Exhibit 10.1


 


SECURITIES PURCHASE AGREEMENT


 


THIS
SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated as of August 31,
2010, by and among New Tropicana Opco, Inc., a Delaware corporation (“Purchaser”), Icahn
Partners LP, a Delaware limited partnership (“Icahn Partners”), Icahn
Partners Master Fund LP, a Cayman Islands exempted limited partnership (“Icahn
Master”), Icahn Partners Master Fund II L.P., a Cayman Islands
exempted limited partnership (“Icahn Master II”), and Icahn Partners
Master Fund III L.P., a Cayman Islands exempted limited partnership (“Icahn
Master III” and, together with Icahn Partners, Icahn Master and Icahn
Master II, the “Sellers” and, each individually, a “Seller”).  The Purchaser and Sellers are collectively
referred to herein as the “Parties” and each individually is referred to
herein as a “Party”.


 


WITNESSETH:


 


WHEREAS,
on February 19, 2010, the Sellers acquired approximately US$72,363,849, in
aggregate principal amount, of the Senior Secured Floating Rate Notes due 2012
issued pursuant to that certain Indenture, dated as of March 28, 2008, by
and among Long Beach Mortgage Company N.V., the guarantors named therein and
Wells Fargo Bank, National Association, as trustee and collateral agent (the “Notes”);


 


WHEREAS,
on May 6, 2010, Abura Development Corporation VBA, an Aruba limited
liability company (“Abura”), agreed to purchase at an auction the “Registered
Property” (as defined in the Deed of Assignment, dated as of May 6, 2010),
attached hereto as Annex A;


 


WHEREAS,
pursuant to that certain Contribution and Subscription Agreement, dated as of June 16,
2010 (the “Sellers Contribution Agreement”), by and among Icahn Fund Sub
1D Ltd., a Cayman Islands exempt company duly incorporated with limited
liability (the “Company”), and the Sellers, each Seller (i) agreed
to contribute to the Company such Seller’s rights, title and interest in and to
all the Notes in exchange for the issuance of shares of the Company and (ii) made
a loan to the Company in exchange for the issuance by the Company to each
Seller of a demand promissory note in the aggregate principal amount borrowed
from each Seller (the “Company Promissory Notes”);


 


WHEREAS,
pursuant to that certain Contribution and Subscription Agreement, dated as of June 16,
2010 (the “Company Contribution Agreement”, together with the Sellers
Contribution Agreement, the “Contribution Agreements”), by and among the
Company and Abura, the Company agreed (i) to contribute to Abura (a) the
Company’s rights, title and interest in and to all the Notes and (b) cash
in the amount of US$2,800,000, in exchange for the issuance by Abura to the
Company of an aggregate of up to 40,983,999 shares of Abura, and (ii) to
fund the acquisition of the Registered Property through a cash loan to Abura
consisting of an aggregate principal amount of US$20,224,719.00, in exchange
for the issuance by Abura to the Company of a demand promissory note in an
aggregate principal amount of US20,224,719.00 (the “Abura Note”);


 


WHEREAS,
on July 9, 2010, upon repayment by the Company of the Company Promissory
Notes, the Company Promissory Notes were cancelled by the respective Seller;
and


 

















 


WHEREAS,
the Purchaser desires to purchase from Sellers, and the Sellers desire to sell
and transfer to the Purchaser, all of the issued and outstanding shares (the “Company
Shares”) of capital stock of the Company (the “Transaction);


 


NOW,
THEREFORE, in consideration of the foregoing and of the mutual promises,
covenants and conditions hereinafter contained, the Parties hereby agree as
follows:


 


1.             Purchase and Sale.


 


1.1           Purchase and Sale.  On the date hereof and on the terms and
subject to the conditions set forth in this Agreement, each Seller shall sell,
assign, transfer and deliver to the Purchaser, and the Purchaser shall
purchase, acquire and accept from such Seller, the Company Shares set forth
opposite such Seller’s name on Exhibit A.


 


1.2           Purchase Price.  Upon delivery of the Company Shares pursuant
to Section 1.1, the Purchaser shall pay to each Seller, by wire transfer
in immediately available funds in accordance with the wiring instructions of
the Sellers set forth on Exhibit B, such amount as is set forth
opposite such Seller’s name on Exhibit A.


 


1.3           Closing.  The transactions contemplated hereby are
being consummated on the date hereof, effective as of the date hereof, and
shall take place at the offices of Schulte Roth & Zabel LLP, 919 Third
Avenue, New York, NY 10022 or such other time and place as is agreed to by the
Parties.


 


1.4           Register of Members of the Company.  On the date hereof, the Sellers shall cause
the Company to instruct Walkers Corporate Services Limited to make the
appropriate entries in the Register of Members of the Company to reflect the
Transaction.


 


1.5           Officers and Directors.  Effective as of the date hereof:


 


(a)   the directors of the Company
as of immediately prior to the consummation of the transactions contemplated
hereby shall resign as directors of the Company;


 


(b)   and the officers of the
Company as of immediately prior to the consummation of the transactions
contemplated hereby shall be removed as officers of the Company.


 


1.6           Transfer Taxes.  All transfer, documentary, sales, use, stamp,
registration and other such taxes and fees (including any penalties and
interest) incurred in connection with the Transaction shall be borne solely by
the Purchaser, and the Sellers and the Purchaser shall cooperate in the
execution and filing of all necessary federal, state, local and foreign returns
and other documentation with respect to all such taxes and fees (costs of such
filing to be borne solely by the Purchaser).


 


2.             Representations and Warranties of the Sellers.  As an inducement to the Purchaser to enter
into this Agreement and to consummate the Transaction, each Seller, jointly 


 


2

















 


and severally with the other Sellers, represents and
warrants to the Purchaser, as of the of date hereof, as follows:


 


2.1           Organization.


 


(a)   Such Seller is duly formed
or organized, validly existing and in good standing under the laws of the
jurisdiction in which it was formed or organized.  Such Seller is duly qualified to do business
in each jurisdiction in which the nature of its business or the character or
location of the properties and assets owned, leased or operated by it makes
such qualification necessary, except where the failure to be so qualified would
not reasonably be expected to have a material adverse effect on such Seller’s
ability to consummate the Transaction.


 


(b)   The Company (i) is an
exempted company duly incorporated with limited liability, validly existing and
in good standing under the laws of the Cayman Islands, (ii) is duly
qualified or licensed to do business and is in good standing with the Registrar
of Companies in the Cayman Islands in each jurisdiction in which the nature of
its business or the character or location of the properties and assets owned,
leased or operated by it makes such qualification necessary, except where the
failure to be so qualified would not reasonably be expected to have a material
adverse effect on the Company and (iii) has not at any time conducted any
business or operations and has not entered into any transaction other than in
connection with, or related to, the purchase of the Registered Property,
including as set forth in the Contribution Agreements.


 


(c)   Abura (i) is a limited
liability company duly organized, validly existing and in good standing under
the laws of Aruba, (ii) is duly qualified or licensed to do business and
is in good standing in each jurisdiction in which the nature of its business or
the character or location of the properties and assets owned, leased or
operated by it makes such qualification necessary, except where the failure to
be so qualified would not reasonably be expected to have a material adverse
effect on Abura and (iii) has not at any time conducted any business or
operations and has not entered into any material transaction other than (A) the
acquisition of the Registered Property and certain activities related thereto, (B) the
transactions set forth in the Company Contribution Agreement and (C) the
operation of the Aruban Hotel and fractional timeshares attached to the
Registered Property (the “Timeshares”), the adjacent property and the
temporary casino (collectively, the “Business”).


 


2.2           Authority.  Such Seller (a) has the requisite power
and authority to execute and deliver this Agreement and to perform the
Transaction, and (b) has duly taken all action required to be taken by
such Seller under applicable Law (as defined below) for the due authorization
of this Agreement and the performance by it of the Transaction.  This Agreement has been duly and validly
executed and delivered by such Seller and, assuming the due execution and
delivery of this Agreement by Purchaser, constitutes a legal, valid and binding
obligation of such Seller, enforceable against each Seller in accordance with
its terms, except to the extent the enforceability thereof may be limited
by:  (i) applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
from time to time in effect affecting generally the enforcement of creditors’
rights and remedies; and (ii) general principles of equity, 


 


3

















 


including, without limitation, principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in equity or at law).


 


2.3           No Restrictions.


 


(a)   The execution and delivery
of this Agreement by such Seller, the performance by Seller of its obligations
hereby and the consummation by such Seller of the Transaction do not (i) violate
of any of the governing documents of such Seller, (ii) violate any permit
or approval (“Permit”), if any, issued, to such Seller, under any
statute, law, rule, regulation or ordinance (collectively, “Laws”) or
any judgment, decree, order, writ, permit or license (collectively, “Orders”)
relating to such Seller or (iii) violate, conflict with, or result in a
breach (with or without due notice or lapse of time or both) of, any of the
terms or provisions of, or constitute a default (with or without due notice or
lapse of time or both) under, or give rise to a right of termination or
violation under, or result in the creation or imposition of any Lien upon, any
of the respective property or assets of such Seller under (A) any contract
to which such Seller is a party or by which it may be bound or to which any of
its property or assets may be subject or (B) any Law applicable to such
Seller, except in each case of clauses (i), (ii) and (iii), as would not
reasonably be expected to have a material adverse effect on the ability of such
Seller to consummate the Transaction.


 


(b)   There is no suit, action,
claim, investigation or inquiry by any court, tribunal, arbitrator, authority,
agency, commission, official or other instrumentally of the United States, any
foreign country or any domestic or foreign state, county, city or other
political subdivision (“Governmental Authority”), and no legal,
administrative or arbitration proceeding pending or, to the knowledge of
Sellers (“Sellers’ Knowledge”), threatened against any of the Sellers or
the Company that seeks to enjoin or otherwise prevent the consummation of the
Transaction.


 


2.4           Approvals and Consents.  No authorization or approval by, and no
notice to or filing with, any Governmental Authority or third party is required
to be obtained or made by such Seller in connection with the due execution and
delivery by such Seller of this Agreement or the consummation by such Seller of
the Transaction, except for such authorizations, approvals, notices and
filings, which are being obtained or made on the date hereof or the failure of
which to obtain or make would not reasonably be expected to have a material
adverse effect on the business of the Company or Abura or such Seller’s ability
to consummate the Transaction.


 


2.5           Ownership.  Such Seller is the record and beneficial
owner of the number of Company Shares set forth opposite such Seller’s name on Schedule
A.  Such Seller has the power and
authority to sell, transfer, assign and deliver its portion of the Company
Shares, and such delivery will convey to Purchaser on the date hereof good and
valid title to such Company Shares, free and clear of any liens, adverse claim,
pledge, security interests or other encumbrances, claims or voting or other
restrictions (collectively, “Liens”) of any kind.  There are no other issued or outstanding
equity interests, economic interests (other than obligations incurred in the
ordinary course of business) or voting interests in the Company other than the
Company Shares.  All of the issued and
outstanding Company Shares have been duly authorized and validly issued and
fully paid, have been offered, sold and delivered by the Company in 


 


4

















 


compliance with applicable securities Laws and have
not been, and the Company Shares will not be, issued in violation of any
outstanding securities, options, warrants, calls, rights, conversion rights,
preemptive rights, rights of first refusal, redemption rights, repurchase
rights, plans, “tag-along” or “drag-along” rights, stock appreciation, phantom
equity, profits interests or similar rights, commitments, agreements,
arrangements or undertakings (“Equity Rights”).  There are no Equity Rights (i) obligating
any Seller or the Company to issue, deliver, redeem, purchase or sell, or cause
to be issued, delivered, redeemed, purchased or sold, any Company Shares, (ii) giving
any Person (as defined below) a right to subscribe for or acquire any Company
Shares or (iii) obligating the Company to issue, grant, adopt or enter
into any Equity Right.  None of the
Sellers or the Company has outstanding indebtedness that entitles any Person to
vote any Company Shares.  No Person other
than the Sellers has an ownership interest in the Company.


 


2.6           Assets of the Company.  The Company owns all of the issued and
outstanding shares of Abura (the “Abura Shares”).  Other than in respect of the Abura Note, such
Seller has not created, or caused the Company to create, any Liens on the Abura
Shares.  The Company is the due holder of
the Abura Note.  The Company has no
assets other than the Abura Shares and the Abura Note.  All of the issued and outstanding Abura
Shares have been duly authorized and validly issued and fully paid, have been
offered, sold and delivered by Abura in compliance with applicable securities
Laws and have not been, and the Abura Shares will not be, issued in violation
of any Equity Rights.  There are no
Equity Rights (i) obligating any Seller, the Company or Abura to issue,
deliver, redeem, purchase or sell, or cause to be issued, delivered, redeemed,
purchased or sold, any Abura Shares, (ii) giving any Person a right to
subscribe for or acquire any Abura Shares or (iii) obligating Abura to
issue, grant, adopt or enter into any Equity Right.  None of the Sellers, the Company or Abura has
any outstanding indebtedness that entitles any Person to vote any Abura Shares.


 


2.7           No Brokers’ and Finders’ Fees.  No Person has acted, directly or indirectly,
as an investment banker, broker, finder, financial advisor or other
intermediary for any Seller, and no Seller has incurred, become liable for or
otherwise entered into any contract or agreement with respect to any broker’s
commission, finder’s fee or similar payment relating to or in connection with
the Transaction.


 


3.             Representations and Warranties of Purchaser. As an
inducement to each of the Sellers to enter into this Agreement and to
consummate the Transaction, the Purchaser represents and warrants to each
Seller, as of the date hereof, as follows:


 


3.1           Organization.  The Purchaser is a corporation incorporated,
validly existing and in good standing under the laws of Delaware, is duly
qualified or licensed to do business and is in good standing as a corporation
in each jurisdiction in which the nature of its business or the character or
location of the properties and assets owned, leased or operated by it makes
such qualification necessary, except where the failure to be so qualified would
not reasonably be expected to have a material adverse effect on the Purchaser.


 


3.2           Authority.  The Purchaser (a) has the requisite
power and authority to execute and deliver this Agreement and to perform the
Transaction, and (b) has duly taken all action required to be taken by the
Purchaser under applicable Law for the due authorization of this Agreement and
the performance by it of the Transaction. 
This Agreement has been duly and 


 


5

















 


validly executed and delivered by the Purchaser and,
assuming the due execution and delivery of this Agreement by the Sellers,
constitutes a legal, valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except to the extent the
enforceability thereof may be limited by: 
(i) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws from time to time in effect
affecting generally the enforcement of creditors’ rights and remedies; and (ii) general
principles of equity, including, without limitation, principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in equity or at law).


 


3.3           No Restrictions.


 


(a)   The execution and delivery of
this Agreement by the Purchaser, the performance by the Purchaser of its
obligations hereby and the consummation by the Purchaser of the Transaction do
not (i) violate of any of the governing documents of the Purchaser, or (ii) violate,
conflict with, or result in a breach (with or without due notice or lapse of
time or both) of, any of the terms or provisions of, or constitute a default
(with or without due notice or lapse of time or both) under, or give rise to a
right of termination or violation under, or result in the creation or
imposition of any Lien upon, any of the respective property or assets of the
Purchaser under (A) any contract to which the Purchaser is a party or by
which it may be bound or to which any of its property or assets may be subject
or (B) any Law applicable to the Purchaser, except as would not reasonably
be expected to have a material adverse effect on the ability of the Purchaser
to consummate the Transaction.


 


(b)   There is no suit, action,
claim, investigation or inquiry by any Governmental Authority, and no legal,
administrative or arbitration proceeding pending or, the Purchaser’s knowledge,
threatened against the Purchaser, with respect to the execution, delivery and
performance of this Agreement or the Transaction.


 


3.4           Approvals and Consents.  No authorization or approval by, and no
notice to or filing with, any Governmental Authority will be required to be
obtained or made by the Purchaser in connection with the due execution and
delivery by the Purchaser of this Agreement, the consummation by the Purchaser
of the Transaction, except for such authorizations, approvals, notices and
filings which are being obtained or made on the date hereof or the failure of
which to obtain or make would not reasonably be expected to have a material
adverse effect on the ability of the Purchaser to consummate the Transaction.


 


3.5           No Brokers’ and Finders’ Fees No Person has
acted, directly or indirectly, as an investment banker, broker, finder,
financial advisor or other intermediary for the Purchaser, and the Purchaser
has not incurred, become liable for or otherwise entered into any contract or
agreement with respect to any broker’s commission, finder’s fee or similar
payment relating to or in connection with the Transaction.


 


4.             Miscellaneous.


 


4.1           Successors and Assigns; Assignment. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. 
Nothing in this 


 


6

















 


Agreement, express or implied, is intended to confer
upon any party, other than the parties or their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.  This Agreement may not be assigned by any
Party without the prior written consent of the other Parties.  Notwithstanding the foregoing, the Purchaser
may assign this Agreement and any or all rights or obligations hereunder,
without the consent of the Sellers, to one or more of its Affiliates; provided
that no such assignment shall relieve the Purchaser of any of its obligations
under this Agreement.  For purposes of
this Agreement, “Affiliate” means any individual, group of individuals
or entity, including without limitation, any trust, custodian, individual
retirement account, corporation, limited liability company, joint venture,
limited partnership or general partnership (each, a “Person”), that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with a Person or (ii) any other
Person that, directly or indirectly, is the beneficial owner of a majority of
the voting power of the specified person or of which the specified Person is
directly or indirectly the owner of a majority of the voting power.


 


4.2           Cooperation.  The Purchaser and the Sellers shall
reasonably cooperate, and shall cause their respective affiliates, officers,
employees, agents, auditors and other representatives to reasonably cooperate,
in preparing and filing all tax returns, including maintaining and making
available to each other all records necessary in connection with taxes and in
resolving all disputes and audits with respect to all taxable periods relating
to taxes.  Neither the Purchaser nor the Sellers shall be required to
provide any information which such person determines, in its sole discretion,
is confidential.


 


4.3           Press Releases.  The Purchaser and the Sellers will consult
with the other before issuing, and provide the other the opportunity to review,
comment upon and approve, any press release or other public statements with
respect to this Agreement or the transactions contemplated hereby and will not
issue any such press release or make any such public statement without the
other Party’s prior written consent, except that a Party may make such
disclosures as are required by applicable Law (based on the advice of the
disclosing Party’s legal counsel), but only after disclosing to the other
Parties the basis for so concluding that such disclosure is so required and
consulting with the other Parties regarding the contents of such disclosure
prior thereto.


 


4.4           Governing Law. This Agreement shall be
governed by and construed under the laws of the State of New York as applied to
agreements among New York residents entered into and to be performed entirely
within New York, without giving effect to the conflict of laws principles
thereof.


 


4.5           Jurisdiction.  Each of the Parties hereby irrevocably and
unconditionally agrees that any action, suit or proceeding, at Law or equity,
arising out of or relating to this Agreement or the Transaction shall only be
brought in any federal court of the Southern District of New York or any state
court located in New York County, State of New York, and hereby irrevocably and
unconditionally expressly submits to the personal jurisdiction and venue of
such courts for the purposes thereof and hereby irrevocably and unconditionally
waives (by way of motion, as a defense or otherwise) any and all
jurisdictional, venue and convenience objections or defenses that such party
may have in such action, suit or proceeding. 



 


7

















 


Each Party hereby irrevocably and unconditionally
consents to the service of process of any of the aforementioned courts.  Nothing herein contained shall be deemed to
affect the right of any party to serve process in any manner permitted by Law
or commence legal proceedings or otherwise proceed against any other party in
any other jurisdiction to enforce judgments obtained in any action, suit or
proceeding brought pursuant to this section.


 


4.6           Waiver of Jury.  EACH OF THE PARTIES HEREBY WAIVES TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTERS
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO OR CONNECTED WITH THIS AGREEMENT OR THE TRANSACTION.


 


4.7           Specific Performance.  The Parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached.  Accordingly, the Parties agree
that, in addition to any other remedies, each Party shall be entitled to
enforce the terms of this Agreement by a decree of specific performance without
the necessity of proving the inadequacy of money damages as a remedy.  Each Party hereby waives any requirement for
the securing or posting of any bond in connection with such remedy.


 


4.8           Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.


 


4.9           Notices. All notices required or permitted
hereunder shall be in writing and shall be deemed effectively given: (i) upon
personal delivery to the Party to be notified, (ii) when sent by confirmed
telex or facsimile if sent during normal business hours of the recipient, if
not, then on the next business day; (iii) five days after having been sent
by registered or certified mail, return receipt requested, postage prepaid; or (iv) one
day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt.  All communications shall be sent to the
address as specified below or to any other address or addresses as any Party
may from time to time designate by written notice to the other Parties; as set
forth on the signature page hereof or at such other address as such Party
may designate by ten days advance written notice to the other Parties.


 


If
to Purchaser, to:


 


New
Tropicana Opco, Inc.,


3930
Howard Hughes Parkway, Fourth Floor


Las
Vegas, Nevada  89169


Attention:  Marc Rubinstein


Facsimile:
702-589-3889


 


With
a copy to:


 


Schulte
Roth & Zabel LLP

919 Third Avenue


 


8

















 


New
York, NY 10022

Attention: Richard A. Presutti


Facsimile:
212-593-5955


 


If
to Sellers, to:


 


Icahn
Capital LP

c/o Icahn Enterprises L.P.

767 Fifth Avenue, 47th Floor

New York, NY 10153

Attention: Keith Cozza 

Facsimile: 646-367-4550


 


With
a copy to:


 


Icahn
Capital LP

c/o Icahn Enterprises L.P.

767 Fifth Avenue, 47th Floor

New York, NY 10153

Attention: Keith Schaitkin

Facsimile: 212-688-1158


 


4.10         Amendments and Waivers. Any term of
this Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of all of the
Parties.


 


4.11         Severability. If one or more provisions
of this Agreement are held to be unenforceable under applicable Law, such
provision shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision were so excluded and shall
he enforceable in accordance with its terms.


 


4.12         Expenses.  Any and all costs and expenses (including
fees and disbursements of its counsel, accountants and other experts) incurred
by any of the Parties, the Company or Abura in connection with the preparation,
negotiation, execution, delivery and/or performance hereof, each of the other
documents and instruments executed in connection herewith or contemplated
hereby and/or the consummation of the transactions contemplated hereby and
thereby shall be borne by the Purchaser, unless the Transaction is not
consummated, in which case, each of the Purchaser, each Seller, the Company and
Abura shall bear its own such costs and expenses.


 


4.13         Entire Agreement. This Agreement and the
documents referred to herein constitute the entire agreement among the Parties
and no Party shall be liable or bound to any other Party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein.


 


9

















 


4.14         Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.


 


10
















 


IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first written above.


 


	
   

  	
  THE
  SELLERS:

  
	
   

  	
   

  
	
   

  	
  ICAHN
  PARTNERS LP

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  EDWARD E. MATTNER

  
	
   

  	
  Name:
  Edward E. Mattner

  
	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ICAHN
  PARTNERS MASTER FUND LP

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  EDWARD E. MATTNER

  
	
   

  	
  Name:
  Edward E. Mattner

  
	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ICAHN
  PARTNERS MASTER FUND II L.P.

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  EDWARD E. MATTNER

  
	
   

  	
  Name:
  Edward E. Mattner

  
	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ICAHN
  PARTNERS MASTER FUND III L.P.

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  EDWARD E. MATTNER

  
	
   

  	
  Name:
  Edward E. Mattner

  
	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  NEW
  TROPICANA OPCO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  SCOTT C. BUTERA

  
	
   

  	
  Name:
  Scott C. Butera

  
	
   

  	
  Title:
  President & Chief Executive Officer

  



 


[Signature Page to
Securities Purchase Agreement]


 

















 


Exhibit A


 


Company Shares and Purchase Price


 


	
  Seller

  	
   

  	
  Number of

  Company Shares

  	
   

  	
  Purchase Price

  	
   

  
	
  Icahn Partners LP

  	
   

  	
  4,070

  	
   

  	
  US$

  	
  4,450,981.03

  	
   

  
	
  Icahn Partners Master Fund L.P.

  	
   

  	
  4,576

  	
   

  	
  US$

  	
  5,004,346.24

  	
   

  
	
  Icahn Partners Master Fund II L.P.

  	
   

  	
  1,705

  	
   

  	
  US$

  	
  1,864,600.16

  	
   

  
	
  Icahn Partners Master Fund III L.P.

  	
   

  	
  649

  	
   

  	
  US$

  	
  709,751.03

  	
   

  
	
  Total

  	
   

  	
  11,000

  	
   

  	
  US$

  	
  12,029,678.45

  	
   

  



 

















 


Exhibit B


 


Wiring Instructions of Sellers


 


Bank
of America


ABA#
026009593


Attention:
Dave Famiglietti


 


Icahn
Partners LP – 4832040182


Icahn
Partners Master Fund LP – 483006922699


Icahn
Partners Master Fund II L.P. – 483006922194


Icahn
Partners Master Fund III L.P. - 483006923180


 

















 


Annex A


 


Deed of Assignment


 


(see attached)


 
















 


ENGLISH
TRANSLATION


 


DEED OF
ASSIGNMENT


 


This sixth day of May, two thousand and ten, appeared before me, mr. Ralph Elias
Yarzagaray, civil law notary in Aruba, in the presence of the witnesses to be
named hereinafter:


Mr. mr.
Jean Maurice DE CUBA, lawyer, born in Aruba on the first day of
December, nineteen hundred and sixty-six (12-01-1966), holder of an Aruban
driver’s license with number A-116334, issued in Aruba on the seventh day of
August, two thousand and one (08-07-2001), valid until the seventh day of
August, two thousand and eleven (08-07-2011), living in Aruba, Tanki Leendert
110, married, by these presents acting as agent, authorized in writing, of the
legal entity “WELLS FARGO BANK NATIONAL
ASSOCIATION”, domiciled in the United States of America, having its
registered offices at 101 North Philips Avenue, Sioux Falls, South Dakota
57104, United States of America, also to be named “Seller” or “Bank” hereinafter.


 


POWER OF ATTORNEY


 


The appearing party’s power of attorney is evidenced by one (1) private
letter of attorney, which, after having been authenticated by the agent in
advance in the presence of the witnesses and me, civil law notary, and having
been signed by all of them in evidence hereof, will be attached to the original
of the deed of special auction conditions, executed before me, civil law
notary, on the twenty-seventh day of April, two thousand and ten (04-27-2010).


 


OPENING BID AND DUTCH AUCTION


 


On this day, the auction by opening bid and Dutch auction of the
Registered Property to be set forth hereinafter took place. This is evidenced
by a record drawn up by me, civil law notary, on this day.


 


REGISTERED PROPERTY


 


A.                                    1.     the condominiums including
the right of exclusive use of condominium units with appurtenances, officially
described as Land Aruba, First Division, Section K, building number
2962-A, condominium numbers: 1 through 30, 36 through 47, 49 through 68, 73
through 88, 90 through 104,110 through 143, 148 through 163, 165 through 179,
185 through 218, 223 through 238, 240 through 254, 261 through 294, 308 through
311, 313 through 327, 329 through 362, all locally known as J.E. Irausquin
Boulevard no number, each constituting a sixty-three/thirty-two thousand four
hundred and sixty-fourth share in the joint ownership consisting of the
leasehold until the thirtieth day of July, two thousand and fifty-one, of a
parcel of public land, at the time of the division officially described as Land
Aruba, First Division, Section K, number 1884, with the buildings with
appurtenances located thereon;


 


2.              the
condominiums including the right of exclusive use of condominium units with
appurtenances, officially described as Land Aruba, First Division, Section K,
building number 2962-A, condominium numbers: 32, 35, 48, 70, 89, 106,


 

















 


109, 145, 164, 181, 184,
220, 239, 260, 299, 301, 302, 304, 305, 307, 312, and 328, all locally known as
J.E. Irausquin Boulevard no number, each constituting an
eighty-eight/thirty-two thousand four hundred and sixty-fourth (88/32464) share
in the joint ownership consisting of the leasehold until the thirtieth day of
July, two thousand and fifty-one, of a parcel of public land, at the time of
the division officially described as Land Aruba, First Division, Section K,
number 1884, with the buildings with appurtenances located thereon;


 


3.              the
condominiums including the right of exclusive use of condominium units with
appurtenances, officially described as Land Aruba, First Division, Section K,
building number 2962-A, condominium numbers: 31, 33, 34, 69, 71, 72, 105, 107,
144, 146, 147, 180, 182, 183, 219, 221, and 222, all locally known as J.E.
Irausquin Boulevard no number, each constituting a one hundred and twenty-six/thirty-two
thousand four hundred and sixty-fourth (126/32464) share in the joint ownership
consisting of the leasehold until the thirtieth day of July, two thousand and
fifty-one, of a parcel of public land, at the time of the division officially
described as Land Aruba, First Division, Section K, number 1884, with the
buildings with appurtenances located thereon;


 


4.              the
condominiums including the right of exclusive use of condominium units with
appurtenances, officially described as Land Aruba, First Division, Section K,
building number 2962-A, condominium numbers: 256, 257, 259, and 296, all
locally known as J.E. Irausquin Boulevard no number, each constituting a one
hundred and eighty-four/thirty-two thousand four hundred and sixty-fourth
(184/32464) share in the joint ownership consisting of the leasehold until the
thirtieth day of July, two thousand and fifty-one, of a parcel of public land,
at the time of the division officially described as Land Aruba, First Division,
Section K, number 1884, with the buildings with appurtenances located
thereon;


 


5.              the
condominiums including the right of exclusive use of condominium units with
appurtenances, officially described as Land Aruba, First Division, Section K,
building number 2962-A, condominium numbers: 255, 295, 297, and 298, all
locally known as J.E. Irausquin Boulevard no number, each constituting a two
hundred and sixty-seven/thirty-two thousand four hundred and sixty-fourth
(267/32464) share in the joint ownership consisting of the leasehold until the
thirtieth day of July, two thousand and fifty-one, of a parcel of public land,
at the time of the division officially described as Land Aruba, First Division,
Section K, number 1884, with the buildings with appurtenances located
thereon;


 


6.              the
condominiums including the right of exclusive use of condominium units with
appurtenances, officially described as Land Aruba, First Division, Section K,
building number 2962-A, condominium numbers: 300, 303, and 306, all locally
known as J.E. Irausquin Boulevard no number, each constituting a
seventy-six/thirty-two thousand four hundred and sixty-fourth share in the
joint ownership consisting of the leasehold until the thirtieth day of July,
two thousand and fifty-one, of a parcel of public land, at the time of the
division officially described as Land Aruba, First Division, Section K,
number 1884, with the buildings with appurtenances located thereon;


 


7.              the
condominiums including the right of exclusive use of condominium units with
appurtenances, officially described as Land Aruba, First Division, Section K,
building number 2962-A, condominium numbers: 363 and 364, all locally known as
J.E. Irausquin Boulevard no number, each constituting a thirty-


 


2

















 


eight/thirty-two thousand
four hundred and sixty-fourth share in the joint ownership consisting of the
leasehold until the thirtieth day of July, two thousand and fifty-one, of a
parcel of public land, at the time of the division officially described as Land
Aruba, First Division, Section K, number 1884, with the buildings with
appurtenances located thereon;


 


8.              the
condominium including the right of exclusive use of the condominium unit with
appurtenances, officially described as Land Aruba, First Division, Section K,
building number 2962-A, condominium number 258, locally known as J.E. Irausquin
Boulevard no number, constituting a one hundred and sixty-six/thirty-two
thousand four hundred and sixty-fourth (166/32464) share in the joint ownership
consisting of the leasehold until the thirtieth day of July, two thousand and
fifty-one, of a parcel of public land, at the time of the division officially
described as Land Aruba, First Division, Section K, number 1884, with the
buildings with appurtenances located thereon;


 


9.              the
condominium including the right of exclusive use of the condominium unit with
appurtenances, officially described as Land Aruba, First Division, Section K,
building number 2962-A, condominium number 365, locally known as J.E. Irausquin
Boulevard no number, constituting a one hundred and forty-six/thirty-two
thousand four hundred and sixty-fourth (146/32464) share in the joint ownership
consisting of the leasehold until the thirtieth day of July, two thousand and
fifty-one, of a parcel of public land, at the time of the division officially
described as Land Aruba, First Division, Section K, number 1884, with the
buildings with appurtenances located thereon;


 


10.       the condominium including the right
of exclusive use of the condominium unit with appurtenances, officially
described as Land Aruba, First Division, Section K, building number
2962-A, condominium number 366, locally known as J.E. Irausquin Boulevard no
number, constituting a one hundred and seventeen/thirty-two thousand four
hundred and sixty-fourth (117/32464) share in the joint ownership consisting of
the leasehold until the thirtieth day of July, two thousand and fifty-one, of a
parcel of public land, at the time of the division officially described as Land
Aruba, First Division, Section K, number 1884, with the buildings with
appurtenances located thereon;


 


11.       the condominium including the right
of exclusive use of the condominium unit with appurtenances, officially
described as Land Aruba, First Division, Section K, building number
2962-A, condominium number 367, locally known as J.E. Irausquin Boulevard no
number, constituting a seven hundred and ninety-seven/thirty-two thousand four
hundred and sixty-fourth share in the joint ownership consisting of the
leasehold until the thirtieth day of July, two thousand and fifty-one, of a
parcel of public land, at the time of the division officially described as Land
Aruba, First Division, Section K, number 1884, with the buildings with
appurtenances located thereon;


 


12.       the condominium including the right
of exclusive use of the condominium unit with appurtenances, officially
described as Land Aruba, First Division, Section K, building number
2962-A, condominium number 368, locally known as J.E. Irausquin Boulevard no
number, constituting a one thousand three hundred and eighty-three/thirty-two
thousand four hundred and sixty-fourth share in the joint ownership consisting
of the leasehold until the thirtieth day of July, two thousand and fifty-one,
of a parcel of public land, at the time of the division officially described as
Land Aruba, First Division, Section K, number 1884, with the buildings
with appurtenances located thereon;


 


3

















 


13.       the condominium including the right
of exclusive use of the condominium unit with appurtenances, officially
described as Land Aruba, First Division, Section K, building number
2962-A, condominium number 369, locally known as J.E. Irausquin Boulevard no
number, constituting a six hundred and forty-four/thirty-two thousand four
hundred and sixty-fourth (644/32464) share in the joint ownership consisting of
the leasehold until the thirtieth day of July, two thousand and fifty-one, of a
parcel of public land, at the time of the division officially described as Land
Aruba, First Division, Section K, number 1884, with the buildings with
appurtenances located thereon;


 


14.       the condominium including the right
of exclusive use of the condominium unit with appurtenances, officially
described as Land Aruba, First Division, Section K, building number
2962-A, condominium number 370, locally known as J.E. Irausquin Boulevard no
number, constituting a two thousand four hundred and twenty-seven/thirty-two
thousand four hundred and sixty-fourth share in the joint ownership consisting
of the leasehold until the thirtieth day of July, two thousand and fifty-one,
of a parcel of public land, at the time of the division officially described as
Land Aruba, First Division, Section K, number 1884, with the buildings
with appurtenances located thereon;


 


15.       the condominium including the right
of exclusive use of the condominium unit with appurtenances, officially
described as Land Aruba, First Division, Section K, building number
2962-A, condominium number 371, locally known as J.E. Irausquin Boulevard no
number, constituting a nine hundred and forty-two/thirty-two thousand four
hundred and sixty-fourth (942/32464) share in the joint ownership consisting of
the leasehold until the thirtieth day of July, two thousand and fifty-one, of a
parcel of public land, at the time of the division officially described as Land
Aruba, First Division, Section K, number 1884, with the buildings with
appurtenances located thereon;


 


B.                                    the leasehold until the thirtieth day of July, two thousand and fifty-one
(07-30-2051) of a parcel of public land, seven thousand seven hundred and
eighty square meters (7,780 m2) in size, located at Eagle in Aruba, officially
described as Land Aruba, First Division, Section K, number 3088, with the
office, sports (tennis courts) and building land located there;


 


C.                                    Inventory present in aforementioned condominiums, as regards the
condominium with number 371 only that inventory that is owned by debtor; jointly to be
named the “Registered Property” hereinafter.


 


OWNER


 


Lessee of the Registered Property is: the corporation “KL Resort
Development Company N.V.”, established on the twenty-fourth day of April, two
thousand and seven (04-24-2007), domiciled in Aruba, J.E. Irausquin Boulevard
248, registered in the Trade Register of the Chamber of Commerce and Industry
Aruba under number 36081.0 on the twenty-sixth day of April, two thousand and
seven (04-26-2007), declared bankrupt in Aruba on the twenty-ninth day of
December, two thousand and nine (12-29-2009); to be named “the Owner” hereinafter;


 


For the acquisition of ownership and the power of Seller to proceed to
selling at an auction, reference is made to aforementioned record..


 


AUCTION CONDITIONS


 


The following apply to the auction:


 


a.               the “General Conditions of
Foreclosure Sales nineteen hundred and ninety-three” (“AVVE”), contained in a
deed executed before me, civil law notary, on the twentieth day of October, two
thousand and five, a transcript of which was entered in Register C, Volume 650,
number 45, of


 


4

















 


the Mortgage Registry Office in Aruba on the
twenty-first day of October, two thousand and five;


 


b.              the deed containing special
auction conditions, executed before me, civil law notary, on the twenty-seventh
day of April, two thousand and ten (04-27-2010).


 


AMOUNT OF THE OPENING BID


 


As appears from aforementioned deed of opening bid, the opening bid on
the Registered Property was twenty-eight million eight hundred and ninety-nine
thousand nine hundred and ninety-nine Aruban florins and ninety cents (Afl.
28,899,999.90) by Mr. Vincent James INTRIERI, senior managing director,
born in Eerie, Pennsylvania (United States of America) on the seventeenth day
of August, nineteen hundred and fifty-six (8-17-1956), holder of an American
passport with number: 218842201, issued in the United States of America on the
twenty-first day of July, two thousand and six (7-21-2006), valid through the
twentieth day of July, two thousand and sixteen (7-20-2016), living in New York
(United States of America), Icahn Capital LP, 767, 5th Avenue, 47th floor
(10153), married, by these presents acting as managing director of the
corporation with limited liability “Abura Development Corporation VBA”,
domiciled at Montaña 238, Noord, in Aruba, established by deed of the fifth day
of May, two thousand and ten (05-05-2010), executed before me, civil law
notary, and registered with the Chamber of Commerce and Industry of Aruba in
file number 39726, and as such by these presents validly representing
aforementioned corporation; to be named “opening
bidder” hereinafter.


 


THE DUTCH AUCTION


 


Aforementioned Registered Property was auctioned by Dutch auction at an
amount of thirty-six million Aruban florins (Afl. 36,000,000.00) by Mr. Vincent
James INTRIERI, senior managing director, born in Eerie, Pennsylvania (United
States of America) on the seventeenth day of August, nineteen hundred and
fifty-six (8-17-1956), holder of an American passport with number: 218842201,
issued in the United States of America on the twenty-first day of July, two
thousand and six (7-21-2006), valid through the twentieth day of July, two
thousand and sixteen (7-20-2016), living in New York (United States of
America), Icahn Capital LP, 767, 5th Avenue, 47th floor (10153), married, by these presents
acting as managing director of the corporation with limited liability “Abura Development Corporation
VBA”, domiciled at Montaña 238, Noord, in Aruba, established
by deed of the fifth day of May, two thousand and ten (05-05-2010), executed
before me, civil law notary, and registered with the Chamber of Commerce and
Industry of Aruba in file number 39726, and as such by these presents validly
representing aforementioned corporation.


 


RIGHT OF DELIBERATION


 


Seller declared to use his right of deliberation as referred to in
Article 8, General Provisions governing Forced Sales.


 


ASSIGNMENT


 


Seller declared to assign the Registered Property at aforementioned bid
of thirty-six million Aruban florins (Afl. 36,000,000.00) to Mr. Vincent
James INTRIERI, senior managing director, born in Eerie, Pennsylvania (United
States of America) on the seventeenth day of August, nineteen hundred and
fifty-six (8-17-1956), holder of an American passport with number: 218842201,
issued in the United States of America on the twenty-first day of July, two
thousand and six (7-21-2006), valid through the twentieth day of July, two
thousand and sixteen (7-20-2016), living in New York (United States of
America), Icahn Capital LP, 767, 5th Avenue, 47th floor (10153), married, by these presents
acting as managing director of the corporation with limited liability “Abura Development Corporation
VBA”, domiciled at Montaña 238, Noord, in Aruba, established
by deed of the fifth day of May, two thousand and ten (05-05-2010), executed
before me, civil law notary, and registered with the Chamber of Commerce and
Industry of Aruba in file


 


5

















 


number 39726, and as such by these presents validly representing aforementioned
corporation. This assignment is evidenced by an oral statement by Seller of
this day.


 


DOMICILE


 


For the execution hereof, as well as for its fiscal consequences,
domicile is invariably elected at the offices of the keeper of this deed until the
end of the execution.


 


The appearing party and the witnesses are known to me, civil law
notary.


 


IN WITNESS WHEREOF


this deed was drawn up in one original copy and executed in Aruba, the
day first written above, in the presence of:


Ms. mr. Natalie Doorenbos,
lawyer, born in Vught (the Netherlands) on the twenty-second day of March,
nineteen hundred and eighty (03-22-1980) and Ms. Petronella Elisabeth
Johanna Seyfarth, notarial clerk, born in Tilburg (the Netherlands) on the
fifth day of January, nineteen hundred and sixty-nine (01-05-1969), both living
in Aruba, as witnesses.


 


Immediately upon reading, this record was signed by the appearing
party, the witnesses, and me, civil law notary, at eleven hours and thirty
minutes.


 


[was signed]


 


6