in connection with its determination to
enter into this Agreement and the transactions 


 


54

















 


contemplated hereby and (ii) had all questions which have
been asked by the Specified Parties or
any of their representatives satisfactorily answered.  Without limitation of the foregoing, the Specified Parties acknowledge that the Purchase
Price and other consideration payable by the Specified
Parties under this Agreement and the Ancillary Agreements have been
negotiated based on the Specified Parties’
express agreement that there would be no contingencies (financial or otherwise)
to Closing other than the conditions set forth in Article VIII.  The Specified
Parties acknowledge that, should the Closing occur, at the Closing Specified Parties will acquire the Acquired
Assets and assume the Assumed Liabilities as set forth in Section 10.2,
without any representation or warranty of any kind, express or implied, except
such representations and warranties as are expressly set forth in Article IV. 
Further, without limiting any representation, warranty or covenant of
Tropicana Entertainment or the Company expressly set forth herein, the Specified Parties acknowledge that each of them
has waived and hereby waives as a condition to Closing any further due
diligence reviews, inspections or examinations with respect to the Acquired
Assets, Assumed Liabilities and the Business, including, without limitation,
with respect to financial, operational, engineering, environmental, title,
survey, regulatory and legal compliance matters.


 


Section 5.7            Litigation; Orders


 


With
the exception of Gaming Approval determinations to be made by the Commission or
other Gaming Authorities, there are no Proceedings pending or, to the knowledge
of the Specified Parties, threatened
against any of them before any Governmental Entity, which, if determined
adversely to such party, would, individually or in the aggregate, reasonably be
expected to materially delay or impair the ability of any of them to consummate
the Closing.  None of the Specified Parties has received written notice
of and, to the knowledge of the Specified
Parties, none of them are in default under any Order of any Governmental
Entity, in each case except for any such default or defaults that would not,
individually or in the aggregate, reasonably be expected to materially delay or
impair the ability of any of them to consummate the Closing.


 


Section 5.8            No Vote Required


 


No
vote of the shareholders of any of the Specified
Parties is required by Law, such party’s organizational documents or
otherwise in order for such parties to duly consummate the transactions
contemplated by this Agreement or the Ancillary Agreements.


 


Section 5.9            Required Lenders’ Authorization


 


The Specified Parties have received and delivered to
the Trustee/Conservator a written direction from the Required Lenders directing
the Administrative Agent to credit bid the Specified Original Credit Agreement
Obligations as consideration for the Reorganized Tropicana 


 


55

















 


Stock in accordance with the terms hereof (the “Written
Direction”), and such Written Direction has not been withdrawn or
terminated and is in full force and effect in accordance with its terms.


 


Section 5.10         Reorganized Tropicana Stock


 


(a)                   As
of the Closing, the Reorganized Tropicana Stock will have been duly authorized
and, when the Reorganized Tropicana Stock has been sold, transferred and
delivered in accordance with this Agreement on the Closing Date, will have been
validly issued, and will be fully paid and nonassessable.  Immediately prior to the Sellers’ transfer of
title to the Acquired Assets to the applicable Specified Parties, Newco Sub
will be the record, beneficial and registered owner of the Reorganized
Tropicana Stock to be transferred by it to the Non-Conservatorship Sellers and
will have good, valid and unencumbered title to such Reorganized Tropicana
Stock, free and clear of all Encumbrances and adverse claims.  At the Closing, the Reorganized Tropicana
Stock to be transferred by Reorganized Tropicana to the Company and the Company
Subsidiary will be issued and delivered by Reorganized Tropicana to the Secured
Parties at the direction of the Company and the Company Subsidiary.


 


(b)                   As
of the Closing, Reorganized Tropicana’s authorized capital stock shall consist
of (i) one hundred million (100,000,000) shares of common stock, par value
$.01 per share, of which (A) zero (0) shares will have been or will be
issued or outstanding, (B) zero (0) shares will be held in treasury and (C) when
the Reorganized Tropicana Stock has been sold, transferred and delivered in
accordance with this Agreement on the Closing Date, an aggregate twenty-five
million (25,000,000) shares will have been issued and will be outstanding, all
of which will be owned by the Secured Parties, and (ii) ten million
(10,000,000)  shares of preferred stock
(the “Reorganized Tropicana Preferred Stock”
and, collectively with the Reorganized Tropicana Stock, the “Reorganized Tropicana Securities”), of which (A) zero
(0) shares will be issued or outstanding and (B) zero (0) shares will have
been or will be held in treasury.  Except
as contemplated by, described in and issued pursuant to the Confirmed Delaware
Plan, no Commitments exist with respect to any Reorganized Tropicana
Securities.


 


ARTICLE VI


 


COVENANTS


 


Section 6.1            Conduct of Business of the
Company


 


(a)                   During
the period from the date of this Agreement and continuing until the earlier of
the termination of this Agreement and the Closing (and, in the case of the
Non-Conservatorship Sellers, only to the extent relating to the Acquired Assets
and Assumed Liabilities of such Non-Conservatorship Sellers), subject to the
Bankruptcy Code and as required 


 


56

















 


by the Bankruptcy
Courts and subject to the limitations set forth below, (i) the
Company shall, and shall cause the Company Subsidiary to, and (ii) Tropicana
Entertainment shall cause the Non-Conservatorship Sellers to carry on the
Business in the ordinary course.


 


(b)                   Without
limiting the generality of the foregoing, except (i) as expressly
permitted or required by this Agreement or the Ancillary Agreements, (ii) as
is reasonably required for the Company to maintain the viability and
marketability of the Property and to prevent the destruction, removal, wasting,
deterioration, or impairment of the Property (including regular repair and
maintenance efforts, continuation of any planned capital expenditures, and
marketing and promotional programs, but subject in any event to the terms of Section 6.1(c) below), (iii) as
disclosed in Section 6.1(b) of either
of the AC Disclosure Letters, (iv) as required by Gaming
Authorities or (v) for the Sellers’ obligations under the
Bankruptcy Code or as required by the Bankruptcy Courts, during the period from
the date of this Agreement and continuing until the earlier of the termination
of this Agreement and the Closing (and, in the case of the Non-Conservatorship
Sellers, only to the extent relating to the Acquired Assets and Assumed
Liabilities), without the written consent of the Specified Parties (x) other than with respect to any Tax
election or Tax accounting determination made by a party other than the Company
in respect of consolidated Tax Returns, the Company shall, and shall cause the
Company Subsidiary, and (y) Tropicana Entertainment shall cause the
Non-Conservatorship Sellers, in each case, not to take any of the following
actions in respect of the Business:


 


(i)                    sell, pledge, lease,
license, cancel, abandon, permit to lapse, dispose of, grant or otherwise
authorize the sale, disposition or grant of the Property (or any portion
thereof) except, in each case, in the ordinary course of business in connection
with the operation of the Property;


 


(ii)                   voluntarily incur any
material Liabilities, except in the ordinary course of business, or make or
agree to make any capital expenditures, other than capital expenditures as may
be required pursuant to any contractual obligations as of the date hereof or in
accordance with the aggregate amount of capital expenditures set forth in the
capital expenditure budget attached hereto as Exhibit G;


 


(iii)                  modify, amend, terminate or
assume any material Acquired Contracts, enter into any Material Contracts or
waive, release or assign any material rights or Claims, except in the ordinary
course of business, as required by applicable Law, as otherwise contemplated by
this Agreement or the Ancillary Agreements or (with the consent of Reorganized
Tropicana, which shall not be unreasonably withheld or delayed), as the Company
determines may be advisable to provide for services and products comparable to
any services or products under Contracts covered by Section 6.7(a) for which payments have not been
approved pursuant to Section 6.7(a)(x);


 


57

















 


(iv)                  subject the Property (or any
constituent portion thereof) to any Encumbrance, other than a Permitted
Encumbrance;


 


(v)                   except for breaches and defaults
of the type referred to in Section 365(b)(2) of the Bankruptcy Code,
fail to use commercially reasonable efforts to perform in all material respects
its obligations under all Acquired Contracts and other agreements and
instruments relating to the Acquired Assets;


 


(vi)                  except as may be required by
applicable law or by any Contract or pursuant to any Benefit Plan in effect on
the date hereof (including any collective bargaining agreement or any
Confidential Incentive, Bonus and Severance Agreement set forth in Section 4.13(a) of the Company Disclosure Letter),
(1) establish, adopt, materially amend, enter into or terminate any
Benefit Plan (including any employment, severance or material compensatory
agreements), (2) make any material increase in the compensation or
benefits payable or to become payable to any Business Employees (except for
annual base salary or hourly wage increases for non-officer Business Employees
made in the ordinary course of business consistent with past practice), (3) pay
any severance, termination, incentive, or retirement benefits, except for such
severance, termination, incentive, or retirement payments made to non-officer
Business Employees in the ordinary course of business consistent with past
practice, provided that the aggregate of all such payments shall not exceed
$100,000, or (4) hire any employee or consultant (other than
non-officer employees hired in the ordinary course of business);


 


(vii)                 other than as set forth in Section 6.1(b)(vii) of either of the AC Disclosure
Letters, enter into any collective bargaining agreement or modify or amend any
existing collective bargaining agreement;


 


(viii)                pay or declare or set aside for
payment any dividend or other distribution, payable in cash, stock or property,
with respect to any shares of any class or series of their respective capital
stock, or purchase, redeem or otherwise acquire any shares of any class or
series of their respective capital stock;


 


(ix)                   in a single transaction or
through a series of similar or related transactions, consolidate with or merge
with or into any other Person;


 


(x)                    in a single transaction or
through a series of similar or related transactions, acquire any material
real property;


 


58














 


(xi)                  consummate any acquisition of
the capital stock, any line of business or any material assets of any other
Person, in a single transaction or series of similar or related
transactions (other than any acquisition of inventory and equipment in the ordinary
course of business);


 


(xii)                  create any material liability
other than a current liability or create any material post-Closing obligation
of the Specified Parties, in each case,
unless otherwise permitted by the provisions of this Agreement or any Ancillary
Agreement;


 


(xiii)                 settle or compromise any
material Proceeding other than any Proceeding set forth in Section 6.1(b)(xiii)
of the AC Disclosure Letters;


 


(xiv)                make any change in any method of
accounting or accounting principles or practices except as required by GAAP or
any pronouncement of any applicable accounting regulatory or self-regulatory
body;


 


(xv)                 except as set forth in Section 6.1(b)(xv) of either of the AC Disclosure
Letters, file any amended Tax Return, make any material change in any method of
Tax accounting, make any material change in any Tax election, settle or
compromise any Tax audit or Proceeding, settle or compromise any Tax Claim or
assessment, or consent to any extension or waiver of the limitation period
applicable to any Claim or assessment with respect to Taxes, in each case which
will affect the Business during any Tax Period subsequent to the Closing Date;


 


(xvi)                pay any amount with respect to
the Corporation Business Tax Claim; or


 


(xvii)               enter into a Contract, commitment
or arrangement (oral or written) to do any of the foregoing, or authorize,
recommend, propose or publicly announce an intention to do any of the foregoing
actions.


 


(c)                   Notwithstanding
anything contained in this Agreement to the contrary (including the restrictions
set forth in Sections 6.1(a) and (b)), nothing contained in this Article VI
shall preclude the Trustee/Conservator or Tropicana Entertainment, as
applicable, from directing the Company and the Company Subsidiary (each, in the
case of the Trustee/Conservator) or the Non-Conservatorship Sellers (in the
case of Tropicana Entertainment) from making any Debt Service Payment.


 


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(d)                   The
Sellers, as applicable, shall interpose objections to Claims in the exercise of
their business judgment prior to the Claim Objection Deadline; provided,
however, that the Sellers shall interpose objections to Claims in the
event that the Specified Parties reasonably instruct the Sellers to interpose
such objection.


 


Section 6.2            Cooperation; Notice; Cure


 


From
the date hereof until the Closing, and subject to the last sentence of Section 6.5(b), each party (other than the
Administrative Agent) shall promptly notify each other party (including the
Administrative Agent) in writing of, and shall use its reasonable best efforts
to cure before the Closing Date, any fact, event, transaction, circumstance or
action the existence, occurrence or taking of which, in each case as soon as
practicable after it becomes known to such party, that (i) causes,
or is reasonably likely to cause, any covenant or agreement of such party under
this Agreement or any Ancillary Agreement to which it is a party to be breached
in any material respect, (ii) renders or would reasonably be
expected to render untrue in any material respect any representation or
warranty of such party contained in this Agreement or any Ancillary Agreement
to which it is a party or (iii) will result, or is reasonably
likely to result, in the failure of such party to timely satisfy any of the
closing conditions specified in Article VIII.  Nothing contained in Section 6.1
shall prevent the Trustee/Conservator from giving such notice, using such
efforts or taking any action to cure any such event, transaction, circumstance
or action.  No notice given pursuant to
this Section 6.2 shall have any effect
on the representations, warranties, covenants or agreements contained in this
Agreement for purposes of determining satisfaction of any condition contained
herein, although corrective action taken pursuant to any such notice may have
such an effect.


 


Section 6.3            Employee Matters


 


(a)                   The
Specified Parties shall make offers of
employment to be effective as of the Closing Date to each Business Employee (x) who is covered by a
CBA or (y) whose name is set
forth on Section 6.3(a) of the
Specified Party Disclosure Letter on such terms and conditions as the Specified Parties shall determine, in their
sole discretion, subject to the terms of any CBA or Management Agreement that
is applicable to such Business Employee, the selection of such Business Employees set forth in clause
(y) and all such offers of employment in each case shall be made in
accordance with applicable Law.  The Sellers and the Specified Parties intend and shall each use
commercially reasonable efforts to ensure that (i) the Transferring
Employees shall have continuous and uninterrupted employment immediately before
and immediately after the Closing and (ii) for purposes of any
severance or termination benefit plan, program, policy, agreement or
arrangement of the applicable Specified Party or any Seller (or their
respective Affiliates), the transactions contemplated by this Agreement shall
not constitute a termination of employment of any Transferring Employee prior
to or upon the consummation of such transactions.  The parties acknowledge and agree that (A) the consummation of the transactions
contemplated by this Agreement, including without limitation, the transfer of
employment of 


 


60

















 


Transferring Employees from Seller to the Specified Parties or their
Affiliates, shall not constitute a “separation from service” (within the
meaning of Code Section 409A) with respect to any Transferring Employee,
and (B) except with respect to Liabilities assumed under Section 6.3(b), no Specified
Party shall bear or have any responsibility for, the Liability for any severance payments or termination benefits with
respect to any Business Employee who (1) terminates employment (or whose employment is terminated) prior to the Closing Date or (2) accepts
a Specified Party’s offer but is nevertheless entitled to severance payments or
termination benefits upon Closing
under any Benefit Plan or applicable Law.


 


(b)                   Effective
immediately after the Closing, the Specified
Parties shall assume and honor all Liabilities of Sellers as of the Closing Date under (i) each Management Agreement (to the extent not paid prior
to Closing), and (ii) each other Benefit
Plan set forth in Section 6.3(b) of
the Company Disclosure Letter; provided,
however, that the Specified Parties shall not, in any event, be obligated to pay
severance benefits under the Severance Policy (A) to or in respect of any
employee who terminates employment with (or whose employment is terminated by)
Sellers prior to the Closing Date (other than any employees terminated at the
request or direction of the Specified
Parties) or (B) in excess
of an aggregate of $3,670,000  (the items
described in clauses (i) and (ii) of this Section 6.3(b), together, the “Assumed Benefit Plans”).  Each
Transferring Employee shall cease to be an active participant in any Benefit
Plan that is not an Assumed Benefit Plan (each, a “Retained Benefit Plan”)
(except as otherwise provided under an applicable CBA) effective as of the
Closing Date; provided, however, that each such Transferring Employee shall be
entitled to any benefits accrued under such Retained Benefit Plan prior to the
Closing Date, as determined under the terms and conditions of such Retained
Benefit Plan.  With respect to
each Retained Benefit Plan, the Specified
Parties shall assume and honor those Liabilities described in Section 2.1(c)(iii) or Section 2.1(c)(v) hereof,
and Sellers shall retain and the Specified
Parties shall not assume any and all other Liabilities arising from or
relating to such Retained Benefit Plan.


 


(c)                   With
respect to any Specified Party Plan, for all purposes of determining vesting
and eligibility to participate and, with respect only to any severance plans,
programs or arrangements, for purposes of benefit accrual, a Transferring
Employee’s service with the Tropicana Parties or any Seller shall be treated as
service with the Specified Parties; provided,  however, that such service need not be recognized to
the extent that such recognition would result in any duplication of benefits.


 


(d)                   To
the extent permitted under the terms of applicable benefit plans, programs and
arrangements adopted or maintained by the Specified
Parties for the benefit of Transferring Employees (collectively, “Specified Party Plans”), the Specified
Parties shall waive, or use commercially reasonable efforts to cause to
be waived any pre-existing condition limitation under any Specified Party Plan
that is an “employee welfare benefit plan” within the meaning of Section 3(1) of
ERISA in which Transferring Employees (and their eligible dependents) will be
eligible to participate from and after the Closing, except to the extent such
pre-existing condition limitation or exclusion would have been applicable under
a comparable Benefit Plan 


 


61

















 


immediately prior
to the Closing.  The Specified Parties shall cause appropriate
Specified Party Plans to recognize the dollar amount of all expenses incurred
by each Transferring Employee (and his or her eligible dependents) during the
calendar year in which the Closing occurs to the extent recognized by a
comparable Benefit Plan for purposes of satisfying such year’s deductible and
co-payment limitations or exclusions prior to Closing, to the extent that
recognition of such deductibles and co-payment credits are permitted by the
applicable Specified Party Plan. 
Effective as of the Closing, the Specified
Parties shall make available a group health plan to those Transferred
Employees who, immediately prior to the Closing Date, participate in the
Company’s group health plan.


 


(e)                   Effective
not later than the Closing Date, the Specified Parties shall, or shall cause their
Affiliates to, have in effect one or more defined contribution plans that
include a qualified cash or deferred arrangement within the meaning of Section 401(k) of
the Code (and a related trust exempt from tax under Section 501(a) of the Code) (as applicable, the “Specified Party 401(k) Plan”).  Prior to the Closing Date, Tropicana
Entertainment shall use its best efforts to provide, or to cause its Affiliates
to provide that Transferring Employees who are participants in the Retained 401(k) Plan
shall be fully vested in their account balances under the Retained 401(k) Plan.  Each Transferring Employee who is eligible to
participate in the Retained 401(k) Plan immediately prior to the Closing Date shall be eligible to participate
in a Specified Party 401(k) Plan as of the Closing Date.  The Specified Parties shall cause the Specified
Party 401(k) Plan to accept a “direct rollover” to such Specified Party
401(k) Plan of the account balances of each Transferring Employee
(including promissory notes evidencing outstanding loans) under the Retained
401(k) Plan, if such direct rollover is elected in accordance with
applicable Law by such Transferring Employee.


 


(f)                    From
and after the Closing Date, the Specified
Parties shall assume and honor, in accordance with their respective
terms, the collective bargaining agreements listed in Section 6.3(f) of
the Company Disclosure Letters and all collective bargaining agreements entered
into by any Seller after the date of this Agreement in compliance with Section 6.1(b)(vii) (including all obligations to
provide employee benefits and/or to contribute to any pension plans) that cover
one or more Business Employees (each, a “CBA”) as in
effect immediately prior to the Closing Date, it being understood by the
parties hereto that, notwithstanding the foregoing or anything herein to the
contrary, in no event shall the Specified
Parties assume (i) any COBRA Liability or (ii) any Withdrawal Liability.  The Specified
Parties acknowledge and agree that, notwithstanding anything to the
contrary in this Section 6.3,  the provisions of this Section 6.3
shall be subject to any applicable provision of a CBA in respect of
Transferring Employees, to the extent such provision is inconsistent with or
otherwise in conflict with the provisions of any such CBA.  For avoidance of doubt, it is the intention
of the parties hereto that Sellers’ contribution history with respect to any
Multiemployer Plan prior to the Closing Date shall not be taken into account in
determining the Specified Parties’ “contribution
base units” (as defined in Section 4001(a)(11) of ERISA) for purposes of (i) determining
whether the Specified Parties incur a
complete or partial withdrawal from any Multiemployer Plan after the Closing
Date or (ii) determining the amount of any Withdrawal Liability
incurred by the Specified Parties in
connection with the Specified Parties’
complete or partial withdrawal from any Multiemployer 


 


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Plan after the
Closing Date, and no party hereto shall take any position contrary to such
intention.


 


(g)                   Sellers
agree to notify the Specified Parties of
any layoffs of any Business Employees in the 90-day period prior to the Closing
Date, and the Specified Parties agree to
provide any required notice under the WARN Act and any similar federal, state
or local Law, and each party agrees to take such actions as are necessary for
it to otherwise comply with the WARN Act and any such other similar Law with
respect to any “plant closing” or “mass layoff” (as defined in the WARN Act) or
group termination or similar event affecting Business Employees (including as a
result of the consummation of the transactions contemplated by this Agreement),
or affecting Transferring Employees from and after the Closing. 
The Specified Parties shall be solely liable for any and all
liabilities and related costs and expenses arising from or relating to any
Claim brought as a result of the breach by the Specified Parties of this
Agreement that results in a termination of employment of any employees by
Sellers or their Affiliates that occurs prior to Closing to constitute a
“plant closing,” “mass layoff” or group termination or similar event under the
WARN Act or any similar federal, state or local Law.


 


(h)                   Following
the date of this Agreement, the Sellers and the Specified
Parties shall reasonably cooperate in all matters reasonably necessary
to effect the transactions contemplated by this Section 6.3,
including but not limited to (i) exchanging information regarding
the employment terms and conditions of current Business Employees that is reasonably
requested by the Specified Parties for
purposes of making offers of employment pursuant to Section 6.3(a),
(ii) exchanging data relating to workers compensation, employee
benefits and employee benefit plan coverage (except to the extent prohibited by
applicable Law), (iii) obtaining, at the Company’s cost, any
governmental approvals in connection with the establishment and registration
and qualification of any Specified Party Plan, (iv) obtaining a
work permit or employment pass or other approval required for a Transferring
Employee’s employment to continue with the Specified Parties following the
Closing and (v) complying with all applicable Laws relating to
notification of unions and relevant governmental bodies and at the Company’s
cost negotiations with unions in respect of the transactions contemplated
hereby.


 


(i)                    The
provisions of this Section 6.3
are for the sole benefit of the parties to this Agreement and nothing herein,
expressed or implied, is intended, shall or shall be construed to confer upon
or give to any Person (including, for the avoidance of doubt, any employees of
any Seller (including the Business Employees and Transferring Employees)),
other than the parties hereto and their respective permitted heirs, executors,
administrators, successors and assigns, any legal or equitable or other rights
or remedies (with respect to the matters provided for in this Section 6.3) under or by reason of any provision of
this Agreement.


 


(j)                    Except
as provided in this Section 6.3,
the Specified Parties shall have no
obligation to extend offers of employment to any employee(s) of any Seller
or to enter or continue any employment or other service relationship with any
Business Employee or 


 


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Transferring
Employee or other service provider. 
Nothing contained herein, whether express or implied, shall (i) be
treated as an amendment or other modification of any employee benefit plan,
program or arrangement or the establishment of any employee benefit plan, program
or arrangement, (ii)  except
with respect to Management Agreements, limit the rights of any Specified
Party or any of their Affiliates to amend, terminate or otherwise modify (or
cause to be amended, terminated or otherwise modified) any Specified Party
Plan, Assumed Benefit Plan or other employment benefit or compensation plan,
program, policy or arrangement from and after the Closing Date or (iii) create
any rights to continued employment with any of the Sellers, the Specified Parties, or any of their respective
Affiliates or rights to continued participation in any Specified Party Plan,
Assumed Benefit Plan or other employment benefit or compensation plan, program,
policies or arrangements, it being agreed that all provisions contained in this
Agreement with respect to employee benefit plans or employee compensation are
included for the sole benefit of the respective parties hereto and shall not
create any third-party beneficiary or other right in any other Person.


 


(k)                   Except as expressly provided in this Section 6.3, Section 2.1(c)(iii) or Section 2.1(c)(v), Sellers shall be solely liable for
all wages, remuneration and other obligations and Liabilities, whether actual
or contingent, (A) that arise in connection with any Transferring Employee (or any
dependent or beneficiary thereof) on or prior to the Closing Date, (B) associated
with any employee or other service provider of any Seller who does not become a
Transferring Employee (or any dependent or beneficiary thereof), including in
connection with any termination of any such service relationship, and/or (C) that
arise at any time with respect to any Benefit Plan, or any other severance,
retention, employment, change-of-control, pension, retirement, equity or other
plan, program, policy or agreement of or with any Seller.   The Specified
Parties shall not be liable for any (i) COBRA Liabilities or (ii) Withdrawal Liabilities (other than any
Withdrawal Liabilities that may arise in connection with contributions to
Multiemployer Plans by the Specified
Parties (or any Affiliate(s) of any Specified
Party) occurring after the Closing Date).


 


Section 6.4            Access to Information and the
Property


 


(a)                   From
the date of the Original Agreement until the Closing, upon reasonable notice,
subject to applicable Law, including competition Laws, Gaming Laws and the
Bankruptcy Code, during the period from the date hereof to the Closing, the
Company and the Company Subsidiary, at the direction of the
Trustee/Conservator, shall provide the Specified
Parties and their representatives and representatives of the Lenders (as
designated by the Administrative Agent acting at the direction of the Required
Lenders) who have duly executed and delivered to the other parties thereto a
confidentiality agreement substantially in the form attached as Exhibit H hereto) (collectively, the “Specified Party Representatives”) with reasonable access,
during normal business hours, to the Property, the general manager and other
senior managers of the Property and the financial books and records (other than
the Atlantic City Customer Database and personnel files) of the Business, but
only to the extent that such access is reasonably related to the requesting
party’s obligations and rights hereunder (it being understood 


 


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that the foregoing
provisions shall apply to each of (y) the Company and the Company
Subsidiary and (z) the Non-Conservatorship Sellers, in respect of
which Tropicana Entertainment hereby authorizes the Company and the Company Subsidiary,
at the direction of the Trustee/Conservator, to provide Specified Party
Representatives access pursuant to the foregoing terms, except where employees
or officers of the Company and the Company Subsidiary do not have access in the
ordinary course of business, in which case Tropicana Entertainment shall, upon
the request of the Trustee/Conservator, promptly arrange to provide such access
to the Trustee/Conservator and his representatives, who will subsequently
provide access to Specified Party Representatives in accordance with the
foregoing terms); provided, however, that (i) if the
Trustee/Conservator so requests, Specified Party Representatives shall be
accompanied by a representative of the Trustee/Conservator; (ii) Specified
Party Representatives shall not initiate contact with employees or other
representatives of any Seller other than the President and senior managers of
the Company specified by the Trustee/Conservator without the prior written
consent of the Trustee/Conservator; (iii) Specified Party
Representatives shall not be entitled to perform any physical testing of any
nature with respect to any portion of the Property without the
Trustee/Conservator’s prior written consent; (iv) Specified Party
Representatives shall not unreasonably interfere with the operation of the
Business; (v) Specified Party Representatives shall, at the Specified Parties’ sole cost and expense,
promptly repair any damage to the Property or any other property owned by a
Person other than a Specified Party arising from or caused by such inspection,
and shall reimburse the applicable Seller for any loss arising from or caused
by any inspection, and restore the Property or such other third-party property
to substantially the same condition as existed prior to such inspection, and
shall indemnify, defend and hold harmless the other parties hereto and their
respective Affiliates from and against any personal injury or property damage
Claims, liabilities, judgments or expenses (including reasonable attorneys’
fees) incurred by any of them arising or resulting therefrom; and (vi) in
no event shall the results of any such inspection or the Specified Parties’ satisfaction therewith be a
condition to the Specified Parties’
obligations hereunder, it being the intent of the Specified Parties to purchase the Property in an “As Is” condition
and on a “Where Is” basis, and “with all faults” as set forth in Section 10.2, subject only to the representations and
warranties contained in Article IV
of this Agreement.


 


(b)                   The
parties hereby agree that any information relating to the Business (including
any information learned as a result of inspections described in Section 6.4(a) furnished (whether prior to or on
or after the date hereof) to the Specified
Parties, the Administrative Agent or any Specified Party Representative
(collectively, “Specified Party Recipients”) by on
or behalf of Tropicana Entertainment or any of the Sellers or any of their
respective attorneys or other advisers or agents, including all analyses,
compilations, forecasts, studies or other documents prepared by any Specified
Party Recipient in connection therewith that contain or reflect such
information, is “Confidential Information”.  Prior to Closing, the Specified Parties shall
cause the Specified Party Recipients to disclose and use such Confidential
Information only in connection with the evaluation and consummation of the
transactions contemplated hereby, including in preparation of the filing of the
Form 10 Registration Statement and shall (and shall cause the Specified
Party Recipients to) maintain prior to the Closing the confidentiality of the
Confidential Information, except that Confidential Information 


 


65

















 


may be disclosed (i) to
such Specified Party Recipient’s Affiliates and its Affiliates’ officers,
directors, trustees, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the persons to whom such
disclosure is made will be informed of the confidential nature of such
Confidential Information and instructed to keep such Confidential Information
confidential), (ii) to the extent requested by any regulatory
authority or quasi-regulatory authority (such as the National Association of
Insurance Commissioners), (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iv) in
connection with the exercise of any remedies under the Loan Documents (as
defined in the Original Credit Agreement) or any suit, action or proceeding
relating to the enforcement of its rights hereunder or thereunder, (v) with
the consent of the applicable Sellers and the Trustee/Conservator.  Confidential Information does not include
information which (a) becomes publicly available other than as a
result of a disclosure by a Specified Party Recipient or any of its
representatives in violation of this Section 6.4,
(b) is or becomes available to such Specified Party Recipient
on a non-confidential basis from a source other than the Sellers, but only if
the source of such information, to the best of the Specified Party Recipients’
knowledge, is not prohibited from disclosing such information to such Specified
Party Recipient by a legal, contractual or fiduciary obligation to any of the
Sellers, (c) the Trustee/Conservator, on behalf of the Company,
specifically states in writing is not Confidential Information, (d) was
within such Specified Party Recipient’s possession prior to the
Trustee/Conservator, on behalf of the Company, furnishing or making it
available to such Specified Party Recipient or (e) is independently
developed by such Specified Party Recipient without use of or reference to any
Confidential Information.  The Specified Parties shall have no obligation to
maintain the confidentiality of any Confidential Information after the Closing.


 


(c)                   Following
the Closing, upon reasonable notice, the Specified
Parties and Tropicana Entertainment shall (and shall cause their
respective Affiliates (other than Columbia Sussex Corporation) and representatives
to) provide the other parties hereto and their respective Affiliates (other
than Columbia Sussex Corporation) and representatives with reasonable access
and duplicating rights, during normal business hours, to all of Specified Parties’ and the Sellers’ personnel,
properties, books, Tax Returns, insurance records, Benefit Plans, contracts,
commitments and records included in or related to the Business, the Property or
any employees of the Business and shall cooperate with the requesting party, as
reasonably necessary for such requesting party to pursue any Proceeding
relating to Claims in connection with this Agreement and the transactions
contemplated hereby including, without limitation, any Proceeding related to
the Excluded Intellectual Property or any current or former employees of the
Business.  Notwithstanding the foregoing,
no party shall be required to provide any information which it reasonably
believes (i) it may not provide to the requesting party or its
respective Affiliates or representatives by reason of applicable Law or a
confidentiality agreement with a third party, and if, in the case of a
confidentiality agreement, the non-requesting party has used its reasonable
best efforts to obtain the consent of the counter-party to any such confidentiality
agreement to such disclosure or (ii) constitutes information
protected by the attorney/client and/or attorney work product privilege.  If any material is withheld by the
non-requesting party pursuant to the immediately preceding sentence, such
non-requesting party shall inform the requesting party that 


 


66

















 


it is withholding
requested information and identify the general nature of the material which is
being withheld and the grounds on which such material is being withheld.


 


Section 6.5            Regulatory Approvals


 


(a)                   The
Specified Parties, the Company, the
Company Subsidiary and the Tropicana Parties shall cooperate with each other,
subject to the last sentence of Section 6.5(b),
and use their respective reasonable best efforts to, (i) as
promptly as practicable, take, or cause to be taken, all appropriate action,
and do or cause to be done, all things necessary, proper or advisable under
applicable Law in order for such party to fulfill and perform its respective
obligations in respect of this Agreement and the Ancillary Agreements to which
it is a party, including to cause the conditions to their respective
obligations set forth in Article VIII
to be fulfilled and otherwise to consummate and make effective the transactions
governed by this Agreement and the Ancillary Agreements and to permit the Specified Parties to own and operate the
Property, in each case, after the Closing in substantially the same manner as
owned and operated by the Sellers (A) in the case of Gaming
Approvals (other than with respect to any requirement of the Gaming Authorities
that a conservatorship be in place for the Business after Closing in accordance
with the terms of Section 6.18(a),
between the Aztar Acquisition Date and the date immediately preceding the Trust
Trigger Date and (B) in all other cases, since the Aztar
Acquisition Date, (ii) obtain the Gaming Approvals, (iii) obtain
from any Governmental Entities any consents, licenses (including any liquor
licenses), permits, waivers, approvals, authorizations or orders required (A) to
be obtained or made by such parties or any of their respective Affiliates or
representatives and (B) to avoid any action or Proceeding by any
Governmental Entity, in connection with the authorization, execution and
delivery of this Agreement and the Ancillary Agreements to which such party is
a party and the consummation of the transactions contemplated hereby and
thereby, (iv) file and cause to be declared effective the Form 10  Registration Statement (it being understood
that the Company’s and Company Subsidiary’s obligations under this clause (iv) shall
be limited to reasonable cooperation with Reorganized Tropicana in providing
such information concerning the Company and Company Subsidiary as may be
reasonably requested by Reorganized Tropicana and (v) make all
necessary filings, and thereafter make any other required submissions with
respect to this Agreement and the Ancillary Agreements to which such party is a
party, as required under (A) any applicable federal or state
securities Laws, (B) Gaming Laws, (C) competition Laws,
including the Hart-Scott-Rodino Improvements Act of 1976 (the “HSR Act”), and (D) any other applicable Law (the
Gaming Approvals and the other consents, licenses, permits, waivers, approvals,
authorizations, orders, filings and other submissions referred to in
clauses (ii) through (v) shall not include the Bankruptcy Cases
and are, collectively, the “Regulatory Approvals”),
and to comply with the terms and conditions of all such Regulatory
Approvals.  The Specified Parties, the Company, the Tropicana Parties and their
respective representatives and applicable Affiliates shall file, as promptly as
reasonably practicable, but in no event later than fifteen (15) days following
the date hereof, all required initial applications and documents to be filed by
such party in connection with obtaining the Regulatory Approvals (including a
completed application for interim authorization from the Commission allowing
the Specified Parties to close the Sale);
provided, however, that the Form 10 Registration Statement
shall be filed as promptly as reasonably 


 


67

















 


practicable, but
in no event later than thirty (30) days following the date hereof .  The Specified
Parties, the Company, the Tropicana Parties and their respective
representatives and applicable Affiliates shall act diligently and promptly to
pursue the Regulatory Approvals (including promptly making any additional
filings and giving such reasonable undertakings as may be requested in
connection therewith) and shall cooperate in connection with the making of all
such filings, including providing reasonable assistance to another party and
copies (through outside counsel and
subject to the last sentence of Section 6.5(b)) of all such documents (other than
business entity and personal history disclosure forms provided to the Gaming
Authorities and information generally treated confidentially under the Gaming
Laws, including Section 74(d) and Section 74(e) of the
Casino Control Act), if requested, to the (x) Trustee/Conservator,
in the case of filings made by the Specified
Parties or their Affiliates, (y) Newco and the
Trustee/Conservator, in the case of filings made by the Tropicana Parties in
respect of the Business or the transactions contemplated hereby and (z) Newco,
in the case of filings made by the Company or Company Subsidiary, in each case
sufficiently in advance of such filing to allow reasonable opportunity for the
receiving party to comment thereon.  The Specified Parties and, to the extent requested
by the Trustee/Conservator, the Tropicana Parties and their Affiliates, shall
use their reasonable best efforts to schedule and attend any hearings or
meetings with Governmental Entities to obtain the Regulatory Approvals as
promptly as possible.  The Specified Parties, the Tropicana Parties (in
respect of the Business or the transactions contemplated hereby), and the
Company or the Company Subsidiary shall keep the other parties reasonably
informed on a constant basis of substantive discussions and formal meetings
with any Governmental Entity.  All filing fees incurred in connection with
obtaining Regulatory Approvals and other consents in accordance with this Section 6.5(a) shall be paid by
the Company.


 


(b)                   Subject
to applicable Laws relating to the exchange of information (including
competition Laws and Gaming Laws, including Section 74(d) and 74(e) of
the Casino Control Act) and excluding business entity and personal history
disclosure forms provided to the Gaming Authorities, to the extent practicable,
each of the Specified Parties, the
Company, and the Tropicana Parties shall consult each other, in advance, on all
submissions made to any Governmental Entity in connection with seeking approval
for the transactions contemplated by this Agreement and the Ancillary
Agreements and shall provide such other parties copies of all submissions
sufficiently in advance to permit reasonable review and comment thereon.  Without limiting the foregoing, subject to
the last sentence of this Section 6.5(b) and
excluding business entity and personal history disclosure forms provided to the
Gaming Authorities, the Specified Parties,
Tropicana Entertainment and the Company shall notify each other and the
Administrative Agent promptly of the receipt of comments or requests from
Governmental Entities relating to Gaming Approval determinations made or to be
made by the Commission or other Gaming Authorities in connection with seeking
approval for the transactions contemplated hereby regarding the timing of such
approvals and any comments or requests that would reasonably be expected to
materially delay, prevent or hinder the consummation of such transactions, and
shall cause to be supplied to each other copies of all correspondence between
the notifying party or any of its representatives and Governmental Entities
relating to any of the foregoing. 
Notwithstanding the foregoing, in any Proceedings before non-New Jersey Gaming


 


68














 


Authorities not
relating primarily to the Business or approval of the transactions contemplated
hereby, Tropicana Entertainment shall have no obligation under this Section 6.5(b) or any other provisions of this
Agreement to notify or provide any information to the other parties hereto or
any of their Affiliates relating to any preparation of filings or other written
materials, testimony, oral argument, consultation, advice, notice or
otherwise.  Notwithstanding anything to
the contrary in this Agreement, until the Closing, except as prohibited by
applicable Law or required by the Bankruptcy Courts, any consultation,
communication or exchange of information between the Company and the Company
Subsidiary, on the one hand, and any Tropicana Party or Affiliate thereof
(other than the Company and the Company Subsidiary), on the other hand, shall
be undertaken exclusively through and at the discretion of the
Trustee/Conservator or with his prior written authorization.


 


(c)                   Without
limiting Section 6.5(a) or Section 6.5(b) (and subject to each of them), from
the date of this Agreement until the Closing, the Company and the Tropicana
Parties (except as otherwise required under the Bankruptcy Code or by the
Bankruptcy Courts), on the one hand, and the Specified
Parties, on the other hand, shall:


 


(i)                    each use its reasonable best
efforts to avoid the entry of, or to have vacated or terminated, any decree,
Order, or judgment challenging this Agreement or the transactions contemplated
hereby that would restrain, prevent or delay the Closing, on or before the
Outside Date, including defending through litigation on the merits any Claim
asserted in any court by any Person;


 


(ii)                   each use its reasonable best
efforts to avoid or eliminate each and every impediment under any antitrust,
competition or trade regulation Law that may be asserted by any
Governmental Entity with respect to the Closing so as to enable the Closing to
occur as soon as reasonably practicable (and in any event no later than the
Outside Date), including implementing, contesting, resisting or appealing any
litigation under such Laws before any court or quasi-judicial administrative
tribunal seeking to restrain or enjoin the Closing; and


 


(iii)                  cooperate with each other and
each use its reasonable best efforts to, as promptly as practicable, take, or
cause to be taken, all appropriate action, and to do or cause to be done, all
things required by, or necessary, proper or advisable under applicable Law or
otherwise.


 


(d)                   From
the date of this Agreement until the Closing, the Company, the Tropicana
Parties, and the Specified Parties shall
(subject to Section 6.5(b)) promptly
notify each other, the Administrative Agent and the Trustee/Conservator in
writing of any pending or, to the knowledge of the Company, the Tropicana
Parties, or the Specified Parties, as
appropriate, threatened Proceeding by any Governmental Entity (other than, in
the case of the Company, any 


 


69

















 


such Proceeding
initiated by or involving the Commission or other Gaming Authority) or any
other Person (i) challenging or seeking damages in connection with
the Closing or any other transaction governed by this Agreement or the
Ancillary Agreements or (ii) seeking to restrain or prohibit the
consummation of the Closing.


 


Section 6.6            Publicity


 


Subject
to the last sentence of Section 6.5(b),
the Trustee/Conservator, Tropicana Entertainment, the Administrative Agent, and
the Specified Parties shall reasonably
cooperate to agree on the form and content of any press release regarding the
entry into this Agreement, and shall consult with each other before issuing,
and shall provide each other the opportunity to review and comment upon and use
all reasonable efforts to agree upon, any press release with respect to any of
the transactions contemplated hereby or by the Ancillary Agreements, in each
case through the Closing.  Between the
date hereof and the Closing, none of the parties or their respective Affiliates
shall issue any such press release prior to such consultation and prior to
considering in good faith any such comments, except as may be required by
applicable Law (including, without limitation, the Securities Act, the Exchange
Act, any rules and regulations of the Financial Industry Regulatory Authority
and any Gaming Laws), any listing agreement with the New York Stock Exchange or
the NASDAQ Stock Market or by the Bankruptcy Courts.  Notwithstanding anything to the contrary
herein, except as may otherwise be proscribed by applicable Law, between the date
hereof and the Closing, the parties or their respective Affiliates may make any
public statement in response to specific questions by the press, analysts,
investors or those attending industry conferences or financial analyst
conference calls, so long as any such statements are not inconsistent with
previous press releases, public disclosures or public statements made by such
Persons and do not reveal non-public information regarding the Sale, the
Business, the Sellers, the Trustee/Conservator, the Specified Parties or any Lender. 
Except as required by applicable Law, the Bankruptcy Courts or the
Indenture (to the extent of SEC reporting obligations of the Tropicana Parties
or their Affiliates required under the Indenture), between the date hereof and the
Closing, any press release or similar publicly available written communication
to be issued, or public filing to be made by the Tropicana Parties or their
Affiliates relating to, or containing information with respect to, the Sale
(other than filings with the SEC or any other Governmental Entity containing,
with respect to the Sale, only previously publicly available information),
shall be subject, as to form, content and timing, to the prior approval of the
Trustee/Conservator, Newco and the Administrative Agent (acting at the
direction of the Required Lenders).


 


Section 6.7            Other Assurances and Actions


 


(a)                   Subject
to the terms and conditions set forth in this Agreement (including the
limitations contained in the last two sentences of Section 6.5(b)),
each of the Specified Parties, Tropicana
Entertainment and the Sellers agree to use its reasonable best efforts to take,
or cause to be taken, all appropriate action, and to do or cause to be done,
all things reasonably necessary, 


 


70

















 


proper or
advisable under applicable Laws and regulations to consummate and make
effective the transactions contemplated by this Agreement and the Ancillary
Agreements, including using its reasonable best efforts to (i) obtain
all licenses, permits, consents, approvals, authorizations, qualifications and
Orders of Governmental Entities and parties to Contracts with each party hereto
as are necessary for consummation of the transactions contemplated by this
Agreement and the Ancillary Agreements to which it is a party; provided, that
any payments required to be made to any to any Governmental Entity or Contract
counter party in order to obtain any such license, permit, consent, approval,
authorization, qualification or Order (x) shall be approved in advance by
each of the Trustee/Conservator and Newco and (y) unless otherwise
explicitly required by this Agreement, shall be borne solely by the Company
(any such payments, “Approval Payments”),
and (ii) perform and fulfill all obligations and conditions
precedent applicable to such party pursuant to this Agreement and the Ancillary
Agreements.  Notwithstanding the
foregoing, all subject matter addressed by Section 6.19(a) is
addressed solely in Section 6.19(a) and
is not addressed in this Section 6.7(a).


 


(b)                   Subject
to applicable Law and Section 6.17(a) of
this Agreement, to the extent that any of the Acquired Assets shall not have been
actually delivered and turned over by the applicable Seller(s) to the Specified Parties on the Closing Date (i) until
such time as the Bankruptcy Case of a Seller is closed or dismissed, such
Acquired Assets shall be held by such Seller in trust for the applicable Specified
Party and
shall be turned over and delivered to such Specified Party at any time and
from time to time upon demand therefor and (ii) the applicable Specified
Party shall
nevertheless obtain sole and exclusive title thereto and all right, title and
interest therein, and Seller shall have no right, title or interest in and to
any such Acquired Assets or property or proceeds arising therefrom.  Without limiting the foregoing, in
case at any time after the Closing any further action is necessary to carry out
the purposes of this Agreement or to vest such Specified Party with full title
to the Acquired Assets or Assumed Liabilities or to vest the Secured Parties
with full title to the Reorganized Tropicana Stock, then the Specified Parties, Tropicana Entertainment and
the Sellers shall take, and cause their respective Affiliates to take, all action
reasonably necessary (including executing and delivering further notices,
assumptions, releases and acquisition instruments); provided, however,
that if such action is necessary due to events or circumstances particular to
the Specified Parties, the Specified Parties shall bear the cost of any
such action.


 


(c)                   Following
the Closing, to the extent permitted by Law, the Specified Parties, Tropicana Entertainment, the Sellers and each of
their Affiliates shall afford the other, its counsel, accountants and other
representatives, during normal business hours, reasonable access to the
employees, books, records and other data (including Tax Returns, insurance
records, Benefit Plans, contracts or commitments) relating to the Business in
its possession with respect to periods prior to the Closing, and the right to
make copies and extracts therefrom, to the extent that such access may be
required by the requesting party in connection with (i) the
administration of the Bankruptcy Cases, (ii) compliance with the
requirements of applicable Law or any Governmental Entity, (iii) the
determination or enforcement of the rights and obligations of any party to this
Agreement or any of the Ancillary Agreements or (iv) any actual or
threatened Proceeding (including any Proceeding related to the Excluded
Intellectual Property or any 


 


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current or former
employees of the Business) involving the requesting party, in which case any
such other party hereto shall cooperate with the requesting party as reasonably
necessary for such requesting party to pursue or defend against any such
Proceeding.  In addition, the Specified Parties shall furnish or cause to be
furnished to Tropicana Entertainment trial balances of the Business in Microsoft
Corporation’s Excel format and such other materials as Tropicana Entertainment
shall reasonably request to enable Tropicana Entertainment to prepare the
Sellers’ federal income Tax Returns. 
Further, each Specified Party and Tropicana Entertainment agree that,
for a period ending on the sixth (6th) anniversary of the Closing Date, it
will not, and will cause its Affiliates not to, destroy or otherwise dispose of
any such books, records and other data unless such party shall first offer in
writing to surrender such books, records and other data to the other and such
other party shall not agree in writing to take possession thereof during the
30-day period after such offer is made. 
In furtherance of the foregoing, a requesting party pursuant to this Section 6.7(c) shall be provided with reasonable
access to the personnel of any other party subject to the obligations of this Section 6.7(c) upon reasonable advance notice so
long as such requesting party reasonably believes that such access will assist it
in carrying out any of the matters specified in Section 6.7(c)(i)-(iv).


 


(d)                   Following
the Closing, if, in order properly to (i) prepare or verify its Tax
Returns or other documents or reports required to be filed with any
Governmental Entity, (ii) prepare or verify its financial
statements or (iii) fulfill its obligations hereunder, it is
necessary that the Specified Parties or Tropicana Entertainment be furnished
with additional information, documents or records relating to the Business or
condition of any Seller not referred to in paragraph (c) above,
and such information, documents or records are in the possession or control of
the other, such other party agrees to use its reasonable best efforts to
furnish or make available such information, documents or records (or copies
thereof) at the recipient’s request, cost and expense.  Any information obtained by the Specified Parties or Tropicana Entertainment in
accordance with this paragraph shall be held in strict confidence by such
party.


 


(e)                   Notwithstanding
anything to the contrary in this Agreement, if at any time prior to or after
the Closing, the Specified Parties or the
Tropicana Parties discover that there exist any Non-Seller Business Assets
which were not identified on Section 4.18
of the AC Disclosure Letters as of the date of this Agreement, then, (i) the
discovering party promptly shall inform the other party in writing of the
existence of such Non-Seller Business Assets and (ii) at the Specified Parties’ request, the Tropicana
Parties shall take such steps as are necessary to cause such Non-Seller
Business Assets to be transferred to the applicable Specified Party.  No additional consideration will be paid for
such Non-Seller Business Assets.  Any
amounts or payments required to effectuate such transfer shall be borne by the
applicable Tropicana Party(ies), except in the case of any contracts which, had
they been included in the Acquired Contracts transferred at the Closing, would
have given rise to cure costs to be borne by a Specified Party pursuant to Section 2.1(e), in which case Specified Parties shall bear such cure costs as are required by the
Sale Orders or the Bankruptcy Courts.


 


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Section 6.8            Taxes; HSR Filing Fees


 


(a)                   All
transfer, documentary, sales, use, stamp, recording, filing, registration and
other similar Taxes (including Taxes pursuant to N.J.S.A. 46:15-7 (Realty
Transfer Fee), N.J.S.A. 46:15-7.1 (Supplemental Fee), and N.J.S.A. 46:15-7.2
(Mansion Tax) and all other applicable real estate transfer or gains Taxes and
gross income tax estimated payments required by P.L. 2004, C.55) and related
fees (including any penalties, interest and additions to such Tax)
(collectively, “Transfer Taxes”) incurred with
respect to Sellers’ transfer of the Acquired Assets or the Business to the
applicable Specified Parties in exchange
for Reorganized Tropicana Stock under Section 2.1
shall be borne by the Company, and all Transfer Taxes incurred with respect to
the transfer of Reorganized Tropicana Stock by the Sellers in exchange for a
surrender of the Specified Original Credit Agreement Obligations under Section 2.2 shall be borne by the applicable Specified Parties, provided that to the
extent such Transfer Taxes plus any interest and penalties are determined after
the Closing to be due and payable, the Specified
Parties shall timely pay any such amounts, it being agreed that the
Company’s obligation in respect of any Transfer Tax shall have been fully
discharged upon payment by the Company at the Closing of such Transfer Taxes as
set forth on the Closing Certificate and that the Specified Parties shall thereafter bear all remaining Transfer
Taxes and related fees plus any interest and penalties.


 


(b)                   Except
as required by applicable Law, the Specified
Parties shall prepare, execute and file all Tax Returns and other
documentation on a timely basis as may be required to comply with the
provisions of any Laws governing the payment of Transfer Taxes.  All filing fees pursuant to pre-merger
notifications under the HSR Act shall be borne by the Company.


 


(c)                   To
the extent not otherwise provided in this Agreement, the Specified Parties shall be responsible for and
shall promptly pay when due all Property Taxes levied with respect to the
Acquired Assets and the Business.


 


(d)                   The Specified Parties shall assume and be
responsible for any Liabilities for U.S. withholding Taxes in connection with
the transactions contemplated in this Agreement.


 


(e)                   The Specified Parties, Sellers and Tropicana
Entertainment shall cooperate fully, as and to the extent reasonably requested
by the other party, in connection with the filing of any Tax Returns and any
audit, other administrative proceeding or inquiry or judicial proceeding
involving Taxes (a “Tax Contest”).  Such cooperation shall include the retention
and (upon the other party’s request) the provision of records and information
which are reasonably relevant to any such Tax Returns or Tax Contest and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder.  The Specified
Parties, Sellers and Tropicana Entertainment agree (A) to
retain all books and records with respect to Tax matters pertinent to the
Acquired Assets or the Business relating to any Taxable period beginning before
the Closing Date until the expiration of the 


 


73

















 


statute of
limitations of the respective Taxable periods (and any extensions thereof), and
to abide by all record retention agreements entered into with any Taxing
authority, and (B) to give the other party reasonable written
notice prior to transferring, destroying or discarding any such books and
records and, if the other party so requests, the Specified Parties, Sellers and Tropicana Entertainment, as the case
may be, shall allow the other party to take possession of such books and
records at such other party’s expense.


 


(f)                    Sellers
shall prepare or cause to be prepared and file or cause to be filed all Tax Returns
with respect to Assumed Tax Liabilities for all periods ending on or prior to
the Closing Date that are filed after the Closing Date.  All such Tax Returns shall be submitted to
the Specified Parties no later than ten (10) Business
Days prior to the due date for filing thereof for the Specified Parties’ review and written approval, which shall not be
unreasonably withheld.


 


(g)                   If,
subsequent to the Closing, Sellers receive notice of a Tax Contest with respect
to any Assumed Tax Liability, then within five (5) days after receipt of
such notice, Sellers shall notify the Specified
Parties of such notice.  The Specified Parties shall control the conduct and
resolution of such Tax Contest.


 


(h)                   All
refunds for Taxes arising out of or related to the Acquired Assets or the
Business received by Sellers shall be for the benefit of the Specified Parties and shall be paid to the
applicable Specified Party within ten (10) days after receipt or crediting
of such refunds.


 


Section 6.9            Reservations


 


Following
the Closing, the Specified Parties shall
honor the terms and rates of all pre-Closing reservations (in accordance with
their terms) at the Property by customers, including advance reservation cash
deposits, for services confirmed by the Company for any time subsequent to the
Closing, to the extent that such reservations were made in the ordinary course
of business consistent with past practices of the Company.  From the date of this Agreement until the
Closing, the Company may continue to accept reservations for periods after the
Closing in the ordinary course of business in operating the Property,
consistent with past practices of the Company. 
The Specified Parties recognize
that such reservations may include discounts or other benefits, including
benefits extended under the Company’s player loyalty program or any other
frequent player or casino awards programs, group discounts, other discounts or
requirements that food, beverage or other benefits be delivered by the Specified Parties to the guest or guests, as
the case may be, holding such reservations. 
The Specified Parties shall honor
all banquet facility and service agreements which have been granted to groups,
persons or other customers for periods after the Closing Date at the rates and
on the terms provided in such agreements, to the extent that such agreements
were made in the ordinary course of business consistent with the past practices
of the Company.  The Specified Parties agree that none of the
Company, the Trustee/Conservator or the Tropicana Parties make any
representation or warranty that any party 


 


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holding a reservation or agreement for facilities or services shall
utilize such reservation or honor such agreement.  The Specified
Parties, by the execution hereof, solely assume the risk of
non-utilization of reservations and non-performance of such agreements from and
after the Closing.


 


Section 6.10         Insurance Policies


 


The Specified Parties acknowledge that, from and after
the Closing Date, they shall be solely responsible for acquiring and placing
casualty insurance, business interruption insurance, liability insurance and
other insurance policies with respect to the Business for periods after the
Closing.  The foregoing acknowledgment,
however, shall in no way adversely affect a Specified Party’s rights to the
insurance benefits, rights and proceeds included in the Acquired Assets.


 


Section 6.11         Certain Transactions


 


(a)                   Prior
to the Closing, none of the Specified Parties
shall, and each of them shall cause their Affiliates not to, take, or agree to
commit to take, any fraudulent, criminal or other action that (or fail to take,
or agree to fail to take, any action, which failure to take) would or would
reasonably be expected to delay the receipt of, or to adversely impact the
ability of the Specified Parties to
obtain, any Governmental Approval necessary for the consummation of the
transactions contemplated by this Agreement or the Ancillary Agreements, or
necessary to permit the Specified Parties
to purchase the Acquired Assets, assume the Assumed Liabilities or operate the
Business, in each case, after the Closing in substantially the same manner as
owned and operated (i) in the case of Gaming Approvals, between the
Aztar Acquisition Date and the date immediately preceding the Trust Trigger
Date and (ii) in all other cases, since the Aztar Acquisition Date.


 


(b)                   Without
limiting the foregoing:


 


(i)                    None of the Specified Parties nor any of their holding
companies, intermediary companies, financial sources, directors, officers, key
employees, owners and other qualifiers shall withdraw, rescind, revoke or
otherwise terminate or cancel any applications, filings or other submissions
made in connection with obtaining any Regulatory Approvals if such withdrawal,
rescission, revocation, termination or cancellation would be reasonably
expected to delay or prevent the Specified
Parties or their Affiliates from obtaining any needed Regulatory
Approvals (or permit any of the foregoing to occur); and


 


(ii)                   if (y) any
Governmental Entity has issued an Order, decree or ruling or taken any other
action, in each case, denying any of the Specified
Parties or any of their Affiliates any necessary Regulatory Approvals or
determining or indicating that 


 


75

















 


such Governmental Entity
will not issue to any of the Specified Parties
or any of their Affiliates all necessary Regulatory Approvals, or (z) a
court of competent jurisdiction or other Governmental Entity shall have issued
an Order, decree or ruling or taken any other action having the effect of
permanently restraining, enjoining or otherwise prohibiting the Closing and the
transactions contemplated hereby, the Specified
Parties shall, and shall cause their holding companies, intermediary
companies, financial sources, directors, officers, key employees, owners and
other qualifiers to, use their respective reasonable best efforts to have
vacated, lifted, reversed or overturned any such Order, decree, ruling or
action and to have issued such Regulatory Approvals (including exhausting all
available remedies, challenges and appeals).


 


Section 6.12         Insurance; Casualty and Condemnation


 


(a)                   If,
before the Closing, the Property is damaged by fire or other casualty, and such
damage does not exceed the Damage Threshold, the Closing shall proceed as
scheduled and the Sellers, Tropicana Entertainment and their respective
Affiliates, as the case may be, shall, as of the Closing Date, (i) promptly
pay to the applicable Specified Party all insurance proceeds actually received
by them with respect to such damage, destruction or other loss, less any
proceeds applied to the physical restoration of the Property and (ii) assign
to the applicable Specified Party (to the extent not prohibited by Law or
Contract) all of their rights against third parties (other than against such
Person’s insurance carriers) with respect to any causes of action, whether or
not litigation has commenced as of the Closing Date, in connection with such
damage, destruction or other loss; provided, however, that the
proceeds of such insurance shall be subject to (and recovery thereon shall be
reduced by the amount of) any applicable deductibles or co-payment provisions
or any payment or reimbursement, which proceeds (as so reduced, if applicable),
shall constitute full compensation for the damage to the Property, and neither
the Trustee/Conservator, the Sellers, Tropicana Entertainment or any of their
respective Affiliates shall have any responsibility for restoration or repair of
the Property or any resultant loss, directly, by subrogation, or otherwise.


 


(b)                   In
the event that a condemnation proceeding or payment in lieu of condemnation
occurs in relation to any part of the Property prior to the Closing Date, and
such proceeding does not result in a Material Adverse Effect, Tropicana
Entertainment and the Sellers shall, and shall cause their Affiliates to,
assign and turn over to the Specified Parties
effective as of the Closing, and the Specified
Parties shall be entitled to receive and keep, all awards for the taking
by condemnation and the Specified Parties
shall be deemed to have accepted the Property subject to the taking without
reduction in the Purchase Price.


 


(c)                   In
the event that a casualty resulting in damage exceeding the Damage Threshold
occurs or a condemnation occurs that results in a Material Adverse Effect, in
each case, prior to the Closing Date, the Specified
Parties shall have the option, by written notice to the
Trustee/Conservator and Tropicana Entertainment within thirty (30) days of the
date of such 


 


76

















 


casualty (but in
no event within fewer than fifteen (15) days prior to the Closing Date unless
such casualty has occurred within such period, in which case such notice shall
be provided within five (5) days of such casualty), to either (i) proceed
with the Closing, whereupon the provisions of this Section 6.12
shall govern as if the casualty did not result in damage exceeding the Damage
Threshold or the condemnation did not result in a Material Adverse Effect, or (ii) terminate
this Agreement, whereupon no party shall have any further liability or
obligations hereunder, other than in respect of Section 4.4,
Section 5.3, clauses (ii) and
(v) of the proviso to Section 6.4(a),
the confidentiality provisions contained in Section 6.4,
Section 6.6, the  last two sentences of the first paragraph of Section 9.2(a) and Article XI.


 


Section 6.13         Customer Data


 


Nothing
contained in this Agreement shall prohibit the Tropicana Parties or any of
their Affiliates from marketing to any customer in the Atlantic City Customer
Database so long as neither Tropicana Entertainment nor any of its post-closing
Affiliates operates a gaming facility within
one-hundred-and-seventy-five (175) miles of Atlantic City, New Jersey.  For
the avoidance of doubt, neither the Tropicana Parties nor any of their
Affiliates shall have any right, title, or interest in, or right to access or
use, the Atlantic City Customer Database following the Closing.  The Tropicana Parties agree not to (and not
to permit any of their Affiliates to) access or use any information in the
Atlantic City Customer Database following the Closing, except as
permitted in the first sentence of this Section 6.13.


 


Section 6.14         No Control


 


Except
as expressly provided by the terms of this Agreement, prior to the Closing,
none of the Specified Parties shall
directly or indirectly control, supervise, direct or interfere with, or attempt
to control, supervise, direct or interfere with, the Business or employees of
any Seller.  Until the Closing, the
operations and affairs of the Business, to the extent related to assets held by
(i) the Company or the Company Subsidiary, are the sole
responsibility of and under the control of the Trustee/Conservator and (ii) the
Non-Conservatorship Sellers, are the sole responsibility of and under the
Tropicana Parties’ control, each except as otherwise provided in this
Agreement, by applicable Law or required by the Bankruptcy Courts.


 


Section 6.15         Employee Solicitation


 


(a)                   Beginning
on the date of this Agreement and ending on the date that is the first
anniversary of the Closing, none of the Tropicana Parties or any of their
Affiliates shall, directly or indirectly, solicit, entice, or encourage any
person who shall have been an employee of the Business during such time to
leave such person’s employment with such person’s employer; provided, however,
that the foregoing prohibitions shall not apply to (i) any persons who are no longer employed by the
Business, (ii) general solicitations of
employment not 


 


77

















 


specifically directed at employees of the
Business and (iii) any person who
contacts the Tropicana Parties or their Affiliates on his or her own initiative
without any direct or indirect solicitation (other than general solicitations
described in the foregoing clause (ii)) by or encouragement from the Tropicana
Parties or any of their Affiliates.


 


(b)                   Beginning
on the date of this Agreement and ending on the date that is the first
anniversary of the earlier of the termination of this Agreement and the
Closing, none of the Specified Parties or
any of their Affiliates shall, directly or indirectly, solicit, entice, or
encourage any person who shall be (i) an employee of the Tropicana
Parties or their Affiliates (other than Business Employees) or (ii) until
the Closing occurs, a Business Employee, in each case provided that the
foregoing prohibitions shall not apply to (x) any
persons who are no longer so employed at the time of a Specified
Party’s or its Affiliates’ first contact with
them, (y) general solicitations of employment not specifically
directed at such employees or (z) any person (other than a person
who becomes known to a Specified Party or its Affiliates in connection with the transactions contemplated
hereby) who contacts a Specified Party or its Affiliates on his or her own initiative without any direct or
indirect solicitation (other than general solicitations described in the
foregoing clause (y)) by or encouragement from a Specified
Party or any of its Affiliates.


 


Section 6.16         Refunds and Remittances


 


(a)                   After
the Closing, if the Specified Parties or
any of their Affiliates receive any refund or other amount that is an Excluded
Asset or is otherwise properly due and owing to a Seller or any of Sellers’
Affiliates, in accordance with the terms of this Agreement, the Specified Parties shall promptly remit, or
shall cause to be remitted, such amount to the applicable Seller at the address
set forth in Section 11.2 or to such
Affiliate.


 


(b)                   After
the Closing, if Tropicana Entertainment, any Seller or any of their Affiliates,
receives any refund or other amount that (i) is an Acquired Asset, (ii) is
related to Claims, litigation, insurance or other matters for which any of the Specified Parties are responsible hereunder or (iii) is
otherwise properly due and owing to any of the Specified
Parties in accordance with the terms of this Agreement, Tropicana
Entertainment shall promptly remit, or shall cause to be remitted, such amount
to the applicable Specified Party at the address set forth in Section 11.2. 
Notwithstanding anything to the contrary in this Agreement, the parties
agree that (i) all such refunds and other amounts shall be and
shall be treated in all respects as Acquired Assets transferred to the
applicable Specified Parties at the
Closing and (ii) Tropicana Entertainment and its Affiliates shall
hold such refunds and amounts (and rights in respect thereof) in trust for the
benefit of the applicable Specified Parties,
free and clear of all Encumbrances other than the applicable Specified Party’s interest therein.


 


78














 


Section 6.17         Assignability of Certain Contracts; Adequate
Assurance


 


(a)                   Notwithstanding anything to the contrary
in this Agreement, to the extent the assignment to the Specified Parties of any Acquired Asset, including any unexpired
Contract, agreement, lease, license, Permit, instrument, Gaming Approval or
other agreement or arrangement, or any Claim (including any warranty claim),
right or benefit arising thereunder or resulting therefrom pursuant to this
Agreement, is not permitted by Law or is not permitted without the consent of
another Person and such restriction cannot be effectively overridden or
canceled by the Sale Orders, or other related Order of the Bankruptcy Courts,
then this Agreement will not be deemed to constitute an assignment or an undertaking
or attempt to assign the same or any right or interest therein if such consent
is not given; provided, however, that the parties hereto (other
than the Administrative Agent) will use their commercially reasonable efforts,
before the Closing, to obtain any such consents; provided, further,
that if any such consents are not obtained prior to the Closing Date, the
Tropicana Parties and the Specified Parties
will continue to use their commercially reasonable efforts to obtain any such
consents and will reasonably cooperate with each other in any lawful and
feasible arrangement designed to provide the Specified
Parties (such arrangement to be at the sole cost and expense of the Specified Parties and in effect for so long as
the parties hereto agree) with the benefits and obligations of any such
Acquired Asset.


 


(b)                   With respect to each Acquired Contract
assumable and assignable under Bankruptcy Code Section 365 or Section 1113,
to the extent requested by the Bankruptcy Courts, the Sellers or the counterparty
to such Acquired Contract, the Specified Parties
will promptly provide the Bankruptcy Courts, the Sellers or such counterparty
to the Acquired Contract, as the case may be, adequate assurance of the future
performance of such Acquired Contract by the Specified
Parties.


 


Section 6.18         Conservatorship Matters


 


(a)                   If required by the
Commission for the Tropicana Atlantic City to continue to be deemed a licensed
casino operation and to operate as such between the time that (i) the
Commission grants interim authorization allowing the Specified Parties to close the
Sale and (ii) the Commission issues a casino license to Newco and
such other approvals necessary for the Specified Parties to operate the
Business, a conservatorship shall continue. 
In connection with the continuation of such conservatorship, the
Conservator will at Closing resign his position upon approval by the Commission
of a replacement conservator selected by the Specified Parties and approved
by the Commission.  In connection with
the appointment of the replacement conservator, the Specified Parties shall have the
right to seek from the Commission (y) written instructions which
enumerate the specific powers and duties conferred by the Commission on the
replacement conservator with respect to the conservatorship which are
acceptable to the Specified Parties and (z) the
termination of the Conservator Order, except for the obligation to indemnify
and hold harmless the Trustee/Conservator and his advisors, as set forth
therein.  The 


 


79

















 


replacement conservator, and any other replacement conservator selected
by the Specified Parties and appointed by the Commission shall serve as the
conservator only until such time as the Commission issues a casino license to
the Specified
Parties and/or the Commission directs the discontinuation of the
conservatorship.


 


(b)                   At or prior to such time as the Specified Parties seek interim authorization
from the Commission allowing the Specified
Parties to close the Sale, the Specified
Parties shall also seek a declaratory ruling from the Commission that (i) for
purposes of N.J.S.A. 5:12-130.2(c) and consistent with N.J.S.A.
5:12-95.14(e), the Trustee/Conservator shall be authorized to sell, transfer,
assign, convey and deliver the Acquired Assets, and the Specified Parties shall be authorized to acquire the Acquired
Assets and assume the Assumed Liabilities, upon the grant by the Commission to
the Specified Parties of interim
authorization to acquire the Acquired Assets and assume the Assumed Liabilities
without interruption of casino operations, (ii) if the Specified Parties are granted interim
authorization by the Commission to acquire the Acquired Assets and assume
the Assumed Liabilities without interruption of casino operations, solely for
purposes of N.J.S.A. 5:12-130.2(c), Newco shall be considered to be eligible to
apply for and qualify as a casino licensee, (iii) the
Trustee/Conservator or any replacement conservator shall not be obligated to
endeavor to sell, assign, convey or otherwise dispose of the Acquired Assets
and (iv) following the grant by the Commission to the Specified Parties of interim authorization to
acquire the Acquired Assets and assume the Assumed Liabilities without
interruption of casino operations, notwithstanding N.J.S.A. 5:12-130.8(a), the
Commission will not direct the discontinuation of the conservatorship upon the
acquisition by the Specified Parties of
the Acquired Assets and the Specified Parties’ assumption of the Assumed
Liabilities.


 


Section 6.19         Tax Matters


 


(a)                   Subject to subsection (vi) of this Section 6.19(a), Specified Parties, the Company and the
Company Subsidiary acknowledge and agree that:


 


(i)                    This Agreement shall constitute a plan of
reorganization with respect to the transfer to Reorganized Tropicana (i) by
the Company of its Company Assets and (ii) by the Company Subsidiary of
its Company Assets under Section 368(a) of the Code and the Treasury
Regulations promulgated thereunder.


 


(ii)                   The transfers to Reorganized Tropicana (i) by the
Company of its Company Assets and (ii) by the Company Subsidiary of its
Company Assets and distributions of Reorganized Tropicana Stock by the Company
and the Company Subsidiary under Sections 2.1
and 2.2 shall each constitute a
reorganization under Section 368(a)(1)(G) of the Code pursuant to
which Newco shall succeed to a tax basis in the Company Assets that is equal to
the tax basis of the Company and the Company Subsidiary in such assets.


 


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(iii)                  The surrender by the Secured Parties of $166,100,000
of obligations secured by the Original Collateral Agreement in exchange for
Reorganized Tropicana Stock shall be treated by the Specified Parties, the Company and the Company Subsidiary for U.S.
federal income Tax purposes as follows: (A) a distribution under Section 354(a) of
the Code by each of the Company and the Company Subsidiary; (B) a transfer
of Reorganized Tropicana Stock by Aztar Corporation to Tropicana Entertainment;
and (C) a transfer of Reorganized Tropicana Stock by Tropicana
Entertainment, in its capacity as primary obligor under the Original Credit
Agreement, to the Secured Parties.


 


(iv)                  Following the Closing, the Company and the Company
Subsidiary, as soon as reasonably practical and to the extent permitted
by the relevant bankruptcy court and regulatory authorities, shall liquidate and be dissolved in
accordance with applicable state law or convert, or merge, into
a limited liability company.


 


(v)                   Following the Closing, none of Specified Parties, the Company or the Company
Subsidiary, on a Tax Return or otherwise, shall take any position inconsistent
with, and each of Specified Parties, the
Company and the Company Subsidiary shall make such Tax Return filings or
elections consistent with (including, without limitation, any
statements required to be made under Treasury Regulations Section 1.368-3), the provisions of this Section 6.19(a), except as required by a
change in Tax Law taking place after the date of this Agreement.


 


(vi)                  The acknowledgement and obligations of the Company and
the Company Subsidiary under this Section 6.19(a) (other
than Section 6.19(a)(iv)) shall be
conditional on Specified Parties’
delivery to the Company of a tax opinion issued by a qualified tax advisor, within
120 days following the Closing, in form and in substance reasonably acceptable
to the Company, confirming the tax treatment described in this Section 6.19(a) has at least “substantial authority”
within the meaning of Section 6662 of the Code and the Treasury
Regulations promulgated thereunder.


 


(b)                   The Non-Conservatorship Sellers and Specified Parties acknowledge and agree that
the transfers to Newco Sub of the Acquired Assets (other than the Company
Assets) by the Non-Conservatorship Sellers shall be characterized for U.S.
federal income tax purposes as a taxable sale and purchase of such assets and
following the Closing, none of the Non-Conservatorship Sellers or Specified Parties, on a Tax Return or
otherwise, shall take any position inconsistent with the provisions of this Section 6.19(b).


 


(c)                   Prior to the Closing, the Sellers and
Tropicana Entertainment shall undertake (or cause to be undertaken), the
following restructuring steps and actions and make any elections related
thereto as requested by the Specified Parties
in their sole discretion:  (i) the
conversion or 


 


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merger of Holdings
into a single member limited liability company that is wholly owned by Aztar
Corporation; (ii) the transfer of the Holdings’ Assets to another
Non-Conservatorship Seller (in which case, such Non-Conservatorship Seller
shall be treated as the Seller of the Holdings Assets); (iii) the
elimination and/or transfer of any intercompany receivables or payables owned
or owed by any Seller (including, without limitation, transfers to any Sellers
of any such intercompany receivables), provided, however, that
the treatment of Cure Amounts with respect to Intercompany Obligations shall be
governed by Section 2.1(e), and (iv) such
additional steps, actions, or elections related or ancillary to any of the
foregoing as determined by the Specified Parties; provided, however,
that in the case of the Tropicana Parties, the steps or actions set forth in
this Section 6.19(c) shall not include
the filing of Tax Returns or the manner in which such steps or actions are
reported on such Tax Returns.


 


(d)                   Prior to the Closing, the Sellers and
Tropicana Entertainment shall use commercially reasonable efforts to undertake
(or cause to be undertaken) any and all internal restructuring steps and
actions not described in Section 6.19(c) and make any such elections, and
take such further actions as may be reasonably requested by the Specified Parties, provided that such
restructuring steps shall not cause any material adverse effect on any of the
Sellers or Tropicana Entertainment.


 


(e)                   To the extent
any tax withholding or reporting requirements are imposed on the Sellers by any
Governmental Entity in connection with the distribution of the Reorganized
Tropicana Stock to the Secured Parties, Section VII.C.6 (Compliance with Tax Requirements and Allocations) of the
Delaware Plan of Reorganization shall apply,
mutatis mutandis, to this Agreement.


 


ARTICLE VII


 


BANKRUPTCY COURT
MATTERS


 


Section 7.1            Bankruptcy Court Approvals


 


(a)                   Bankruptcy Court Motions for Entry of
Supplemental Orders.  As soon as practicable after the date hereof,
(x) the Company and the Company Subsidiary (subject to the direction of
the Trustee/Conservator) shall file a motion or motions with the NJ Bankruptcy
Court seeking entry of an order of the NJ Bankruptcy Court, in form and
substance reasonably satisfactory to the Company, the Company Subsidiary, the
Administrative Agent and the Specified Parties
and substantially in the form attached hereto as Exhibit I
(the “Amended NJ Sale Order”), (y) the
Non-Conservatorship Sellers shall file a motion or motions with the Delaware
Bankruptcy Court seeking entry of an order of the Delaware Bankruptcy Court, in
form and substance reasonably satisfactory to the parties hereto and
substantially in the form attached hereto as Exhibit J
(the “Plan Modification Order” and, together
with the Amended 


 


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NJ Sale Order, the
“Supplemental Orders”) and (z) the
Non-Conservatorship Sellers shall use their reasonable best efforts to have the
Delaware Plan of Reorganization, in the form approved by the Delaware
Confirmation Order (except for such changes specifically provided for in the
Plan Modification Order) be declared effective. 
The Company and the Company Subsidiary (each, subject to the direction
of the Trustee/Conservator) shall use their reasonable best efforts to obtain a
hearing for entry of the Amended NJ Sale Order on or prior to October 29,
2009, and the Non-Conservatorship Sellers shall use their reasonable best
efforts to obtain a hearing for entry of the Plan Modification Order, on or
prior to November 5, 2009 (each, a “Supplemental Order Hearing
Deadline”).


 


(b)                   The Amended NJ Sale Order. 
The Amended NJ Sale Order shall be in a form and substance reasonably
satisfactory to the Company, the Company Subsidiary, the Administrative Agent
and the Specified Parties, and shall, among other matters:


 


(i)                    reaffirm all findings of fact and conclusions of law
made by the NJ Bankruptcy Court in the NJ Sale Order;


 


(ii)                   approve this Agreement and the transactions
contemplated hereby in all material respects;


 


(iii)                  find that, on the Closing Date, and immediately prior
to (but subject to the occurrence of) the Closing, pursuant to Section 543(b) of
the Bankruptcy Code, to the extent applicable, all right, title and interest of
the Trustee/Conservator in the Acquired Assets of the Company shall be
transferred to the Company;


 


(iv)                  find that, as of the Closing Date, the transactions
contemplated by this Agreement effect a legal, valid, enforceable and effective
sale and transfer of the Acquired Assets of the Company and the Company
Subsidiary required to be sold on the Closing Date to Reorganized Tropicana and
shall, upon delivery to Newco, vest Newco with title to such Acquired Assets
free and clear of all Encumbrances pursuant to Sections 363(b), (f) and (k) of
the Bankruptcy Code;


 


(v)                   find that, as of the Closing Date, the transactions
contemplated by this Agreement effect a legal, valid, enforceable and effective
sale, transfer and delivery of the Reorganized Tropicana Stock required to be
sold, transferred and delivered on the Closing Date by the Company and the
Company Subsidiary (or delivered by Reorganized Tropicana at the direction of
the Company and the Company Subsidiary) to the Secured Parties and shall vest
the Secured Parties with title to such Reorganized Tropicana Stock free and
clear of all Encumbrances and adverse claims pursuant to Sections 363(b), (f) and
(k) of the Bankruptcy Code;


 


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(vi)                  find that the Reorganized Tropicana Stock provided by
Reorganized Tropicana to the Company and Company Subsidiary constitutes
reasonably equivalent value and fair consideration for the Acquired Assets of
the Company and the Company Subsidiary;


 


(vii)                 find that (x) Reorganized Tropicana is a
good-faith purchaser of the Acquired Assets of the Company and Company
Subsidiary and (y) the Secured Parties are good-faith purchasers of the
Reorganized Tropicana Stock of the Company and the Company Subsidiary, in each
case, pursuant to Section 363(m) of the Bankruptcy Code;


 


(viii)                approve, in all material respects, any other agreement
to the extent provided by this Agreement;


 


(ix)                   find that the Company, the Company Subsidiary and
Reorganized Tropicana gave due and proper notice of the amendment of the
Original Agreement and entry into this Agreement to each party entitled
thereto;


 


(x)                    enjoin and forever bar the non-debtor party or parties
to each Additional Acquired Contract of the Company and the Company Subsidiary
from asserting against Reorganized Tropicana or Newco or any of the Acquired
Assets any objection to the assumption and assignment of such non-debtor party’s
Additional Acquired Contract;


 


(xi)                   authorize the assumption and assignment by the Company
and the Company Subsidiary of the Additional Acquired Contracts of the Company
and the Company Subsidiary, if any;


 


(xii)                  specify that the transfer by the Sellers of the
Reorganized Tropicana Stock is in exchange for $200,000,000 principal amount of
the obligations secured by the Original Collateral Agreement (no portion of
which shall constitute interest or the right to receive interest) and
accordingly that no withholding of US federal income tax pursuant to Sections
1441 or 1442 of the Code is required in connection with such transfer;


 


(xiii)                 to the extent requested by the Specified Parties, authorize (x) the elimination and/or
transfer of any intercompany receivables or payables owned or owed by any
Seller (including, without limitation, transfers to any Sellers of any such
intercompany receivables), provided, however, that the treatment
of Cure Amounts with respect to Intercompany Obligations shall be governed by Section 2.1(e), and (y) 


 


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such additional steps,
actions, or elections related or ancillary to any of the foregoing as
determined by the Specified Parties.


 


(xiv)                approve the liquidation and dissolution or conversion
or merger into limited liability companies of the Company and the Company
Subsidiary, as soon as reasonably practicable after the Closing, in accordance
with the Laws of the State of New Jersey.


 


(c)                   The Plan Modification Order. 
The Plan Modification Order shall be in a form and substance reasonably
satisfactory to the parties hereto, and shall, among other matters:


 


(i)                    reaffirm all findings of fact and conclusions of law
made by the Delaware Bankruptcy Court in the Delaware Sale Order;


 


(ii)                   reaffirm all findings of fact and conclusions of law
made by the Delaware Bankruptcy Court in the Delaware Confirmation Order;


 


(iii)                  approve this Agreement and the transactions
contemplated hereby in all material respects, to the extent such approval is required
by the Delaware Bankruptcy Court;


 


(iv)                  find that, as of the Closing Date, the transactions
contemplated by this Agreement effect a legal, valid, enforceable and effective
sale and transfer of the Acquired Assets of the Non-Conservatorship Sellers
required to be sold on the Closing Date to Newco Sub and shall vest Newco Sub
with title to such Acquired Assets free and clear of all Encumbrances pursuant
to Sections 363(b), (f) and (k) of the Bankruptcy Code;


 


(v)                   find that, as of the Closing Date, the transactions
contemplated by this Agreement effect a legal, valid, enforceable and effective
sale, transfer and delivery of the Reorganized Tropicana Stock required to be
sold, transferred and delivered on the Closing Date by the Non-Conservatorship
Sellers (or delivered by Newco Sub at the direction of the Non-Conservatorship
Sellers) to the Secured Parties and shall vest the Secured Parties with title
to such Reorganized Tropicana Stock free and clear of all Encumbrances and
adverse claims pursuant to Sections 363(b), (f) and (k) of the
Bankruptcy Code;


 


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(vi)                  find that the Reorganized Tropicana Stock provided by
Newco Sub to the Non-Conservatorship Sellers constitutes reasonably equivalent
value and fair consideration for the Acquired Assets of the Non-Conservatorship
Sellers;


 


(vii)                 find that (x) Newco Sub is a good-faith purchaser
of the Acquired Assets of the Non-Conservatorship Sellers and (y) the
Secured Parties are good-faith purchasers of the Reorganized Tropicana Stock of
the Non-Conservatorship Sellers, in each case, pursuant to Section 363(m) of
the Bankruptcy Code;


 


(viii)                enjoin and forever bar the non-debtor party or parties
to each Additional Acquired Contract of the Non-Conservatorship Sellers from
asserting against Newco Sub or any of the Acquired Assets any objection to the
assumption and assignment of such non-debtor party’s Additional Acquired
Contract;


 


(ix)                   authorize the assumption and assignment by the
Non-Conservatorship Sellers of the Additional Acquired Contracts of the
Non-Conservatorship Sellers, if any;


 


(x)                    specify that the transfer by the Sellers of the
Reorganized Tropicana Stock is in exchange for $200,000,000 principal amount of
the obligations secured by the Original Collateral Agreement (no portion of
which shall constitute interest or the right to receive interest) and
accordingly that no withholding of US federal income tax pursuant to Sections
1441 or 1442 of the Code is required in connection with such transfer;


 


(xi)                   specify that under Section 1146(a) of the
Bankruptcy Code, the transfer of the Reorganized Tropicana Stock to the Secured
Parties is exempt from taxation under N.J.S.A. 54:15C-1 (Controlling Interest
Transfer Tax);


 


(xii)                  specify that under Section 1146(a) of the
Bankruptcy Code, the transfers of the Acquired Assets pursuant to this
Agreement are exempt from taxation under (A) N.J.S.A. 46:15-7 (Realty
Transfer Fee), (B) N.J.S.A. 46:15-7.1 (Supplemental Fee), and (C) N.J.S.A.
46:15-7.2 (Mansion Tax);


 


(xiii)                 find that the Reorganized Tropicana Stock contributed
to Newco and Newco Sub has been duly authorized, validly issued, fully paid and
nonassessable;


 


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(xiv)                approve the liquidation and dissolution or conversion
or merger into limited liability companies of each Non-Conservatorship Seller,
as soon as reasonably practicable after the Closing, in accordance with the
Laws of the State of New Jersey;


 


(xv)                 approve, to the extent requested by the Specified Parties, the conversion or merger of
Holdings with or into a single member limited liability company that is wholly
owned by Aztar prior to the Closing Date;


 


(xvi)                to the extent requested by the Specified Parties, authorize (x) the elimination and/or
transfer of any intercompany receivables or payables owned or owed by any
Seller (including, without limitation, transfers to any Sellers of any such
intercompany receivables), provided, however, that the treatment
of Cure Amounts with respect to Intercompany Obligations shall be governed by Section 2.1(e), and (y) such additional steps,
actions, or elections related or ancillary to any of the foregoing as
determined by the Specified Parties;


 


(xvii)               approve, to the extent requested by the Specified Parties, the transfer by Holdings of
the Holdings Assets to another Non-Conservatorship Seller prior to the sale and
transfer of the Acquired Assets by the Non-Conservatorship Sellers (other than
Holdings) to Specified Parties;


 


(xviii)              find, that pursuant to Section 1145(a) of
the Bankruptcy Code, the offer and sale of the Reorganized Tropicana Stock as
part of, pursuant to, and in the manner provided by the Delaware Plan of
Reorganization and this Agreement, including, without limitation, the sale of
the Reorganized Tropicana Stock from the Sellers to the Secured Parties, is
exempt from registration under the Securities Act; and


 


(xix)                 find, that the approvals, specifications and findings
set forth in this Section 7.1(c) do not constitute material and
adverse modifications to the Confirmed Delaware Plan.


 


(d)                   Notices to Parties to Acquired Contracts. 
If they are a counterparty to such contracts and leases, the Sellers
shall provide timely and proper written notice of the motions seeking entry of
the Sale Orders to all parties to Acquired Contracts to be assumed by such
Sellers and assigned to the Specified Parties
pursuant to this Agreement and to take all other actions reasonably necessary
to cause such executory contracts and unexpired leases to be assumed by such
Sellers and assigned to the Specified Parties
pursuant to Sections 365 and 1113 of the Bankruptcy Code.


 


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Section 7.2            No Solicitation


 


Each
of the Company, the Trustee/Conservator, Tropicana Entertainment and any other
Seller shall not, nor shall it authorize or permit its respective officers,
directors, employees, attorneys, investment bankers, accountants and other
agents and representatives, to (i) market or solicit offers for the
Acquired Assets or issue press releases, place advertisements or make other
releases or disclosures in connection therewith, (ii) solicit
inquiries, proposals, offers or bids from, and negotiate with, any third party
other than the Specified Parties relating
to the direct or indirect purchase, in one or more transactions, of all or
substantially all of the Acquired Assets or the equity interests of the
Sellers, or (iii) take any other affirmative action (including
entering into any agreement or letter-of-intent with respect thereto) to cause,
promote or assist with any such transaction with a third party.


 


ARTICLE VIII


 


CONDITIONS TO
CLOSING


 


Section 8.1            Conditions to Certain
Parties’ Obligations to Effect the Closing


 


The
respective obligations of each party to this Agreement to effect the Closing
are subject to the satisfaction or waiver of each of the following conditions
on or prior to the Closing Date:


 


(a)                   No Injunctions. 
No Governmental Entity shall have enacted, issued, promulgated, enforced
or entered any Order, executive order, stay, decree, judgment or injunction or
statute, rule, regulation which is in effect (whether temporary, preliminary or
permanent) and which prevents or prohibits the consummation of any of the
transactions contemplated by this Agreement or the Ancillary Agreements or that
makes it illegal for any party hereto to perform its obligations hereunder or
thereunder.


 


(b)                   Regulatory and Other Consents.  (i) Any
waiting period under the HSR Act applicable to the transactions contemplated by
this Agreement shall have expired, or early termination shall have been granted
with respect to the same, (ii) the applicable Specified Party and
the Company shall have obtained all material Regulatory Approvals required to (x) be
obtained in connection with the consummation of the transactions contemplated
by this Agreement and (y) operate the Business in substantially the manner
in which it was operated immediately prior to the Trust Trigger Date including,
in each case, all Gaming Approvals set forth on Exhibit A
and (iii) the Form 10 Registration Statement shall have been
declared effective, all of the Reorganized Tropicana Stock shall be registered
under the Exchange Act, and no order restricting trading of the Reorganized
Tropicana Stock shall be in effect or shall be threatened.


 


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(c)                   Bankruptcy Court Approval. 
The Bankruptcy Courts shall have entered the Supplemental Orders in the
Bankruptcy Cases, such Supplemental Orders shall not have been reversed, stayed
or modified in any material respect prior to the Closing Date, the Delaware
Plan of Reorganization shall be in full force and effect, as provided herein,
and the effective date of the Delaware Plan of Reorganization shall have
occurred.


 


Section 8.2            Additional Conditions to
Obligations of Specified Parties


 


The
obligation of the Specified Parties to
effect the Closing is subject to the satisfaction of each of the following
conditions on or prior to the Closing Date, any of which may be waived in whole
or in part in writing by the Specified Parties:


 


(a)                   Representations and Warranties. 
The representations and warranties of each of Tropicana Entertainment
and the Company contained in this Agreement, disregarding all qualifications
contained therein relating to materiality or Material Adverse Effect, shall be
true and correct at and as of the Closing as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case such
representations shall be true and correct as of such earlier date), except
where the failure of such representations and warranties to be true and correct
has not had and would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. 
The Specified Parties shall have
received a certificate signed on behalf of each of Tropicana Entertainment and
the Company by a duly authorized officer of each of them to such effect, in
each case solely with respect to the representations and warranties contained
in this Agreement which each such entity made.


 


(b)                   Performance of Obligations of the Tropicana
Parties and the Company.  The Tropicana Parties, the
Company and the Company Subsidiary shall have performed in all material
respects all covenants, agreements and obligations required to be performed by
each of them under this Agreement at or prior to the Closing.  The Specified
Parties shall have received certificates to such effect as follows: (i) one
certificate on behalf of the Tropicana Parties, signed by a duly authorized
officer of each such party and (ii) one certificate on behalf of
the Company and the Company Subsidiary, signed by a duly authorized officer of
each such party, in each case with respect to the parties in (i) and (ii),
solely with respect to the covenants, agreements and obligations of such party.


 


(c)                   Ancillary Agreements. 
Each Ancillary Agreement, substantially in the form attached as an Exhibit to this Agreement, shall have been executed and
delivered by the parties thereto (other than the Specified Parties).


 


(d)                   Deeds.  The
applicable Specified Party shall have received duly executed Deeds from the
applicable Seller, together with any transfer declarations or filings required
by Law.


 


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(e)                   Available Post-Closing Cash. The aggregate amount of Available
Post-Closing Cash shall not be less than the sum of Cage Cash and Required
Reserve Cash.


 


(f)                    Title Insurance. 
One or more title companies reasonably satisfactory to the Specified Parties (it being agreed that First
American Title Insurance Company of New York is a reasonably satisfactory title
company) shall be prepared and irrevocably committed to issue to the applicable
Specified Party (with an effective date not earlier than the Closing Date), as
to the Owned Property, an American Land Title Association extended coverage owner’s
policy of title insurance in favor of the applicable Specified Party for the
Owned Property (the “Title Policy”) which insures fee title to the Owned
Property in an amount, as such Specified Party shall elect in its sole and absolute discretion, up to $665
million in the aggregate or such lesser amount that does not exceed the amount
permitted by applicable title insurance regulations, provided that any costs of such policy shall
be paid in
accordance with Section 3.2(a), (i) showing fee title to the Owned Property
vested in a Specified Party or its nominee, (ii) including those
endorsements reasonably requested by the applicable Specified Party (provided
that such endorsements are available in the State of New Jersey), and (iii) containing
no exceptions other than the applicable Permitted Encumbrances and any matter
that would be disclosed by a current, accurate and correct survey of the Owned
Property.  As used in this Section 8.2(f) above,
“extended coverage” shall mean the deletion of general exceptions (as opposed to any
specific exceptions that are otherwise Permitted Encumbrances) for unrecorded
easements, mechanics liens, unrecorded liens for taxes and assessments (provided,
that such Title Policy may except “taxes and assessments not yet a lien due and
payable”), rights of parties in possession and, to the extent available if an
updated survey is obtained or the issuing title company otherwise agrees,
survey matters.  Notwithstanding anything to the contrary set forth in
this Section 8.2(f) above, the Specified
Parties shall have the right collectively to obtain a single as-built
survey (or an update of an existing survey) of the Owned Property as well as a
zoning endorsement to such Title Policy, provided that the receipt of
such survey (or any requested modifications to the Title Policy based thereon)
or such zoning endorsement, shall not be a condition to Closing, the Specified Parties shall not have the right to
extend the Closing Date in order to obtain such survey or zoning endorsement,
and the costs of such survey are paid by the Specified
Parties.


 


Section 8.3            Additional Conditions to
Obligations of the Trustee/Conservator and the Company


 


The
obligation of the Company and the Trustee/Conservator to effect the Closing is
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date, any of which may be waived in whole or in part in writing
exclusively by the Trustee/Conservator:


 


(a)                   Representations and Warranties. 
The representations and warranties of the Specified Parties contained in this Agreement shall be true and
correct at and as of the Closing as if made at and as of such time (except to
the extent expressly made as of an earlier date, in which case such
representations shall be true and correct as of such earlier date), and the 


 


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Trustee/Conservator
shall have received a certificate to such effect signed on behalf of each
Specified Party by a duly authorized officer thereof.


 


(b)                   Performance of Obligations. 
Each of the Specified Parties
shall have performed in all material respects all covenants, agreements and
obligations required to be performed by them under this Agreement at or prior
to the Closing and the Trustee/Conservator and the Sellers shall have received
a certificate to such effect signed on behalf of each Specified Party by a duly
authorized officer thereof.


 


(c)                   Ancillary Agreements. 
Each Ancillary Agreement, substantially in the form attached as an Exhibit to
this Agreement, shall have been executed and delivered by the parties thereto
(other than the Company or the Company Subsidiary, as applicable).


 


Section 8.4            [Intentionally Omitted]


 


Section 8.5            Waiver of Conditions


 


Notwithstanding
anything to the contrary set forth in this Agreement, the Specified Parties shall not waive any condition
to Closing that would be material and adverse to the Secured Parties under the
Original Collateral Agreement without the consent of the Administrative Agent,
acting on behalf of the Secured Parties and at the direction of the Required
Lenders.


 


Section 8.6            Frustration of Closing
Conditions


 


None
of the parties hereto may rely on the failure of any condition set forth in
this Article VIII to be satisfied if
such failure was caused by such party’s failure to act in good faith or to use
its reasonable best efforts to cause the Closing to occur.


 


ARTICLE IX


 


TERMINATION AND
AMENDMENT


 


Section 9.1            Termination


 


This
Agreement may be terminated at any time prior to the Closing (with respect to Section 9.1(b) through (j),
upon written notice of the terminating party to the other parties, 


 


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which notice shall specify in reasonable detail the grounds for
termination and the paragraph hereof pursuant to which the Agreement is being
terminated):


 


(a)                   by mutual written agreement of the
Sellers, the Trustee/Conservator and Specified
Parties;


 


(b)                   by either the Specified Parties or the Trustee/Conservator, if the transactions
contemplated hereby shall not have been consummated on or prior to the Outside
Date; provided, however, that in the event that each of the
conditions set forth in Section 8.1
has been satisfied by the Outside Date and the condition set forth in Section 8.2(e) has not been
satisfied by the Outside Date, the Trustee/Conservator may by written notice to
the Specified Parties and the
Administrative Agent extend the Outside Date on one occasion by up to an
additional six months; provided, further, that the right to
terminate this Agreement under this Section 9.1(b) shall
not be available to any party whose failure to fulfill any obligation under
this Agreement was the direct or indirect cause of, or otherwise resulted in,
the failure of the Closing to occur on or before the Outside Date; provided,
further, that the Specified Parties’
right to terminate this Agreement under this Section 9.1(b) shall
not be available if the failure of the Closing to occur on or before the
Outside Date is the direct or indirect result of a Specified Party’s failure to
fulfill any of its obligations under this Agreement;


 


(c)                   by either the Specified Parties, the Trustee/Conservator or the Tropicana
Parties, if there shall be any applicable Law that makes the consummation of
the Sale illegal or otherwise prohibited (and such applicable Law is not
overturned or otherwise made inapplicable to the Sale within a period of one
hundred (100) days after enactment of such applicable Law) or if a court of
competent jurisdiction or other Governmental Entity shall have issued a nonappealable
final Order, decree or ruling or taken any other nonappealable final action, in
each case, other than any Law relating to the action of a Gaming Authority in
respect of any Gaming Approval, and having the effect of permanently
restraining, enjoining or otherwise prohibiting the Closing and the
transactions contemplated hereby; provided, however, that the
right to terminate this Agreement under this Section 9.1(c) shall
not be available to any party whose failure to fulfill any obligation under
this Agreement has been the direct or indirect cause of, or contributed to,
such action;


 


(d)                   by the Specified
Parties, if the Company or a Tropicana Party has breached any
representation, warranty, covenant or agreement on the part of the Company or a
Tropicana Party, respectively, set forth in this Agreement which (i) would
result in a failure of a condition set forth in Section 8.2(a) or
(b) to be satisfied and (ii) is
not cured in all material respects within thirty (30) days after written notice
thereof is provided by the Specified Parties
to the Trustee/Conservator and the Sellers; provided, however,
that if such breach cannot be so cured within such thirty-day period but can be
cured prior to the Outside Date, and the breaching party is diligently
proceeding to cure such breach, this Agreement may not be terminated pursuant
to this Section 9.1(d); provided, further,
that the Specified Parties’ right to
terminate this 


 


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Agreement under
this Section 9.1(d) shall not be
available if, at the time of such intended termination, any Specified Party is
in material breach of any of its representations, warranties, covenants or
agreements contained in this Agreement;


 


(e)                   by the Trustee/Conservator, if any
Specified Party has breached any representation, warranty, covenant or
agreement on the part of such party set forth in this Agreement which (i) would
result in a failure of a condition set forth in Section 8.3(a) or
(b) to be satisfied and (ii) is
not cured in all material respects within thirty (30) days after written notice
thereof to the Specified Parties, the
Administrative Agent and the Tropicana Parties; provided, however,
that if such breach cannot be so cured within such thirty-day period but can be
so cured prior to the Outside Date, and the breaching party is diligently
proceeding to cure such breach, this Agreement may not be terminated pursuant
to this Section 9.1(e); provided, further,
that the Trustee/Conservator’s right to terminate this Agreement under this Section 9.1(e) shall not be available if, at the
time of such intended termination, the Trustee/Conservator or any Seller is in
material breach of any of its representations, warranties, covenants or
agreements contained in this Agreement;


 


(f)                    [Reserved]


 


(g)                   by the Specified
Parties, if the Chapter 11 case of any Seller is converted to a case
under Chapter 7 of the Bankruptcy Code;


 


(h)                   by the Trustee/Conservator, if (i) any
Governmental Entity has issued an order, decree or ruling or taken any other action,
in each case, (y) denying any Specified Party any Gaming Approval
required as a condition to the consummation of the transactions contemplated by
this Agreement or (z) providing for or requiring relief
inconsistent with the terms of this agreement, or (ii) the Specified Parties fail to pursue, or determine
to withdraw, terminate, abandon, or otherwise render inoperative, any pending
application with respect to any Gaming Approval required as a condition to the
consummation of the transactions contemplated by this Agreement;


 


(i)                    by the Trustee/Conservator, if (i) the
conditions set forth in Sections 8.1
and 8.2 have been satisfied (other than
those conditions that by their terms are to be satisfied at the Closing, and on
the date of such termination no state of facts or circumstances exists that
would cause such conditions not to be able to be satisfied on the Closing Date
if the Closing were to occur on such date) and (ii) Newco or any
Specified Party fails to promptly consummate the transactions contemplated
hereby in accordance with the terms and conditions hereof; and


 


(j)                    by the Trustee/Conservator, if the
Written Direction has been modified or amended in a manner reasonably likely,
in the reasonable judgment of the Trustee/Conservator, 


 


93

















 


to prevent or
materially delay the consummation of the Sale, or if the Written Direction has
been withdrawn or terminated.


 


Section 9.2            Effect of Termination


 


(a)                   Remedies.  In the event
of termination of this Agreement as provided in, and in accordance with, Section 9.1, this Agreement shall become wholly void
and of no further force and effect without liability to the Specified Parties, the Sellers, the
Trustee/Conservator, the Administrative Agent or any of their respective
Subsidiaries, Affiliates, officers, directors, managers, employees, agents,
advisors or other representatives, and each shall be fully released and
discharged from any other liability or obligation under or resulting from this
Agreement and each party shall have no other remedy or cause of action under or
relating to this Agreement or any applicable Law including, without limitation,
for reimbursement of expenses, except that the rights and obligations of the
parties under Section 4.14, Section 5.3, clauses (ii) and (v) of the
proviso to Section 6.4(a), the
confidentiality provisions contained in Section 6.4,
Section 6.6, this Section 9.2 and Article XI
shall remain in full force and effect. 
In the event that this Agreement is terminated for any reason, the Specified Parties shall promptly redeliver all
Confidential Information. 
Notwithstanding any other provision of this Section 9.2(a) or
this Agreement, to the maximum extent permissible by Law, neither the
Trustee/Conservator nor the Administrative Agent shall have any liability under
this Agreement or any other Ancillary Agreement, whether or not this Agreement
is terminated or the Closing occurs.


 


Notwithstanding
any other provision in this Agreement, in the event of termination of this Agreement
other than pursuant to Section 9.1(a) or
Section 9.1(d), the Original
Agreement shall be reinstated in full force and effect, consistent with the
terms provided therein, the Delaware Sale Order and the NJ Sale Order,
including, among other things, the Administrative Agent’s right to designate an
entity as “Buyer” (other than the Specified Parties which are party to this
Agreement) and provided that, in the event of such termination, the
Outside Date set forth in the Original Agreement shall be automatically
extended for an additional three (3) months, and thereafter, may be
extended at the discretion of the Trustee/Conservator, for such additional
duration as the Trustee/Conservator may determine, but in no event shall such
Outside Date, as so extended, be later than June 30, 2010.


 


(b)                   Fees and Expenses. 
Except as otherwise expressly provided in this Agreement, in the Trust
Agreement or otherwise by order of the Commission, all fees and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses, whether or not the
Closing occurs, except (i) that if the Agreement is terminated, all
fees and expenses incurred by the Trustee/Conservator and the professionals
advising him (including the Broker, pursuant to the Engagement Letter) shall be
paid by the Company and (ii) whether or not this Agreement is
terminated or the Closing occurs, all fees and expenses incurred by the
Administrative Agent and its advisors in connection with the transactions
contemplated hereby shall be paid by the Company or the Tropicana 


 


94

















 


Parties, as applicable, in accordance with any Order entered by the NJ
Bankruptcy Court or the Delaware Bankruptcy Court and, to the extent that any such
fees or expenses are not paid prior to the Closing, the Specified Parties will pay such
fees and expenses in accordance with Section 3.2(a)(iv).


 


Section 9.3            Mutually Exclusive
Remedies


 


The
termination rights under Section 9.1
may not be exercised or invoked in the event this Agreement is terminated in
accordance with the provisions of Section 6.12(c).


 


ARTICLE X


 


SURVIVAL; AS IS,
WHERE IS


 


Section 10.1         No Survival of Representations, Warranties and
Agreements


 


Except
as expressly set forth in this Agreement and except for Section 6.19(a) and
Section 6.19(b), none of the (i) representations
and warranties in this Agreement or in any instrument delivered pursuant to
this Agreement or (ii) covenants and agreements in this Agreement
or in any instrument delivered pursuant to this Agreement that by their terms
contemplate performance prior to or on the Closing Date shall survive the
Closing, and none of the parties nor their respective officers, directors or
stockholders shall have any liability with respect thereto from and after the
Closing.


 


Section 10.2         As Is, Where Is


 


The Specified Parties or their representatives have fully examined and
inspected the Property prior to the execution of this Agreement, and subject to
the provisions of this Section 10.2
and Article IV, the Specified Parties agree to accept the Property
AS IS, WHERE IS, WITH ALL FAULTS as of the Closing.  The Specified
Parties agree that, except as provided in Article IV,
the Specified Parties are not relying
upon any representations, statements, or warranties (oral or written, implied
or express) of any officer, employee, agent or representative of the Tropicana
Parties, the Company, the Company Subsidiary or the Trustee/Conservator, or any
salesperson or broker involved in this transaction as to the Property or the
Business, including:  (a) any
representation, statements or warranties as to the physical or environmental
condition of the Property or the Business; (b) the fitness and/or
suitability of the Property for use as a gaming facility or for any other
particular purpose; (c) the financial performance of the Property
or the Business; (d) the compliance of the Property or the Business
with applicable building, zoning, subdivision, environmental, or land use Laws,
codes, ordinances, rules or regulations; (e) the state of
repair of the Property; (f) the value of the Property or the
Business; 


 


95

















 


(g) the manner or quality of construction of the Property; (h) the
income derived or to be derived from the or the Business; or (i) the
fact that the Property may be located on earthquake faults or in hazardous
seismic zones, flood zones or hurricane zones. 
The Specified Parties also
acknowledge that the fair market value of the Reorganized Tropicana Stock
reflects and takes into account that the Property and the Business are being
sold “AS-IS.”  Each Specified Party, for
itself and its successors and assigns, waives any right to assert any Claim
against the Company, the Company Subsidiary, the Trustee/Conservator, the
Tropicana Parties or any of their respective Affiliates, at Law or in equity,
relating to any such matter, whether latent or patent, disclosed or
undisclosed, known or unknown, in contract or tort, now existing or hereafter
arising.


 


ARTICLE XI


 


MISCELLANEOUS


 


Section 11.1         Governing Law; Consent to Jurisdiction; Waiver of
Trial by Jury


 


(a)                   This Agreement and the transactions
contemplated hereby, and all disputes between or among, as the case may be, the
parties under or related to this Agreement or the facts and circumstances
leading to its execution, whether in contract, tort or otherwise, shall be
governed by and construed in accordance with the applicable provisions of the
Bankruptcy Code and the Laws of the State of New Jersey applicable to contracts
made and to be performed in the State of New Jersey, without giving effect to such
jurisdiction’s principles or rules of conflict of laws to the extent such
principles or rules would require or permit the application of the laws of
another jurisdiction
(unless the application of such principles or rules of conflict of laws is
required by statute).


 


(b)                   Without limiting any party’s right to
appeal any order of the Bankruptcy Courts, (i) the Bankruptcy
Courts shall retain exclusive jurisdiction to enforce the terms of this
Agreement and to decide any Claims or disputes arising out of or relating to
this Agreement, the Ancillary Agreements or the transactions contemplated
hereby and thereby or for recognition or enforcement of any judgment relating
thereto and (ii) any and all actions or proceedings related to the
foregoing shall be filed and maintained only in the Bankruptcy Courts, and the
parties hereby consent to and submit to the jurisdiction and venue of the
Bankruptcy Courts and shall receive notices at such locations as indicated in Section 11.2; provided, however, that if
the Bankruptcy Cases have closed, each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New Jersey State court and the federal courts of the United
States of America located in the State of New Jersey, and any appellate court
from any thereof, in any such Claim, dispute, action or proceeding.  Each of the parties hereby irrevocably and
unconditionally (i) agrees not to commence any such action or
proceeding except in such courts, (ii) agrees that any Claim in
respect of any such action or proceeding may be heard and determined in such
court, (iii) waives, to the fullest extent it may 


 


96

















 


legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such court, and (iv) waives,
to the fullest extent permitted by Law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law.  Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 11.2.  Nothing in this Agreement shall affect the
right of any party to this Agreement to serve process in any other manner
permitted by Law.


 


(c)                   EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE EITHER OF SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH
WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 11.1(c).


 


Section 11.2         Notices


 


All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally, delivered by facsimile (which is
confirmed), mailed by registered or certified mail (return receipt requested)
or delivered by a nationally-recognized overnight courier to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):


 


(a)                                  if to a Specified Party, to:


 


Latham &
Watkins LLP

885 Third Avenue, Suite 1000

New York, New York 10022-4834

Attn:  Mark A. Broude

Fax:  (212) 751-4864


 


97

















 


and


 


Sonnenschein Nath &
Rosenthal LLP


1221 Avenue of the
Americas


New York, New York
10020


Attention: Peter
D. Wolfson


Fax: (212)
768-6800


 


(b)                                 if to the Trustee/Conservator, to:


 


The Honorable Gary
S. Stein

c/o Pashman Stein

Court Plaza South

21 Main Street,

Hackensack, New Jersey 07601-7054

Fax:  201-488-5556


 


with a copy (which shall not constitute notice) to:


 


Debevoise & Plimpton LLP

919 Third Avenue

New York, New York  10022

Attn:  Michael W. Blair

Fax:  212-909-6836


 


(c)                                  if to any Seller on or prior to the
Closing Date:


 


Adamar of New
Jersey, Inc.

Brighton and The Boardwalk

Atlantic City, New Jersey 08401

Attn:  Mark Giannantonio, President and
Chief Operating Officer

Fax:  609-641-5181


 


98

















 


with copies (which shall not constitute notice) to:


 


The Honorable Gary S. Stein

c/o Pashman Stein

Court Plaza South

21 Main Street,

Hackensack, New Jersey 07601-7054

Fax:  201-488-5556


 


and


 


Debevoise & Plimpton LLP

919 Third Avenue

New York, New York  10022

Attn:  Michael W. Blair

Fax:  212-909-6836


 


(d)                                 if to a Tropicana Party (including any
Non-Conservatorship Seller) or after the Closing Date, to any Seller, to:


 


Tropicana
Entertainment, LLC

3930 Howard Hughes Parkway, 

4th Floor

Las Vegas, Nevada 89169

Attn:  Chief Legal Officer

Fax:  312-861-2200


 


with a copy (which
shall not constitute notice) to:


 


Kirkland &
Ellis, L.L.P.

200 East Randolph Drive

Chicago, Illinois 60601-6636

Attn:  Marc Kieselstein, P.C.

Attn:  David Seligman, P.C.

Fax:  312-861-2200


 


(e)                                  if to the Administrative Agent, to:


 


Credit Suisse


Eleven Madison Avenue


New York, New York
10010


Attn:  Agency Group


Fax:  212-325-8304


 


99

















 


with a copy (which
shall not constitute notice) to:


 


Cravath, Swaine &
Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, New York 10019-7475

Attn:  Paul H. Zumbro

Attn:  Damien R. Zoubek

Fax:  212-474-3700


 


Section 11.3         Headings; Table of Contents


 


The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.


 


Section 11.4         Entire Agreement


 


This
Agreement, the Ancillary Agreements, the Sale Orders, all documents and
instruments referred to herein, and all other written agreements entered into
as of the date of this Agreement between or among any of the parties hereto
with respect to the transactions contemplated hereby, constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.  Each party hereto agrees that, except for the
representations and warranties contained in this Agreement and the respective
Disclosure Letters, none of the parties hereto makes any other representations
or warranties, and each hereby disclaims any other representations and
warranties made by itself or any of its respective representatives or other
representatives, with respect to the execution and delivery of this Agreement
or the transactions contemplated hereby, notwithstanding the delivery or
disclosure to any of them or their respective representatives of any
documentation or other information with respect to any one or more of the
foregoing.


 


Section 11.5         Severability


 


If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of Law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party.  Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the extent possible.


 


100














 


Section 11.6         Assignment


 


Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by operation of Law (including, without limitation, by merger or
consolidation) or otherwise without the prior written consent of the other
parties, except that, subject to any required Regulatory Approvals and
approvals of the Bankruptcy Courts, (i) the Specified Parties may assign any of their rights and obligations
hereunder (a) to any of their Affiliates (or to another Specified Party),
(b) pursuant to the Delaware Plan of Reorganization, (c) after
the Closing, to any of its or its assignee’s lenders as collateral security,
and (d) after the Closing, all or any portion of its rights and
obligations hereunder; provided, in the case of clauses (a) and (d) of
this clause (i), that such assignee executes a joinder to this Agreement, and (ii) the
Tropicana Parties may assign their rights and obligations hereunder pursuant to
any plan of reorganization approved by the Delaware Bankruptcy Court.  Any assignment in violation of this Section 11.6 shall be void.  In the event of any assignment by a Specified
Party in accordance with this Section 11.6, all references to such
Specified Party hereunder shall be deemed references to its assignee and the
provisions of this Agreement shall be deemed appropriately adjusted mutatis mutandis to reflect such substitution.


 


Section 11.7         Third Party Beneficiaries


 


This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto and their respective permitted successors and assigns, and nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other Person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.


 


Section 11.8         Counterparts


 


This
Agreement may be executed and delivered by facsimile or portable document
format and/or in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.


 


Section 11.9         Mutual Drafting


 


Each
party hereto has participated in the drafting of this Agreement, which each
party acknowledges is the result of extensive negotiations between the
parties.  In the event of any ambiguity
or question of intent arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.


 


101

















 


Section 11.10       Amendment


 


This
Agreement may be amended only by a written instrument duly executed and
delivered by each of the parties hereto to the other parties hereto.


 


Section 11.11       Extension; Waiver


 


At any
time prior to the Closing, the parties hereto may, by duly authorized action
and to the extent legally allowed, (i) extend the time for or waive
the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and (iii) waive
compliance with any of the agreements or conditions contained herein, in each
case to the extent, if any, that the extending or waiving party is the
contractual beneficiary of such obligation, act, representation, warranty,
agreement or condition.  Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
if set forth in a written instrument signed on behalf of such party.


 


Section 11.12       Time of Essence


 


Time
is of the essence with respect to this Agreement and all terms, provisions,
covenants and conditions herein.


 


Section 11.13       Disclosure Letters


 


The AC
Disclosure Letters shall be arranged so as to correspond to the numbered and
lettered paragraphs contained in this Agreement and the disclosure in any
paragraph shall, to the extent applicable, qualify other paragraphs in this
Agreement to the extent that it is reasonably apparent from the face of such
disclosure that such disclosure also qualifies or applies to such other
paragraphs.  The Specified Party
Disclosure Letter shall be arranged so as to correspond to the numbered and
lettered paragraphs contained in this Agreement and the disclosure in any
paragraph shall, to the extent applicable, qualify other paragraphs in this
Agreement to the extent that it is reasonably apparent from the face of such
disclosure that such disclosure also qualifies or applies to such other
paragraphs.


 


Section 11.14       Matters Relating to the Administrative Agent


 


The
Administrative Agent has executed this Agreement at the direction of the
Required Lenders in order to facilitate the transactions contemplated
hereby.  Each of the parties hereto 


 


102

















 


acknowledges and agrees that (i) none of the Sellers’ title to,
control of or possession of any of the Acquired Assets, or any of the Sellers’
obligations in respect of any of the Assumed Liabilities, shall be transferred
to or assumed by the Administrative Agent and (ii) none of the Sellers’ or
the Specified Parties’ title to, control
of or possession of any of the Reorganized Tropicana Stock, or any of the
Sellers’ or the Specified Parties’
obligations in respect of any of the Reorganized Tropicana Stock, shall be
transferred to or assumed by the Administrative Agent.  Each of Tropicana Entertainment, the Sellers
and the Trustee/Conservator, on behalf of itself and its respective Affiliates,
acknowledges and agrees that none of the Administrative Agent or any of its
Affiliates or any Secured Party or any of its Affiliates (other than the Specified Parties) have any liability or other
obligation in the event of any breach by any of the Specified Parties of any of their representations, warranties,
covenants, obligations or other agreements under this Agreement, including such
parties’ obligations to consummate the transactions in accordance with the
terms of this Agreement or any Ancillary Agreement.  Each of Tropicana Entertainment, the Sellers
and the Trustee/Conservator, on behalf of itself and its respective Affiliates,
further acknowledges and agrees that neither the Administrative Agent nor any
of its Affiliates or any Secured Party or any of its Affiliates (other than the
Specified Parties) shall in any way be
deemed to be attributed or otherwise responsible for any of the
representations, warranties, covenants, obligations or other agreements of any
of the Specified Parties under this
Agreement or any Ancillary Agreement. 
Each of Tropicana Entertainment, the Sellers, the Trustee/Conservator,
and the Specified Parties, on behalf of
itself and its respective Affiliates, further acknowledges and agrees that
neither the Administrative Agent nor any of its Affiliates shall have any
liability or other obligation in respect of any action taken or not taken by
the Administrative Agent in connection with this Agreement or any Ancillary
Agreement at the direction of the Required Lenders.


 


[signature pages follow]


 


103

















 


October 20,
2009


 


IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be signed by
their respective duly authorized officers as of the date first written above.


 


 


	
   

  	
  ADAMAR OF NEW JERSEY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MANCHESTER MALL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The Honorable Gary S. Stein,  exclusively
  in his role as Trustee under the Interim Casino Authorization Trust Agreement
  declared operative by the State of New Jersey Casino Control Commission in
  its Order No. 07-12-12-A, and Conservator for and on behalf of Adamar of
  New Jersey Inc.  pursuant to Commission Order
  No. 07-12-19

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 

















 


October 20, 2009


 


	
   

  	
  TROPICANA ENTERTAINMENT, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RAMADA NEW JERSEY HOLDINGS
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ATLANTIC-DEAUVILLE, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ADAMAR GARAGE CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


October 20, 2009


 


	
   

  	
  RAMADA NEW JERSEY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


October 20, 2009


 


	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS
  BRANCH, exclusively in its capacity as Administrative Agent and Collateral
  Agent for the Secured Parties

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TROPICANA ENTERTAINMENT INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TROPICANA ATLANTIC CITY CORP.,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


October 20, 2009


 


	
   

  	
  TROPICANA AC SUB CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: