Exhibit E
REPURCHASE AGREEMENT
This Repurchase Agreement (the "Agreement") is made as of the 1st day
of March, 2000, by and between American Real Estate Holdings Limited Partnership
("AREH"), a Delaware limited partnership, and Larch, LLC (the "Company"), a
Delaware limited liability company.
RECITALS:
WHEREAS, GB Property Funding Corp., a Delaware corporation ("GBPF") and
Greate Bay Hotel and Casino, Inc., a New Jersey corporation ("GBH&C") are
wholly-owned subsidiaries of GB Holdings, Inc., a Delaware corporation ("GB
Holdings") (GB Holdings together with its subsidiaries and any successors or
assigns of any thereof are referred to collectively herein as "GB Group");
WHEREAS, GBH&C owns the Sands Hotel and Casino located in Atlantic
City, New Jersey (the "Casino");
WHEREAS, GBPF was organized during September 1993 as a special purpose
subsidiary of GB Holdings for the purpose of borrowing funds through the
issuance of bonds, which were unconditionally guaranteed by GBH&C and GB
Holdings;
WHEREAS, AREH and Cyprus, LLC, a Delaware limited liability company and
an affiliate of the Company ("Cyprus"), are the owners of certain Guaranteed
First Mortgage Notes of GBPF (hereinafter "GBPF Bonds" as further defined in
Exhibit A hereto);
WHEREAS, On January 5, 1998, GB Holdings, GBPF and GBH&C each filed a
petition for relief under Chapter 11 of the United States Bankruptcy Code in the
United States Bankruptcy Court for the District of New Jersey (the "Court").
WHEREAS, AREH and Cyprus intend to enter into arrangements with respect
to the ownership and operation of the Casino;
WHEREAS, AREH, Cyprus and the Company desire to obtain certain licenses
which will permit them to own, operate and manage the Casino, upon their
attainment of a controlling interest in GB Holdings;
WHEREAS, if the Company obtains such licenses necessary to own, operate
and manage the Casino before AREH can obtain such licenses, AREH wishes to sell
its GBPF Bonds to the Company;
WHEREAS, if the above-referenced sale of GBPF Bonds occurs, AREH plans
to repurchase from the Company the GBPF Bonds formerly held by it if and when it
also obtains the licenses necessary to own, operate and manage the Casino;
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WHEREAS, the Company, Cyprus and the New Jersey Casino Control
Commission (the "Commission") entered into a certain trust agreement (the "Trust
Agreement") with a trustee (the "Trustee") under which, among other things,
there will be a transfer of all GBPF Bonds held by the Company and Cyprus to the
Trustee pending approval of the Company and Cyprus as a holding and/or
intermediary company of a New Jersey casino license; and
WHEREAS, AREH and the Company wish to express their agreement on
certain other related terms, as set forth herein.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth in this Agreement and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties to
this Agreement, intending themselves and their respective successors and assigns
to be legally bound, agree as follows:
I. THE SALE TRANSACTION
AREH agrees to sell and transfer to the Company, and the Company agrees
to buy from AREH, on the Closing Date (as hereinafter defined), all GBPF Bonds
(as defined on Exhibit A, attached hereto and made a part hereof) which are held
by AREH at the time of the Closing (as hereinafter defined), including the right
to receive any Proceeds (as defined on Exhibit A) thereon received after the
Closing (such GBPF Bonds together with such Proceeds are referred to herein
collectively as the "AREH Bonds"), for cash consideration in the amount (the
"Purchase Price") of $25,294,154.99, which amount shall be (i) reduced by the
product of such amount and a fraction (A) the numerator of which is the
principal amount of GBPF Bonds sold by AREH between the execution of this
Agreement and the Closing Date pursuant to Section 6.1(C) of this Agreement, and
(B) the denominator of which is the principal amount of GBPF Bonds held by AREH
at the time of the execution of this Agreement and (ii) increased by the
aggregate amount paid by AREH for GBPF Bonds purchased after the execution of
this Agreement and which are still held at the time of the Closing.
II. CLOSING
2.1 The consummation of the transaction contemplated by Article I of
this Agreement (the "Closing") shall occur on March 15, 2000 (the "Closing
Date").
2.2 Closing shall not occur, and this Agreement shall be automatically
terminated without further action by the parties hereto, if any of the following
events occur before the Closing Date:
A. AREH obtains Licensing before, or at the same time as the
Company obtains Licensing; or
B. Xxxx X. Icahn, the Company's sole member, fails to obtain
Licensing prior to the date which is eighteen (18) months
after the execution of this Agreement.
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2.3 Closing shall be held at the offices of Icahn Associates
Corp., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A. At Closing, AREH shall deliver to the Company:
(1) the AREH Bonds;
(2) duly executed instruments transferring sole ownership
of the AREH Bonds to the Company; and
(3) such other and further documents and instruments
as the Company shall reasonably request prior to the
Closing Date.
B. At Closing, the Company shall deliver to AREH:
(1) the Purchase Price; and
(2) such other and further documents and instruments
as AREH shall reasonably request prior to the Closing
Date.
III. REPRESENTATIONS OF THE PARTIES
3.1 AREH represents to the Company and its successors and assigns
that:
A. AREH is a limited partnership duly organized, validly existing, and
in good standing under the laws of the State of Delaware with full power and
authority necessary to own, sell and reacquire the AREH Bonds pursuant to this
Agreement;
B. AREH has full power and authority necessary to execute and deliver,
and perform all obligations pursuant to, this Agreement;
C. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, have been duly and validly authorized by
the General Partner of AREH and no other approval or proceedings by AREH, its
partners or any other entity (other than approvals or proceedings necessary for
AREH to obtain Licensing) is necessary to authorize this Agreement or the
consummation of the transactions contemplated hereby;
D. This Agreement has been duly and validly executed and delivered by
AREH, and constitutes the valid and binding agreement of AREH, enforceable
against AREH in accordance with its terms;
E. The execution and delivery by AREH of this Agreement will not: (i)
conflict with, or constitute a breach of, or a default under, any applicable
law, rule, judgment, order, writ,
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injunction, or decree of any court, or rule or regulation of any
administrative agency or other governmental authority to which AREH is subject;
(ii) violate any provision of the Certificate of Limited Partnership or the
Agreement of Limited Partnership of AREH; (iii) violate any provision of, result
in the breach of, or entitle any party to accelerate or terminate (whether after
the giving of notice or lapse of time or both) an obligation under any mortgage,
lien, lease, contract, license, instrument, or any other agreement to which AREH
is a party; or (iv) result in the creation or imposition of any lien, charge,
pledge, security interest or other encumbrance upon the AREH Bonds; and
F. All negotiations relative to this Agreement have been carried on by
it directly without the intervention of any broker, finder or third party other
than attorneys, accountants or other professionals retained to represent it and
compensable by other than a brokerage or finders fee or commission.
3.2 The Company represents to AREH and its successors and assigns that:
A. The Company is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of Delaware with full
power and authority necessary to acquire, own and resell the AREH Bonds pursuant
to this Agreement;
B. The Company has full power and authority necessary to execute and
deliver, and perform all obligations pursuant to, this Agreement;
C. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, have been duly and validly authorized by
the Company and the sole member of the Company, and no other approval or
proceedings by the Company, its member or any other entity (other than approvals
or proceedings necessary for the Company to obtain Licensing) is necessary to
authorize this Agreement or the consummation of the transactions contemplated
hereby;
D. This Agreement has been duly and validly executed and delivered by
the Company, and constitutes the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms;
E. The execution and delivery by the Company of this Agreement will
not: (i) conflict with, or constitute a breach of, or a default under, any
applicable law, rule, judgment, order, writ, injunction, or decree of any court,
or rule or regulation of any administrative agency or other governmental
authority to which the Company is subject; (ii) violate any provision of the
Articles of Organization or the Operating Agreement of the Company; (iii)
violate any provision of, result in the breach of, or entitle any party to
accelerate or terminate (whether after the giving of notice or lapse of time or
both), an obligation under, any mortgage, lien, lease, contract, license,
instrument, or any other agreement to which the Company is a party; or (iv)
result in the creation or imposition of any lien, charge, pledge, security
interest or other encumbrance upon the AREH Bonds;
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F. All negotiations relative to this Agreement have been carried on by
it directly without the intervention of any broker, finder or third party other
than attorneys, accountants or other professionals retained to represent it and
compensable by other than a brokerage or finders fee or commission; and
G. If the Company were to borrow the Purchase Price as of the date of
the execution of this Agreement, the approximate cost of such funds to the
Company would be the rate of Interest (as defined on Exhibit A).
IV. ACTIONS BY THE COMPANY
4.1 Notwithstanding any terms or provisions to the contrary in Section
4.2 of this Agreement, after the Closing and prior to the Repurchase Closing (as
defined below), if any, the Company shall have full and complete authority to
take any and all action with respect to all GBPF Bonds held by it and any and
all action with respect to its investment in GBPF.
4.2 Except as provided in Section 4.1 of this Agreement, the Company
shall generally limit its activities to the following during the term of this
Agreement:
A. Accepting funds ("Icahn Advance") from Xxxx X. Icahn or any entities
which are at least 95% directly or indirectly owned by Xxxx X. Icahn
(collectively, "Icahn Affiliates", which term shall not include the Company or
GB Group or the successors or assigns of any thereof), to be used by the Company
pursuant to Section 4.1 in respect of the AREH Bonds, or to pay any amounts
necessary to exercise any options, warrants or other similar rights and
interests issued or distributed by GB Group in respect of the ownership of the
AREH Bonds ("Options"), and repaying such funds;
B. Incurring indebtedness from any person other than an Icahn Affiliate
("Third Party Loans") and repaying such indebtedness;
C. Loaning funds or other assets owned by the Company, other than
securities issued by GB Group, to any Icahn Affiliate ("Company Loan");
D. Incurring and paying expenses in connection with any of the
activities described in Section 4.1 or Section 4.2; and
E. Investing cash on hand not utilized as described in Section 4.1 or
Section 4.2(A) through Section 4.2(D) in (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof, (ii) time deposits and certificates of deposit and
commercial paper issued by any domestic commercial bank of recognized standing
having capital and surplus in excess of $100,000,000 (an "Approved Bank"), (iii)
commercial paper issued by any person incorporated under the laws of the United
States, or any State thereof, rated at least A-1 or the equivalent thereof by
Standard & Poor's Corporation or at least P-1 or the equivalent thereof by
Moody's Investor's Service, Inc. and in each case maturing
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within one year after the date of acquisition, (iv) repurchase obligations with
a term of not more than seven days for underlying securities of the type
described in clauses (i) through (iii) of this Section 4.2(F) entered into with
any Approved Bank or nationally recognized securities dealer, (v) money market
funds which have net assets of at least $100 million, substantially all of whose
assets comprise securities of the types described in clauses (i) - (iv) above,
and (vi) free credit balance obligations of nationally recognized securities
dealers.
4.3 Any Icahn Advance or Company Loan shall accrue Interest (as such
term is defined on Exhibit A) from the date such amount is received by or
disbursed by the Company, as the case may be, until (i) in the case of an Icahn
Advance, the Repurchase Date, and (ii) in the case of a Company Loan, the time
of repayment of such Company Loan. All Company Loans and Third Party Loans shall
be required to be repaid no later than at the time of the Repurchase Closing (as
hereinafter defined).
4.4 Pursuant to the terms of a certain Letter Agreement, of even date
herewith, among the parties hereto, Cyprus and Xxxx X. Icahn, on behalf of all
other Icahn Affiliates (the "Letter Agreement"), the Company will sell AREH
Bonds and exercise Options on a proportional basis with Cyprus and the Icahn
Affiliates. To the extent of any conflict between the terms and provisions of
Article IV of this Agreement and the Letter Agreement, the terms and provisions
of the Letter Agreement shall be determinative.
4.5 No term or provision in this Agreement shall limit or restrict the
right of any Icahn Affiliate to purchase or acquire GBPF Bonds (other than as
required under Section 4.4 in connection with the exercise of Options).
V. THE REPURCHASE TRANSACTION
5.1 If, prior to the date which is eighteen (18) months after the
Closing Date (i) AREH obtains Licensing, (ii) AREH is no longer required to
obtain or maintain Licensing in order to own the AREH Bonds, or (iii) all of the
AREH Bonds have been converted into Proceeds which are cash or cash equivalents,
by way of sale or otherwise, AREH shall be required promptly to repurchase all
of the AREH Bonds, and the Company shall be required to promptly resell such
AREH Bonds to AREH (the date of repurchase hereinafter referred to as the
"Repurchase Date"), for cash consideration (the "Repurchase Price") equal to:
A. the Purchase Price; plus
B. Interest on the Purchase Price calculated from the Closing
Date to the Repurchase Date; plus
C. the sum of all Icahn Advances to the extent not included
in the Purchase Price; plus D. the aggregate of all
Interest accrued on Icahn Advances referred to in (C)
above; plus
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E. all amounts owed at the time of the Repurchase Closing
with respect to Third Party Loans in respect of AREH
Bonds, taking into account repayments of Third-Party
Loans in respect of AREH Bonds up to the time of the
Repurchase Closing; less F. all amounts owed at the
time of the Repurchase Closing with respect to Company
Loans, taking into account repayments of Company Loans up
to the time of the Repurchase Closing.
5.2 AREH shall not be required to repurchase, and the Company shall not
be required to resell the AREH Bonds under Section 5.1 of this Agreement, if, as
of the date which is eighteen (18) months after the Closing Date, (i) AREH is
required to obtain Licensing in order to own the AREH Bonds and (ii) AREH has
not yet obtained Licensing.
5.3 The repurchase of the AREH Bonds (the "Repurchase Closing") shall
take place at the offices of Icahn Associates Corp., 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000. AREH shall provide the Company with written notice of the
Repurchase Date and the time of the Repurchase Closing at least three (3) days
prior to the Repurchase Date.
A. At the Repurchase Closing, the Company shall deliver to
AREH:
(1) the AREH Bonds;
(2) duly executed instruments transferring sole
ownership of the AREH Bonds to AREH; and
(3) such other and further documents and instruments
as AREH shall reasonably request of the Company prior
to the Repurchase Date.
B. At the Repurchase Closing, AREH shall deliver to the
Company:
(1) the Repurchase Price; and
(2) such other and further documents and instruments as
the Company shall reasonably request of AREH prior to
the Repurchase Date.
5.4 Any disputes or discrepancies regarding calculation of the
Repurchase Price shall be referred to an independent firm of certified public
accountants mutually acceptable to the parties hereto. Any conclusion or
decision of such firm shall be binding on the parties and their successors and
assigns absent manifest error.
VI. COVENANTS OF THE PARTIES
6.1 AREH covenants to the Company that:
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A. At Closing, AREH shall vest good and marketable title to
the AREH Bonds in the Company, free and clear of liens, claims and encumbrances.
B. AREH will make all reasonable efforts to obtain all state
and local licenses, permits and approvals (as listed on Exhibit B, attached
hereto and made a part hereof) essential to its legal ownership, operation and
management of the Casino ("Licensing"), prior to the date which is eighteen (18)
months after the execution of this Agreement or, if Closing occurs prior to such
date, prior to the date which is eighteen (18) months after the Closing Date.
If, between the date of the execution of this Agreement and the Closing Date,
or, if prior to the date which is eighteen (18) months after the Closing Date,
AREH is no longer obligated to obtain or maintain Licensing, then AREH's
obligations under this Section 6.1(B) shall terminate unless the Company
reasonably determines that AREH's failure to obtain or maintain Licensing would
adversely affect the Icahn Affiliates.
X. XXXX shall not dispose of any GBPF Bonds or alienate any
interest therein or arising therefrom between the execution of this Agreement
and the Closing Date. Notwithstanding the foregoing, if any Icahn Affiliate
sells any GBPF Bonds between the date of the execution of this Agreement and the
Closing Date, AREH may, prior to the Closing Date, sell GBPF Bonds having a
principal amount equal to the product of the aggregate principal amount of GBPF
Bonds held by AREH prior to such sale and a fraction (i) the numerator of which
is the principal amount of GBPF Bonds sold by Icahn Affiliates in such sale, and
(ii) the denominator of which is the aggregate principal amount of GBPF Bonds
held by Icahn Affiliates immediately prior to such sale.
X. XXXX shall indemnify, defend and hold the Company harmless
from and against any and all liability (whether accrued, absolute, contingent or
otherwise) loss, damage, expense (including reasonable attorneys' fees) or
deficiency resulting from any misrepresentation, breach of covenant or warranty
or nonfulfillment of any agreement on the part of AREH under this Agreement.
6.2 The Company covenants to AREH that:
A. The Company will make all reasonable efforts to obtain
Licensing, and to assist each of AREH and Xxxx X. Icahn in obtaining Licensing,
prior to the date which is eighteen (18) months after the execution of this
Agreement or, if Closing occurs prior to such date, to assist AREH in obtaining
Licensing prior to the date which is eighteen (18) months after the Closing
Date.
B. At the Repurchase Closing, the Company shall vest good and
marketable title to the AREH Bonds in AREH, free and clear of liens, claims and
encumbrances.
C. The Company shall indemnify, defend and hold AREH harmless
from and against any and all liability (whether accrued, absolute, contingent or
otherwise) loss, damage, expense (including reasonable attorneys' fees) or
deficiency resulting from any misrepresentation,
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breach of covenant or warranty or nonfulfillment of any agreement on the part
of the Company under this Agreement.
6.3 Notwithstanding any term or provision to the contrary in this
Agreement, the Company shall have no obligation to initiate, participate in or
facilitate the reorganization of GB Group under Chapter 11 of the United States
Bankruptcy Code.
VII. MISCELLANEOUS
7.1 Notwithstanding any terms or provisions to the contrary in this
Agreement, this Agreement and all rights, duties and obligations of the parties
pursuant hereto are wholly contingent upon the execution of the Letter Agreement
in the form attached hereto as Exhibit C.
7.2 This Agreement, including all exhibits hereto, contains the entire
agreement between the parties hereto and supersedes any and all prior
agreements, arrangements or understandings between the parties relating to the
subject matter hereof. No oral understandings, statements, promises or
inducements contrary to the terms of this Agreement exist. No representations,
warranties, covenants or conditions, express or implied, whether by statute or
otherwise, other than as set forth herein, have been made by either of the
parties.
7.3 No waiver of any term, provision, or condition of this Agreement
whether by conduct or otherwise, in any one or more instances shall be deemed to
be, or construed as, a further or continuing waiver of the same or any other
term, provision or condition of this Agreement.
7.4 All representations, warranties, covenants, and agreements made by
each party to this Agreement shall survive the execution of this Agreement
unless or except as stated otherwise, and each party hereto, and their
successors and assigns, shall be entitled to rely upon the representations and
warranties of the other party, notwithstanding any investigation conducted
before or after execution of this Agreement, or the decision of any party to
complete this transaction.
7.5 This Agreement shall be governed in all respects in accordance with
the laws of the State of New York without reference to that state's conflict of
laws provisions.
7.6 This Agreement will be binding upon the respective legal
representatives, successors and permitted assigns of the parties hereto. No
party hereto may assign the interests or delegate the duties of such party under
this Agreement to any other person without the prior written consent of the
other party. Notwithstanding the foregoing, the Company may assign all or any
lesser number of the AREH Bonds, and any and all rights, interests, duties and
obligations of the Company under this Agreement to any Affiliate of Xxxx X.
Icahn, provided that the transferee assumes all duties and obligations of the
Company under this Agreement.
7.7 All notices required or permitted hereunder shall be in writing and
shall be deemed to be properly given to a party hereto when received by such
party:
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To AREH: Xx. Xxxx X. Xxxxxxxxxx
American Real Estate Holdings, Limited Partnership
000 Xxxxx Xxxxxxx Xxxx
Xx. Xxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
Attn: Xxxxx X. Xxxxxxx, Esq.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Company: Xx. Xxxx X. Icahn
Larch, LLC
000 Xxxxx Xxxxxxx Xxxx
Xx. Xxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Icahn Associates Corp.
Attn.: Xxxx Xxxxxxx, Esq.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7.8 This Agreement may not be released, discharged, abandoned, changed
or modified in any manner, except by an instrument in writing signed on behalf
of each of the parties hereto by their duly authorized officers or
representatives.
7.9 Nothing in this Agreement shall be deemed to create any rights in
persons not parties hereto, other than the permitted successors and assigns of
the parties hereto.
7.10 The parties hereto and any successors and assigns thereof shall
each pay their own expenses in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement, and the consummation of
the transactions contemplated hereby. Notwithstanding the foregoing, each of the
parties hereto or the successors and assigns thereof shall each pay half of any
fees of an independent firm of certified public accountants appointed pursuant
to Section 5.4 hereof.
7.11 The section headings in this Agreement are for reference purposes
only and shall not affect the meaning and interpretation of this Agreement.
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7.12 Each of the parties hereto shall prepare, execute and deliver any
documents and/or instruments, in addition to those required by this Agreement,
reasonably necessary to carry out or implement any term or provision of this
Agreement when reasonably requested to do so by the other party to this
Agreement.
7.13 If any term or provision of this Agreement shall be declared
invalid or illegal for any reason whatsoever, such term or provision shall be
reformed in accordance with the intentions of the parties to the fullest extent
possible, to render such term or provision valid and enforceable.
7.14 This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all counterparts together shall
constitute one Agreement. Facsimile transmission of an executed counterpart
hereof by a party shall be deemed delivery by such party of such counterpart by
the party or parties receiving it.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties to this Agreement have
executed the same as of the 1st day of March, 2000.
AMERICAN REAL ESTATE HOLDINGS
LIMITED PARTNERSHIP
By: AMERICAN PROPERTY INVESTORS, INC.
Its: General Partner
By:/s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
LARCH, LLC
By: /s/ Xxxx X. Icahn
Name: Xxxx X. Icahn
Title: Sole Member
[Signature Page to Repurchase Agreement between AREH and Larch, LLC with
respect to GBPF Bonds]
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EXHIBIT A
For the purposes of this Agreement:
"Interest" shall mean interest per annum of one hundred fifty (150) basis points
over the prime rate announced in New York City by Citibank, N.A. from time to
time.
"Proceeds" shall mean any and all cash, property, securities, rights or other
proceeds which the holder of GBPF Bonds receives in respect thereof or in
exchange therefor, whether or not in connection with a reorganization of GB
Group under Chapter 11 of the United States Bankruptcy Code and/or in connection
with any recapitalization of GB Group, including, without limitation, proceeds
of the repayment of any Company Loan described in Section 4.2(C) of this
Agreement and any Interest thereon, and excluding (i) any amounts received by
AREH with respect to sales permitted pursuant to Section 6.1(C) of this
Agreement, and (ii) any amounts used to repay Third Party Loans.
"GBPF Bonds" shall mean the Guaranteed First Mortgage Notes of GBPF, bearing
interest at 10 7/8% per annum, due and payable January 15, 2004, and all
Proceeds thereof.
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EXHIBIT B
Each of the following shall be deemed to have obtained Licensing within the
meaning of this Agreement upon the procurement of the licenses, certifications,
permits and/or approvals listed below their names:
AREH:
A determination by the New Jersey Casino Control Commission that AREH is
plenarily qualified as a holding and/or intermediary company of Greate Bay Hotel
& Casino, Inc.
The Company:
A determination by the New Jersey Casino Control Commission that the Company is
plenarily qualified as a holding and/or intermediary company of Greate Bay Hotel
& Casino, Inc.
Xxxx X. Icahn:
A determination by the New Jersey Casino Control Commission that Xxxx X. Icahn
is plenarily qualified as an individual qualifier of Greate Bay Hotel & Casino,
Inc.
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EXHIBIT C
[Letter Agreement attached hereto]
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LETTER AGREEMENT
This Letter Agreement (the "Agreement") is made as of the 1st day of
March, 2000, by and between American Real Estate Holdings Limited Partnership
("AREH"), a Delaware limited partnership, Larch, LLC, a Delaware limited
liability company ("Larch"), Cyprus, LLC, a Delaware limited liability company
("Cyprus") and Xxxx X. Icahn, an individual ("Icahn").
RECITALS:
WHEREAS, AREH and Larch entered into a certain Repurchase Agreement of
even date herewith between AREH and Larch (the "Repurchase Agreement");
WHEREAS, as of the date hereof Cyprus owns GBPF Bonds;
WHEREAS, Section 4.4 of such Repurchase Agreement contemplates that
Larch and other entities at least 95% directly or indirectly owned by Icahn
("Icahn Affiliates", which term shall include Cyprus but shall not include Larch
or GB Group and/or the successors or assigns of any thereof) will, should they
at any time during the term of the Repurchase Agreement own any GBPF Bonds, act
in accordance with this Agreement with respect to the disposition of GBPF Bonds
during the term of the Repurchase Agreement; and
WHEREAS, the execution of the Repurchase Agreement is contingent upon
the execution of this Agreement.
NOW THEREFORE, in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree on behalf of themselves and their successors and assigns
that:
1. Any capitalized terms not defined herein shall have the meaning
ascribed to them in the Repurchase Agreement.
2. If, between the Closing Date and the Repurchase Closing, Larch, on
the one hand, or any Icahn Affiliate, on the other, sells GBPF Bonds or
exercises Options, then, within a reasonable time thereafter, an Icahn
Affiliate, on the one hand, or Larch on the other, respectively, shall
sell GBPF Bonds or exercise Options, as the case may be, so that Larch,
on the one hand, and Icahn Affiliates, on the other hand, sold GBPF
Bonds in proportion to their relative holdings of GBPF Bonds
immediately prior to the sale which invoked this Section 2 and
exercised Options in proportion to their relative holdings of Options
immediately prior to the exercise which invoked this Section 2. For
purposes of this Section 2, (i) GBPF Bonds shall include interests in
GB Group acquired after the Closing Date of the same class as GBPF
Bonds, and (ii) sales or transfers of GBPF Bonds between Icahn
Affiliates shall not be taken into account and shall not constitute a
sale. The Repurchase Price set forth in the Repurchase Agreement shall
be adjusted properly
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to take into account (i) an allocation between the Icahn Affiliates, on
the one hand, and Larch, on the other, of the amount received with
respect to sales of GBPF Bonds between the Closing Date and the
Repurchase Date, so that the Icahn Affiliates, on the one hand, and
Larch, on the other, receive the same average price for GBPF Bonds sold
during such period, and (ii) an allocation of Expenses (as hereinafter
defined) incurred between the Closing Date and the Repurchase Date in
proportion to the relative time weighted average of GBPF Bonds held by
Larch, on the one hand, and the Icahn Affiliates, on the other.
3. For the purposes of this Agreement, "Expenses" shall mean any and
all expenses paid or incurred by Larch or an Icahn Affiliate with
respect to actions authorized under Section 4.1 of the Repurchase
Agreement including interest paid or accrued with respect to any Third
Party Loan to the extent incurred to fund such expenses and excluding
any amount expended to purchase additional GBPF Bonds, whether through
exercise of an Option or otherwise, and interest paid or accrued on
Third Party Loans to the extent incurred to fund such purchase.
4. Icahn agrees to cause the Icahn Affiliates to perform this Agreement
in accordance with its terms.
5. This Agreement shall be governed in all respects in accordance with
the laws of the State of New York without reference to its conflicts of
laws provisions.
6. No waiver of any term, provision, or condition of this Agreement
whether by conduct or otherwise, in any one or more instances shall be
deemed to be, or construed as, a further or continuing waiver of the
same or any other term, provision or condition of this Agreement.
7. This Agreement will be binding upon the respective legal
representatives, successors and permitted assigns of the parties
hereto. No party hereto may assign the interests or delegate the duties
of such party under this Agreement to any other person without the
prior written consent of the other party. Notwithstanding the
foregoing, any Icahn Affiliate may assign all its rights, interests,
duties and obligations under this Agreement to any other Icahn
Affiliate, provided that the transferee assumes all duties and
obligations of the transferor hereunder.
8. This Agreement may not be released, discharged, abandoned, changed
or modified in any manner, except by an instrument in writing signed on
behalf of each of the parties hereto by their duly authorized officers
or representatives.
9. The section headings in this Agreement are for reference purposes
only and shall not affect the meaning and interpretation of this
Agreement.
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10. Each of the parties hereto shall prepare, execute and deliver any
documents and/or instruments, in addition to those required by this
Agreement, reasonably necessary to carry out or implement any term or
provision of this Agreement when reasonably requested to do so by the
other party to this Agreement.
11. If any term or provision of this Agreement shall be declared
invalid or illegal for any reason whatsoever, such term or provision
shall be reformed in accordance with the intentions of the parties to
the fullest extent possible, to render such term or provision valid and
enforceable.
12. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all counterparts together shall
constitute one Agreement. Facsimile transmission of an executed
counterpart hereof by a party shall be deemed delivery by such party of
such counterpart by the party or parties receiving it.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties to this Agreement have
executed the same as of the 1st day of March, 2000.
AMERICAN REAL ESTATE HOLDINGS
LIMITED PARTNERSHIP
By: AMERICAN PROPERTY INVESTORS, INC.
Its: General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
LARCH, LLC
By: /s/ Xxxx X. Icahn
Name: Xxxx X. Icahn
Title: Sole Member
CYPRUS, LLC
By: BARBERRY CORP.
Its: Managing Member
By: /s/ Xxxx X. Icahn
Name: Xxxx X. Icahn
Title: President
XXXX X. ICAHN
/s/ Xxxx X. Icahn
[Signature Page to Letter Agreement between AREH, Cyprus, LLC,
Larch, LLC and Xxxx X. Icahn relating to the GBPF Bonds]
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